Case: 13-14663       Date Filed: 10/01/2014       Page: 1 of 22


                                                                        [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 13-14663
                               ________________________

                           D.C. Docket No. 1:03-cv-01855-SCJ

KH OUTDOOR, L.L.C.,

                                                                            Plaintiff-Appellee,

GRANITE STATE OUTDOOR ADVERTISING, INC.,

                                                                                        Plaintiff,

                                             versus

FULTON COUNTY, GEORGIA,

                                                                         Defendant-Appellant.
                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                            ________________________

                                      (October 1, 2014)

Before MARTIN, Circuit Judge, and EATON, * Judge, and HINKLE,** District
Judge.
*
  Honorable Richard K. Eaton, United States Court of International Trade Judge, sitting by
designation.
**
   Honorable Robert L. Hinkle, United States District Judge for the Northern District of Florida,
sitting by designation.
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MARTIN, Circuit Judge:

      In 2003, Plaintiff KH Outdoor, L.L.C. filed a number of applications to erect

billboards, all of which were either ignored or rejected by Defendant Fulton

County. KH Outdoor sued Fulton County in federal district court, and a jury

awarded the company nearly $4 million in damages. Fulton County now appeals

the district court’s denial of its post-trial motion for judgment as a matter of law, or

in the alternative, a new trial or remittitur. After careful review, we vacate in part

and remand for the district court to conduct factfinding and reconsider whether KH

Outdoor has standing to bring its claims.

                                            I.

      KH Outdoor is a Georgia company that constructs and sells billboard space

to advertisers. The company filed this lawsuit in 2003 after its applications to erect

billboards in Fulton County were rejected or ignored. In its complaint, KH

Outdoor alleged that Fulton County’s sign ordinance—the basis for the County’s

rejection of the applications—was unconstitutional under the First Amendment.

      After several years of litigation and failed attempts to settle this dispute, the

district court granted summary judgment to Fulton County in 2009, finding that

KH Outdoor lacked standing. The district court recognized that relevant portions

of the Fulton County sign ordinance had been ruled unconstitutional by the

Georgia Supreme Court in Fulton County v. Galberaith, 

(Ga. 2007).


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But it found that KH Outdoor lacked a redressable injury because the billboards it

applied to erect would have been prohibited in any event by other regulations in

Fulton County’s sign ordinance which remained in effect after Galberaith. On this

basis, the district court dismissed KH Outdoor’s claims for lack of Article III

standing.

      KH Outdoor appealed, and this Court vacated the district court holding on

standing and remanded for reconsideration in light of the Georgia Supreme Court’s

intervening decision in Fulton County v. Action Outdoor Advertising, JV, LLC,

(Ga. 2011). KH Outdoor, L.L.C. v. Fulton Cnty., 433 F. App’x

775, 776 (11th Cir. 2011). In Action Outdoor, the Georgia Supreme Court

clarified that its prior decision in Galberaith struck down the Fulton County sign

ordinance in its 

. The Action Outdoor ruling also

addressed Fulton County’s separate argument that the billboards at issue were

located in overlay districts in Fulton County, which have more stringent zoning

regulations for billboards. 

But the Justices found that Fulton

County had not met its burden to demonstrate that these overlay district regulations

would have otherwise barred the proposed billboards. 

Outdoor made clear that the district court’s standing determination was based on

an incorrect interpretation of Galberaith, this Court vacated the district court’s

dismissal and remanded for reconsideration. KH Outdoor, 433 F. App’x at 776.


