Correspondence Vol. 2 of 2 (Redacted)

    IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JEWEL FORREST AND 
LARRY E. FORREST,

Plaintiffs,

FRED R. WARNER,

Defendant.

No. 92-C-0298-C

MEMORANDUM OF POINTS AND AUTHORITIES 
IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

JULIUS LeVONNE CHAMBERS 
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

PERCY L. JULIAN, JR. 
Julian, Olson & Lasker, S.C. 
330 East Wilson Street 
P.O. Box 2206 
Madison, WI 53701-2206 
(608) 255-6400

PENDA D. HAIR 
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

ATTORNEYS FOR PLAINTIFFS



IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JEWEL FORREST AND 
LARRY E. FORREST,

Plaintiffs,

v. No. 92-C-0298-C

FRED R. WARNER,

Defendant.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 
PLAINTIFFS’ MOTION FOR SUMMARY JUDGEMENT

JULIUS LeVONNE CHAMBERS PERCY L. JULIAN, JR.

(608) 255-6400

PENDA D. HAIR
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

COUNSEL FOR THE PLAINTIFFS

99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

Julian, Olson & Lasker, S.C. 
330 East Wilson Street 
P.O. Box 2206 
Madison, WI 53701-2206

Dated: December 1, 1992

J u l i a n , O l s o n  a La s k e r . S.C.



TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ..............................................................................................  ii

INTRODUCTION..................................................................................................................  1

STATEMENT OF THE C A SE ............................................................................................  3

A R G U M E N T ......................................................................................................................... 11

I. The Defendant Stated a Preference Not to Sell to the
Plaintiffs Because of Their Race ............................................................................ 13

II. The Defendant Refused to Negotiate With, Sell and 
Rent to or Otherwise Made Unavailable a Dwelling
to the Plaintiffs Because of their R a c e ................................................................... 14

III. The Defendant Discriminated Against the Plaintiffs 
in the Terms and Conditions of the Sale or
Rental ......................................................................................................................... 17

IV. The Defendant was Motivated by his Intent to
Discriminate .............................................................................................................. 17

V. The Defendant Interfered with the Plaintiffs’ and 
with Century 21 Realty in the Exercise of Rights
Granted by Section 818 of the Fair Housing A c t ..............................................  20

CONCLUSION......................................................................................................................  20

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TABLE OF AUTHORITIES
CASES PAGE

Asbury v. Brougham, 866 F.2d 1276 (10th Cir. 1989)......................................................  11

Bailey v. Binvon. 583 F. Supp. 923 (N.D. Ill, E.D. 1984) ...............................................  12

Denny v. Hutchinson Sales Corp.. 649 F.2d 816 (10th Cir.
1 9 8 1 .....................................................................................................................................11

General Building Contractors Association v. Pennsylvania.
458 U.S. 375 (1 9 8 2 ).......................................................................................................... 10

Huertas v. East River Housing Corp., 674 F. Supp. 440
(S.D.N.Y. 1987).................................................................................................................  11

In Re Malone. 592 F. Supp. 1135 (E.D. Mo. 1984)......................................................... 10

McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973)................................... 11, 12, 16

People Helpers. Inc, v. City of Richmond. 789 F. Supp. 725
(E.D.Va. 1992) .................................................................................................................  19

Pinchback v. Armistead Homes Corp.. 689 F. Supp. 541 (D.Md.
1988) ..................................................................................................................................  12

Ramirez v. Sloss. 615 F.2d 163 (5th Cir. 1980) ..................................................................  12

Ratliff v. City of Milwaukee. 608 F. Supp. 1109 (D.Wis.
1985) ..................................................................................................................................  11

Robinson v. 12 Lofts Realty, Inc.. 610 F.2d 1032 (2d. Cir.
1979) ..................................................................................................................................  11

Texas Department of Community Affairs v. Burdine, 450 U.S.
248 .......................................................................................................................................  11

STATUTES

42 U.S.C. §§1981 and 1982 ...................................................................................  10, 14, 16

Fair Housing Act [42 U.S.C. § 3604(a)]..................................................................................14

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Fair Housing Act [42 U.S.C. § 3604(b)]............................................................................ 16

Fair Housing Act [42 U.S.C. 3604(c)]................................................................................. 13

The Fair Housing Act [42 U.S.C. § 3617]..........................................................................19

§ 101.22(2)(b), Wis. Stats........................................................................................  13, 14, 16

ORDINANCES

Beloit Fair Housing Code §§ 20.03(l)(a), 20.03(l)(b), 20.03(l)(c)......................... 14, 16

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JEWEL FORREST AND 
LARRY E. FORREST,

Plaintiffs,

v.

