Brad Benson v. CITY OF WELLSTON and JOHN STABLER

The Honorable James S. Gwin, United States District Judge for the Northern District of Ohio, sitting by *
designation.
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION.
File Name: 06a0811n.06
Filed: November 6, 2006
No. 05-4244
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRAD BENSON,
Plaintiff-Appellee,
v.
CITY OF WELLSTON and JOHN STABLER,
Defendants-Appellants.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE
SOUTHERN DISTRICT OF
OHIO
BEFORE: GILMAN and GRIFFIN, Circuit Judges; and GWIN, District Judge.*
Gwin, District Judge:
With this appeal, Defendants-Appellants City of Wellston (“Wellston”) and John Stabler
(“Stabler”) appeal a judgment entered after a jury verdict that awarded Plaintiff Brad Benson
$59,317 in compensatory damages in this action brought under 42 U.S.C. § 1983. With their appeal,
Defendants challenge the determination of damages. Defendants do not challenge the jury’s
determination of liability. For the following reasons, we AFFIRM the district court’s judgment.
I. Background
A. The Parties

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No. 05-4244
Benson v. City of Wellston et al.
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Plaintiff-Appellee Brad Benson brings this action claiming that Defendants impaired his right
to free speech by ending a municipal towing contract after Benson made comments critical of
Defendants. Benson is a lifelong resident of Wellston, Ohio. [Appellee’s Br. at 3.] Starting in 1996,
he expanded his existing automobile mechanic business to include towing services. Id. In that year,
Defendant-Appellant City of Wellston placed Benson on the municipal towing services list. Id. In
1997 and 1998, Benson worked in the business full-time. Id. at 14. In 1999 and 2000, Benson split
his work between his towing services business and logging. Id.
Benson remained on the City’s towing services list until July 2001, when the City removed
him, he argued for political reasons that eventually led to the Section 1983 lawsuit underlying this
appeal. Id. at 5-7. As the result of his removal, Benson’s towing services business declined and, in
September 2002, Benson abandoned his towing operation. Id. at 8, 13-17.
As evidenced by his state and federal tax returns, Benson’s towing and automobile repair
business earned gross revenues of $38,018 In 1997, $39,180 in 1998, $27,602 in 1999, $28,317 in
2000, $17,815 in 2001, $10,421 in 2002, $884 in 2003, and $0 in 2004. [J.A. 66-183.] Defendants-
Appellants stipulated to Benson’s tax records before the start of the trial. [J.A. 63.]
At trial, Benson testified that his average annual operating expense for his towing business
was approximately $12,387. [Appellee’s Br. at 15.]. In 1997, Benson’s cost of goods was $22,956
[J.A. 68]; in 1998, it was $22,990 [J.A. 84]; in 1999, the cost of goods sold was $14,973 [J.A. 101];
in 2000, the cost of goods sold was $11,447 [J.A. 115]; in 2001, the cost of goods sold was $7,313
[J.A. 127].
In 1997, Benson says he purchased a used roll-back tow truck for $14,500 for use under the

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No. 05-4244
Benson v. City of Wellston et al.
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towing contract. Id. See also J.A. 73. Shortly thereafter, Benson spent an additional $5,000 to
$6,000 to purchase and replace the truck’s engine and other parts. [Appellee’s Br. at 15.] Benson
testified that, once the City removed him from the towing services list, he was forced to sell the roll-
back truck for $10,000 in September 2002. Id. at 17-18. See also J.A. 144. Benson also testified
the tow truck’s market value at the time he sold it was approximately $20,000, therefore he took a
$10,000 loss on the vehicle. [Appellee’s Br. at 17-18.]
Defendant-Appellant John Stabler served as the mayor of the City of Wellston and was the
official responsible for Benson’s removal from the municipal towing services list. [Appellants’ Br.
at 6.] In a letter to Benson dated July 27, 2001, Stabler cited customer complaints and excessive fees
as justification for Benson’s removal from the list. [Appellee’s Br. at 7.] Benson sued Stabler in his
official and individual capacities and the jury returned a verdict and an award of $5,000 in punitive
damages against Stabler.
Curiously, Appellants’ Brief notes that, subsequent to the filing of this appeal, “Benson
settled with Defendant-Appellant John Stabler, and the Judgment entered against Stabler has been
satisfied.” [Appellants’ Br. at 3-4.]
B. Procedural History
On July 17, 2003, Benson filed his complaint against the City of Wellston, Stabler, and Gary
George, the City’s Service Director, claiming that they had violated his civil rights by removing him
from the municipal towing services list in retaliation for his public opposition to the City’s municipal
income tax. [J.A. 8-16.] The City answered. [J.A. 2.] After some discovery, the parties stipulated
to dismissing Gary George as a defendant. [J.A. 32.]

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No. 05-4244
Benson v. City of Wellston et al.
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The matter proceeded to trial. [J.A. 19.] At the close of evidence, the district court instructed
the jury on the issue of damages, as follows:
Plaintiff also claims that he suffered economic damages as a result of Defendant
Stabler’s conduct. If you find that Defendant John Stabler improperly violated
Plaintiff’s First Amendment rights, you must then, but only then, determine the
amount of money that will fairly and adequately compensate Plaintiff for the loss or
damages that he suffered as a direct and proximate result of Stabler’s actions.
You may award compensatory damages only for damages that the Plaintiff proved
were proximately caused by Defendant Stabler’s acts. Proximate cause is an act or
failure to act which in the natural and continuous sequence directly produces
damages, and without which those damages would not have occurred.
Any damages that you award must be fair – no more and no less . . ..
In this case, the damages that Plaintiff Brad Benson claims to have suffered as a
result of his name being removed from the City of Wellston’s towing list is a loss of
business profits and other damages.
Lost profits are calculated by deciding what Plaintiff was entitled to receive had
Plaintiff been permitted to remain on the towing list. From this sum, you should
subtract the amount, if any, that Plaintiff saved by not being permitted to remain on
the list.
The lost profits being claimed must not be remote, uncertain, or speculative.
Damages are considered speculative when their existence is uncertain or when the
proof is insufficient to enable you to make a fair and reasonable assessment of
damages. Lost profits need not be proved with mathematical certainty, but only with
reasonable certainty.
You should then add other damages, if any, suffered by the Plaintiff as a result of the
removal from the list. [J.A. 21.]
Neither side objected to the district court’s jury instructions. Id.
On April 6, 2005, the jury returned a verdict in favor of Benson on all claims, awarding him
$59,317 in compensatory damages as against the City and Stabler and $5,000 in punitive damages

