Fountila v. Carter

Decision Date06 March 1978
Docket NumberNo. 75-2685,75-2685
Citation571 F.2d 487
PartiesLeo R. FOUNTILA, Jr., et al., Plaintiffs-Appellees, v. Mary E. CARTER, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Franklin J. Flocks (argued), Redwood City, Cal., for defendant-appellant.

James A. Thompson (argued), of Thompson & Wentholt, Redwood City, Cal., for plaintiffs-appellees.

On Appeal from the United States District Court for the Northern District of California.

Before DUNIWAY and KENNEDY, Circuit Judges, and PALMIERI *, District Judge.

PALMIERI, District Judge:

This is an appeal from a judgment and certain orders after judgment in a housing discrimination action brought, inter alia, under Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq., also known as the Fair Housing Act, and under the Civil Rights Act of 1866, 42 U.S.C. § 1982. The case was tried to a jury at defendant's request which, after a three-day trial, returned a verdict in favor of the plaintiffs, awarding them actual damages in the amount of $1 and punitive damages in the amount of $5,000. Additionally, the court awarded attorneys' fees to the plaintiffs in the amount of $2140. 1 Defendant's motions for a new trial and judgment notwithstanding the verdict were denied after oral argument.

I. The Factual Background

Mrs. Carter, the defendant below, was a woman almost 72 years old at the time of trial in 1975. She owned a single-family house at 715 Lincoln Avenue in Redwood City, California which she and her husband had built and occupied with their family until approximately 1950. Subsequent to that time the house, which she acquired pursuant to a divorce in 1959, was used for rental purposes and Mrs. Carter rented a smaller dwelling for her own occupancy. Shortly before trial Mrs. Carter sold the house on Lincoln Avenue for about $59,000 and purchased another house with the proceeds.

The plaintiffs, Leo and Thelma Fountila and their three children, are a black family who wished to move from their home in Redwood City and were interested in renting the house at 715 Lincoln Avenue. Mr. Fountila was a veteran of the Viet Nam war and a student at the Bay Valley Technical School of Electronics; his wife was employed at Stanford University.

The complaint charged Mrs. Carter with unlawfully refusing to rent to the plaintiffs on account of their race. This claim was supported by evidence presented at trial which we shall now review.

In April of 1974 the house on Lincoln Avenue was about to become available for rent and was listed by Mrs. Carter with a rental agency known as "Rent-A-Home". On Friday, April 12, Mr. Fountila, having obtained Mrs. Carter's telephone number from the agency, called to inquire about the house. Upon being told that it was still available he proceeded to tell Mrs. Carter his "whole life history". Mrs. Carter indicated that she felt that Mr. Fountila's family would make acceptable tenants and arranged to meet with them at the house the following day. Near the end of their lengthy conversation Mr. Fountila inquired whether it would make any difference that they were black. Mrs. Carter testified that she was surprised to learn that the Fountila's were "colored", said "oh", and hung up the phone. 2

Mr. Fountila subsequently conferred with a Mrs. Owens at the "Mid-Peninsula Citizens for Fair Housing", a voluntary organization which investigated complaints of housing discrimination. Mrs. Owens put Mr. Fountila in touch with Sharon Wagner, a law student who agreed to act as a "checker". Discrimination complaints were "checked" by sending a nonminority person, matched as closely as possible with the complainant for age, skills, and educational background, to determine whether discrimination had occurred. Ms. Wagner arranged with the Fountilas to visit Mrs. Carter's house together the next morning.

On the following day, Saturday, April 13, 1974, having earlier ascertained from Mrs. Carter by telephone that the house on Lincoln Avenue remained available for rent and that she could see it in the morning, Ms. Wagner went to the house and introduced herself to the defendant. She testified that Mrs. Carter told her something to the effect that a lot of people were interested in the house and that she would have a difficult decision to make and that she observed a number of people looking around the premises, some of whom were shown the house by Mrs. Carter. Mr. and Mrs. Fountila arrived shortly thereafter, introduced themselves to the defendant, and were told that the house had already been rented.

