* Pursuant to 5 T H C IR

. R

. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

October 4, 2005

Charles R. Fulbruge III

Clerk REVISED DECEMBER 8, 2005

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 04-30650

____________

UNIQUE PROPERTIES LLC, Unique Properties LLC; CHARLES D CHAUVIN, II,

Plaintiffs-Appellants,

versus

TERREBONNE PARISH CONSOLIDATED GOVERNMENT; ET AL,

Defendants,

TERREBONNE PARISH CONSOLIDATED GOVERNMENT; HOUMA TERREBON N E

REGIONAL PLANNING COMMISSION,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 4:01-CV-3503-I

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM: *

Unique Properties LLC (“Unique”) and Charles D. Chauvin, II, appeal the di stri ct court’s

orders granting Defendants’ motion for JMOL and denying various Plaint iffs’ motions. On appeal,2

Chauvin and Unique claim that (1) the defendants failed to preserve the post-trial JMOL grounds

improperly accepted by the district court; (2) JMOL was inappropriate because there was sufficient

evidence of unequal treatment; (3) they are enti t led t o a new trial or additur because of the district

court’s improper jury charge, its failure to permit evidence of a failed settlemen t

, the Defendants’

misconduct in discovery, evidence that an appraiser withheld evidence, and the “compromise” verdict

of the jury; and (4) they are entitled to injunctive relief and an award of costs and attorney’s fees.

Chauvin an d Unique sought approval from the Houma-Terrebonne Regional Planning

Commission (“HTRPC”) to subdivide a tract of land. The application lacked drainage plans. After

HTRPC gr anted conceptual and preliminary approval, Unique requested a waiver of engineering.

Concerned about heavy flooding and lack of drainage plans, the HTRPC denied Unique’s request.

Plaint iffs filed a 42 U.S.C. § 1983 action, asserting, i nter alia

, that they were denied equal

protect io n wit h t he denial of their request for a waiver of engineering. The jury returned a verdict

against HTRPC. The Defendants then renewed their motion for JMOL. Plaintiffs filed numerous

motions for, inter a lia , a new trial and costs. The district court denied the Plaintiffs’ motions and

granted the Defendants’ renewed JMOL motion.

The Pl a int iffs claim that the Defendants failed to preserve the grounds for their post-tri al

motion for JMOL. A motion for judgment as a matter of law filed post-verdict cannot assert a ground

that was not included in the motion for judgment as a matter of law made at the close of the evidence.

Morante v. American Gen. Fin. Ctr.

, 157 F.3d 1006, 1010 (5th Cir. 1998). The district court granted

Defendants’ JMOL motion, finding that the Plaint iffs were not similarly situated to other developers

who obtained HTRPC approval. The Defendants’ pre-verdict JMOL motion addressed t his issue;

thus, the Defendants properly preserved the grounds for their post-trial motion for JMOL.3

The Plaint iffs contend that there was legally sufficient evidence for the jury to reach its verdict

in their favor and, thus, that JMOL was inappropriate . “As a prerequi si te to [an equal

protecti on]

claim, the plaintiff must prove that similarly situated individuals were treated differently.” Beeler v.

Rounsavall

, 328 F.3d 813, 816 (5th Cir. 2003), citing Wheeler v. Miller

, 168 F.3d 241, 252 (5th Cir.

1999). Chauvin and Unique do not allege disparity in treatment due to a suspect classification but

contend that they are in a “class of one.” In “class of one” cases, the plaintiff must show that she was

intentionally treated differently than those similarly situated without a rational basis for the distinction.

Village of Willow brook v. Olech

, 528 U.S. 562, 564 (2000). Land use classifications have a rational

basis if they are “rationally related to a legit imate government interest.” J ackson Court

Condominiums, Inc. v. City of New Orleans

, 874 F.2d 1070, 1079 (5th Cir. 1989). The district court

correctly found that the Plaint iffs were not similarly situated to other applicants and that drainage and

street flo o ding issues are related to a legitimate government interest. Thus, the denial of the

application was properly granted.

Having fully considered the arguments of counsel addressing the Plaint iffs’ various motions,

we find that the district court properly denied them.

The orders are, accordingly, AFFIRMED.