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      On remand, the district court set a trial date to decide only the remaining

issue of damages. Fulton County, however, filed a motion to amend its answer and

for leave to file a motion for summary judgment. As it turns out, KH Outdoor and

Fulton County had been involved in an entirely separate litigation in the state

courts of Georgia. The state court litigation began in 2006 when KH Outdoor

refiled many of its applications to build billboards in Fulton County. The 2006

applications were again denied. In fact, KH Outdoor’s 2006 state court litigation

was consolidated with Action Outdoor’s case in the Georgia Supreme Court’s 2011

decision in Action 

. Because the state trial court issued

a final judgment in KH Outdoor’s favor after the case was remanded from the

Georgia Supreme Court, Fulton County alleged that the company’s claims were

now barred by the doctrine of res judicata. The district court denied Fulton

County’s motions and allowed the case to proceed to trial.

      Relevant here, KH Outdoor filed a pre-trial motion to exclude any evidence

or argument relating to standing, including evidence of Fulton County’s overlay

district regulations. In its motion, KH Outdoor argued that this issue had already

been raised by Fulton County and rejected by the Georgia Supreme Court in

Action Outdoor. Fulton County responded that the standing question at issue in

Action Outdoor was completely different from that faced by the federal court,

because it related to overlay district regulations in effect in 2006, not the


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regulations in effect in 2003. Nevertheless, the district court granted KH

Outdoor’s motion to exclude any evidence relating to standing, and it also denied

Fulton County’s post-trial motion for judgment as a matter of law or a new trial on

this basis.

                                         II.

       We consider Fulton County’s argument relating to KH Outdoor’s standing at

the outset because it is a “threshold jurisdictional question which must be

addressed prior to and independent of the merits of a party’s claims.” Dillard v.

Baldwin Cnty. Comm’rs, 

, 1275 (11th Cir. 2000) abrogated on other

grounds by Dillard v. Chilton Cnty. Comm’n, 

(11th Cir. 2007).

Standing is a doctrine that “stems directly from Article III’s ‘case or controversy’

requirement,” and thus “it implicates our subject matter jurisdiction.” Nat’l Parks

Conservation Ass’n v. Norton, 

, 1242 (11th Cir. 2003). The

Supreme Court has said that “standing is perhaps the most important” jurisdictional

doctrine, FW/PBS, Inc. v. Dallas, 

, 231, 

, 607 (1990)

(citation omitted) (quotation marks omitted), and as with any jurisdictional

requirement, we are powerless to consider the merits of the case when it is lacking.

Univ. of S. Ala. v. Am. Tobacco Co., 

, 410 (11th Cir. 1999); see also

Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868) (“Jurisdiction is power to




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declare the law, and when it ceases to exist, the only function remaining to the

court is that of announcing the fact and dismissing the cause.”).

      Importantly, standing cannot be waived or conferred upon the court by the

parties. Bochese v. Town of Ponce Inlet, 

, 975 (11th Cir. 2005). The

Supreme Court has said that subject matter jurisdiction is an area of the law in

which “principles of estoppel do not apply, and a party does not waive the

requirement by failing to challenge jurisdiction early in the proceedings.” Ins.

Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 

, 702,

, 2104 (1982) (citation omitted). A federal court is obligated to

inquire into subject matter jurisdiction on its own motion whenever it may be

lacking. Fitzgerald v. Seaboard Sys. R.R., 

, 1251 (11th Cir. 1985).

Significant for our purposes, “[a]n appellate federal court must satisfy itself not

only of its own jurisdiction, but also that of the lower courts in a cause under

review.” Univ. of S. 

(quoting Mitchell v. Maurer, 

, 244, 

, 165 (1934)). Thus, we cannot proceed to the merits of

Fulton County’s appeal until we have satisfied ourselves that the district court had

subject matter jurisdiction to issue a judgment in favor of KH Outdoor.

                                          A.

      Fulton County argues, among other things, that KH Outdoor lacks standing

because its injuries are not redressable. According to the County, the district court


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was mistaken when it assumed that the redressability issues in Action Outdoor and

this case were the same. Action Outdoor dealt with overlay district regulations in

place in 2006, the County explains, while this case involves the regulations that

were in effect in 2003. As a result, the County argues that the district court should

have conducted a de novo review of whether KH Outdoor’s alleged injuries

stemming from its 2003 billboard applications were redressable. We agree.

