Veile v. Martinson

• Decision Date: 30 July 2001
• Docket Number: No. 00-8005,00-8005
• Citation: 258 F.3d 1180
• Parties: (10th Cir. 2001) DAVID M. VEILE; VEILE MORTUARY, INC., Plaintiffs-Counter defendants - Appellants, v. GORDON D. MARTINSON, individually and in his official capacity as Washakie County Coroner; RALPH SEGHETTI, individually and in his official capacity as Washakie County Sheriff; STAN TIMS; GEORGE A. WILLIAMS, individually and in his official capacity as Washakie County Deputy Coroner; SCOTT G. PARIS, individually and in his official capacity as Washakie County Ambulance Service Employee; ROBERT A. BRYANT, III, individually and in his official capacity as Washakie County Ambulance Service Employee; WASHAKIE COUNTY BOARD OF COUNTY COMMISSIONERS, Defendants-Appellees, MICHAEL L. BRYANT, individually and in his official capacity as Washakie County Deputy Coroner; BRYANT FUNERAL HOME, INC., a Wyoming corporation, Defendants-Counterclaimants - Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1180

258 F.3d 1180 (10th Cir. 2001)

DAVID M. VEILE; VEILE MORTUARY, INC., Plaintiffs-Counter defendants - Appellants, v. GORDON D. MARTINSON, individually and in his official capacity as Washakie County Coroner; RALPH SEGHETTI, individually and in his official capacity as Washakie County Sheriff; STAN TIMS; GEORGE A. WILLIAMS, individually and in his official capacity as Washakie County Deputy Coroner; SCOTT G. PARIS, individually and in his official capacity as Washakie County Ambulance Service Employee; ROBERT A. BRYANT, III, individually and in his official capacity as Washakie County Ambulance Service Employee; WASHAKIE COUNTY BOARD OF COUNTY COMMISSIONERS, Defendants-Appellees, MICHAEL L. BRYANT, individually and in his official capacity as Washakie County Deputy Coroner; BRYANT FUNERAL HOME, INC., a Wyoming corporation, Defendants-Counterclaimants - Appellees.

No. 00-8005

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

July 30, 2001

Appeal from the United States District Court for the District of Wyoming (D.C. No. 98-CV-194-J) [Copyrighted Material Omitted] William G. Hibbler (Mary B. Guthrie with him on the briefs), Cheyenne, Wyoming, for Plaintiffs-Counterdefendants - Appellants.

Terry L. Armitage, Cheyenne, Wyoming, for Defendants-Counterclaimants - Appellees.

Before SEYMOUR, Circuit Judge, BRORBY, Senior Circuit Judge, and BROWN,^* District Judge.

BRORBY, Senior Circuit Judge.

Plaintiffs David M. Veile and Veile Mortuary, Inc. appeal the district court's conclusion they did not possess a protected property interest in a rotation policy established by defendant Gordon D. Martinson, the Coroner of Washakie County, Wyoming, and the court's decision to strike an expert witness designation on the property interest issue. Further, they challenge the district court's refusal to give a particular jury instruction in the trial on defendants Michael L. Bryant's and Bryant Funeral Home, Inc.'s counterclaim alleging antitrust violations, defamation, and stalking. Finally, Mr. Veile challenges the sufficiency of the evidence supporting the jury verdict in Mr. Bryant's favor on the stalking claim. We have jurisdiction under 28 U.S.C. 1291 and affirm.

I. Background

Mr. Veile is the owner/operator of Veile Mortuary in Worland, Wyoming. In 1995, Mr. Bryant opened Bryant Funeral Home in direct competition with Veile Mortuary. Around this time, Mr. Bryant also joined the Washakie County Ambulance Service as a volunteer emergency medical technician, and became a deputy coroner at Coroner Martinson's invitation. In an effort "to treat both [funeral homes] equally," Coroner Martinson established a policy requiring the referral of "coroner cases"¹ to Veile Mortuary and Bryant Funeral Home on an odd- and even-month rotating basis when (1) a funeral home preference had not been expressed by the deceased person or his family, or (2) a body is unclaimed or unidentified (hereinafter "rotation policy"). Mr. Veile and Veile Mortuary sued Mr. Martinson, Mr. Bryant, two other deputy coroners, the Board of County Commissioners, and Bryant Funeral Home under 42 U.S.C. 1983 and 1985(3) claiming a constitutionally protected property interest in the rotation policy, and defendants' failure to follow the policy with certain coroner cases over a three-year period.² In support of this claim, plaintiffs designated Ronnie W. Flud, the Coroner of Clark County, Nevada, as an expert witness to testify about the operation of coroner rotation systems.