The defendant did not seriously dispute at trial that the above events had occurred as stated. Rather, her primary argument was that the house had already been rented to one Ms. Woodsford prior to the time that she was called by Mr. Fountila, although she was not aware of this fact until so notified by her agent, Mr. McGinnis, on the morning of April 13.

Ms. Woodsford did in fact rent the defendant's house, under circumstances more fully described below, moving in on April 15. Mrs. Carter testified that she nonetheless continued that day to show the house to interested parties out of pride for her house and deference to their interest.

II. The Issue of Liability

Appellant first argues that the District Court erred in denying her motions for a directed verdict and for judgment notwithstanding the verdict. These were made on the alleged ground that the evidence conclusively demonstrated that the house in question had been rented as a matter of law prior to plaintiffs' first contact with Mrs. Carter.

While we accept arguendo appellant's premise that a person cannot discriminate with respect to the rental of property that has already been irrevocably committed to another, we cannot agree that reasonable minds could reach no other conclusion on the facts of this case.

The standards for granting a judgment notwithstanding the verdict and for a directed verdict are the same. Cockrum v. Whitney, 479 F.2d 84, 85 (9th Cir. 1973); 5A Moore's Federal Practice P 50.07(2). Neither should be granted unless "the evidence permits only one reasonable conclusion as to the verdict." Kay v. Cessna Aircraft Co., 548 F.2d 1370, 1372 (9th Cir. 1977). In ruling on these motions

the trial judge cannot reweigh the evidence or consider the credibility of the witnesses. The evidence must be viewed in the light most favorable to the party against whom the judgment would be granted and all inferences must be drawn in that party's favor. Id.

The United States Supreme Court stated these guiding principles well in Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 412, 88 L.Ed. 520 (1944):

The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. . . . Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable. (citations omitted)

Appellant states that "as a matter of simple agency law" Ms. Woodsford had a "specifically enforceable contract to rent the subject premises" on April 11, 1974, one day prior to the plaintiffs' first contact with Mrs. Carter, which occurred on April 12. Even though Mrs. Carter continued to show the property and tell people that it remained available after April 11, and, indeed, appears to have been under the impression herself until April 13 that the property had not yet been rented, it is argued that certain transactions between her agent, Mr. McGinnis, and the new tenant, Ms. Woodsford, contractually bound Mrs. Carter on April 11. Several witnesses for the defendant testified as to the following events:

1. Ms. Woodsford, having been informed of the availability of the property by an acquaintance at "Rent-A-Home", initially communicated with Mrs. Carter on April 8, 1974, and was told to get in touch with Mrs. Carter's real estate agent, Mr. McGinnis.

2. On April 10 Mrs. Carter met Ms. Woodsford briefly. Ms. Woodsford later that day paid a deposit to Mr. McGinnis.

3. On the afternoon of April 11 Mr. McGinnis came into the restaurant where Ms. Woodsford worked, bringing with him a document entitled "LEASE RENTAL AGREEMENT AND DEPOSIT RECEIPT". The front of the lease, which was an exhibit at trial and part of the record on this appeal, contains a recital that "in the event this agreement is not accepted by the owner or his authorized agent within four (4) days, the total deposit shall be refunded." Mrs. Carter had initialled the front page of the lease at the top and signed at the bottom. Above her signature, she had written in the words, "subject to meeting the new tenant." The back of the lease contains the words, "The undersigned owner accepts the foregoing offer and agrees to rent the herein described premises on the terms and conditions herein specified," followed by signature lines for the "owner's authorized agent" and the "owner". Mrs. Carter had not yet signed the back of the lease at the time of this meeting.

4. In the restaurant, Ms. Woodsford signed the lease, both on the front and on the back. Mr. McGinnis also signed on the front and on the back under the "acceptance" section.

5. Mrs. Carter later signed the back of the lease, the date and time of which are uncertain.

Appellant urges that, while Mr. McGinnis may not have been expressly authorized to enter into a binding contract with Ms. Woodsford on Mrs. Carter's behalf, nonetheless he had been invested with the power so to act, and that the contract he signed was binding as...

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