                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 99-2521
                                 ___________

Philomena T. Badami; Stephen           *
J. Badami; Michael James               *
Badami; Thomas Joseph                  *
Badami; Kimberly Ann Badami;           *
John Paul Badami; Patrick Raymond      *
Badami; Daniel Vincent Badami;         *
David Christopher Badami;              * Appeal from the United States District
Matthew Lawrence Badami,               * Court for the Western District of
                                       * Missouri.
            Appellants,                *
                                       *
      v.                               *
                                       *
Terry W. Flood; Robert C. Conn;        *
Flood & Conn Enterprises; Jay Ann      *
Flood; Terry W. Flood Real Estate      *
Company,                               *
                                       *
            Appellees.                 *
                                  ___________

                           Submitted: March 16, 2000

                                Filed: June 5, 2000
                                 ___________

Before MCMILLIAN, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
                           ___________

FLOYD R. GIBSON, Circuit Judge.
       Plaintiffs Philomena T. Badami, Stephen J. Badami, Michael James Badami,
Thomas Joseph Badami, Kimberly Ann Badami, John Paul Badami, Patrick Raymond
Badami, Daniel Vincent Badami, David Christopher Badami, and Matthew Lawrence
Badami (hereinafter "the Badamis") brought suit under the Fair Housing Act, 42 U.S.C.
§§ 3601-3631 (1994), claiming the defendants discriminated against them, based on the
size of their family, in their search for a rental home. After a two-day trial, a jury
awarded the Badamis $1,100 in compensatory damages. Terry W. Flood, Robert C.
Conn, Flood & Conn Enterprises, Jay Ann Flood, and Terry W. Flood Real Estate
Company, (hereinafter "the defendants") do not appeal this verdict. The Badamis,
however, appeal several rulings of the district court. We affirm in part, reverse in part,
and remand.

I.    Background

       As the jury found in favor of the Badami family, the following facts are recited
in the light most favorable to the jury's verdict. In June of 1994, the Badami family
began a search for rental housing in anticipation of their relocation to the Kansas City,
Missouri area from their current residence in Claremore, Oklahoma. Mrs. Philomena
Badami contacted her sister-in-law, Ms. Bellafiore, who resides in the Kansas City area
for assistance. On June 23, 1994, Ms. Bellafiore informed Mrs. Badami of a rental
property offered in a local paper by the Terry W. Flood Real Estate Company.

      From her home in Oklahoma, Mrs. Badami telephoned the real estate company
and spoke with Terry W. Flood regarding a rental property located at 6008 North
Michigan. Mrs. Badami informed the defendant that her family, which included her
husband and eight children living in the home, was planning to relocate to Kansas City
and wished to rent a home. Mr. Flood told Mrs. Badami that the 6008 North Michigan
property had already been rented and was therefore unavailable. When Mrs. Badami
asked about other properties for rent Mr. Flood informed her that nothing suitable for
her family's size was available.

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       On June 25, 1994, Mr. Stephen Badami drove to Kansas City from Oklahoma.
Mr. Badami obtained two lists of rental properties offered by the Terry W. Flood Real
Estate Company. The rental lists were provided to the public free of charge and were
available at the real estate office. On June 27, Mrs. Badami again called Mr. Flood to
inquire about several properties on the rental lists. Mrs. Badami specifically inquired
about six rental properties. Mr. Flood again informed Mrs. Badami that he had no
properties available that were suitable for her family's size. Mrs. Badami requested a
rental application but Mr. Flood reiterated that he had no properties large enough to
accommodate the Badami family.

       Although they had failed to secure permanent housing, the Badamis moved to
Kansas City on June 30, 1994. The family spent one night at a hotel. The Badamis
then placed their belongings in storage and stayed with family friends, the Millwoods,
for the next fourteen days. During their stay with the Millwoods, the Badamis
continued their attempts to secure rental housing.

      In July of 1994, Mr. Badami contacted Mr. Flood regarding rental properties.
In an effort to allay any fears regarding his credit-worthiness, as Mr. Badami was
unemployed, he offered to pay Mr. Flood one year's rent in advance for a suitable rental
home. Several days after this conversation, Mr. Flood informed Mr. Badami that he
had located an available property for the family. Mr. Flood offered to rent a house
located at 5519 North Seminole if the Badamis advanced one year's rent, at $1000 per
month, as well as a security deposit of $3000.

