David Foster and Catherine Foster v. Sigmund Barilow and Margaret Barilow

6 F.3d 405, 1993 U.S. App. LEXIS 25562, 1993 WL 387595
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 1, 1993
Docket92-4034
StatusPublished
Cited by309 cases

This text of 6 F.3d 405 (David Foster and Catherine Foster v. Sigmund Barilow and Margaret Barilow) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
David Foster and Catherine Foster v. Sigmund Barilow and Margaret Barilow, 6 F.3d 405, 1993 U.S. App. LEXIS 25562, 1993 WL 387595 (6th Cir. 1993).

Opinions

BOGGS, Circuit Judge.

Plaintiffs David and Catherine Foster appeal the district court’s decision to grant attorney’s fees to the prevailing defendants, Sigmund and Margaret Barilow, in an action arising under the Fair Housing Act, 42 U.S.C. § 3617 (1988). On appeal, the Fosters contend for the first time that the district court erred when it awarded attorney’s fees to the defendants without first finding that their claim was frivolous, groundless, or unreasonable. Because we find no applicable exception to the general rule that issues not raised in the district court are waived on appeal, we affirm the award of attorney’s fees to the defendants.

I

David and Catherine Foster sued their landlord and his wife, Sigmund and Margaret Barilow, alleging, among other civil rights claims, housing discrimination under the Fair Housing Act, 42 U.S.C. § 3617.1 The Bari-lows moved for summary judgment on all counts, which the district court granted. On the Fosters’ motion for reconsideration, the court reversed the order for summary judgment on the Fair Housing Act claim. The case proceeded to trial on this issue.

On May 14,1992, after a four-day trial, the district court granted a directed verdict for Margaret Barilow, and the jury returned a verdict in favor of Sigmund Barilow. On [407]*407June 2, 1992, the Barilows moved for attorney’s fees and expenses pursuant to 42 U.S.C. § 3613(e)(2).2 On June 24, 1992, the Barilows requested an extension of time until July 6, 1992 so that they might submit additional papers in support of their motion for attorney’s fees. The court granted the Bari-lows’ request, and also extended the time for the Fosters to reply to the Barilows’ motion until July 20, 1992. The Barilows timely submitted the additional papers.

The Fosters’ deadline, however, came and went without a response from them. The district court examined the Barilows’ application sua sponte, and on August 31, 1992, awarded the Barilows $22,513.65 in attorney’s fees and costs. The Fosters never contested in any way in the district court the issue of the propriety of granting attorney’s fees. Instead, they filed this timely appeal.

II

The Fosters’ sole contention on appeal is that, under the Fair Housing Act Amendments, 42 U.S.C. § 3613(c)(2), and judicial decisions such as Christiansburg Garment Co. v. Equal Employment Opportunity Comm’n, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978), prevailing defendants should not be awarded attorney’s fees unless the district court finds that a plaintiffs case is frivolous, groundless, or unreasonable. The Barilows primarily contend that the issue is not properly before us since the Fosters failed to raise this issue in the district court.

A

In general, “[tissues not presented to the district court but raised for the first time on appeal are not properly before the court.” J.C. Wyckoff & Associates, Inc. v. Standard Fire Ins. Co., 936 F.2d 1474, 1488 (6th Cir.1991). We have, on occasion, deviated from the general rale in “ ‘exceptional cases or particular circumstances’ or when the rale would produce ‘a plain miscarriage of justice.’” Pinney Dock and Transport Co. v. Penn Central Corp., 838 F.2d 1445, 1461 (6th Cir.), cert. denied, 488 U.S. 880, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988) (citation omitted) (quoting Hormel v. Helvering, 312 U.S. 552, 557, 558, 61 S.Ct. 719, 721, 722, 85 L.Ed. 1037 (1941)). See Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976).

The exceptions to the general rale are narrow. For example, we stated in Pinney Dock that we may reach an issue if it “is presented with sufficient clarity and completeness” for the court to resolve the issue. Pinney Dock, 838 F.2d at 1461. The Pinney Dock exception is most commonly applied where the issue is one of law, and further development of the record is unnecessary. See, e.g., In re Allied Supermarkets, Inc., 951 F.2d 718 (6th Cir.1991). The rationale for this exception is to promote finality in the litigation process. Pinney Dock, 838 F.2d at 1461.

The Fosters’ case does not fall within the Pinney Dock exception. First, the issue was not developed with “sufficient clarity and completeness” in the district court, because the Fosters failed to respond in any way to the Barilows’ motion for attorney’s fees. Second, even if the issue of the frivolousness of the Fosters’ suit were purely one of law, further development of the record would be necessary. Although the Fosters contend in their appellate brief that “[njothing in the record shows that the [Fair Housing claim] was pursued for any reason other than good faith,” this claim is only slender support for their case. The absence of any indication of bad faith in a record in which that issue was never contested is qualitatively different from an affirmative finding of good faith in a record in which the issue was fully aired.

This is particularly true in a case like the Fosters’. The Barilows based their application for attorney’s fees primarily on the bare language of 42 U.S.C. § 3613(c)(2), namely, that they were the “prevailing party” entitled to reasonable attorney’s fees. When the Fosters failed to respond to the Barilows’ motion by raising the issue of good faith [408]*408prosecution of the suit, the Barilows had no reason to buttress their motion. Consequently, the absence of any indication of bad faith in the record is hardly surprising.

Finally, a finding in favor of the Fosters would not serve the Pinney Dock policy of preventing further litigation: a ruling in favor of the Fosters would require further litigation in the district court on the frivolousness issue. Since the Fosters’ appeal does not fit within the Pinney Dock exception, we do not reach the issue of the propriety of awarding attorney’s fees on this record, and we do not express any opinion as to whether the Fosters’ claim was frivolous, groundless, or unreasonable.

B

This court is not compelled to hear, nor should it hear, an issue not presented to the district court unless reaching that issue serves an over-arching purpose beyond that of arriving at the correct result in an individual case. See Turner v. Bowen, 830 F.2d 1003, 1008 (9th Cir.1987), cert.

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Bluebook (online)
6 F.3d 405, 1993 U.S. App. LEXIS 25562, 1993 WL 387595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/david-foster-and-catherine-foster-v-sigmund-barilow-and-margaret-barilow-ca6-1993.