Chapp v. Bowman
| Decision Date | 02 October 1990 |
| Docket Number | No. 1:90-CV-775.,1:90-CV-775. |
| Citation | 750 F. Supp. 274 |
| Parties | Daniel A. CHAPP and Ethel Jean Chapp, Plaintiffs, v. Philip BOWMAN, Co-Executor of the Estate of Florida Bowman, Deceased, and Jane Doe, Co-Executrix of the Estate of Florida Bowman, Deceased, and Mark D. Kowalske, d/b/a Century 21, Kowalske & Associates, jointly and severally, Defendants. |
| Court | U.S. District Court — Western District of Michigan |
John A. Obee, Denenberg, Tuffley, Bocan, Jamieson, Black, Hopkins & Ewald. P.C., Southfield, Mich., Curt A. Benson, Denenberg, Tuffley, Bocan, Jamieson, Black, Hopkins & Ewald, P.C., Grand Rapids, Mich., for plaintiffs.
Peter J. Vellenga, Boyne City, Mich., for defendant Philip Bowman.
Richard W. May, Boyne City, Mich., for defendant Mark D. Kowalske.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND PRELIMINARY INJUNCTION
This matter is before the Court upon the plaintiffs' motion for a preliminary injunction. A hearing was held upon plaintiffs' motion on September 24, 1990, at which time the plaintiffs and defendant Philip Bowman presented evidence and arguments in support of their respective positions.1 Upon due consideration of the evidence and arguments presented by the parties and of the pleadings on file in this case, the Court now issues a preliminary injunction. The issuance of this injunction is based upon the following findings of fact and conclusions of law.
Based upon the testimony and exhibits received at the hearing, and upon the verified complaint on file in this case, the Court makes the following findings of fact as required by Fed.R.Civ.P. 52(a)2:
1. The plaintiffs Daniel and Ethel Jean Chapp are a husband and wife residing in Boyne City, Michigan and in Southfield, Michigan. They own a home and other real property located in Boyne City, Michigan.
2. The defendant Philip Lee Bowman resides in Boyne City, Michigan. Mr. Bowman is the co-executor of the estate of his mother, Florida Bowman, now deceased.
3. The defendant Jane Doe has been identified as Patti Hamilton. Mrs. Hamilton, who has not yet been served with process in this proceeding, resides in Sho-shone, Idaho. Ms. Hamilton is the sister is defendant Bowman and is the co-executrix of the estate of Florida Bowman.
4. The defendant Mark Kowalske is a real estate broker doing business in Charlevoix County, Michigan.
5. The plaintiffs Daniel and Ethel Jean Chapp are the owners of residential real property located at 435 Pearl Street in Boyne City, Michigan.
6. On or about August 9, 1990, Daniel Chapp learned from defendant Bowman that residential real property located at 429 Pearl Street, Boyne City, was for sale. This property is located adjacent to the Chapp property. The property located at 429 Pearl Street is owned by the estate of Florida Bowman.
7. Upon discovering that the 429 Pearl Street property was for sale, the Chapps immediately went to the Century 21 real estate office, with whom the property was listed for sale. A Century 21 employee, Lynda Christensen, informed the Chapps that the asking price of the property was $59,900.00. She also showed the Chapps several documents pertaining to the property, including an appraisal valuing the property at $59,900.00. She did not show the Chapps the listing agreement which had been entered into between defendant Kowalske (doing business as Century 21) and defendants Bowman and Hamilton on behalf of the estate of their mother.3
8. Also on August 9, 1990, the Chapps executed a bona fide written offer to purchase the 429 Pearl Street property for $59,900.00. The terms of payment the Chapps proposed to make in their offer were payment of the full price, contingent on the Chapps' ability to obtain a specified mortgage on the property, or, barring nonapproval of the mortgage, sale upon land contract terms. The offer, which included a $200.00 earnest money deposit, was by its terms to remain open for 14 days.
9. The Chapps subsequently met with Mr. Kowalske and requested that he relay their purchase offer to Mr. Bowman. In response, Mr. Kowalske contacted Mr. Bowman by telephone and verbally advised him of the Chapps' offer to purchase the property.
10. On or about August 11, 1990, the Chapps attended an auction of personal property of the Florida Bowman estate. At the auction, Mrs. Chapp was introduced to Mr. Bowman's wife.
11. On August 15, 1990, Mr. Kowalske informed the Chapps that there was a "problem" with the sale of the property for the following reasons: (1) the proposed financing was a problem due to "religious" reasons, and (2) Mrs. Bowman had prayed on the matter and was having difficulties with a sale to the Chapps. Mr. Kowalske suggested that Mr. Chapp contact Mr. Bowman directly.
12. Later on that same date, Mr. Chapp visited Mr. Bowman at his home to discuss the sale of the property. At this meeting, Mr. Bowman asked Mr. Chapp whether he was a "good Christian" and whether he had "chosen Jesus as his Savior." Mr. Chapp responded that he was a Catholic. Mr. Bowman replied that Mr. Chapp could still find Jesus to be his Savior. Mr. Bowman then informed Mr. Chapp of his belief that a Christian should not go into debt to purchase property.4
13. Upon learning of Mr. Bowman's personal beliefs regarding the proposed mortgage of the property, Mr. Chapp verbally offered to purchase the property by paying the full $59,900.00 asking price with cash which he proposed to obtain by withdrawing funds presently held in certificates of deposit.
14. Mr. Bowman informed Mr. Chapp that money was not the problem and that he would sell the property to a "good Christian" for $45,000.00. He also indicated that his wife had a "check in her spirit" about selling to the Chapps. He did not, at that time, definitively reject Mr. Chapp's cash offer.
15. Subsequently, Mr. Chapp asked Mr. Kowalske to contact Mrs. Hamilton and inform her that he and his wife had made a full cash offer to purchase the property. Mr. Kowalske refused to do so.
16. On August 23, 1990, Mr. Kowalske informed Mr. Chapp that the property had been withdrawn from the market. Neither of the Chapps' offers — either the written offer or Mr. Chapp's verbal offer — were accepted by Mr. Bowman.
17. On August 25, 1990, Ruth Carey, a volunteer tester for the Detroit Fair Housing Center, visited Mr. Bowman at his home under the guise of inquiring about the possibility of purchasing the 429 Pearl Street property for herself and her sister. Mr. Bowman informed Ms. Carey that the property had been for sale and might still be if the "right person" wanted to buy it. He described himself as a "born-again Christian" and suggested that if she and her sister were truly interested in buying, they should both come over and pray with the Bowmans to determine whether they were "right" for the property. He also informed Ms. Carey that he had received a cash purchase offer from persons who lived next door to his mother's house, but had taken the property off the market because of laws against discrimination, and because the Lord had told his wife not to sell to the Chapps. Finally, he suggested that Ms. Carey take another look at the 435 Pearl Street home; he told her she could "put two and two together" and figure out why he had not sold to the owners of that property.
In accordance with Fed.R.Civ.P. 52(a), the Court reaches the following conclusions of law:5
A. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1343(4) and 42 U.S.C. § 3613. The Court has pendent jurisdiction over the plaintiffs' state law claim.
B. Venue is proper in the Western District of Michigan.
C. 42 U.S.C. § 3604 provides that it shall be unlawful:
D. 42 U.S.C. § 3613(c)(1) provides that if a discriminatory housing practice has occurred or is about to occur, the court may, inter alia, grant any permanent or temporary injunction, temporary restraining order, or other order as appropriate, including an order enjoining the defendant from engaging in such practice.
E. The Court must consider the following elements in determining whether to issue or withhold a preliminary injunction:
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