Defendants filed a motion to strike the designation of Mr. Flud as an expert witness due to the alleged unreliability and irrelevance of his proposed testimony. Adopting the magistrate judge's report and recommendation, the district court granted defendants' motion to strike. Specifically, the district court held plaintiffs "failed ... to provide some indication of the reliability of the designated testimony" as required by Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), in that "Mr. Flud asks us only to rely on his long experience to support his conclusion that the [rotation] policy was violated. This is not enough."

Defendants also filed a motion for summary judgment arguing plaintiffs did not have a constitutionally protected property interest and defendants are protected by qualified immunity. After reviewing the deposition testimony, exhibit, and case law plaintiffs presented in opposition to the summary judgment motion, the district court concluded the rotation policy: (1) did not constitute an agency or administrative regulation under Wyoming law; (2) was not required or supported by any Wyoming statute, regulation, or administrative rule; (3) had not been declared a constitutionally protected property interest by the Wyoming Supreme Court; and (4) was "laden with ambiguity" in that it was neither mandatory nor binding for any specific period of time. The district court characterized the rotation policy as "an informal system or informative policy adopted by Coroner Martinson to provide guidance in the performance of the duties of the coroner's office with respect to coroner's cases." Accordingly, the district court held "plaintiffs' complaint fails to allege that the defendants deprived them of a protected interest, and thus, the plaintiffs' claims against all defendants based upon federal law fail." Finally, the district court held defendants were entitled to qualified immunity based on plaintiffs' failure to meet its summary judgment burden of showing defendants' actions violated a constitutional right that was clearly established at the time of the conduct at issue.

Mr. Bryant and Bryant Funeral Home counterclaimed pursuant to federal antitrust law and state law claims of stalking and defamation. The district court denied plaintiffs' motion for summary judgment on defendants' counterclaim, and the counterclaim proceeded to trial. At the close of Mr. Bryant's and Bryant Funeral Home's case-in-chief, Mr. Veile moved for judgment as a matter of law in his favor on all three causes of action. The district court granted the motion on the antitrust and defamation claims, but allowed the stalking claim to continue. At the close of evidence, Mr. Veile renewed his motion for judgment as a matter of law on the stalking claim; The district court denied the motion. The jury found Mr. Veile guilty of stalking and awarded Mr. Bryant $90,000 in compensatory damages and $86,000 in punitive damages. Mr. Veile filed a motion for a new trial and renewed his motion for judgment as a matter of law, both of which the district court denied.

There are four issues on appeal. Mr. Veile and Veile Mortuary claim the district court erred by concluding the rotation policy did not create a constitutionally protected property interest under 1983,³ striking the designation of Mr. Flud as an expert witness, and refusing to instruct the jury on the directed verdicts in their favor on the antitrust and defamation counterclaims. Mr. Veile claims insufficient evidence existed to support the jury verdict in Mr. Bryant's favor on the stalking counterclaim.

II. Discussion

A. Section 1983 Claim

We review the grant of summary judgment de novo utilizing the standard described in Rule 56(c) of the Federal Rules of Civil Procedure. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). Summary judgment is appropriate if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). Under this standard, we view the evidence and draw reasonable inferences in the light most favorable to the nonmovant. See Adler, 144 F.3d at 670.

"Section 1983 provides a federal cause of action against any person who, acting under color of state law, deprives another of his federal rights." Conn v. Gabbert, 526 U.S. 286, 290 (1999). "The Fourteenth Amendment's procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 576 (1972). "In determining whether an individual has been deprived of his [Fourteenth Amendment] right to procedural due process, courts must engage in a two-step inquiry: (1) did the individual possess a protected interest such that the due process protections were applicable; and if so, then (2) was the individual afforded an appropriate level of process." Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994). Accordingly, we turn to the threshold legal issue whether Mr. Veile and Veile Mortuary possessed a constitutionally protected property interest in the rotation policy. See id. We conclude they did not and affirm the district court's ruling.

"Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Roth, 408 U.S. at 577. "Protected property interests arise ... from state statutes, regulations, city ordinances, and express or implied contracts. Such interests may be created by rules or mutually explicit understandings that support Plaintiff's claim of entitlement to the benefit." Dill v. City of Edmond, 155 F.3d 1193, 1206 (10th Cir. 1998) (quotation marks, citations and alteration omitted). In other words, "[property] interests attain ... constitutional status by virtue of the fact that they have been initially recognized and protected by state law." Paul v. Davis, 424 U.S. 693, 710 (1976).

We agree with the district court that the most analogous case law addresses tow truck/wrecker rotational policies utilized by law enforcement organizations to deal with auto accidents and disabled vehicles. See, e.g., Abercrombie v. City of Catoosa, 896 F.2d 1228 (10th Cir. 1990). In Abercrombie, we held an Oklahoma statute...