       The Seminole property was offered for rent to the public at $1000 per month
with a $600 security deposit. Mr. Flood did not request, nor did he ever receive, a
rental application from the Badamis. On July 7, 1994, Mr. Badami refused the rental
terms offered by Mr. Flood on the Seminole property. This was the last conversation
between the Badamis and Mr. Flood regarding any rental property.


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       After their two-week stay with the Millwoods, the Badami family moved into the
home of Carl Palermo, a relative of Mr. Badami. The Badamis stayed with the
Palermos for nearly four months while they sought to obtain a mortgage to buy a home.
 Mr. Palermo did not charge the Badami family rent. During this time, Mr. Badami
secured two jobs to aid in the family's quest to qualify for a home mortgage. Mr. and
Mrs. Badami testified that they had not wanted to purchase a home so soon after their
arrival in Kansas City. However, their inability to find rental housing required them to
purchase a house approximately one year ahead of schedule. In October of 1994, the
Badamis purchased a house and moved from the Palermo home.

        The Badami family filed this lawsuit on May 22, 1997, alleging that the
defendants had discriminated against them based on familial status in violation of the
Fair Housing Act. The Badamis sought compensatory and punitive damages, injunctive
relief, and costs. Mrs. Philomena Badami pursued her family's cause pro se before the
district court. The jury returned a verdict in favor of the Badamis and awarded $1100
in compensatory damages. The Badamis appeal, alleging the district court erred in
failing to submit the issue of punitive damages to the jury and in excluding some
evidence of actual damages.

II.   DISCUSSION
      A.  Punitive Damages

       The Badamis contend that the district court erred in failing to submit the issue
of punitive damages to the jury. At the jury instruction conference, the district court
ruled that the record did not contain sufficient evidence to support a punitive damages
instruction. Upon thorough review of the record, we find that sufficient evidence was
presented at trial to merit submission of punitive damages to the jury. We therefore
reverse the district court's ruling and remand for trial on the punitive damages issues.




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       The Fair Housing Act provides for the recovery of punitive damages by victims
of discriminatory housing practices. See 42 U.S.C. § 3613(c)(1) (1994). "[T]he
assessment of punitive damages under the FHA is governed by federal rather than state
law." United States v. Big D Enterprises, Inc., 184 F.3d 924, 932 (8th Cir. 1999), cert.
denied, 120 S. Ct. 1419 (2000). Punitive damages are appropriate in a federal civil
rights action "when the defendant's conduct is shown to be motivated by evil motive or
intent, or when it involves reckless or callous indifference to the federally protected
rights of others." Smith v. Wade, 461 U.S. 30, 56 (1983).

       The Supreme Court recently addressed the meaning of the terms "malice" and
"reckless indifference" as they relate to the standard for punitive damages in the Title
VII context. See Kolstad v. American Dental Assoc., __ U.S. __, 119 S. Ct. 2118
(1999). The Court stated that "'malice' or 'reckless indifference' pertain to the
[defendant's] knowledge that it may be acting in violation of federal law, not its
awareness that it is engaging in discrimination." Id. at 2124. The Kolstad Court further
explained that, although conduct justifying a punitive damages award is sometimes
characterized as egregious or outrageous, it "is not to say that [defendants] must engage
in conduct with some independent, 'egregious' quality before being subject to a punitive
award." Id. at 2126. In the Title VII context, it is sufficient that a defendant
"discriminate in the face of a perceived risk that its actions will violate federal law to
be liable in punitive damages." Id. at 2125.

       Although Kolstad concerned punitive damages in a Title VII employment
discrimination case, and Wade addressed punitive damages in a § 1983 civil rights
action, we believe the same standard for punitive damages applies in the Fair Housing
Act context. See Alexander v. Riga, 208 F.3d 419, 430-32 (3rd Cir. 2000) (discussing
applicability of Kolstad to Fair Housing Act violations). Applying that standard, we
conclude that the district court erred in refusing to submit the issue of punitive damages
to the jury.


                                           -5-
       At trial, the Badamis presented evidence that at least one of the rental homes that
Mr. Flood stated to be unavailable had not been rented on the date Mrs. Badami spoke
with Mr. Flood. Mrs. Badami presented evidence that Mr. Flood had been in the
property management business for twenty-seven years. Moreover, Mr. Flood testified
that he was aware of the Fair Housing Act and its prohibition of discrimination in rental
housing on the basis of familial status.

        As regards the requested $3000 security deposit on the Seminole property, Mr.
Flood stated that the additional $2400 he requested of the Badamis (the difference
between the deposit requested of the Badamis and the $600 deposit requested of other
potential lessees) constituted additional rent. Mr. Conn, Flood's business partner,
testified that the extra $2400 was "additional rent to protect [the Badamis] at the end
of their lease in case they couldn't at that time pay or could not find some place else to
live." Trial Tr. at 126.

