954 F.2d 1337 (7th Cir. 1992), 90-3799, Littlefield v. McGuffey

Docket Nº:90-3799, 90-3827.
Citation:954 F.2d 1337
Party Name:Susanne LITTLEFIELD, Plaintiff-Appellee, v. Malcolm McGUFFEY, Defendant-Appellant. Susanne LITTLEFIELD, Plaintiff-Appellant, v. Wally MACK, Santa Maria Realty and Malcolm McGuffey, Defendants-Appellees.
Case Date:January 27, 1992
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1337

954 F.2d 1337 (7th Cir. 1992)

Susanne LITTLEFIELD, Plaintiff-Appellee,

v.

Malcolm McGUFFEY, Defendant-Appellant.

Susanne LITTLEFIELD, Plaintiff-Appellant,

v.

Wally MACK, Santa Maria Realty and Malcolm McGuffey,

Defendants-Appellees.

No. 90-3799, 90-3827.

United States Court of Appeals, Seventh Circuit

January 27, 1992

Argued Sept. 10, 1991.

As Amended Feb. 7, 1992.

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Aram A. Hartunian (argued), Steven P. Schneck, Robert C. Howard, Hartunian, Futterman & Howard, Chicago, Ill., for plaintiff-appellee.

Richard H. Hoffman (argued), Karen A. Covy, Querrey & Harrow, James L. Elsesser, John T. Harris (argued), Elsesser & Associate, Chicago, Ill., for defendants-appellants.

Before WOOD, Jr., [*] POSNER and KANNE, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Susanne Littlefield sued Malcolm McGuffey, also known as Wally Mack among other persona, claiming he denied her rental housing because her boyfriend, the father of her daughter, was not of the same race as she. She sought relief under the Equal Opportunity in Housing provision of the Civil Rights Act of 1866 and the Fair Housing Act as amended by the Fair Housing Amendments Act of 1988: 42 U.S.C.A. §§ 1982, 3604, 3613, and 3617. In addition she claimed he committed numerous, outrageous acts of harassment. Thus, availing herself of our pendent jurisdiction, she also raised a claim for intentional infliction of emotional distress under Illinois common law. The jury found Mr. McGuffey liable and awarded $50,000 in compensatory damages and $100,000 in punitive damages.

McGuffey thereupon moved for a judgment notwithstanding the verdict and, alternatively, for a new trial. Judge Williams denied both motions. She then entered judgment on the verdict, awarded attorney's fees, denied a fee multiplier, and imposed Rule-11 sanctions on Mr. McGuffey's attorneys for offering a motion which was based on "inadequate legal inquiry and [which was] being used 'to harass, delay or increase the costs of litigation.' " Littlefield v. Mack, 750 F.Supp. 1395, 1404 (N.D.Ill.1990). Defendant McGuffey appeals the judgment and the award of attorney's fees. The plaintiff, Ms. Littlefield, cross-appeals the denial of a fee multiplier. For the reasons stated below we affirm.

BACKGROUND

On September 14, 1988, Ms. Littlefield, who was then 23 years old, met Malcolm McGuffey at one of his apartment buildings. After viewing the advertised apartment she completed a rental application form and gave him a $280 check as a security deposit, leaving the name of the payee blank at McGuffey's request. Later, McGuffey filled in the name of the payee with the fictitious "Santa Maria Realty," claiming at trial to have chosen that name because it had been close to Columbus Day. He endorsed the check first as "Santa Maria Realty" then as "Osvaldo Kennardo," another persona of his. At their meeting McGuffey and Ms. Littlefield had agreed she, her younger sister Sandra, and her daughter Shaunte would occupy the two-bedroom apartment and that McGuffey would purchase and install a carpet with Ms. Littlefield paying the cost of installation. McGuffey gave Ms. Littlefield a key

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to the apartment, and between then and September 27 she, members of her family, and friends cleaned and painted the apartment and moved various belongings into it.

On September 27, 1988, Bruce Collins, accompanied by Shaunte, the two-year old daughter of Collins and Littlefield, took a check to McGuffey to pay for the carpet installation. When McGuffey realized Mr. Collins was not the same race as Ms. Littlefield but was the father of her daughter, he became quite agitated and exclaimed "the old man" had rented the apartment to someone else. At trial McGuffey admitted he sometimes referred to himself as "the old man."

After Collins left, McGuffey called Ms. Littlefield at work and told her she could not rent the apartment because "the boss" (another of McGuffey's persona) had rented it to someone else. He also told her he had changed the locks and had put her belongings out on the porch. This was but the first of many phone calls McGuffey made to Ms. Littlefield. That evening he called her at home, identified himself as Walley Luther, and, mimicking a stereotypical black manner of speaking, told her he wanted to move in with her and "six black guys, ... quit work and take welfare ... and drugs with [her] ... and swap wives with Bruce." He called her at least two more times that night and several other times that week with similar, degrading messages.