      To establish standing, a plaintiff must show “(1) an injury in fact, meaning

an injury that is concrete and particularized, and actual or imminent, (2) a causal

connection between the injury and the causal conduct, and (3) a likelihood that the

injury will be redressed by a favorable decision.” Granite State Outdoor Adver.,

Inc. v. City of Clearwater, Fla., 

, 1116 (11th Cir. 2003) (emphasis

omitted). Each element is “an indispensable part of the plaintiff’s case” and “must

be supported in the same way as any other matter on which the plaintiff bears the

burden of proof, i.e., with the manner and degree of evidence required at the

successive stages of the litigation.” Lujan v. Defenders of Wildlife, 

,

561, 

, 2136 (1992). As a result, a plaintiff “must ultimately support

any contested facts with evidence adduced at trial” to establish Article III standing.

See Bennett v. Spear, 

, 168, 

, 1164 (1997).

      For an injury to be redressable, “it must be ‘likely,’ as opposed to merely

‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” Lujan,


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, 112 S. Ct. at 2136. Two recent cases from this Court have

addressed whether plaintiffs who seek to erect billboards have satisfied the

redressability requirement. In KH Outdoor, L.L.C. v. Clay County, Fla., 

(11th Cir. 2007), we found that KH Outdoor had not satisfied the

redressability requirement because the billboard applications at issue failed to meet

the requirements of other statutes and regulations not challenged. 

Because the plaintiff lacked standing, “we [could] not reach the merits of its

challenges . . . to [the] sign ordinance.” 

Similarly, in Maverick Media

Group, Inc. v. Hillsborough County, 

(11th Cir. 2008), we concluded

that a billboard company could not establish redressability because “the County

could have denied Maverick’s applications under an alternative, unchallenged

provision of its sign ordinance.” 

      These decisions mirror similar outcomes in our sister circuits, all in cases

concerning restrictions on the placement of billboards. See, e.g., Coastal Outdoor

Advertising Group, LLC v. Township of East Hanover, 397 Fed. App’x 794, 795–

96 (3d Cir. 2010) (finding no standing where a billboard permit applicant “would

not be ‘substantially likely’ to erect the billboard because the unchallenged

setback, use, and height restrictions would still prevent [the plaintiff] from erecting

its billboards”); Covenant Media of South Carolina, LLC v. City of North

Charleston, 

, 430 (4th Cir. 2007) (finding no standing because a


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billboard permit application violated a spacing requirement and therefore “could

not have been approved regardless of whether other substantive provisions of the

Sign Regulation [were] held to be unconstitutional”); Midwest Media Property,

LLC v. Symmes, 

, 461 (6th Cir. 2007) (finding no standing because,

“having filed nine applications to post a sign in the township that would violate

[unchallenged height and size] regulations, plaintiffs cannot tenably show that

success in challenging other regulations of the sign ordinance will redress any

injury caused by these regulations”); Harp Advertising Illinois, Inc. v. Village of

Chicago Ridge, 

, 1291 (7th Cir. 1993) (finding no standing “to

challenge either the sign code or the zoning code, because [the plaintiff] could not

put up its sign even if it achieved total victory in this litigation”); Advantage

Media, LLC v. City of Eden Prairie, 

, 801 (8th Cir. 2006) (finding no

standing because “a favorable decision for [plaintiff] . . . would not allow it to

build its proposed signs, for these would still violate other unchallenged provisions

of the sign code like the restrictions on size, height, location, and setback”).

                                           B.

      With these principles and precedent in mind, the district court erred by

barring evidence of Fulton County’s overlay district regulations and entering

judgment in KH Outdoor’s favor without ensuring that the company’s injuries

were redressable. We recognize that the Georgia Supreme Court considered and


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rejected similar arguments regarding redressability in Action Outdoor. 