        Mrs. Badami elicited testimony from Mr. Flood that he was unaware of the
Badami's financial situation beyond Mr. Badami's unemployed status. Mrs. Badami
also called Cathy Cox, the real estate agent who found the house that the Badamis
eventually purchased. Ms. Cox testified that she did not believe the Badami family was
financially unable to afford suitable housing in July of 1994. Mr. Flood admitted at trial
that he discouraged the Badamis from submitting a rental application because he was
certain the family would not be approved for some rental properties. Finally, Mr. Flood
testified that he felt the size of the Badami family might be an obstacle in securing a
rental home.

       We find this evidence sufficient to justify the submission of a punitive damages
instruction to the jury. We are not prepared to characterize the defendants' conduct in
this case as egregious per se. However, a reasonable jury could find the defendants
acted with malice or reckless indifference that their actions might violate a federal
statute of which they were aware. See Kolstad, 119 S. Ct. at 2124-25; Tyus v. Urban

                                           -6-
Search Management, 102 F.3d 256, 266 (7th Cir. 1996) (finding that evidence of
defendant's knowledge of Fair Housing Act and intentional disregard of the Act raised
jury question on punitive damages issue). We therefore remand this case to the district
court for a trial on the punitive damages issue.

      B.     Evidentiary Exclusions

       The Badamis further contend that the district court erred in excluding certain
evidence of actual damages. Mrs. Badami submitted to this Court an affidavit asserting
that the district court excluded evidence of damages incurred by her family. Mrs.
Badami alleges that the court excluded damages such as alternative housing costs, lost
wages, and mental anguish and humiliation damages. Mrs. Badami avers that the
conference during which the court excluded the evidence was off the record and urges
us to consider her affidavit as a record of the court's ruling. The defendants have
moved to strike the affidavit, and we hereby grant that motion.

      Federal Rule of Evidence 103(a) provides that "[e]rror may not be predicated
upon a ruling which . . . excludes evidence unless . . . the substance of the evidence
was made known to the court by offer or was apparent from the context within which
questions were asked." In order to challenge a trial court's exclusion of evidence, the
issue must be preserved for appeal by making an offer of proof on the record. See
Dupre v. Fru-Con Engineering Inc., 112 F.3d 329, 336 (8th Cir. 1997); Holst v.
Countryside Enterprise, Inc. 14 F.3d 1319, 1323 (8th Cir. 1994). Mrs. Badami failed
to make an offer of proof to the district court regarding the evidence allegedly excluded
by the court.

      Further, Mrs. Badami failed to follow the proper appellate procedure in her
attempt to have this Court consider the excluded evidence. The Federal Rules of
Appellate Procedure provide the course of action Mrs. Badami should have taken.
Mrs. Badami's affidavit is not entirely improper, as FRAP 10(c) does allow an appellant

                                          -7-
to prepare a statement recounting unrecorded proceedings before the district court.
However, Rule 10(c) requires that the statement "be submitted to the district court for
settlement and approval." Mrs. Badami failed to provide the district court with an
opportunity to review, correct or approve the affidavit she submitted to this Court.

       Alternatively, Mrs. Badami could have moved, pursuant to FRAP 10(e), to
modify the record. Rule 10(e) provides that, when differences arise as to whether the
record on appeal truly discloses what occurred in the district court, "the difference shall
be submitted to and settled by [the district court]." Again, Mrs. Badami failed to
provide the district court with an opportunity to correct any errors in the record. On
appeal Mrs. Badami requests that, as she tried the case pro se, we forgive her
procedural error. While we are mindful of the difficulties faced by pro se litigants, we
must decline. Absent a record of the proffered evidence and the trial court's reasons
for excluding it, meaningful appellate review is virtually impossible.

       Even if this issue had been preserved on appeal, we have carefully reviewed the
district court's rulings that are contained in the record and find no abuse of discretion.
See United States v. Looking, 156 F.3d 803, 811 (8th Cir. 1998) (stating standard of
review of district court's exclusion of evidence). We find the Badamis' other
contentions on appeal to be without merit.

      Accordingly, the district court's order denying the submission of punitive
damages is reversed and the case is remanded for trial on the issue of punitive damages.
The defendants' motion to strike the affidavit of Mrs. Badami is granted. In all other
respects the trial court's decision is affirmed.




                                            -8-
A true copy.

      Attest:

        CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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