Westmore, Patricia et al v. Hyde, David et al
Filing
162
ORDER on Bill of Costs: Costs Taxed in favor of Defendants in the amount of $ 4,666.16; Denying 151 Motion to Stay execution of judgment by plaintiffs; Denying 154 Motion to Alter or Amend Judgment by plaintiffs. Signed by District Judge William M. Conley on 9/21/2017. (voc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
PATRICIA A WESTMORE and DWIGHT R.
WESTMORE,
Plaintiffs,
OPINION AND ORDER
v.
14-cv-861-wmc
DAVID HYDE, CALLAE K. HYDE, SHERIFF
MICHAEL BRENNAN, DEPUTY TERRI L.
PROVOST,
and
ASHLAND
COUNTY,
WISCONSIN,
Defendants.
Following a five-day trial, a civil jury concluded that defendants David Hyde and
Terri Provost search of plaintiffs’ property was reasonable and that those defendants, as
well as defendant Callae Hyde, had reasonably seized (or authorized the seizure of)
plaintiffs’ donkey and horses. (Special Verdict -- Liability (dkt. #140).) On May 27,
2016, the clerk entered final judgment on all claims in favor of defendants. (Dkt. #146.)
Plaintiffs Patricia and Dwight Westmore subsequently filed post-trial motions to alter or
amend the judgment, which purport to challenge: (1) the jury’s verdict as to their Fourth
Amendment unreasonable search claims; and (2) the court’s earlier grant of summary
judgment on plaintiffs’ claim for denial of procedural due process in connection with
defendants’ seizure of their donkey (See 5/5/16 Op. & Order (dkt. #93). (Dkt. #154.)
For the reasons explained below, the court will deny plaintiffs’ motion.1
Also pending before the court is defendants’ bill of costs (dkt. #148), and plaintiffs’ motion to
stay execution of judgment awarding defendants’ costs as the prevailing party (dkt. #151). The
1
OPINION
Plaintiffs technically moved the court to alter or amend the first three answers on
the Special Verdict form to “Yes” and to amend the court’s judgment, citing Federal Rule
of Civil Procedure 59(e), even though Rule 59 authorizes district courts to amend
judgments, not verdicts. See Frazier v. Boyle, 206 F.R.D. 480, 492 (E.D. Wis. 2002). In the
same motion, plaintiffs alternatively seek an order for a new trial. Under Rule 59(a), a
party may be entitled to a new trial “if the verdict is against the clear weight of the
evidence or the trial was unfair to the moving party.” Whitehead v. Bond, 680 F.3d 919,
927 (7th Cir. 2012). To prevail on a Rule 59(e) motion to amend judgment, a party
must “demonstrate a manifest error of law or present newly discovered evidence.”
Seng-Tiong Ho v. Taflove, 648 F.3d 489, 505 (7th Cir. 2011); see also Harrington v. City of
Chi., 433 F.3d 542, 546 (7th Cir. 2006) (a Rule 59(e) motion must “clearly establish” a
manifest error of law). Regardless, plaintiffs are not entitled to relief under the applicable
standards of review.
I. Unreasonable Search
A.
Jury Instructions
Plaintiffs argue that the court’s instructions to the jury contained two material
misstatements of law:
(1) the closing liability instructions confused the jury by
explaining the “plain view” doctrine in connection with a search, rather than a seizure;
court effectively granted the latter motion by virtue of the court delaying ruling on the bill of
costs until it had decided plaintiffs’ post-trial motion. Plaintiffs, however, offered no objections
to defendants’ bill of costs. Moreover, the court finds the costs to be well-documented and
limited to approved categories of expenses. As such, the court will grant defendants their
requested costs in the amount of $4,666.16.