(“Fulton County and the cities failed to satisfy their burden of

proving that overlay district regulations otherwise prohibited the sign companies

from constructing the signs.”). But crucially, Action Outdoor dealt with billboard

applications filed with Fulton County in 2006, while the case before the district

court involved applications filed in 2003. For this reason, the standing inquiries in

the two cases are not identical, especially given that different regulations may have

been in effect in 2003, as opposed to 2006.

      Beyond that, Fulton County was prepared to submit evidence at trial

demonstrating that KH Outdoor’s applications would have been barred by valid

county and state regulations in effect in 2003. For example, the County proffered

an affidavit written by Randy Beck, a former employee in the Fulton County

Department of Environment and Community Development. Beck would have

testified that 30 of the 32 billboard applications filed by KH Outdoor and its

predecessors were located in overlay districts containing regulations prohibiting

the construction of the requested billboards. In the same way, at trial Fulton

County presented the testimony of James Brown, the Outdoor Advertising

Manager for the Georgia Department of Transportation. Brown testified that

approximately 11 of KH Outdoor’s billboard applications, at least as those

applications existed at the time of trial in U.S. District Court, would have been


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rejected as incomplete by the Georgia Department of Transportation. He testified

that the applications, in the form presented to him as he testified, would have been

rejected even if they had been approved by Fulton County. Brown also testified

that two of the applications for sign permits which were the subject of the damages

trial, had actually been recently denied by the Department of Transportation.

Meanwhile, KH Outdoor did not present any evidence to the district court rebutting

Fulton County’s allegations regarding standing. The District Court should have

developed this one-sided record—perhaps in an evidentiary hearing—to resolve

whether “the County could have denied [the plaintiff’s] applications under an

alternative, unchallenged provision of its sign ordinance.” Maverick Media Group,

.

      The dissent would have us discount our own binding precedent as well as

that of other circuits, and instead rely on Mt. Healthy City School District Board of

Education v. Doyle, 

, 

(1977), and its progeny to come to

the opposite result. See Dissenting Op. at 14 & 18. But the Mt. Healthy burden-

shifting test only enters the analysis once a plaintiff is shown to have standing. Of

course, if the plaintiff can show it is “likely” to obtain redress from a favorable

decision, Lujan, 504 U.S. at 

, the plaintiff would have

standing and the case should proceed to the merits. At that point, a fact-finder

would make a final determination one way or another whether the government


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“would have reached the same decision . . . even in the absence of the protected

conduct.” Mt. 

, 97 S. Ct. at 576. But a District Court

must always assure itself that the plaintiff is at least likely to obtain redress before

reaching the merits. 1 Because the court below failed to do so here, it was in error.

                                                III.

       For these reasons, we VACATE IN PART the district court’s order denying

Fulton County’s motion for judgment as a matter of law or, in the alternative,

motion for new trial or remittitur. We REMAND for the district court to entertain

and review evidence about KH Outdoor’s standing to pursue its claims. 2



       1
         Though we believe the case law can be reconciled in this fashion, even if Mt. Healthy is
“irreconcilable” with cases like Maverick and KH Outdoor at their logical extremes, (Dissenting
Op. at 16–18) this case is not the appropriate vehicle to resolve any alleged conflict. Given the
plethora of decisions in this circuit and others engaging in a standing analysis as we have today
on almost identical facts, it is enough to rely on that precedent to reach our result.
       2
          Because we remand this case for additional proceedings relating to standing, we refrain
from addressing the merits of Fulton County’s appeal. These issues will be addressed if the
district court finds that KH Outdoor has standing to pursue these claims. See Bischoff v.
Osceola Cnty., Fla., 

, 886 (11th Cir. 2000) (refraining from reviewing the district
court’s ruling on the merits until after the district court held an evidentiary hearing on the
question of standing).

