Gore v. Turner

• Citation: 563 F.2d 159
• Decision Date: 17 November 1977
• Docket Number: No. 75-3640,75-3640
• Parties: Janice Winkley GORE, Plaintiff-Appellant Cross-Appellee, v. Hozie TURNER, owner, d/b/a Madrid Apartments, Defendant-Appellee Cross- Appellant. Kathy HOBBS, Plaintiff-Appellant Cross-Appellee, v. Hozie TURNER, owner, d/b/a Madrid Apartments, Defendant-Appellee Cross- Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 159

563 F.2d 159

Janice Winkley GORE, Plaintiff-Appellant Cross-Appellee, v. Hozie TURNER, owner, d/b/a Madrid Apartments,

Defendant-Appellee Cross- Appellant.

Kathy HOBBS, Plaintiff-Appellant Cross-Appellee, v. Hozie TURNER, owner, d/b/a Madrid Apartments,

Defendant-Appellee Cross- Appellant.

No. 75-3640.

United States Court of Appeals Fifth Circuit.

Nov. 17, 1977.

Rehearing Denied Feb. 10, 1978.

Fred L. Banks, Jr., Jackson, Miss., Melvyn R. Leventhal, Jack Greenberg, Charles Stephen Ralston, Bill Lann Lee, New York City, for plaintiff-appellant cross-appellee.

Pat H. Scanlon, Jackson, Miss., for defendant-appellee cross-appellant.

Appeals from the United States District Court for the Southern District of Mississippi.

Before GEWIN, RONEY and HILL, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Janice Gore and Kathy Hobbs, the plaintiffs in the case on appeal, brought class actions against defendant Hozie Turner, alleging that he engaged in racial discrimination in the operation of his apartment complexes. The Gore class action and the Hobbs class action were tried separately to the district court without a jury. The district court held that defendant Turner racially discriminated against the class represented by Gore in violation of 42 U.S.C. § 1981 and § 1982 and that the class was entitled to injunctive relief. Although the district court awarded Gore damages for her out-of-pocket costs, it refused to award her a reasonable attorney's fee, damages for emotional distress, or punitive damages. In the Hobbs suit, the district court held that defendant Turner had not violated 42 U.S.C. §§ 1981, 1982, or 3612. We affirm the district court's holdings concerning liability in both cases, but we reverse and remand on the issue of damages in the Gore case.

I. The Gore Suit.

Defendant Turner owns and manages three apartment complexes, Madrid Apartments Monterey Apartments, and Fairmont Towne Houses, in Jackson, Mississippi. Plaintiff Gore, a black woman, was transferred to Jackson in November 1971 to fill a position with a salary exceeding $10,000 per year. In response to a sign posted at Madrid Apartments announcing vacancies, Gore went to the resident manager's office on November 9, 1971, and was shown two apartments. Gore filled out an application form and left a deposit check for $50.00. The resident manager told Gore that it would take 24 hours to check her credit standing and that she should come back the next afternoon. Gore returned the next afternoon and saw defendant Turner. Turner told Gore that he could not rent her an apartment until a credit investigation was completed and that he did not know how long the investigation would take. Turner then told Gore that she would be contacted when the credit investigation was completed and when an apartment was available.

Gore called Turner several times during the next few days, and each time he told her that the credit investigation had not been completed. On November 19, Gore withdrew her deposit check and told Turner that she would resubmit it when the credit check was completed. Turner never contacted Gore, and she finally moved into a house in December 1972, though the house had been vacant for some time and had been vandalized. Gore testified that, until that time, she would have moved into the Madrid Apartments if an apartment had been made available to her.

The testimony of Lee B. King, a black, demonstrated that Turner had racially discriminated against other prospective black tenants. When King telephoned the resident manager of Madrid Apartments on September 15, 1971, he was told that apartments were available. The day after he saw the resident manager and paid a deposit fee, however, the resident manager returned his deposit fee and told him that he would have to go on a waiting list. Without identifying himself, King called the next day and was told that an apartment was available if he came by to apply. When he replied that he had, there was a long silence and the resident manager said that she would call him. She never did.

