Norwood v. Salvatore

DOUGLAS NORWOOD, III; LEEANN NORWOOD;and D.N., Minor Son of Plaintiffs NORWOOD, Plaintiffs, v. MICHAEL SALVATORE, in his capacity asTOWN OF HANCOCK CODE ENFORCEMENT OFFICER;and TOWN OF HANCOCK, Defendants.

3:12-cv-1025 (MAD/DEP)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

March 15, 2016

APPEARANCES:

OFFICE OF JOHN V. JANUSAS, ESQ.

184 North Main Street

Liberty, New York 12754

Attorney for Plaintiffs

MACKENZIE HUGHES LLP

101 South Salina Street

PO Box 4967

Syracuse, New York 13221-4967

Attorneys for Defendants

OF COUNSEL:

JOHN V. JANUSAS, ESQ.

WILLIAM B. HUNT, ESQ.

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On June 22, 2012, Plaintiffs commenced this action pursuant to 42 U.S.C. § 1983. Plaintiffs allege that Defendant Town of Hancock, New York, and its code enforcement officer, Defendant Michael Salvatore, violated Plaintiffs' rights under the Due Process and Equal Protection Clauses in relation to Plaintiffs' efforts to secure a building permit for their property. After the completion of a trial, the jury found in Plaintiffs' favor and awarded compensatory damages in the amount of $107,000.00. See Dkt. No. 81. Currently pending before the Court are Plaintiffs' motion for attorney's fees and Defendants' post-trial motion for judgment as a matter of law. See Dkt. Nos. 89, 92.

II. BACKGROUND

A. Procedural History

On June 22, 2012, Plaintiffs Douglas, LeeAnn, and Devon Norwood (the "Norwoods" or "Plaintiffs") and Paul and Lena Orlowski (the "Orlowski Plaintiffs") filed their initial complaint, which alleged violations of each Plaintiffs' substantive due process and equal protection rights, requested declaratory relief as to the Norwood Plaintiffs, and asserted a malicious prosecution claim as to the Orlowski Plaintiffs. See Dkt. No. 1. On April 10, 2013, this Court granted Defendants' Rule 12(b)(5) motion to dismiss for insufficient service as to Defendant Salvatore in his personal capacity and denied the motion as to Defendant Town of Hancock and Defendant Salvatore in his official capacity. Dkt. No. 15 at 5-9. This Court also dismissed the Norwood Plaintiffs' equal protection claim and request for declaratory relief and the Orlowski Plaintiffs' substantive due process, equal protection, and malicious prosecution claims pursuant to Rule 12(b)(6). Id. at 9-27. The April 10 order further granted Plaintiffs leave to amend their complaint as to their equal protection claims, denied Defendants' motion to dismiss on qualified immunity grounds, and did not dismiss the Norwood Plaintiffs' substantive due process claim. Id. at 22-23, 27-29.

On May 6, 2013, Plaintiffs filed an amended complaint expanding the allegations regarding their equal protection claims. See Dkt. Nos. 19, 19-1. On January 17, 2014, the Court dismissed the Norwood Plaintiffs' equal protection claims and the Orlowski Plaintiffs' selective enforcement equal protection claim. See Dkt. No. 29. The Court denied Defendants' motion to dismiss as to the Orlowski Plaintiffs' "class of one" equal protection claim. Id. at 21-22. Afterthe Court's January 17, 2014 Order, the only causes of action remaining were the Norwood Plaintiffs' substantive due process claim and the Orlowski Plaintiffs' "class of one" equal protection claim. See id. at 22.

On January 31, 2014, Defendants filed their answer to Plaintiffs' amended complaint. Dkt. No. 30. After discovery, Defendants moved for summary judgment on June 30, 2014. Dkt. No. 42. On February 13, 2015, the Court granted Defendants' motion for summary judgment as to the Orlowski Plaintiffs' equal protection claim. Dkt. No. 52. Following this order, the Orlowski Plaintiffs were terminated from the action and the Norwood Plainitffs' substantive due process claim was the only claim that remained for trial. Id. at 23 n.12.

This matter proceeded to trial on June 1, 2015. At the close of Plaintiffs' case, Defendants moved for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50. See Dkt. Nos. 94-96, Trial Transcripts ("T."), at 192. The motion asserted that Plaintiffs failed to show both that Defendants acted in a manner that was outrageous and shocking to the conscience and also that Defendant Salvatore acted pursuant to a town policy or custom. T. at 192. Finding that Plaintiffs had presented certain evidence to establish these elements, the Court reserved its decision on Defendants' motion. T. at 220. The jury returned a verdict in Plaintiffs' favor, awarding $107,000.00 in compensatory damages. See Dkt. No. 79.

