UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GEORGE T. PAETH and

MARGARET C. PAETH,

Case Number 08-13926

Plaintiffs, Honorable David M. Lawson

v.

WORTH TOWNSHIP and

BARBARA CUTCHER,

Defendants.

______________________________________/

OPINION AND ORDER DENYING MOTION FOR NEW TRIAL OR REMITTITUR

Following a jury trial in which the plaintiffs were awarded $275,000 on a claim alleging

retaliation in violation of the First Amendment and $325,000 on a claim for a procedural due process

violation, defendant Worth Township filed a motion for new trial, or in the alternative remittitur,

which is presently pending. The parties presented oral argument on the motion in open court on

November 9, 2010. The Court now finds that the verdict is not beyond the maximum amount the

jury reasonably could have found based on the evidence at trial. Therefore, respecting the jury’s

verdict, the motion will be denied.

I.

A lengthy recitation of the facts is not necessary. The parties are certainly familiar with the

matter, and the proofs at trial tracked the facts presented by the parties in their motions for summary

judgment, which were discussed in a previous opinion by the Court. See Paeth v. Worth Twp., 705

F. Supp. 2d 753, 757-63 (E.D. Mich. 2010). For the purpose of the present motion, it is useful to

recall that the Court found the first act of retaliation in violation of the First Amendment supported

by the evidence occurred on May 24, 2006. See Paeth v. Worth Twp., No. 08-13926 (E.D. Mich.
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July 1, 2010) (order granting in part and denying in part defendant’s motion in limine). That is the

date of a Worth Township Zoning Board of Appeals (ZBA) hearing on the plaintiffs’ variance

request, which followed a decision by a state court concluding that the ZBA improperly denied the

plaintiffs’ request at an earlier hearing. That court ordered a new hearing, and the ZBA failed to

notify the plaintiffs that the hearing would take place. The procedural due process violation took

place on November 5, 2007, when a township official posted a stop work order on the plaintiff’s

property without prior notice required by state law or giving them an opportunity to be heard. That

notice was posted after the state court once again ruled in the plaintiffs’ favor and ordered the

variance to be granted.

II.

The defendant seeks a new trial or, in the alternative, remittitur because it believes the jury

verdicts of $325,000 and $275,000 were against the weight of the evidence. In moving for a new

trial, the defendant does not dispute liability. It only challenges the amount of damages awarded.

Federal Rule of Civil Procedure 59 authorizes a court on motion to “grant a new trial on all

or some of the issues . . . after a jury trial, for any reason for which a new trial has heretofore been

granted in an action at law in federal court . . . .” Fed. R. Civ. P. 59(a)(1). Although Rule 59 does

not specify the grounds for granting a new trial, courts have determined that “a new trial is

warranted when a jury has reached a ‘seriously erroneous result’ as evidenced by: (1) the verdict

being against the weight of the evidence; (2) the damages being excessive; or (3) the trial being

unfair to the moving party in some fashion, i.e., the proceedings being influenced by prejudice or

bias.” Holmes v. City of Massillon, Ohio, 78 F.3d 1041, 1045-46 (6th Cir. 1996); see also

Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940). The Court also has discretion to
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consider other grounds “rais[ing] questions of law arising out of substantial errors in admission or

rejection of evidence or instructions to the jury.” Bourgeois v. Strawn, 501 F. Supp. 2d 978, 985

(E.D. Mich. 2007) (quoting Montgomery Ward, 311 U.S. at 251). “The absence of a listing of

specific grounds should not obscure the governing principle. The court has the power and duty to

order a new trial whenever, in its judgment, this action is required in order to prevent injustice.” 11

Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2805

(2d ed. 1995).

“In considering a motion for a new trial on the ground that the verdict is against the weight

of the evidence, the court is not to set aside the verdict simply because it believes that another

outcome is more justified. [Instead,] [t]he court is to accept the jury’s verdict if it is one which

reasonably could have been reached.” Denhof v. City of Grand Rapids, 494 F.3d 534, 543 (6th Cir.

2007) (citations and quotations omitted). The Sixth Circuit has repeatedly cautioned that “close

scrutiny” is necessary in this situation. See, e.g., ibid., Duncan v. Duncan, 377 F.2d 49 (6th Cir.

1967). “The Supreme Court has noted that ‘the authority of trial judges to grant new trials’ pursuant

to Rule 59(a) ‘is large.’” Bell v. Johnson, 404 F.3d 997, 1002 (6th Cir. 2005) (quoting Gasperini v.

Ctr. for the Humanities, Inc., 518 U.S. 415, 433 (1996)).

