McDonald v. Verble

• Decision Date: 05 May 1980
• Docket Number: No. 78-3127,78-3127
• Citation: 622 F.2d 1227
• Parties: DeWitt and Ella McDONALD, Plaintiffs-Appellants, v. Raymond L. and Bonnie G. VERBLE et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1227

622 F.2d 1227

DeWitt and Ella McDONALD, Plaintiffs-Appellants, v. Raymond L. and Bonnie G. VERBLE et al., Defendants-Appellees.

No. 78-3127.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 13, 1980.

Decided May 5, 1980.

C. Thomas McCarter, Toledo, Ohio, Alexander M. Spater, Columbus, Ohio, Green, Lackey, Newcomer & Harris, Toledo, Ohio, Alexander M. Spater, Spater, Gittes, Marshall & Terzian, Columbus, Ohio, for plaintiffs-appellants.

Leonard J. Catri, Catri, Howells, Kellam & Owens, Sandusky, Ohio, for Verbles.

Ronald G. Kaufman, Rhode, Kaufman & Egger Co., LPA, Sandusky, Ohio, for Sandusky Real Estate and Holderness.

Before EDWARDS, Chief Judge, LIVELY, Circuit Judge and PHILLIPS, Senior Circuit Judge.

EDWARDS, Chief Judge.

The question in this case is whether the Federal Civil Rights and Fair Housing laws, 42 U.S.C. § 1982 (1976) and 42 U.S.C. § 3601 et seq. (1976) require owners and realtors engaged in selling housing to avoid both blatant and subtle racial discrimination in their sales efforts. It is clear to this court that the practices found by the District Judge in his careful findings of fact could be said not to have done egregious damage to the plaintiffs. This is particularly true since in the end they did succeed in purchasing the property at issue at a price comparable to that at which it had been offered previously to a prospective white buyer.

The District Judge did not disregard the nondiscrimination requirements of the statute and the Constitution. On the contrary it was the District Judge's timely issuance of a Temporary Restraining Order which accomplished the sale. This record contains the District Judge's findings of fact which we print nearly in their entirety. These detail with sensitivity the discriminatory variations from the prohibition on racial discrimination which we find in the law. The parties to this appeal do not dispute these findings. It is their legal effect which is at issue.

We believe, however, that the prohibition on racial discrimination contained in the applicable statutes (and underlying constitutional principles) is absolute. We hold that contrary to the judgment entered by the District Court dismissing plaintiffs' complaint with costs to the defendants, this case must be remanded to the District Judge after vacation of the judgment for the consideration of damages and the award to plaintiffs of costs and attorneys' fees.

We have italicized the specific findings which we hold demonstrate statutory and constitutional violations.

Findings of Fact

1) Plaintiffs, DeWitt and Ella McDonald, husband and wife, are black citizens of the United States who have been residents of Sandusky, Ohio, for the past seventeen (17) years.

2) Defendants, Raymond L. and Bonnie G. Verble, are white citizens of the United States who presently live in Tennessee, and who in July of 1975 resided in Castalia, Ohio, and were the owners of the property located at 2131, 2135, 2137 and 2139 Parkview-McArthur Park, Sandusky, Ohio (hereinafter McArthur Park property). The McArthur Park property is a four-unit rental complex with each comprised of a two-bedroom apartment. The Verbles owned said property, which is located in an area occupied predominantly by white families, for approximately ten years prior to 1975.

3) Defendant, Sandusky Real Estate One, Inc., is a real estate brokerage firm doing business in Sandusky, Ohio.

4) Defendant, Ralph G. Holderness, is a real estate agent licensed by the State of Ohio, who is employed as general manager of Sandusky Real Estate One, Inc.

5) In early July, 1975, the Verbles began efforts to sell the McArthur Park property by advertising the property in the Sandusky Register.

6) On or about July 3, 1975, in response to an ad placed by Defendant Verbles in the July 1, 1975 Sandusky Register, Ella McDonald called the Verbles and inquired as to the property, including the purchase price. Ella McDonald was informed that the purchase price was $26,500, and an appointment was made for the McDonalds to see the property on the day of her initial inquiry concerning the McArthur Park property.

7) That evening the McDonalds met Raymond Verble at the McArthur Park property and observed the exterior of the residence and the inside of two apartments. At this time DeWitt McDonald indicated to Raymond Verble that he was interested in purchasing the property. Mr. Verble told Mr. McDonald to call him at home later on that evening to discuss the matter further. Mr. Verble indicated that he did not wish to discuss the matter in the presence of another gentleman who was with him at that time. Mr. Verble said that he would be going out of town for approximately a week.