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and (2) the court’s response to a question from the jury added to that confusion by
conflating the plain view doctrine with the “exigent circumstances” doctrine, which
applies to both warrantless searches and seizures. Although the reasoning is difficult to
follow and underwhelming, plaintiffs then assert that these errors “incorrectly suggested”
the jury should find defendants’ searches were not unreasonable “if defendants could
merely ‘see something’ from plaintiffs’ driveway.” (Pls.’ Opening Br. (dkt. #155) 8.)2
With respect to the closing liability instructions, plaintiffs emphasize the following
language from the “Unreasonable Search” instruction, which concerns the extension of
the Fourth Amendment’s protection against unreasonable searches to areas beyond the
home itself:
Generally, there is no Fourth Amendment expectation of
privacy for areas that can be viewed from a driveway,
walkway or other areas that can be openly viewed by the
public, including the visible interior of a barn or other
structure when the doors are left open to public view. In
determining whether a property owner has a reasonable
expectation of privacy in a barn or other structure on their
property, you may consider such factors as:
its proximity to the home;
whether it is fenced-in or closed;
whether anything obstructs access to or view of it; and
Plaintiffs’ arguments with respect to the court’s closing liability instructions in their opening
brief are confusing at best and underdeveloped at worst. See Hess v. Kanoski & Assocs., 668 F.3d
446, 455 (7th Cir. 2012) (“[P]erfunctory and undeveloped arguments, and arguments that are
unsupported by pertinent authority, are waived.”) (citation omitted). As plaintiffs point out, the
defendants’ arguments in opposition to their motions are also poorly developed, but this does not
relieve plaintiffs of the burden of persuading the court of their right to relief under Rule 59. See
Ajala v. Swiekatowsi, 13-cv-638-bbc, 2016 WL 492319, at *4 (W.D. Wis. Feb. 5, 2016)
(“[R]egardless whether defendant argued the correct standard, it was plaintiff’s burden to
convince the court that he was entitled to a new trial. Thus, even if [the court] disregarded
defendants’ brief, [it] would not grant plaintiff’s motion unless he made the necessary showing.”).
If anything, plaintiffs’ failure to develop its argument in the first instance partially explains the
perfunctory nature of defendants’ response.
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whether it is a typical location for a property owner to
engage in private activities.
(Pls.’ Opening Br. (dkt. #155) 5 (emphasis removed) (quoting Liability Jury Instructions
(dkt. #142) 3).)
Plaintiffs fail entirely, however, to articulate the reasons why they
believe this portion of the instructions misstated the law, aside from insisting repeatedly
that the “plain view” doctrine only applies to seizures, not searches, which on its face, at
least, appears to be a non sequitur.
Even taking the plaintiffs’ excerpted, underlined language out of context from the
whole “unreasonable search” instruction, neither the words “plain view,” nor the
elements of the plain view doctrine are included; nor do they appear anywhere else in the
court’s unreasonable search instructions. On the contrary, the language only addresses
the scope of the property owners’ reasonable expectation of privacy in areas that can be
viewed from a driveway or walkway, including unobstructed views into an open barn or
other structure on the property. As reflected in the final jury instructions conference, the
court adopted this instruction after plaintiffs objected to defendants’ much broader
proposal, which described the concept of access by “open field” on the theory that none
of the pastureland or outbuildings granted any expectation of privacy. Thus, the portion
of the instructions plaintiffs would emphasize concerns only whether a search occurred
within the meaning of the Fourth Amendment, and it was specifically directed to assist
the jury in thinking about what defendants could see from different positions on
plaintiffs’ property without implicating their reasonable “expectation of privacy.” (See,
e.g., 5/26/16 a.m. Trial Tr. (dkt. #153) 42-43, 50-51.) Tellingly, plaintiffs did not object
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to the introduction of the concept of an expectation of privacy, just to the court’s
attempt to better define that for the jury. (Id.)
Plaintiffs’ citing of a Second Circuit case for the proposition that the “distinction
between searches and seizures is of critical importance as a matter of law” under the plain
view doctrine just furthers the confusion. In Ruggiero v. Krzeminski, 928 F.2d 558 (2d Cir.
1991), the court simply held that warrantless seizures do not violate the Fourth
Amendment when the government official’s “initial intrusion . . . [was] lawful so that he
can justify being in a position to make his discovery” and he “had probable cause to
believe that the item seized was evidence of a crime.” Id. at 561 (citations omitted).
That holding has no significance here. First, as noted previously, the language from the
jury instruction in this case makes no reference, either explicit or implicit, to the plain
view doctrine. Plaintiffs’ description of it as the so-called “plain view” instruction derives
from a shorthand label used by the parties and the court to refer to the language defining
a reasonable expectation of privacy, as reflected in discussions about the liability jury
instructions cited above. However legally imprecise this label might have been under
Fourth Amendment jurisprudence, it does not make the instruction that the court
actually gave erroneous as a matter of law, necessitating a new trial, much less a directed
verdict. (See 5/25/16 Trial Tr. (dkt. #149) 236-37.)