“As a general rule,” the Sixth Circuit has “held that a jury verdict will not be set aside or

reduced as excessive unless it is beyond the maximum damages that the jury reasonably could find

to be compensatory for a party’s loss.” Am. Trim, L.L.C. v. Oracle Corp., 383 F.3d 462, 475 (6th

Cir. 2004) (internal quotation marks omitted). A district court has discretion to remit a

compensatory damages “verdict only when, after reviewing all the evidence in the light most

favorable to the prevailing party, it is convinced that the verdict is clearly excessive; resulted from
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passion, bias, or prejudice; or is so excessive or inadequate as to shock the conscience of the court.”

Ibid. “If there is any credible evidence to support a verdict, it should not be set aside.” Ibid.

Therefore, court may not remit a valid jury verdict “‘unless it is beyond the maximum

damages that the jury reasonably could find to be compensatory for a party’s loss.’” Denhof v. City

of Grand Rapids, 494 F.3d 534, 547 (6th Cir. 2007) (quoting Farber v. Massillon Bd. of Educ., 917

F.2d 1391, 1395 (6th Cir. 1990)). The Sixth Circuit clarified this broad standard, explaining that

“[a] court should not reduce an award unless it is: 1) beyond the range supported by proof; 2) so

excessive as to shock the conscience; or 3) the result of mistake.” Ibid. (citing Bickel v. Korean Air

Lines Co., 96 F.3d 151, 156 (6th Cir. 1996)).

“[T]he basic purpose of § 1983 damages is to compensate persons for injuries that are caused

by the deprivation of constitutional rights.” Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299,

307 (1986) (citing Carey v. Piphus, 435 U.S. 247, 254 (1978)). “[C]ompensatory damages may

include not only out-of-pocket loss and other monetary harms, but also such injuries as impairment

of reputation . . ., personal humiliation, and mental anguish and suffering.” Id. at 307. The Court

cannot award compensatory damages for a procedural due process violation “without proof that . . .

injury actually was caused.” Carey, 435 U.S. at 264 (“[A]lthough mental and emotional distress

caused by the denial of due process itself is compensable under § 1983, we hold that neither the

likelihood of such injury nor the difficulty of proving it is so great as to justify awarding

compensatory damages without proof that such injury actually was caused.”). 

“[T]he abstract value of a constitutional right may not form the basis for § 1983 damages.”

Stachura, 477 U.S. at 308. Courts may award presumed damages as a substitute for ordinary

compensatory damages when “a plaintiff seeks compensation for an injury that is likely to have
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occurred but difficult to establish.” Id. at 310-11. Unlike procedural due process damages, the Sixth

Circuit had held “that general damages are presumed to occur when First Amendment rights are

violated.” Parrish v. Johnson, 800 F.2d 600, 606-07 (6th Cir. 1986) (citing Walje v. City of

Winchester, Ky., 773 F.2d 729, 732 (6th Cir. 1985) (“The District Court therefore erred in

concluding that the plaintiff was restricted to nominal damages in the absence of proof of actual

injury caused by the defendants’ violation of his free speech rights, and we remand this issue for a

determination of the amount of general damages . . . .”)). The Parrish Court believed that such a

rule followed Carey’s mandate of “adapting common-law rules of damages to provide fair

compensation for injuries caused by the deprivation of a constitutional right,” id. at 608-09 (quoting

Carey, 435 U.S. at 258), because the Supreme Court recognized that in “some cases damages may

be presumed merely from the act constituting the constitutional violation,” id. at 609 (quoting

Stachura, 477 U.S. at 310-11). “General damages are thus necessary in order to fully vindicate the

challenged substantive right and to deter future conduct that threatens its practical significance.”

Walje, 773 F.2d at 732. 

As noted above, there are verdicts on two separate counts in this case. The defendant argues

that there is no proof of any economic damages that flowed from the procedural due process

violation. The defendant reasons that damages on this count, if any, must be confined to the twentyfour-hour window that existed from the time the stop work order was posted to the time it would

have been posted had proper notice been given. The defendant contends that no proof of damages

was offered for this tiny time period, and the jury’s verdict cannot be reconciled with the evidence.

The defendant overlooks the point that the Due Process Clause requires notice to be given

to provide the plaintiffs an opportunity to respond and present reasons in support of their position.
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That opportunity is not without meaning or a mere formality. Certainly the proofs at trial suggested

that Barbara Cutcher entertained considerable doubt about the propriety of posting the order, after

a series of state court decisions had confirmed the validity of the plaintiffs’ variance request. If

notice had been given, the plaintiffs may have been able to persuade the building authorities to stand

down and interfere no more in their effort to construct their home. They may have been able to

reason with cooler minds and been allowed to proceed with their construction. After all, the state

building authorities tended to support their position. The stop work order remained in place from

November 5, 2007 until it was withdrawn after the lawsuit was commenced in the fall of 2008. Its

posting was publicly displayed on the plaintiffs’ property, and it tended to validate — wrongfully

— the Township’s position to all that could observe it, including the plaintiffs’ neighbors.

