                                                                    [PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                               No. 06-11477               SEPTEMBER 27, 2006
                           Non-Argument Calendar           THOMAS K. KAHN
                                                               CLERK
                         ________________________

                    D. C. Docket No. 03-03278-CV-HS-S

KH OUTDOOR, LLC,


                                                       Plaintiff-Appellee,

                                   versus

TRUSSVILLE, CITY OF,

                                                       Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                    for the Northern District of Alabama
                       _________________________

                           (September 27, 2006)

Before ANDERSON, BIRCH and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

     The City of Trussville (“the city”) appeals the district court’s award of
nominal damages in the amount of $100 to plaintiff KH Outdoor, LLC (“KH

Outdoor”). After thorough review, we affirm.

      The undisputed facts of this case are these. KH Outdoor is a Georgia limited

liability company in the business of buying or leasing land upon which to erect

signs that display both commercial and noncommercial messages. KH Outdoor

submitted eleven applications to the city for permits to construct outdoor

advertising signs at various locations within Trussville. The applications did not

specify whether the billboards would display commercial or noncommercial

messages.

      The city denied each of the applications pursuant to section 20.0 of the City

of Trussville Sign Ordinance (“the ordinance”), which regulates “billboard signs.”

Section 20.0 states that billboard signs are permitted only on interstate highways

and provides numerous size, lighting, and setback requirements. Section 2.0 of the

ordinance, which provides definitions for terms used in the other sections, defines

a “billboard sign” as “[a]n off-premise sign which directs attention to a business,

commodity, service or entertainment, sold or offered for sale at a location other

than the premises on which said sign is located.” The city denied the applications

pursuant to section 20.0 because KH Outdoor sought to place some billboard signs

on roads other than interstate highways and because some of the signs failed to



                                        2
meet the applicable size requirements.

      After the city denied the permit applications, KH Outdoor brought suit in

federal district court seeking a preliminary injunction and a permanent injunction

to prevent the city from enforcing the ordinance. The complaint leveled various

constitutional challenges against nearly every provision of the ordinance.         The

parties filed cross-motions for summary judgment, both of which the district court

granted in part and denied in part. The district court found that the ordinance

unconstitutionally favors commercial speech over noncommercial speech.               It

enjoined the city from enforcing section 1.0 of the ordinance, which provides that

“[i]f not otherwise stated, any sign not specifically permitted in a zoning district as

provided under the applicable section, shall be prohibited in that district.” Without

that provision, section 20.0 no longer contains any prohibitions against

noncommercial billboards, and thus does not impermissibly favor commercial

speech.   In the order enjoining section 1.0, the district judge also granted KH

Outdoor’s request for nominal damages, although at that time the district court did

not specify the amount of nominal damages it would award.

      The city filed an interlocutory appeal of the district court’s order enjoining

section 1.0, and we affirmed. See KH Outdoor, LLC v. City of Trussville, No. 05-

12598 (11th Cir. Aug. 4, 2006) (“KH Outdoor I”). The only issue presented in KH



                                          3
Outdoor I was the propriety of the injunction; the city did not argue that the

nominal damage award was improper, and we did not address that question in our

opinion. While the appeal in KH Outdoor I was pending before us, the city filed a

motion for summary judgment in the district court regarding KH Outdoor’s claim

for compensatory damages. The district judge granted the city’s motion, finding

that KH Outdoor failed to show an actual injury, as required by the Supreme

Court’s decision in Carey v. Piphus, 435 U.S. 247, 264 (1978). The district court

reasoned that even after it enjoined section 1.0, KH Outdoor still had not

demonstrated that it was entitled to have its sign permits granted because the

applications did not indicate whether the billboards would be commercial (and

thereby regulated by the ordinance) or noncommercial (and thereby outside the

scope of the ordinance).      However, although the district court found that

compensatory damages were inappropriate, it did award KH Outdoor $100 in

nominal damages. KH Outdoor has not appealed the district court’s determination

regarding compensatory damages, and that issue is not before us.

      What has been appealed is the district judge’s ruling that KH Outdoor is

entitled to nominal damages of $100. Again, the district court granted nominal

damages in the same order in which it enjoined section 1.0, and set an amount for

nominal damages ($100) in the order when it granted the city’s motion for



                                        4
summary judgment regarding compensatory damages.              We have jurisdiction

pursuant to 28 U.S.C. § 1291. We review decisions granting summary judgment

de novo, using the same legal standards that bound the district court. Arrington v.

Helms, 438 F.3d 1336, 1341 (11th Cir. 2006).