Ms. Littlefield was not the only recipient of McGuffey's harassing, insulting and racist phone calls. Her sister, Kathleen Gutierrez, was called many times over the next week or so. McGuffey told her he was a member of the Ku Klux Klan and regularly asked how her sister, Susanne, "could have [gone] to bed with a nigger and how she could ... have a nigger baby." On one occasion McGuffey attempted to lure Ms. Gutierrez outside on the pretext that she had to move her car because the church lot where it was parked was being caulked.

The phone calls did not suffice. In early November McGuffey tracked down Ms. Littlefield's new residence and left a note, written on a napkin taped to her door, threatening the life of Bruce Collins and repeating racist slurs. When she arrived home that evening, Ms. Littlefield found her sister, Sandra, hiding behind the door, clutching a broom.

Ms. Littlefield and her witnesses, including Bruce Collins, Kathleen Gutierrez, Sandra Littlefield, other relatives and friends, testified to all these events and more. Additionally, Ms. Littlefield testified to numerous episodes of severe emotional distress. She became hysterical upon receiving McGuffey's call at work, went to the restroom, and cried; the rest of the day she suffered from stomach upset and diarrhea. She experienced numerous episodes of disquiet and fright, being particularly fretful because she feared for her daughter's safety. Ms. Littlefield also testified that when she came home at night with Shaunte, she would run from her car to her apartment, clutching her daughter in one arm, with her keys in one hand and a can of mace in the other.

McGuffey denied Ms. Littlefield's allegations, claiming he had not refused her rental housing on the basis of race and that he had not harassed her. He asserted, instead, he had learned from various businesses and prior landlords that she was a poor credit risk and had a history as an undesirable tenant. He presented no witnesses, however, that confirmed having given him the negative rental-history or credit information. On the other hand, Ms. Littlefield presented witnesses from credit departments of various businesses McGuffey claimed to have contacted. They generally testified the credit information McGuffey claimed to have acquired would not be given out and that, anyway, Ms. Littlefield's credit history was respectable. The testimony of Brice Fawcett, Ms. Littlefield's former landlord, was notably damaging for the defendant. He contradicted everything McGuffey claimed to have been told by him; he stated Ms. Littlefield had been a good tenant; and he testified McGuffey did not interview him until October 1, four days after McGuffey evicted Ms. Littlefield. As the district court observed,

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"Mr. McGuffey's story therefore depended almost entirely on his own credibility, and he was, to put it mildly, a witness with credibility problems." Littlefield, 750 F.Supp. at 1398.

ANALYSIS

Sometime after the district court entered judgment, Mr. McGuffey filed a petition for bankruptcy. That action implicated the automatic stay provision of the Bankruptcy Code. 11 U.S.C. § 362. Subsequently, however, the bankruptcy court entered an order modifying the automatic stay provision to permit this appeal to proceed. See In re Fernstrom Storage and Van Co., 938 F.2d 731 (7th Cir.1991) (automatic stay may be modified to permit resumption of civil suit).

Mr. McGuffey raises five issues: (1) whether the district court erred in admitting or refusing to admit certain items of evidence, (2) whether two instructions given the jury were improper, (3) whether Ms. Littlefield's counsel made improperly prejudicial statements during closing argument, (4) whether there was sufficient evidence to support the damage awards, and (5) whether the award of attorney's fees was excessive. Ms. Littlefield raises a sixth issue in her cross-appeal: whether the district court erroneously denied her attorneys a fee multiplier for contingent risk.

ADMISSION OF EVIDENCE

McGuffey claims the trial court made three errors regarding admission of evidence that singly and collectively denied him a fair trial. Not only are these claims without merit, as discussed below, but also are subject to dismissal for defendant's failure to comply with Federal Rule of Appellate Procedure 28(a)(4).

Rule 28(a)(4) straightforwardly commands, "The argument [portion of appellant's brief] shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on." Fed.R.App.P. 28(a)(4), 28 U.S.C.A. (emphasis added). We recently explained that a "litigant who fails to press a point by supporting it with pertinent authority, or by showing why it is sound despite a lack of supporting authority, forfeits the point." Pelfresne v. Village of Williams Bay, 917 F.2d 1017, 1023 (7th Cir.); see also John v. Barron, 897 F.2d 1387, 1392-94 (7th Cir.1990), cert. denied, --- U.S. ---, 111 S.Ct. 69, 112 L.Ed.2d 43 (1990).

McGuffey cites no authority for any of the three...

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