The acts of retaliation in violation of the First Amendment likewise caused considerable

delay and frustration to the plaintiffs. Mr. and Mrs. Paeth also testified that they incurred actual

expenses as a result of the delay. Although plaintiffs’ counsel could have done a better job

developing the economic damage evidence, the Paeths described the expenses they incurred with

sufficient detail to permit the jury to take those items into account in reaching a damage award.

The entirety of the plaintiffs’ testimony regarding damages is as follows, beginning with the

testimony of George Paeth: 

Q: Mr. Paeth, did you and your wife suffer any type of actual damages as a

result of the conduct taken by the Township posting the stop work order and

not providing you notice and opportunity to come to the May 24, 2006?

A: Yes, we did.

Q: Can you describe for the jury what those damages are?

A: Again, probably not all of them, but, you know, we had to pay approximately

$33,000 in legal fees. We continued to pay our mortgage and our taxes and

our insurance on property that we had no access to and no use of. And

obviously, there were – we had to take time off from work and other

miscellaneous expenses.
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Q: Could you get construction finances between 2004 and today?

A: We – we had arranged for finances in late 2003, but subsequent to that, we

haven’t been able to get additional financing.

Q: Why is that?

A: Just because of the state of the issues with the house, with it being – with the

stop work order posted and the restrictions from the Township.

Q: How about since October of 2008, when the Court ordered the stop work

order to be removed, have you been able to get construction financing for the

home?

A: No.

Q: And why is that?

A: Partly that’s just based on the financial situation we find ourselves in now,

because of legal fees and other expenses that we have incurred. We’re not

in a position to be able to secure financing.

Q: How have you been able to pay for the work that you have been doing on the

house since 2008?

A: It’s what we can do out of pocket.

Q: Have you had to liquidate any of your assets?

A: I cashed in a life insurance policy. I redeemed both IRA’s and 401

retirement plans.

Q: Have you suffered any type of pain and suffering because of the action taken

by the Township?

A: Yes.

Q: Can you describe to the jury what that is?

A: I’m not sure I can describe it. It’s indescribable. We have been through this

period for – for ten years, at least six years, since the initial order that we

couldn’t work on the house. We never knew when it was going to come to

an end. We had threats that the Township was going to demolish the house.

We had no idea any day when we woke up whether or not that was going opt

be the day that our home would be demolished. We had no options. We

couldn’t complete the house and use it. We couldn’t sell it. We couldn’t buy

another property, because we had no other financial resources to go buy

another property. It was – it was an albatross.

Q. Can you describe for the jury the size of the house that you live in today?

A. It’s approximately 440 square feet. It’s about the size of a two-car garage.

Q. And this house in Worth Township was going to be your marital home?

A. Yes.

Q. How big was it going to be when it was completed?

A. It will be just less than 2,000 square feet.

Q. Have you suffered any type of personal humiliation as a result of the action

taken by the Township?

A. Yes. The entire community there is continuing to make statements that we

violated the law and that we were flagrantly in violation of ordinances and

we had total disregard for any of the construction practices.
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Q. Has that affected you personally?

A. Yes.

Q. How?

A. I take it very seriously. I work in the construction industry. I know what the

rules are.

Q. How does it make you feel?

A. I’m incensed that anyone would ever suggest that I intended to break a law.

Q. Has this affected your relationship with your wife?

A. Yes, it has.

Q. How is that?

A. It’s been very difficult for us living in a small house. I know she looked to

me to resolve this issue and I couldn’t.

Q. Why couldn’t you?

A. The Township was so consumed with keeping us from building this house

that they ignored their own ordinances and the building code. They violated

state law. And they denied us our constitutional rights.

Trial Tr., Aug. 10, 2010 (testimony of George Paeth).

Margaret Paeth’s testimony also contains important proof of damages:

Q. Have you suffered any actual damages as a result of the action taken by

Worth Township over the last four, six years, I guess?

A. Well, if you’re asking if we have had, like, mortgages and insurance and all

those types of things, yes. We had – I mean we weren’t able to live in the

house. We still had to pay the mortgage and the interest and all of that, and

that was in excess of $24,000. We had utilities. We had insurance that was,

I don’t even know, like in excess of $3,500. And we had taxes on the

property somewhere around $6,000. And the association fees. Legal fees

that were, you know, $650 an hour. I mean, it was ridiculous. We were just

– costs were exorbitant. We had all kinds of expenses.

Q. Have you suffered any type of emotional distress as a result of the conduct

of the Township?