      KH Outdoor argues, first, that the city has appealed only the order setting the

amount of nominal damages, and not the order granting entitlement to nominal

damages. We disagree. To be sure, the notice of appeal filed in KH Outdoor I

listed the order being appealed from as that which granted “Plaintiff’s requests for

preliminary injunction against the City of Trussville and nominal damages.”

However, the propriety of the district court’s nominal damages determination was

not a part of the first appeal. The parties did not address the issue in their briefs,

and we did not consider the question in our opinion.          And that omission is

understandable -- the first appeal was interlocutory in nature, and our jurisdiction

was limited to that portion of the district court’s order “granting, continuing,

modifying, refusing or dissolving injunctions.” 28 U.S.C. § 1292(a)(1). Thus, to

the extent KH Outdoor is arguing that the city has waived the right to appeal the

entitlement to nominal damages by failing to raise that issue in the first appeal, we

disagree. See S & Davis Int’l, Inc. v. The Republic of Yemen, 218 F.3d 1292,

1297 (11th Cir. 2000) (noting that a court of appeals may consider an issue outside



                                          5
the scope of an interlocutory appeal but only if that issue is inextricably

intertwined with the one that is otherwise properly before the court) (internal

quotation marks omitted).

      Next, KH Outdoor argues that the city has failed to appeal effectively the

district court’s order granting entitlement to nominal damages because that order is

not specifically listed in the second notice of appeal, which initiated the appeal we

are considering now. The second notice of appeal lists the order being appealed

from as that which was entered by the district court “on the 31st day of January,

2006, limited to the Court’s award of nominal damages to the Plaintiff in the

amount of $100.00.” Rule 3(c)(1)(B) of the Federal Rules of Appellate Procedure

requires the appellant to “designate the judgment, order, or part thereof being

appealed.” The city argues that because KH Outdoor designated only that order

setting the amount of nominal damages in its second notice of appeal, it has failed

to effectively raise the issue of entitlement to nominal damages. Again, we are

unpersuaded.

      We are required to “liberally construe the requirements of Rule 3.” Smith v.

Barry, 502 U.S. 244, 248 (1992). “[I]n this circuit, it is well settled that an appeal

is not lost if a mistake is made in designating the judgment appealed from where it

is clear that the overriding intent was effectively to appeal.” Kicklighter v. Nails



                                          6
by Jannee, Inc., 616 F.2d 734, 739 n.1 (5th Cir. 1980) (internal quotation marks

omitted).1 “This has resulted in the liberal allowance of appeals from orders not

expressly designated in the notice of appeal, at least where the order that was not

designated was entered prior to or contemporaneously with the order(s) properly

designated in the notice of appeal.” McDougald v. Jenson, 786 F.2d 1465, 1474

(11th Cir. 1986). Here, it is overwhelmingly clear that the city intended to appeal

the district court’s ruling that KH Outdoor is entitled to nominal damages. The

appellant’s brief addresses only that issue; the city does not even argue that the

amount of the nominal damages was excessive (which is the only issue KH

Outdoor would have us consider). And KH Outdoor is not prejudiced in the least

if we consider the entitlement question. See Campbell v. Wainwright, 726 F.2d

702, 704 (11th Cir. 1984) (noting that we liberally construe the notice of appeal in

favor of the appellant “where the intent to appeal an unmentioned or mislabeled

ruling is apparent and there is no prejudice to the adverse party”). That issue has

been fully briefed by both parties, and indeed it was listed in the first notice of

appeal.    Although the second notice of appeal could have been more artfully

drawn, a liberal construction of that notice requires us to conclude that the city has



       1
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.

                                                7
effectively appealed the district court’s determination that KH Outdoor is entitled

to nominal damages.

      Again, the district court granted the city’s motion for summary judgment

regarding compensatory damages, finding that KH Outdoor failed to show actual

injury, see Slicker v. Jackson, 215 F.3d 1225, 1229 (11th Cir. 2000) (noting that

compensatory damages in a § 1983 suit must be based on actual injury caused by

the defendant), and that, even if there was actual injury, compensatory damages

could not be established with the degree of reasonable certainty required by

Alabama law. Those rulings have not been appealed, and they are not before us.