FRED R. WARNER,

Defendant.

No. 92-C-0298-C

MEMORANDUM IN SUPPORT OF 
PLAINTIFFS’ MOTION FOR SUMMARY JUDGEMENT

INTRODUCTION

This action was instituted by the plaintiffs, victims of racial discrimination, under the 

Fair Housing Act, 42 U.S.C. sections 1981 and 1982, the Wisconsin Open Housing Law, 

and the Beloit Fair Housing Code . The plaintiffs, a black couple, sought to rent and 

ultimately to buy the defendant’s house, and as such entered into the appropriate 

agreements with the defendant. However, the defendant refused to honor these 

agreements upon discovering that the plaintiffs were black.

Direct evidence demonstrates that prior to entering into agreements with the 

plaintiffs, the defendant proclaimed his intent to discriminate against blacks. Further, the 

evidence illustrates that the defendant later carried out his intent by repudiating his 

contractual obligations to the plaintiffs through the use of a reason which was merely a 

pretext for his refusal to negotiate with, rent and sell to the plaintiffs because of their race.

J u l i a n , O l s o n  a La s k e r . S.C.



In fact, the defendant has admitted that the reason that was given to the plaintiffs for the 

cancellation of the transaction, was an excuse for his intent to discriminate.

This Memorandum in Support of Plaintiffs’ Motion for Summary Judgement will 

show that (1) the direct evidence shows that the defendant intended to and did actually 

discriminate against the plaintiffs because of their race and (2) the defendant’s reason for 

refusing to negotiate with, rent and sell his property to the plaintiffs, is merely a pretext 

for unlawful discrimination. The uncontradicted evidence shows that the plaintiffs motion 

for summary judgement should be granted because there is no genuine issue of dispute as 

to any material fact, and the plaintiffs are entitled to judgement as a matter of law.

STATEMENT OF THE CASE

On April 18, 1990, Ms. Joan Hulbert, a salesperson at Century 21, Hart, Kruse and 

Boutelle (hereinafter "Century 21"), met with defendant, Fred R. Warner and his wife, Lou 

Jane Warner to discuss listing their house at 855 Sherwood Dr., NW (hereinafter "855 

Sherwood) for sale. During that meeting, defendant Warner indicated to Joan Hulbert 

that he did not want to sell his house to blacks. Joan Hulbert told the defendant that she 

would not and could not discriminate. Defendant Warner also stated that he did not want 

any signs to be displayed in front of his house. The defendant specifically hired Ms. 

Hulbert because he had known her for several years and thus, trusted her to carry out his 

wishes, i.e. that she would not sell his house to blacks. On that same day, defendant 

Warner signed an exclusive right to sell agreement with Century 21. (Proposed Facts 

7-13.)

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In December, 1991, plaintiff Jewel Forrest travelled to Beloit, Wisconsin from her 

home in Los Angeles, California, in order to secure housing for her husband and herself. 

The Forrests, who are both retired, planned to relocate to Beloit, Wisconsin in March, 

1992. Jewel Forrest contacted Century 21 to help her find appropriate housing. Ms. 

Penny Hansen, a realtor at Century 21, agreed to show Jewel Forrest houses in Beloit. 

(Proposed Facts 3, 19, 20, 21.)

After seeing several houses in Beloit, Jewel Forrest was shown the defendant’s 

house at 855 Sherwood. (Proposed Facts ^ 21.) The house was listed at a price of 

$54,000. (Proposed Facts f  16.) Of all the houses Jewel Forrest had then viewed in 

Beloit, the defendant’s house was the only house that Jewel Forrest was interested in 

purchasing. As such, after conferring with her husband, plaintiff Larry Forrest, the 

Forrests decided to make an offer to purchase the defendant’s house. (Proposed Facts 

21.) Since the plaintiffs had not yet sold their house in California, Penny Hansen 

suggested that their offer to the defendant consist of a rental with an option to purchase. 

(Proposed Facts f  22.)

On January 15, 1992, the Forrests submitted an offer to rent the defendant’s house 

for $470 per month. The rental was to begin on March 1, 1992. (Proposed Facts f  24.)