B. Trial Testimony¹

1. Douglas Norwood

Mr. Norwood testified that he generally enjoyed living in East Branch and the communityaround him. T. at 60-62. He lived in a home with his wife and four children, which burned down in May of 2008. T. at 62. The house was covered for approximately $90,000 in insurance, which the Norwoods received from the insurance company six to eight months after the fire. T. at 63, 64. Mr. Norwood first spoke to Mr. Salvatore at his office several months after cleaning up the debris from their burned house. T. at 67. At this meeting, Mr. Norwood presented Mr. Salvatore with a building permit application with plans to build a modular home on a concrete slab. T. at 69. Mr. Salvatore said that Plaintiffs could not build the modular house on the ground, but would have to build it elevated to the Federal Emergency Management Agency ("FEMA") elevation specs since the building site was located in a designated floodplain. T. at 69. Mr. Salvatore indicated that the Norwoods would need professional plans from an engineer to meet the FEMA requirements and did not accept the building permit application for the modular home. T. at 70.

At a town meeting discussing rebuilding the Norwoods' home, Mr. Salvatore indicated that "he didn't know if he would issue a permit at all" even if the Norwoods could build to floodplain specs. T. at 73-74. However, Mr. Norwood submitted a new application with the required engineer certification and Mr. Salvatore accepted the application, saying that "everything was in order and looked fine." T. at 78. The application states that the amount enclosed is $261.00, which was not written in Mr. Norwood's handwriting. T. at 78-79; Dkt. No. 89-2. Mr. Norwood testified that he paid this amount in cash to Mr. Salvatore. T. at 78. Mr. Salvatore accepted this application and gave a second copy of the construction plans back to Mr. Norwood, which he understood to mean that he would be issued a building permit. T. at 79. After accepting the application, Mr. Salvatore told Mr. Norwood that he "could go ahead and start the footings." T. at 79-80. The Norwoods began construction on their new home in mid-spring of 2009. T. at 81.

The first work that Mr. Norwood did on the house was to put the footings in. T. at 81. After this, Mr. Salvatore came to the building site to conduct a first inspection. T. at 81. After ten days, Mr. Salvatore came back for a second inspection to make sure the cement was poured correctly and that the rebar was set in the correct place. T. at 82-83. Mr. Salvatore "said everything looked fine" and did not tell Mr. Norwood to stop construction on his home. T. at 83. After approximately another week, Mr. Salvatore conducted a third inspection of the concrete Sonotubes and, once again, told Mr. Norwood that "everything was up to code and looked good." T. at 84-85. Up to this point, Mr. Norwood had spent approximately $22,000 to $23,000 on rebuilding the house. T. at 84.

After the third inspection, Mr. Norwood put in girders and floor joists, which cost approximately $3,000 to $5,000. T. at 86. After this, Mr. Salvatore came back to the house and told Mr. Norwood to stop working because he did not have his building permit attached to the side of the house, and that he should come to Mr. Salvatore's office on Monday to resolve the issue. T. at 87. Mr. Norwood classified this as a "verbal stop work order." T. at 87. Mr. Norwood spent approximately $30,000 on the process of rebuilding his house before he was told to stop the construction. T. at 93.

The following Monday at the meeting, Mr. Salvatore told Mr. Norwood that "he didn't think that . . . the town was going to issue [Plaintiffs] a permit at that time." T. at 89. Mr. Salvatore did not mention anything about the payment of the application fee at this meeting. T. at 90. Rather, Mr. Salvatore said "I don't think I'd like you to build there anyway because if anything happened to you or your family and your home, I would feel responsible." T. at 89. Mr. Norwood was upset after hearing this and left without any further conversation with Mr. Salvatore. T. at 89. Mr. Norwood never received a written stop work order and never followedup with the town to see if he could get his permit after this meeting. T. at 97, 98. Eventually, Plaintiffs sold their property for $1,000. T. at 93. Mr. Norwood did not know what his property would have been worth if he had completed the construction on his home. T. at 106.

Immediately after the fire destroyed their house, Mr. and Mrs. Norwood moved with their two youngest children to Mrs. Norwood's mother's home, while the other two children moved in with their uncle across the street. T. at 63. After realizing that they would not be able to complete their home, the whole family moved in with Mrs. Norwood's father. T. at 91. The family proceeded to move six times in the next seven years. T. at 91.

Mr. Norwood testified that, while the denial of the building permit did not immediately affect his relationship with his wife, they are currently separated, with Mrs. Norwood and the two youngest children living approximately 45 minutes away. T. at 92, 94. Mr. Norwood testified that felt mad and upset when Mr. Salvatore first told him that he would not be able to continue constructing his home, saying that "it sucks" to have spent so much time and money to no avail. T. at 89, 93, 95. Mr. Norwood testified that he was depressed...