The plaintiff also introduced testimony demonstrating that the defendant engaged in racial steering during the pendency of the case on appeal. On November 14, 1973, Louisa Floyd, a white, requested a one bedroom apartment at Madrid Apartments. The resident manager told her that none were available. On November 16, 1973, Floyd requested a two bedroom apartment at Madrid Apartments. The resident manager told her that a two bedroom apartment was available but that it was at Monterey Apartments. When Floyd and Ruth Weining, a white, went to the resident manager's office that day, he told them that only 50 percent of the residents at Madrid Apartments were white, whereas all the residents at Monterey Apartments were white. Floyd testified that the resident manager said he showed "people like you two" the apartments at Monterey. Weining's testimony corroborated Floyd's testimony; Weining clearly recalled the resident manager's statement concerning the racial compositions of Madrid and Monterey and the steering of prospective tenants based on race.

Mildred Davis, a black, requested a one bedroom apartment at Madrid Apartments the same day as Floyd. The resident manager told Davis that the only available apartment was a two bedroom unit at Madrid; he did not volunteer this information to Floyd. Davis' observation of the tenants at Madrid was that they were predominantly black, though no blacks had resided there when plaintiff Gore applied. Davis telephoned the resident manager again on November 19, 1973, and the two bedroom apartment at Madrid Apartments was still available.

The district court held that defendant Turner racially discriminated against Gore in violation of 42 U.S.C. § 1981 and § 1982 by denying her the same right to lease rental property as is enjoyed by white citizens. The court found that, for purposes of injunctive relief only, Gore established her class as all other blacks who had been denied equal access to housing under the defendant's control on the basis of race. The court granted an injunction permanently enjoining Turner, his agents, employees, and attorneys from failing or refusing to rent apartment space in the Madrid Apartments, Monterey Apartments, or Fairmont Towne Houses on the basis of race; from discriminating against any person in the terms, conditions, or privileges of rentals or in the provision of services or facilities in connection therewith on the basis of race; from making, printing, or publishing or causing to be made, printed, or published any notice or advertisement with respect to the rental of apartment space that indicates any preference, restriction, or discrimination on the basis of race; and from representing to any person on the basis of race that any apartment space is not available for inspection or rental when such space is in fact available.

Because Gore qualified her class pursuant to Rule 23(b)(2), the trial court held that only Gore was entitled to damages. The court awarded her damages only in the amount she paid to make her purchased home habitable and to store her furniture while she sought living accommodations. The district court did not award Gore her attorney's fee because no evidence was offered at trial "or subsequent thereto" concerning a reasonable fee and because no evidence was offered that Gore was financially unable to pay her attorney's fee. Applying the clearly erroneous standard, this Court affirms the district court's holding that defendant Turner violated 42 U.S.C. § 1981 and § 1982. This Court, however, reverses and remands the issue of damages to the district court.

When the district court rendered its decision in the case on appeal, Congress had not specifically authorized fee awards in § 1982 cases. After the decision in this case, however, Congress amended 42 U.S.C. § 1988 to provide in pertinent part:

. . . In any action or proceeding to enforce a provision of sections 1981 (and) 1982 . . . of (title 42) . . . the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs.

This statutory amendment is retroactively applicable to any case pending on the date of its enactment. Hodge v. Seiler, No. 75-3439, 558 F.2d 284 (5th Cir. 1977); Rainey v. Jackson State College, 551 F.2d 672 (5th Cir. 1977). Under the standard announced in Bradley v. School Board of City of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1973), the case on appeal was pending on the date of enactment. Therefore, it is necessary to remand the attorney's fee issue to allow the district court to reconsider it in light of § 1988. In making that determination, the district court should consider the factors stated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), and the services expended on the plaintiff's behalf during this appeal. Hodge v. Seiler, No. 75-3439, 558 F.2d 284 (5th Cir. 1977).

On reconsideration of the attorney's fee issue, the district court should note that Gore is not precluded from an award pursuant to § 1988 merely because she did not offer proof of the amount of her attorney's fee at trial. The United States Supreme Court has expressed a policy of granting attorneys' fees to successful plaintiffs in civil rights suits except in exceptional circumstances. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). Additionally, the generally accepted practice is that, in the absence of a local rule requiring proof of attorneys' fees during trial, the successful party need not prove them until after trial. Wright & Miller, Federal Practice and Procedure § 2679 (1972). Finally, § 1988 provides that "the prevailing party" may recover a reasonable attorney's fee "as part of the costs." Both phrases indicate that the amount to be awarded for the attorney's fee will be determined after a decision on the merits.

The district court...