Bills v. Hodges

• Decision Date: 30 July 1980
• Docket Number: No. 78-1302,78-1302
• Citation: Bills v. Hodges, 628 F.2d 844 (4th Cir. 1980)
• Parties: Deborah L. BILLS, Appellant, and Nancy D. Fahnley, Plaintiff, v. Joseph H. HODGES, Sr., Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 844

628 F.2d 844

Deborah L. BILLS, Appellant and Nancy D. Fahnley, Plaintiff, v. Joseph H. HODGES, Sr., Appellee.

No. 78-1302.

United States Court of Appeals Fourth Circuit.

Argued July 10, 1979.

Decided July 30, 1980.

John O. Goss, Norfolk, Va., (Louis A. Sherman, Tidewater Legal Aid Society, Norfolk, Va., on brief), for appellant.

No argument by appellee.

Before RUSSELL, Circuit Judge, FIELD, Senior Circuit Judge, and WIDENER, Circuit Judge.

WIDENER, Circuit Judge:

Plaintiffs below, Deborah L. Bills and Nancy D. Fahnley, had a month-to-month lease on an apartment owned by the defendant, Joseph H. Hodges, Sr. On February 5, 1978, the defendant refused to accept the plaintiffs' rent and instead served a notice of eviction. Plaintiffs filed suit under the Civil Rights Act of 1866, 42 U.S.C. § 1982, and the Fair Housing Act of 1968, 42 U.S.C. § 3604, alleging that the defendant's actions were racially motivated. The complaint prayed for a temporary restraining order, a permanent injunction, actual damages, punitive damages, attorneys' fees and costs. The district court prevented the threatened eviction by issuing a temporary restraining order on February 10, 1978.

Preliminary injunction hearings were held on February 23 and 28, and the final trial on the merits was held on March 1, 1978. The district court issued a permanent injunction but refused to award the plaintiffs any attorneys' fees. The court found that plaintiffs were not entitled to damages.

There is no appeal by the defendant from the award of injunctive relief. We affirm the denial of damages to plaintiff, but we reverse the denial of attorneys' fees. ¹

The district court determined that the Civil Rights Act, 42 U.S.C. § 1982, applied, and enjoined the defendant from refusing to renew the plaintiffs' lease for any reasons tainted with racial discrimination. The court found as a fact that while the defendant had some valid reasons for refusing to renew the plaintiffs' lease, he was also motivated by his antipathy of the plaintiffs' biracial dating and entertainment practices. Plaintiffs, both white females, associated with and entertained black males in the apartment.

In this appeal, the Tidewater Legal Aid Society represents the plaintiff-appellant Deborah Bills (Miss Fahnley is not a party to this appeal.) Defendant-appellee Hodges is not represented by counsel and has declined to file a brief. In a letter to this court, Mr. Hodges stated that he was satisfied with the district court's decision, and thus, as we have stated, the permanent injunction is not at issue. (Mr. Hodges' letter also pointed out that both of the plaintiffs have voluntarily moved out of the apartment, which, of course, might moot a part of the case were injunctive relief at issue here.)

On appeal, the plaintiff presents three points. She claims the defendant is not exempt from the provisions of the Fair Housing Act of 1968; that she is entitled to an award of damages as a matter of law, both compensatory and punitive; and that the court erred in failing to award her attorneys' fees and certain expenses.

We have explained before that it is unnecessary for us to decide the application of the Fair Housing Act of 1968 because whether or not it applies would make no difference in the result in this case.

In a trial memorandum submitted on March 1, 1978 the plaintiff asks for "compensatory damages, damages for the emotional injury done to plaintiffs, and because of the willful and wanton disregard by the defendant of the law punitive damages. . . ." The strongest argument plaintiff makes with respect to damages is that FRCP 38(b) provides that "any party may demand a trial by jury not later than 10 days after the service of the last pleading directed to the issue to be so tried." She claims that the trial of the case the next day after the hearing on the preliminary injunction deprived her of this 10 day period to make up her mind.

The holding of the district court with respect to compensatory, emotional and punitive damages is largely a question of fact finding, and we are of opinion the district court's findings of fact with respect to this issue are not clearly erroneous. The judge trying the case saw the witnesses and heard them testify and was able to judge their credibility and the weight of their testimony far better than are we. For example, although the court had indicated, after hearing the motions for a temporary restraining order and for a preliminary injunction in three separate hearings, that it had heard no evidence of damages, at the trial on the merits, no evidence was offered as to the amount of any specific item of damage. While there were generalizations from which the district court might have made a modest award of compensatory damages had it been so advised, we think the district court was quite within its discretion in declining to make an award of compensatory damages when no specific damage was proved. The same applies to the question of emotional and punitive damages. The plaintiff in this case had been engaging in conduct of which her parents did not approve, and the court found as a fact that the plaintiff had not been through any "additional trauma of any additional nature whatsoever." The holding of the district court that the defendant was not guilty of wantonness, or maliciousness, or of doing intentional harm to the plaintiff is also supported by the evidence.

We also find there is no merit in the plaintiff's claim that the trial court violated Rule 38(b) in that it did not give the plaintiff 10 days after the service of the defendant's answer to request a jury trial. After the third hearing the district court had held in this matter prior to the trial, it had already heard substantially all the evidence offered at the trial. It advised the parties that if the evidence at the trial was not different it intended to enter a permanent injunction but not to award damages. The plaintiff, upon being advised that the trial would be the next day, asked for more time prior to trial. When the court inquired as to the reasons more time would be required, plaintiff's attorney replied that there was a witness he would need, the defendant's wife, and also he needed to inquire as to the defendant's assets on the question of punitive damages. The court required the defendant to secure his wife's presence and advised the plaintiff's attorney that if there was to be an award of damages as result of the trial, it would permit inquiry as to the defendant's assets. Nothing was said at that time about trial by jury. Indeed, we have looked at the entire record before us and nowhere find any mention of any request for trial by jury as to any issue, or any mention of Rule 38(b) or the substance thereof. The matter was never considered by the district court. Under these circumstances, we think it is too late in the day to raise the matter on appeal. McGowan v. Gillenwater, 429 F.2d 586 (4th Cir. 1970). It would be a strained construction of FRCP 38(b) to hold that of necessity no trial may be had within 10 days of the service of the last pleading absent an express waiver of trial by jury. We think that when the district court advised the attorneys of the early trial date and was not advised by them...