         Our opinion should not be misunderstood, however, as an agreement with the district
court’s denial of Fulton County’s motion for judgment as a matter of law. Quite to the contrary,
many of the issues raised by Fulton County give us pause. For example, we have serious doubts
regarding the district court’s finding that res judicata does not apply here. The state court action
and the federal court action both involve the identical claim that Fulton County was violating KH
Outdoor’s First Amendment rights by refusing to allow KH Outdoor to build billboards on the
same parcels of land. Beyond that, KH Outdoor conceded to the district court that there was at
least a risk of double recovery between the state court action and the federal court action. These
facts weigh heavily in favor of a finding that the two cases involve identical causes of action
such that res judicata should apply under Georgia law.
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HINKLE, District Judge, concurring in part:

      This is an appeal from a nearly $3 million judgment on a jury verdict for the

plaintiff sign company against the defendant county. The plaintiff says the

defendant unconstitutionally denied the plaintiff’s 2003 applications to erect 32

specific signs. The case is 11 years old and counting.

      The defendant raises substantial issues. The majority addresses only one of

them. The majority concludes it must take this approach because the issue it

addresses is one of standing. I believe the issue is not standing and that we should

address the other issues properly before us—that we should move this case as far

as possible toward a too-long-delayed resolution.

      To illustrate that the issue is not standing, I start with this indented statement

of the case:

               The plaintiff asserts that on a specific occasion in the past, the
               defendant—a political subdivision of the state—made a
               decision that violated the plaintiff’s First Amendment rights.
               The plaintiff sued the defendant, seeking a damages award and
               injunctive relief. The defendant denied that it violated the First
               Amendment. Alternatively, the defendant asserted that, even if
               it did violate the First Amendment, the plaintiff was not entitled
               to relief, because the defendant would have made the same
               decision anyway, for legitimate, unrelated reasons. The
               plaintiff denied that the defendant would have made the same
               decision anyway.




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The indented statement is a scrupulously accurate description of this case. It

is also a scrupulously accurate description of Mt. Healthy City School

District Board of Education v. Doyle, 

(1977).

      Mt. Healthy is the landmark Supreme Court decision that governs cases just

like this one: cases in which a defendant is accused of a past constitutional

violation and asserts, as one of its defenses, that it would have made the same

decision anyway. When there is a genuine factual dispute about this, it is an issue

for trial, typically before a jury. The burden is on the plaintiff to prove the

constitutional violation, but the burden is on the defendant to prove the same-

decision defense. If the defendant wins on this issue—the jury finds that the

defendant would have made the same decision anyway—the court properly enters

a judgment for the defendant on the merits. The court does not dismiss the case for

lack of standing.

      The circuit’s pattern jury instructions include a Mt. Healthy instruction.

Hundreds of cases have been tried in this circuit under Mt. Healthy, always treating

the same-decision defense as a merits issue. The circuit has repeatedly applied Mt.

Healthy as a merits case.

      A cursory search turns up the following examples, all First Amendment

cases involving the same general pattern as Mt. Healthy and the case at bar: the

plaintiff claimed that the defendant took action that violated the plaintiff’s First


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Amendment rights, the defendant denied it, and alternatively the defendant

asserted it would have made the same decision anyway, even in the absence of the

First Amendment violation.

      In Stanley v. City of Dalton, Georgia, 

(11th Cir. 2000), the

district court granted summary judgment for the defendant. The Eleventh Circuit

held there were disputed issues of fact on the merits—specifically including the

same-decision defense—that precluded summary judgment. But the court held the

defendant had qualified immunity. So the Eleventh Circuit affirmed the judgment

for the defendant on the merits, without deciding whether the defendant would

have made the same decision anyway. The Eleventh Circuit did not send the case

back for an evidentiary hearing on standing, as would have been required under the

majority’s analysis here.

      In Smith v. Mosley, 

(11th Cir. 2008), the court upheld a

summary judgment on the merits for the defendant, on the ground that no

reasonable jury could have found that the defendant would not have made the same

decision anyway. The court did not question the district court’s standing to enter

the judgment on the merits.