The Forrests also sought an option to purchase the house for $54,000. In 

consideration of the option, the Forrests offered to pay $2000, which would signify their 

earnest intention to purchase 855 Sherwood. The option was to expire on May 1, 1992, 

thus providing ample time for the plaintiffs to sell their house in California. The option

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could be extended once, until July 1, 1992, upon the plaintiffs’ payment of an additional 

$1000. The offer also included terms which permitted the plaintiffs to apply the $2000 and 

the rent of $470 toward the down-payment for the purchase of the house. Pursuant to the 

offer, the plaintiffs were required to secure financing commitment within 30 days of the 

acceptance of the offer. However, the defendant and his agents understood that the 

financing commitment was not needed until the plaintiffs exercised their option to buy the 

house. (Proposed Facts 23, 25, 26, 27, 28, 38.)

On January 16, 1992, the plaintiffs paid to Century 21 $2000 for the option to 

purchase 855 Sherwood. This amount, which was non-refundable, was held in trust by 

Century 21. (Proposed Facts f  44.)

On January 20, 1992, Joan Hulbert, agent for the defendant, met with the defendant 

in order to present to him the offer submitted by the Forrests. Joan Hulbert explained 

the offer to defendant Warner, including the option and rental. Defendant Warner read 

the contracts in the presence of Joan Hulbert. The defendant understood the terms of the 

rental, the option, and the offer to purchase the house. On that same day, the defendant, 

content with the offer, the option and the rental, agreed to their terms. (Proposed Facts 

M  30-40.)

The plaintiffs were assured by the defendant’s agents at Century 21 that the 

transaction was proceeding smoothly. (Proposed Facts 45.)

On or about February 17, 1992, the defendant’s wife, Lou Jane Warner spoke to 

a neighbor, Betty Montenero. During her telephone conversation, Rick Montenero asked

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his wife to ask the Warners if they had sold their house to blacks. Betty Montenero asked 

Lou Jane Warner the question posed by her husband. Lou Jane then repeated Rick 

Montenero’s question to the defendant, who was present in the room at the time of the 

telephone conversation. The defendant replied that he had not sold his house to blacks. 

He was then informed that the Monteneros had seen several blacks looking at the 

Warner’s house. (Proposed Facts 46-49.)

On or about February 17, 1992, the defendant telephoned Joan Hulbert in order 

to ask her if his house had been sold to blacks. He stated that his neighbors had told him 

that there were blacks going in and out of his house. Joan Hulbert asked defendant 

Warner what difference it made if the house was sold to blacks. Defendant Warner 

repeated his inquiry. Finally, Joan Hulbert admitted to the defendant that the house had 

indeed been sold to blacks. Defendant Warner then asked Joan Hulbert for the name of 

the selling agent, to which she responded that Penny Hansen had sold his house. 

(Proposed Facts f  50.)

On the same day, in a fury, the defendant telephoned Penny Hansen. He stated that 

Joan Hulbert had told him that his house had been sold to blacks. He asked Ms. Hansen 

if this was in fact, true. After Penny Hansen admitted that the buyers were black, 

defendant Warner asserted that he did not want to sell his house to blacks. Furthermore, 

the defendant admitted to Ms. Hansen that he was a bigot. Defendant Warner asked 

Penny Hansen how he could evade his contractual obligations, to which Ms. Hansen 

indicated that his contract with the Forrests was legally binding. The defendant then

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stated that if there was a legal way to void the contract, he would do so. (Proposed Facts 

Ml 52-54.)

After their conversations with defendant Warner, Joan Hulbert and Penny Hansen 

met with Dwight Kruse, a partner of Century 21, to discuss the defendant’s objections to 

the transaction and their earlier conversations with the defendant. Dwight Kruse advised 

Joan Hulbert and Penny Hansen to proceed with the completion of the transaction. The 

defendant’s agents at Century 21 knew that the defendant was legally bound to perform 

his obligations pursuant to the agreement with the Forrests. (Proposed Facts f  f  57-58.)

On February 19, 1992, the plaintiffs sent a check to Century 21 in the amount of 

$470 for the March rent for 855 Sherwood. Century 21 forwarded this check to the 

defendant. On February 25, 1992 after completing the sale of their house in California, 

the plaintiffs departed for Beloit. The plaintiffs were unaware that the defendant intended 

to shirk his contractual obligations, and thus, they still expected to move into their new 

home on March 1, 1992. (Proposed Facts flf 61-62.)