Second, the pages from the trial transcript that plaintiffs’ counsel cites to suggest
that the court overruled an objection to this excerpted language being part of the search
instruction is contradicted by the transcript of the trial. Indeed, counsel’s sole objection
was that “the plain view would only apply to the search, not the seizure,” and so
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plaintiffs’ counsel asked this language to be “moved into the . . . search part [of the
closing liability instructions].” (Id.) Thus, plaintiffs did not object to the inclusion of
instruction describing a lawful search, but rather to its application in determining
whether a “seizure” satisfied the Fourth Amendment. Specifically, after a long colloquy
with the court about the risk the discussion of the definition of “privacy interest” set
forth above might be applied by the jury to seizures, the court agreed to move that
discussion under the search heading only, which satisfied plaintiffs’ concern:
THE COURT: All right. I’ll start a new paragraph with the
second sentence on page 3 which will read – which begins
with, “The curtilage is the area,” and at that point I will move
the heading for unreasonable searches.
MR. STODDARD: Okay. Thank you, Your Honor. I think
that addresses it.
(Id. 238.)
To reinforce the distinction between a lawful search and seizure, the court further
posed separate special verdict questions for each claim of an unlawful search, as well as
each claim of an unlawful seizure, then emphasized in its instructions to the jury that
they should refer to the specific applicable instructions in deciding the answer to each
question. Accordingly, plaintiffs’ current objection is both waived and meritless.3 See
Fed. R. Civ. P. 51(d)(1)(A); see also Chestnut v. Hall, 284 F.3d 816, 819-20 (7th Cir.
2002) (“Rule 51 requires not only that objections to jury instructions be made in a
Plaintiffs’ waiver also includes any argument that the challenged instruction did not fit properly
with the facts of this case, as it seems to argue by citing Siebert v. Severino, 256 F.3d 648 (7th Cir.
2001), as a “perfectly analogous” case. (Pls.’ Opening Br. (dkt. #155) 8.) On the contrary, both
sides here presented evidence and argument to the jury at trial as to what defendants could see
from various locations on plaintiffs’ property for just this reason. (See, e.g., 5/26/16 a.m. Trial Tr.
(dkt. #153) 42-43, 50-51.)
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timely fashion and on the record, but also with sufficient specificity to apprise the district
court of the legal and factual bases for any perceived defect.”).
B.
Response to Jury Question
Plaintiffs also argue that the court somehow again misstated the law in responding
to a jury question during their liability deliberations. In its second such question to the
court, the jury asked, “If you are able to ‘see something’ from the driveway, does that
give you the right to go further onto the property and look more closely at it?” (Dkt.
#141-9.) After a discussion with the parties, the court responded, “If what the person
sees constitutes obvious ‘exigent circumstances,’ he or she may proceed further onto the
property to address the exigent circumstances. Otherwise, the answer to question (2) is
‘no.’” (Id.)
The term “exigent circumstances” was previously defined for the jury in the
instructions. (See Liability Jury Instructions (dkt. #142) 4).) Nevertheless, plaintiffs
argue that the court’s response -- particularly in combination with the language about
what constitutes an unreasonable search -- somehow “incorrectly suggested to the jury
that the first three questions on the Special Verdict form [asking whether the named
defendants searches were unreasonable under the Fourth Amendment] should be
answered ‘No’ if defendants could merely ‘see something’ from plaintiffs’ driveway.”
(Pls.’ Opening Br. (dkt. #155) 8.) The opposite is true.
First, while plaintiffs’ counsel originally took the position that the answer to the
jury’s question should be a flat “No,” he ultimately did not object to the more nuanced
answer, which after all was consistent with the court’s original jury instructions, except to
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ask for an even greater restriction than the law required -- that the exigent circumstance
be “obvious.”
THE COURT: All right. Unless there’s something further,
I’ll give those two answers then:
To question 1: “A search is any entry onto property in which
a person has a reasonable expectation of privacy. See current
instructions.”
To question 2: “If what the person sees constitutes “exigent
circumstances’” -- the last two words in quotes -- “he or she
may proceed further onto the property to address that exigent
circumstance.”
MR. STODDARD: Your Honor, excuse me. I thought you
were going to leave the word “obvious exigent circumstance.”
THE COURT: I did. I’m sorry, I did say that. If I didn’t say
that, I will include that in the instruction.
MR STODDARD: Thank you.
(Id. (dkt. #157) 60.)
Second, the assertion that the court’s response to the jury’s question suggested
that defendants did not commit an unlawful search if they could “merely ‘see something’
from plaintiffs’ driveway” completely ignores the instruction that the court actually gave.