      The district court did grant nominal damages, however, and they are

governed by a standard different from the standard that controls compensatory

damages. “Nominal damages are appropriate if a plaintiff establishes a violation of

a fundamental constitutional right, even if he cannot prove actual injury sufficient

to entitle him to compensatory damages.” Hughes v. Lott, 350 F.3d 1157, 1162

(11th Cir. 2003). See also Carey, 435 U.S. at 266 (holding that a plaintiff could be

compensated with nominal damages for a procedural due process violation even

absent proof of actual injury). Moreover, although the Supreme Court’s decision

in Carey involved nominal damages after a procedural due process violation,

nominal damages are similarly appropriate in the context of a First Amendment



                                         8
violation.   See Familias Unidas v. Briscoe, 619 F.2d 391, 402 (5th Cir. 1980)

(holding that “the rationale of [the Supreme Court’s decision in] Carey similarly

requires an award of nominal damages upon proof of infringement of a

fundamental First Amendment liberty”); see also Risdal v. Halford, 209 F.3d 1071,

1072 (8th Cir. 2000) (noting that nominal damages are required “upon proof of an

infringement of the first amendment right to speak”).        Quite simply, “[w]hen

constitutional rights are violated, a plaintiff may recover nominal damages even

though he suffers no compensable injury.” Kelly v. Curtis, 21 F.3d 1544, 1557

(11th Cir. 1994).

      The city argues, nevertheless, that KH Outdoor is not entitled to nominal

damages because it was not injured by the portion of the ordinance that was struck

down as unconstitutional.     It relies on our opinion in Granite State Outdoor

Advertising, Inc. v. City of St. Petersburg, 348 F.3d 1278 (11th Cir. 2003). We

remain unpersuaded.     In Granite State, portions of a city sign ordinance were

struck down because of several unconstitutional, content-based restrictions in the

ordinance that were wholly unrelated to those sections of the ordinance that were

used to deny the plaintiff’s sign applications. Id. at 1280 n.1. We noted that courts

must award nominal damages only when “certain absolute rights are violated” and

found that the plaintiff was not entitled to nominal damages precisely because “we



                                         9
upheld as constitutionally sound the provisions of the sign ordinance that applied

to [the plaintiff].” Id. at 1283. We agree with KH Outdoor that the facts of this

case are decidedly different from those we considered in Granite State, and that the

award of nominal damages was appropriate.

      This case is different from Granite State because the section of the city’s

ordinance used to deny KH Outdoor’s permits was found to be unconstitutional.

The district court concluded that section 20.0 was unconstitutional because it

contained content-based restrictions on billboards that impermissibly favored

commercial speech to the detriment of noncommercial speech. We affirmed that

ruling in KH Outdoor I, holding that the city’s ordinance unconstitutionally limited

the size of noncommercial signs because it permitted billboard-sized commercial

messages,    but   prohibited   otherwise      identical   signs   if     they   displayed

noncommercial messages. KH Outdoor I, slip op. at 17-19. It is immaterial that

the district court cured the constitutional deficiency by enjoining a different section

of the ordinance; the underlying constitutional problem lay in the fact that section

20.0 was an impermissible, content-based restriction.                   Thus, unlike the

circumstances found in Granite State, here the constitutional deficiency was found

in the very section of the ordinance used to deny KH Outdoor’s permits.                Cf.

Yniguez v. Arizonans for Official English, 69 F.3d 920, 949 n.34 (9th Cir. 1995)



                                          10
(en banc) (noting that an award of nominal damages is particularly appropriate in a

First Amendment overbreadth case because “a successful plaintiff in an

overbreadth case has convinced the court to strike down a law that would, if left

standing, chill the constitutionally protected speech of large numbers of other

members of society”), vacated on other grounds sub nom. Arizonans for Official

English v. Arizona, 520 U.S. 43 (1997).

      The city also argues that KH Outdoor’s failure to show any actual or

concrete injury resulting from the constitutional defect precludes it from

recovering nominal damages.      The city confuses compensatory damages with

nominal damages.     To recover nominal damages, KH Outdoor simply is not

required to prove actual injury. Hughes, 350 F.3d at 1162; Slicker, 215 F.3d at

1230. Instead, it must show only a violation of a fundamental constitutional right.

Here, that constitutional violation existed because the ordinance impermissibly

discriminated based on the content of speech, and, unlike the situation in Granite

State, the violation inheres in the very section of the ordinance used to deny KH

Outdoor’s permits.

      In short, we conclude that the city’s notice of appeal includes whether the

district court erred in finding that KH Outdoor is entitled to nominal damages and

that, on the merits, the district court’s determination was proper. Accordingly, we



                                          11
affirm the award of nominal damages in the amount of $100.2

       AFFIRMED.




       2
         The city argues that KH Outdoor is not entitled to attorney’s fees. That issue is not
before us, and we decline to consider whether attorney’s fees are proper in this case. Moreover,
the city does not argue that the amount of nominal damages was excessive, and we likewise
decline to consider that question.

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