The defendant felt angry and betrayed by these sequence of events. He had 

specifically told Ms. Hulbert that he did not want to sell his house to blacks. Yet, his 

agents did not adhere to his wishes. Instead he found himself bound to agreements with 

a black couple. The defendant thought that if he had to sell to blacks, he would at least 

like to meet them first. He was interested in protecting the neighborhood and maintaining 

the status quo, i.e. a Caucasian neighborhood. Because of the plaintiffs’ race, the 

defendant immediately sought to identify a way to get out of his contracts with the

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plaintiffs. Accordingly, the defendant met with an attorney, Frank X. Kinast. (Proposed 

Facts f f  56, 63, 64.)

During the defendant’s first meeting with Frank X. Kinast, Esq. he explained to the 

attorney that he had requested that the property not be sold to blacks; however, the buyers 

were in fact, black. Thus, the defendant gave his attorney a charge to find a way for him 

to get out of the agreements with the plaintiffs. Frank Kinast, Esq. found what he 

believed was a discrepancy in the contract. (Proposed Facts 64-65.)

On February 27, 1992, the defendant and his wife met with Frank X. Kinast. The 

attorney pointed out that the plaintiffs had not provided a written financing commitment 

by the asserted deadline of February 15, 1992. This was the excuse that the defendant 

would use to disguise his illegal actions. (Proposed Facts f  67.)

During the meeting with the Warners, Frank Kinast telephoned Penny Hansen to 

discuss the sale of 855 Sherwood. He told Ms. Hansen that the defendant and his wife 

were present in his office and they could hear her comments on the speaker phone. Mr. 

Kinast stated that the defendant would not complete the sale of his house to the plaintiffs 

and that they would not be able to move in. Penny Hansen indicated that the Forrests 

had already left California with the intention of moving into 855 Sherwood when they 

arrived in Beloit. However, Mr. Kinast reiterated that the defendant did not want to deal 

any further with the plaintiffs. Penny Hansen, knowing that the defendant could hear her, 

stated, "I know why you’re doing this Mr. Warner", referring to his intent to discriminate. 

Mr. Warner did not respond to Penny Hansen’s comment. Immediately after hanging up

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with Frank Kinast, Penny Hansen called him back to ask him whether or not anti- 

discrimination laws applied to sellers of real estate, in the same way that they applied to 

realtors. Mr. Kinast stated that he could not discuss the matter with her any further. 

(Proposed Facts 68-69.)

Later that day, the defendant delivered a letter written by Frank Kinast to Ms. 

Penny Hansen which stated that the defendant would not deal any further with the 

plaintiffs. He asserted that the plaintiffs had failed to comply with the provision of the 

agreement which required a written commitment for financing. Despite the fact that the 

plaintiffs had paid $2000 for the option to buy the house, Frank Kinast alleged that the 

financing commitment would assure that the plaintiffs were "financially responsible and no 

problems would arise down the road after they had occupied the house before closing." 

Further, Frank Kinast requested that Penny Hansen notify the plaintiffs that the deal was 

off. (Proposed Facts f  70.)

The defendant has admitted that he understood that the financing commitment was 

not needed until the Forrests exercised their option to buy the house. (Proposed Facts f  

38.)

In the meanwhile, defendant Warner permitted the tenant, Chris Burki (a white 

male), who was renting 855 Sherwood on a month-to-month basis, to remain on the 

premises. (Proposed Facts f  72.)

The plaintiffs arrived in Beloit on March 2, 1992 with all of their belongings, 

unaware of the actions taken by the defendant. Upon their arrival, they spoke with Penny

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Hansen, who told them that they would not be able to move into 855 Sherwood. Ms. 

Hansen related to the plaintiffs that the defendant cancelled his agreement to sell his 

house to the plaintiffs because of their race. The following day, the plaintiffs met with 

Dwight Kruse and Penny Hansen to discuss the defendant’s actions and the plaintiffs 

resulting predicament. (Proposed Facts 75, 76, 78.)

As a result of the defendant’s illegal actions, the plaintiffs were left without housing. 

They were forced to leave all of their belongings on their moving van and in the garage 

of Penny Hansen and to seek shelter at the Holiday Inn Hotel in Beloit. The plaintiffs 

resided at the Holiday Inn until April 6, 1992, when they were finally able to obtain 

alternative housing. (Proposed Facts f  77.)