      In Allen v. Autauga County Board of Education, 

(11th Cir.

1982), the court upheld a judgment for the plaintiffs on the ground that the district

court’s findings of fact after a bench trial properly resolved the same-decision issue


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in the plaintiffs’ favor. The court did not say this was a standing issue or should

have been addressed other than as part of the trial on the merits.

      In Paschal v. Florida Public Employees Relations Commission, 

(11th Cir. 1982), the jury held that the protected speech was not a motivating

factor in the challenged decision, thus resolving the claim for the defendant

without reaching the disputed same-decision issue. The Eleventh Circuit upheld

the resulting judgment for the defendant on the merits. The court did not send the

case back for resolution of the same-decision issue, as would have been proper if

the issue was standing.

      Many more cases like this could be cited. The bottom line is this: in our

case the majority is correct that the defendant should have been allowed to present

its same-decision evidence. But properly analyzed, this is a merits issue.

      In taking a different approach—in treating the same-decision issue as

standing—the majority relies on two recent Eleventh Circuit decisions that are

different from our case. They are different because in each there was no real

dispute about whether the defendant would have made the same decision anyway.

In KH Outdoor, L.L.C. v. Clay County, Fla., 

(11th Cir. 2007), the

“uncontroverted evidence” showed that the plaintiff sign company’s proposed

signs failed to comply with the Florida Building Code and Florida statutes that the

plaintiff did not 

. In Maverick Media Group, Inc. v.


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Hillsborough County, 

(11th Cir. 2008), the sign company applied to

erect signs that “clearly” were impermissible under other, unchallenged 

.

      When it is clear that the defendant would have made the same decision

anyway, it is of course clear that the plaintiff will be unable to obtain redress. And

so it is not surprising that a court could view this as lack of standing. But when

there is a genuine dispute about this—when, as the majority suggests here, the

district court may need to conduct an evidentiary hearing—then the issue is not

standing, but the merits. The genuine dispute is a case or controversy, and the

plaintiff’s stake in that dispute provides standing. The ability to award damages or

injunctive relief if the plaintiff wins establishes redressability. And the appropriate

evidentiary hearing is a jury trial. To hold otherwise violates the Seventh

Amendment.

      To be sure, KH v. Clay County and Maverick did not explicitly say this was

a standing issue only because it was clear that the defendant would have made the

same decision anyway. Somehow courts have treated sign cases differently,

perhaps because in the past sign cases often involved only injunctive relief, or

perhaps because other statutes or ordinances often clearly prohibit the signs, with

no need for an evidentiary hearing to confirm that result. Indeed, KH v. Clay

County relied on Harp Advertising Illinois, Inc. v. Village of Chicago Ridge, Ill., 9


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(7th Cir. 1993), a case in which a sign company sought only injunctive

relief and in which other, unchallenged provisions plainly would have prohibited

the signs at issue. Harp Advertising in turn relied on Renne v. Geary, 

(1991), again a case seeking only prospective relief, and a case in which the Court

said the requested relief would make no practical difference. The requested relief

in the case at bar, in contrast, would make a practical difference: the plaintiff

would get a lot of money.

      Standing principles are, or at least should be, the same in sign cases as in

other cases. We should not allow sign cases that are different—because the

validity of the same-decision defense is clear at the outset—to dictate the result in

sign cases like this one in which there is a disputed same-decision defense. But if

this view is rejected—if KH v. Clay County and Maverick are read as applying to

sign cases in which there is a genuine dispute over the same-decision defense—

then KH v. Clay County and Maverick cannot be squared with the many earlier

same-decision cases, including Mt. Healthy, Stanley, the many cases cited in

Stanley, and the other cases cited above.

      We of course must follow a prior panel. But when prior panel decisions are

in irreconcilable conflict, the controlling decision is the oldest, not the most recent.