Specifically, the court emphasized that a further inspection would be warranted only
when that “something” constituted “obvious ‘exigent circumstances.’”
Plaintiffs also argue that the response was confusing because the exigent
circumstances doctrine applied to both searches and seizures, but they fail to explain
what part is confusing.
If anything, referring the jury to the applicable “exigent
circumstances” definition in the written instructions -- multiple copies of which had
already been provided for use by the jury during deliberation -- would seem a correct
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response to the jury’s vague and generic question, not to mention the best way to avoid
confusion. Accordingly, plaintiffs’ argument that it is entitled to a directed verdict or
new trial based on the liability instructions or the court’s response to the jury’s second
question both fail.
C.
Sufficiency of the Evidence
Finally, plaintiffs argue that the jury’s verdict that David Hyde and Terri Provost
reasonably searched the barn under the Fourth Amendment was against the clear weight
of the evidence, entitling it to a new trial under Rule 59(e). Specifically, plaintiffs argue
that defendants failed to prove any of the exceptions to the warrant requirement with
respect to the December 27, 2013, search of the barn where the donkey was located,
including that plaintiffs gave consent for veterinarian Lesley Szenay to search that barn.
Plaintiffs’ argument principally depends on their characterization of defendant
David Hyde’s testimony from the second day of trial, stating that he authorized
veterinarian Lesley Szenay to stay on plaintiffs’ property on December 27, 2013, despite
plaintiff Patricia Westmore telling him that she did not want her there. (5/24/16 p.m.
Trial Tr. (dkt. #150) 24:1-17.)
Plaintiffs also assert this characterization was
corroborated by Deputy Provost’s incident report, which noted Hyde advised by phone
before arriving on December 26 that “he and a vet from Polk County were at the
residence this past Sunday and he feels that the owner is going to give the vet problems
because when they were out there on Sunday[,] Patricia told the vet that she is not
allowed on the property anymore.” (Pls.’ Exs. (dkt. #144) ECF 19.) Finally, plaintiffs
further point to Szenay’s testimony that she could not recall asking to examine the
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donkey, nor could she recall plaintiffs asking her to return to their property on December
27. (5/24/16 p.m. Trial Tr. (dkt. #150) 94:17-22.)
What plaintiffs choose to ignore, and the jury was free to credit, is veterinarian
Szenay’s testimony that she was unaware plaintiffs wanted her to leave on December 27.
(Id. at 94:23-25.) More importantly, defendant David Hyde also testified at trial that
while Patricia Westmore initially said that “I don’t want that bitch on my property,”
when asked on December 26 whether he could return the following day with veterinarian
Szenay to examine her animals, Westmore ultimately responded “okay” after being told
that Hyde would also bring another veterinarian for a second opinion. (5/25/16 a.m.
Trial Tr. (dkt. #149) 5:1-24.) David Hyde further testified that Patricia Westmore was
present when Szenay arrived to examine the animals, and she said nothing at all about
Szenay being on her property, much less withdrawing her consent to Szenay joining
another veterinarian in conducting an examination of the animals.4
(Id. at 9:13-14,
10:12-15.)
Certainly, the jury could have credited Westmore’s version, as corroborated by
some other evidence, that plaintiffs never consented to Szenay being on the property on
December 27. At the same time, the jury was charged with making sense of this arguably
4
Contrary to plaintiffs’ assertion that David Hyde “made it very clear” that Patricia Westmore
asked “what’s that bitch doing here?” on December 27, the day of veterinarian Seznay’s
inspection, rather than the day before, Hyde testified at trial that he believed his earlier
deposition testimony to this effect was incorrect and that Westmore’s question was instead about
Gina Benson’s presence; he then reiterated that Patricia Westmore did not say anything about
wanting Szenay to leave on the 27th, including making any indication that she was withdrawing
her consent given the day before. (5/25/16 a.m. Trial Tr. (dkt. #149) 47:13-22, 48:7-17.) As the
jury was instructed, it was up to them to accept whichever of these statements by Hyde they
found more believable. (Introductory Jury Instructions (dkt. #137) 7.)
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inconsistent testimony. In light of Szenay’s and David Hyde’s testimony that Patricia
Westmore did not object to her being on the Westmore’s property to examine her
animals, and indeed had consented to her coming on the 27th with another vet the day
before, plaintiffs are wrong to assert that “the jury simply could not reasonably believe
there was consent for Lesley Szenay to be on the property, conduct her search, and go
into and search and examine Jethro inside plaintiffs’ enclosed shed or barn on December
27, 2013.” (Pls.’ Opening Br. (dkt. #155) 12.)