8) Later that evening DeWitt McDonald called the Verble residence and was informed by Bonnie Verble that her husband was not home yet. Mr. McDonald informed her that he had called pursuant to her husband's request, that he was interested in buying the McArthur Park property, and that he wanted to talk to Mr. Verble before Mr. Verble left town. Mr. McDonald did not receive a return phone call from the Verbles.

9) On Sunday, July 6, 1975, Ella McDonald called the Verble residence to inquire as to the status of the property and was informed by Raymond Verble that two men were going to purchase the property. Ella McDonald informed Mr. Verble that they were interested in purchasing the property and requested Mr. Verble to call them if the two men he referred to were not able to secure financing. The plaintiffs did not hear again from the Verbles.

10) The McDonalds observed that the newspaper advertisement for the sale of the McArthur Park property continued to appear in the Sandusky Register on Tuesday, July 8 and Wednesday, July 9, 1975. Thereafter, Plaintiff DeWitt McDonald contacted Gerry Owens, who is a white resident of Castalia, Ohio, and who has been a friend of DeWitt McDonald's for a considerable time. The purpose of Mr. McDonald's contact with Gerry Owens was to seek his assistance in purchasing the McArthur Park property and to ascertain whether or not the Verbles were discriminating against him in the purchase of the property on account of his race or color. Mr. McDonald asked Mr. Owens to call the owners of the property and to make an appointment to see the McArthur Park property and to submit an offer to purchase for said premises.

11) Defendant Ralph Holderness contacted the Verbles on July 15, 1975, after seeing their ad in the Sandusky Register, to determine if the Verbles would list their property with Real Estate One. A Listing Agreement was signed by the Verbles on that date. The Listing Agreement gave Real Estate One the exclusive right to sell the property for Twenty Nine Thousand Five Hundred (29,500) Dollars, with a ten percent (10%) commission to the real estate broker. At the time the Listing Agreement was executed, Mr. Verble told Mr. Holderness that the "Hurak brothers" had indicated an interest in the property. Accordingly, Mr. Holderness agreed that the Huraks would be excluded from the Listing Agreement until August 1, 1975, and that if the property was sold to the Huraks on or before August 1, 1975, Mr. Holderness would not receive a commission.

The Verbles did not tell Mr. Holderness that they had talked with Mr. McDonald or that Mr. McDonald was interested in the McArthur Park property.

12) During the conversation between Mr. Verble and Mr. Holderness on July 15th regarding the Listing Agreement, Mr. Verble told Mr. Holderness that he preferred not to sell the property to blacks. Mr. Holderness then told Mr. Verble that he would have to show the property to any interested purchaser, and that he would have to sell to a black if a black offered $29,500, or made the highest offer. Mr. Holderness testified that Mr. Verble agreed to these conditions when he entered into the Listing Agreement.

13) During the conversation between Mr. Verble and Mr. Holderness on July 15th regarding the Listing Agreement, Gerry Owens called the Verble residence and inquired whether the property was still for sale. Mr. Verble indicated that it was, and Mr. Owens then said that he wanted to see the property. Mr. Verble told him that he would call him to set up an appointment. Mr. Verble then gave Mr. Owens' name and number to Mr. Holderness, and Mr. Holderness called Mr. Owens the next day to set up an appointment.

14) Thereafter, Mr. Owens went to the office of Real Estate One and was shown the property owned by the Verbles on Parkview Drive by a sales associate of Mr. Holderness. Mr. Holderness called Mr. Owens the following day to see whether Mr. Owens was interested in purchasing the property. Mr. Owens then contacted Mr. McDonald, who advised him to stall, as he was going on vacation. . . .

15) Mr. Holderness testified that his usual practice was to get as much money for the seller of the property as possible; that if there were two offers on the property, one of which was lower than the other, he would try to get the offeror who had submitted the lower bid to submit a higher offer. He also testified that if a prospective purchaser submitted an offer, he would tell other persons who were interested in the property that an offer had been submitted; he would take down their phone number; and he would call them if the prior offer fell through.

16) Mr. Holderness testified that if a customer inquired about property in a particular section of Sandusky, he would try to give the customer as many listings in that area as he could. . . .

17) On July 24, 1975, DeWitt McDonald went to the offices of Real Estate One to inquire about the status of the McArthur Park property. He met with Defendant Holderness. Mr. McDonald told Mr. Holderness that he was interested in purchasing some investment property. According to the testimony of Mr. McDonald, Mr. Holderness informed Mr. McDonald of a number of properties which were suitable for purchase for investment reasons,...