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No. 05-4244
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as against Stabler. [J.A. 33-42.]
On April 13, 2005, the City and Stabler moved for remittitur of the jury verdict on the
compensatory damages award. [J.A. 43-50.] The district court conducted a hearing on the motion
on May 25, 2005. [J.A. 51.] On September 2, 2005, the district court denied the motion for
remittitur. [J.A. 19-23.] On September 30, 2005, the Defendants-Appellants filed their notice of
appeal of the district court’s September 2 Order. [J.A. 24-25.]
II. Legal Standard
Defendants-Appellants challenge the sufficiency of the evidence presented at trial to support
the jury’s award of $59,317 in compensatory damages awarded to Benson. In reviewing the
sufficiency of the evidence, we consider the evidence in the light most favorable to the plaintiff.
Molton v. City of Cleveland, 839 F.2d 240, 241-42 (6th Cir. 1988), cert. denied, 489 U.S. 1068
(1989). Damages must be established to a reasonable certainty, but the existence of some uncertainty
as to the amount of damages does not foreclose recovery. See Broan Mfg. Co., Inc. v. Associated
Distribs., Inc., 923 F.2d 1232, 1236 (6th Cir. 1991). “It has long been recognized that once the fact
of damage has been properly shown, uncertainty as to their amount will not foreclose recovery.”
Blue Diamond Coal Co. v. United Mine Workers of Am., 436 F.2d 551, 561 (6th Cir. 1970) (citations
and internal quotations omitted). Nor is it especially worrisome that an element of uncertainty might
have had an effect on the calculation of damages; to the contrary, calculations of future damages
necessarily must rest upon a degree of prediction. See Shore v. Fed. Express Corp., 42 F.3d 373, 378
(6th Cir. 1994). The cases do not require “lost profits” to equate to taxable income.
We review a district court’s denial of a motion for remittitur for an abuse of discretion.

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No. 05-4244
Benson v. City of Wellston et al.
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Roush v. KFC Nat’l Mgt. Co., 10 F.3d 392, 397 (1993), cert. denied, 513 U.S. 808 (1994). District
courts should grant such motions only “if the award clearly exceeds ‘the amount which, under the
evidence in the case was the maximum that a jury could reasonably find to be compensatory’ for the
plaintiff’s loss.” In re Lewis, 845 F.2d 624, 635 (6th Cir. 1988) (citation omitted). “Unless the
award is (1) beyond the range supportable by proof or (2) so excessive as to shock the conscience,
. . . or (3) the result of a mistake, we must let the award stand.” Leila Hosp. & Health Ctr. v. Xonics
Med. Sys., 948 F.2d 271, 278 (6th Cir. 1991).
III. Analysis
Plaintiff-Appellee Benson presented sufficient evidence for the jury to award him $59,317
in compensatory damages.
At trial, Benson produced evidence indicating that his tow truck business produced annual
gross revenues of nearly $40,000 in 1997 and 1998, the two years in which he operated it full-time.
Benson’s revenues from his towing business dropped off significantly after the City removed him
from the municipal towing services list. Benson provided this evidence through his own testimony,
as well as documentary evidence in the form of his state and federal tax returns. Defendants-
Appellants did not object to Benson’s tax records; in fact, they stipulated to them before the trial.
Benson’s tax records include the $14,500 cost basis for the roll-back truck and its eventual
sale price of $10,000. Benson also testified that he had made considerable improvements to the
truck and that he considered it to be more valuable when he was forced to sell it than it was when
he purchased it.
Benson’s testimony, state and federal tax records, and Defendants-Appellants’ agreement as

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No. 05-4244
Benson v. City of Wellston et al.
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to the validity of the tax records form a sufficient evidentiary basis from which the jury could
appropriately determine Benson’s compensatory damages award, if any.
Further, the district court did not abuse its discretion in denying Defendants-Appellants’
motion for remittitur.
Benson’s average annual revenue from 1997 to 2000 was approximately $33,279. After the
City removed him from its municipal list, Benson’s average annual revenue from his towing business
dropped to approximately $7,280 from 2001 to 2004. Thus, a reasonable estimate of Benson’s
average foregone annual revenue from his towing business is approximately $25,999 from 2001 to
2004, or approximately $103,996 over the four year period.
Benson also testified that his average annual operating expense for his towing business was
approximately $12,387. This equates to an estimate of approximately $49,548 over the four year
period of 2001 to 2004.
Subtracting the estimated four-year operating expenses from the estimated four-year revenues
results in an estimated foregone profit of $54,448. The $59,317 compensatory damage award is thus
not beyond the range supportable by the proof, not the result of a mistake, nor so excessive as to
shock our conscience. See Leila Hosp. & Health Ctr., 948 F.2d at 278.
IV. Conclusion
For the foregoing reasons, we AFFIRM the district court’s order denying Defendants-
Appellants’ motion for remittitur.

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