As between the many older cases treating the same-decision defense as a merits

issue, and the two more recent sign-ordinance cases treating this as a standing


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issue, our obligation is to follow the older cases. See, e.g., Walker v. Mortham,

, 1188-89 (11th Cir. 1998). And here, following the older cases has

the added advantage that they are doctrinally sound and agree with the law as set

out by the Supreme Court.

      Three more points should be mentioned on this issue.

      First, it may seem odd that the same-decision defense in this case could turn

on a genuine factual dispute. The defendant claims that its “overlay” restrictions

would have prohibited the plaintiff from erecting at least some of the signs at issue,

even if the challenged sign ordinance had not existed. One might think this could

be resolved simply be consulting the overlay restrictions and examining the

plaintiff’s applications to erect the signs. But it apparently is not that easy. Even

determining which overlay restrictions were actually in effect apparently has

proven difficult. And there of course could be disputes about the precise location

or other attributes of a proposed sign or about how county officials actually applied

the overlay restrictions. So while the same-decision defense here may implicate

legal issues, it also implicates factual issues that should have been resolved only by

summary judgment or trial.

      Second, the majority cites proffered testimony that 30 of the plaintiff’s 32

proposed signs violated the overlay restrictions and that 11 would have been

denied by the Georgia Department of Transportation. But if even 1 proposed sign


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would have survived overlay and state review, the same-decision defense fails for

that sign, and so, even on the majority’s view of standing law, the plaintiff has

standing. The likelihood is high that what the majority labels a standing issue will

not end the case. If that is so, then sooner or later a decision will be needed on the

other issues now before us.

      Third, when one gets mired in doctrinal intricacies, it sometimes helps to

take a step back, to consider the bigger picture. This is a case in which the plaintiff

claims that the defendant violated the plaintiff’s own constitutional rights. The

plaintiff says the violation caused millions of dollars in actual damage to the

plaintiff. A jury agreed. The plaintiff is the party claiming the millions and

holding a judgment; if the plaintiff wins, it gets the money. The plaintiff may or

may not be correct on the merits. But it is odd to say the plaintiff lacks standing.

      In any event, the case is going back to the district court. If, as seems

possible, the district court decides that the overlay restrictions or state law would

not have precluded the plaintiff from erecting these signs, the defendant’s other

challenges to the verdict will again be front and center. I would decide those

issues now.

      I would sustain the defendant’s position in at least two respects.

      First, the plaintiff sought damages from 2003 forward, even for a period

after some of the sign locations became part of new or expanding municipalities,


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ending the defendant county’s control over signs in those locations. The defendant

asserted the plaintiff failed to mitigate its damages by applying to the

municipalities; a successful application would have cut off damages going forward.

The court barred the defendant from presenting evidence on this. At oral argument

before us, the plaintiff said everybody knows the municipalities would not have

permitted the signs. But the defendant should not have been foreclosed from

pursuing its mitigation defense based on what everybody supposedly knows.

       Second, the plaintiff presented damages experts who testified to the lost cash

flow a typical sign company would suffer from the loss of these locations. But the

recoverable element of damages is lost profits, not lost cash flow. And that is so

even if, as these experts testified, companies decide whether to erect signs based on

projected cash flow. Moreover, the issue is not what a typical company would

have lost, but what this plaintiff lost. None of this necessarily means these experts

should have been excluded. But it does mean that, to get the testimony in and lost

profits to the jury, the plaintiff was obligated to fill in the gaps.

       That the jury did not fully accept the experts’ testimony does not render this

error harmless. It is true that the jury awarded only “general” damages, not lost

profits, but if not based on lost profits, it is not clear what the general damages

could properly have consisted of. And even though the jury awarded only a




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fraction of the lost cash flow calculated by the experts, the experts’ testimony

might well have affected the verdict.

      For these reasons, I would vacate the judgment and remand the case for a

new trial.




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