Dillon v. Bay City Const. Co., Inc., 73-3942

• Decision Date: 12 May 1975
• Docket Number: No. 73-3942,73-3942
• Citation: 512 F.2d 801
• Parties: Warren DILLON and Jean Dillon, Individually and on behalf of others similarly situated, Plaintiffs-Appellants, v. BAY CITY CONSTRUCTION COMPANY, INC., et al., Defendants, and AFBIC Development Corp., Riley Smith, Inc., and Riley B. Smith, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 801

512 F.2d 801

Warren DILLON and Jean Dillon, Individually and on behalf of others similarly situated, Plaintiffs-Appellants, v. BAY CITY CONSTRUCTION COMPANY, INC., et al., Defendants and AFBIC Development Corp., Riley Smith, Inc., and Riley B Smith, Defendants-Appellees.

No. 73-3942.

United States Court of Appeals Fifth Circuit.

May 12, 1975.

J. U. Blacksher, Mobile, Ala., Jack Greenberg, Sylvia Drew, New York City, for plaintiffs-appellants.

Chase R. Laurendine, Mobile, Ala., for defendants-appellees.

Richard W. Vollmer, Jr., Mobile, Ala., for other interested parties.

Appeal from the United States District Court for the Southern District of Alabama.

Before BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges.

JOHN R. BROWN, Chief Judge:

This is a Fair Housing case brought both as a class action to enjoin a pattern of racial discrimination in the sale of houses in a Mobile, Alabama subdivision and to compel the defendants to sell a specific house to the named plaintiffs. Two weeks after the suit was filed, the District Judge consolidated the case on the merits with the hearing on the preliminary injunction. At the hearing, he directed that Bay City Development Corporation, the owner of the house, convey it to the plaintiffs but then held that since no discrimination had been shown by the remaining defendants, they should be dismissed from the case. Since we find that the case as consolidated by the District Court did not give the parties sufficient opportunity for discovery in order to see if they could sustain their complaint, we reverse.

The events that produced this suit were short-lived. It was only 10 days from the time when Jean Dillon first made a contract of sale to purchase the house for $42,500 for her and her husband until the time that the realtor returned her earnest money check with the explanation that the owner had decided to sell it to his daughter. The house she wanted was located in the previously all-white subdivision of Mobile known as Lansdowne. The seemingly dilatory actions of the defendants that she encountered appeared to her to be designed to inhibit her purchase of the house. Consequently, she and her husband filed suit to protect their right to purchase that house and the right of other black persons not to be similarly excluded from the area.

Briefly, these were the specific events: Jean Dillon on May 14, 1973 went to the office of Riley Smith Incorporated, the real estate agent that marketed the Lansdowne homes for the AFBIC Development Corporation, the developer of the addition and title owner of the lot at issue. Mr. Guillot, the agent for Riley Smith Inc., drew up a contract of sale that was signed there in the office. Mrs. Dillon returned home and immediately contacted a savings and loan in order to process a loan application. They told her then that the seller's signature had been omitted from the contract. Mrs. Dillon then called Guillot who told her that the omission was his error and that he would bring a corrected typewritten contract by the school where she taught the next day, Tuesday, May 15, 1973.

It was not, however, until Wednesday morning that Mrs. Dillon was able to reach Guillot. He attributed the missed appointment to a flat tire, denied he was giving her the "run around" and said that the contract was not yet typed. That afternoon when she came to the real estate office for the contract Guillot filled it out then in longhand. He represented to her then that his signature as authorized agent was sufficient to complete the sale of the house. However, at the request of Jean Dillon, the contract was written so as to be subject to her husband Warren Dillon's approval upon his return from Chicago. That day Mrs. Dillon had her savings and loan begin to process the note based on the executed contract of sale.

On Thursday, May 17, the vice-president of the savings and loan noticed that the exact address had been omitted from the contract of sale. He then called the office of the seller, noted on the contract as Bay City Construction Company, where he was referred to Riley Smith. When the loan officer reached him, Smith himself represented that he was the owner of the house but would not accept the contract of sale so long as it was subject to Warren Dillon's subsequent approval.

That same Thursday, Guillot found Mrs. Dillon looking over the new house that she thought at this point was soon to be hers and gave her a letter from Smith stating that her check was being returned to her because Mr. Greene, the owner of Bay City Construction Company, would not accept the contract "under the conditions specified therein." In the letter Smith offered to discuss the sale of the house again with the Dillons when Warren Dillon returned "should it be available."

Jean Dillon immediately informed Guillot that her husband had agreed to the sale by phone and asked him to draft then and there an unconditional contract-this time with the signature of Mr. Greene in order to avoid any further problems. Guillot agreed and even commented further that the Birmingham branch of Riley Smith Inc. had been called to see "how the other black people in the neighborhood were getting along with the whites."

Despite the unconditional contract for the seller's asking price, the sale was not expedited. For days thereafter Mrs. Dillon herself called the Riley Smith office to check its progress. Each time Guillot told her that he had been unable to contact Greene. Finally on Monday the 21st of May Riley Smith personally called Mrs. Dillon and informed her that the house was being sold to Mr. Greene's daughter and that she should come by and get her check. She refused and her check was mailed to her.

The Dillons filed their complaint three days later on May 24, 1973. They asked for a temporary restraining order and a preliminary injunction to prevent the sale of the house. ¹ They sought damages personally for the Dillons and injunctive or declaratory relief for the class of similar black citizens barred by the defendants from living in the area. When the counsel for the defendants advised the Dillons that no attempt would be made to sell the house until after the hearing on the preliminary injunction, no hearing was sought on the temporary restraining order.

On May 30, 1973 the parties were notified that the District Judge planned to hear both the final merits and the preliminary injunction six days later on June 5, 1973. ² On the day of the hearing at a prehearing conference, counsel...