A. Yeah, I would say we have.

Q. Can you describe to the jury what that – what that distress is?

A. It’s very difficult to put it into words, but I will try. It’s sort of like every

morning when you wake up, it’s the first you think about, and every night

when you go to sleep, it’s the last thing you think about. And all my husband

and I ever wanted to do was to get our house built. We have lived in a little

tiny house. I’m sorry. We have been denied so much because of some

person’s inability to understand that our house was nonconforming, and that

that setback, that side-yard setback that they gave us permission to go ahead

and build into that side-yard setback, and because they changed their mind,

and they wouldn’t listen to reason, they did – we – because I pleaded with
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them, even, to get onto the variance hearing schedule quickly. That’s why

they waited eleven months, because –

MR. SEIBERT: Objection. This is a narrative, Judge.

THE WITNESS: I’m sorry, but I –

MR. SEIBERT: This is a narrative well beyond the question of what the

damages are.

THE COURT: I disagree. The objection is overruled.

THE WITNESS: The damages, I can’t even tell you. It affected everything in

our life.

Q. How did it affect your relationship with your husband?

A. My husband, he is involved in code issues all the time and he felt as if head

let me down somehow, because this was supposed to be where we were

supposed to live, and he goes in front of Zoning Board of Appeals people all

the time and he never, ever loses. He always has the right information.

There is always a way to come to the table and figure out how to fix things.

And he couldn’t fix this. So he – it – he felt as if he had somehow not lived

up to my expectations. So if that’s what you’re asking about, how it affected

our relationship, it was –

Q. How did it affect your home life?

A. Well, once again, we live in a little tiny house and if you – you tried to live

in a little house and you have – I mean, I feel like my life has been in a box.

It’s the best thing I can do to explain it to you. Because there is no place we

have. I have to pack up all of our winter clothes and take them to my

mother’s when it’s not winter, and I have to take all of our summer clothes

and pack them up when the end of summer comes, because we don’t have

room.

Q. Can you describe for the jury the Worth Township home? Is there anything

inside the that house right now?

A. Yes.

Q. What is inside?

A. We have numerous building materials in there. We have some of our

personal possessions in there. We have, like, sinks and toilets and hot water

heaters and siding and we just haven’t been able to use it.

Q. You’re not able to install those right now?

A. Right.

Q. Financially, how has this matter affected you?

A. That’s – that’s the worst part of it all. We have had to cash in my husband’s

life insurance. We have had to cash in our retirement. It’s taken every bit of

our savings. It’s taken – we have a second mortgage on the house that we

live in now. We have a second mortgage on the house at Lexington.

Q. Are you able to get construction financing for the house in Lexington?

A. Not at all.

Q. Or in Worth, I’m sorry.

A. No.
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Q. Are you able to live in the house in Worth Township right now?

A. No.

Q. Are you able to pay for contractors to finish up the home in Worth

Township?

A. No.

Trial. Tr., Aug. 11, 2010, at 191:21-195:10 (testimony of Margaret Paeth). 

The plaintiffs may be compensated for out-of-pocket losses, other monetary harms,

impairment of reputation, personal humiliation, and mental anguish and suffering. In the time frame

that the stop work order was in place, and for the period before that beginning May 24, 2006, the

plaintiffs paid their mortgage, insurance, taxes, and legal fees. Ms. Paeth testified that the plaintiffs

spent roughly $24,000 on their mortgage, over $3,500 on insurance, and $6,000 taxes, and Mr. Paeth

testified that the plaintiffs spent roughly $33,000 in legal fees, totaling roughly $67,500. That does

not include the personal humiliation and impairment of reputation the plaintiffs suffered, the

inability to find financing, and the mental anguish and suffering because of the stop work order. Ms.

Paeth’s testimony is particularly descriptive of the mental turmoil and frustration the plaintiffs

endured throughout their ordeal. As noted above, she pointedly described the daily feelings of

defeat and angst that came with each fruitless encounter with township officials who changed their

minds and entrenched themselves in their unreasonable objections to the plaintiffs’ proposed

building project.

The Court concludes that evidence at trial supports the jury’s damage verdict on each of the

counts submitted to it.

III.
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For the reasons stated, the Court does not find that the damages were excessive, the verdict

was against the weight of the evidence, or the trial was unfair. The Court does conclude that the

verdict was within the maximum damages that the jury reasonably could find to be compensatory

for the plaintiffs’ loss, and the damage award was supported by credible evidence. The Court

previously granted a stay of the judgment while the post-trial motions remained pending. Now that

those motions have been decided, the stay will be dissolved.

Accordingly, it is ORDERED that the defendant’s motion for a new trial or, in the

alternative, remittitur [dkt. #70] is DENIED.

It is further ORDERED that the stay of enforcement of the judgment is DISSOLVED.

s/David M. Lawson 

DAVID M. LAWSON

United States District Judge

Dated: November 22, 2010

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on November 22, 2010.

s/Deborah R. Tofil 

DEBORAH R. TOFIL