Since plaintiffs raise no other challenge to the evidence supporting the consent
element of its unreasonable search claims, they have failed to establish that the jury’s
verdict is against the clear weight of evidence. See Marcus & Millichap Inv. Servs. of Chi,
Inc. v. Sekulovski, 639 F.3d 301, 313-14 (7th Cir. 2011) (“We have explained that
appellants . . . bear a particularly heavy burden because a court will set aside a verdict as
contrary to the manifest weight of the evidence only if no rational jury could have
rendered the verdict.”) (internal quotation mark and citation omitted); Pickett v. Sheridan
Health Care Ctr., 610 F.3d 434, 440 (7th Cir. 2010) (“We uphold a jury verdict on
appeal as long as a reasonable basis exists in the record to support this verdict.”).
Accordingly, plaintiffs’ motions with respect to their unreasonable search claims must be
denied.
II. Due Process
Plaintiffs also move for reconsideration of the court’s grant of summary judgment
on their claim that defendants denied them due process before seizing and euthanizing
their donkey. As already explained, a party “must clearly establish either a manifest error
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of law or fact or present newly discovered evidence” to prevail on a Rule 59(e) motion.5
LB Credit Corp. v. Resolution Tr. Corp., 49 F.3d 1263, 1267 (7th Cir. 1995) (citation
omitted). Furthermore, the Seventh Circuit has made clear that Rule 59(e) motions “are
not appropriately used to advance arguments or theories that could and should have been
made before the district court rendered a judgment, or to present evidence that was
available earlier.” Miller v. Safeco Ins. Co. of Am., 683 F.3d 805, 813 (7th Cir. 2012)
(internal quotation mark and citation omitted).
Plaintiffs’ motion identifies no arguments or facts that the court overlooked on
summary judgment, nor any newly-discovered evidence that could not have been
presented at summary judgment. Instead, the motion is comprised entirely of arguments
that plaintiff failed to make at summary judgment, and although plaintiffs cite trial
testimony from the two veterinarians who recommended euthanasia of their donkey as
“new evidence,” any new facts regarding the circumstances of the seizure and euthanasia
of plaintiffs’ donkey that are arguably contained in their testimony: (1) could have been
presented at summary judgment, (2) were not in dispute at summary judgment, and (3)
were viewed in the light most favorable to plaintiffs at summary judgment.
Even if the court were to consider the veterinarians’ trial testimony and plaintiffs’
belated arguments, they would still fail to establish that plaintiffs were entitled to some
additional, pre-deprivation process. Put differently, the law does not clearly establish
Plaintiffs purport to move for a “new trial” on their due process claim under Rule 59(a), but that
rule does not provide an avenue to challenge the court’s summary judgment decision. See Goldberg
v. 401 N. Wabash Venture LLC, No 09 C 6455, 2013 WL 4506004, at *24 (N.D. Ill. Aug. 23,
2013) (“Rule 59(a) is not the appropriate mechanism for addressing a summary judgment
ruling.”) (collecting cases). Regardless, plaintiffs’ Rule 59(e) motion was filed timely after entry
of final judgment, and so the court will consider their arguments under that standard.
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plaintiffs’ entitlement to something more than a contemporaneous opportunity to object
to the independent veterinarians’ expert recommendations for euthanasia because an
animal is unduly suffering from a condition that cannot be addressed by medical
intervention.
(See Summ. J. Op. (dkt. #93) 25-27.)
Regardless, since there was no
evidence that two, independent veterinarians made anything but the humane choice, the
named defendants were at least entitled to qualified immunity in relying on the consensus
medical judgment of two qualified veterinarians. Thus, having failed to demonstrate that
reconsideration is appropriate, plaintiffs’ Rule 59(e) motion must also be denied.
ORDER
IT IS ORDERED that:
1) Plaintiffs’ motion to alter or amend final judgment or for a new trial (dkt.
#154) is DENIED.
2) Plaintiffs’ motion to stay execution of the judgment (dkt. #151) is DENIED as
moot.
3) Defendants’ Bill of Costs (dkt. #148) is GRANTED in the amount of
$4,666.16.
Entered this 21st day of September, 2017.
BY THE COURT:
/s/
_______________________
WILLIAM M. CONLEY
District Judge
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