ARGUMENT

The purpose of the fair housing laws and their related statutes is to protect the right 

of all citizens to secure housing regardless of race. A violation of these laws may be 

shown by proof of either discriminatory treatment1, or proof that the defendant’s actions 

have had an adverse impact on a protected group and is not justified by legitimate business 

necessity. In Re Malone, 592 F. Supp. 1135 (E.D. Mo. 1984). In this case, there is direct 

evidence which demonstrates that the defendant had the clear intention to discriminate 

against the plaintiffs because of their race.

Proof of the defendant’s discriminatory purpose or motive may be established, as 

here, by direct evidence; or discriminatory purpose may be established through the indirect

1 When proving discriminatory treatment under 42 U.S.C. §§ 1981 and 1982, a showing of discriminatory intent or discriminatory 
purpose is required. See General Building Contractors Assn v. Pennsylvania. 458 U.S. 375. 382 (1982).

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method illustrated by McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973) and Texas 

Dept, of Community Affairs v. Burdine, 450 U.S. 248 (1981). See Robinson v. 12 Lofts 

Realty, Inc.. 610 F.2d 1032 (2d. Cir. 1979).2 Under the McDonnell Douglas/Burdine 

analysis, in order to prevail, the plaintiff must establish a prima facie case of 

discrimination. Upon the showing of a prima facie case, the burden shifts to defendant, 

who must articulate a legitimate nondiscriminatory reason for the refusal to negotiate with, 

sell to, or rent to the plaintiff. The evidence presented by the defendant must show that 

his actions were not motivated by considerations of race. Robinson v. 12 Lofts Realty, Inc. 

at 1039. If the defendant meets this requirement, the burden then shifts back to the 

plaintiff to show that the defendant’s reason is pretextual.

Under the McDonnell Douglas/Burdine analysis, the plaintiff must satisfy a four 

prong test in order to establish a prima facie case of discrimination.3 This test is used in 

order to raise an inference of discrimination, where the plaintiff relies on circumstantial 

evidence of intentional discrimination. Ratliff v. City of Milwaukee, 608 F. Supp. 1109 

(D.Wis. 1985). However, where there is evidence that establishes that the defendant 

openly discriminated, it is not necessary to apply this mechanical test, since the intentional 

discrimination may be shown directly. Ramirez v. Sloss. 615 F.2d. 163 (5th Cir. 1980). See

’ This analysis, used to show discrimination under the Fair Housing Act, is also applied in §§ 1981 and 1982 cases. See Asburv 
v. Brougham. 866 F.2d 1276 (10th Cir. 1989); Denny v. Hutchinson Sales Corn.. 649 F.2d 816 (10th Cir. 1981); Huertas v. East River 
Housing Corp.. 674 F. Supp. 440 (S.D.N.Y. 1987).

3 In order to establish a prima facie case of housing discrimination the plaintiffs would have to prove:
1. That they are members of a racial minority:
2. That they applied for and were qualified to rent or purchase the property;
3. That they were rejected;
4. That the housing remained available thereafter.

McDonnell Douglas Corp. v. Green. 411 U.S. 792: Robinson v. 12 Lofts Realty, Inc. 610 F.2d 1032 (Cir. ?? 19??).

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also, Pinchback v. Armistead Homes Corp., 689 F. Supp. 541 (D.Md. 1988) (rejecting use 

of McDonnell Douglas four prong test in a housing discrimination case where there was 

direct evidence of an intent to discriminate); Bailey v. Binvon 583 F. Supp. 923 (N.D. Ill, 

E.D. 1984).

In this case, there is direct evidence of the defendant’s intent to discriminate, thus, 

the plaintiffs need not apply the McDonnell Douglas/Burdine test to establish a prima facie 

case. Instead, here, a prima facie case is established by both the defendant’s deposition 

and the sworn statements of his agents. This evidence establishes not only that it was the 

defendant’s intent to discriminate against the plaintiffs because of their race, but he in fact 

did discriminate against the plaintiffs.

There is also ample direct evidence which proves that the defendants actions, taken 

after discovering that the plaintiffs were black, were motivated by his intent to discriminate. 

This evidence also indicates that the defendant had no legitimate reason for his refusal to 

negotiate with, rent and sell his property to the plaintiffs; and certainly no legitimate 

reason for the making of racially preferential statements in his residential real estate 

transactions. In fact, there is also evidence that the defendant sought to identify a pretext 

for his unlawful actions.

I. The Defendant Stated a Preference Not to Sell to the Plaintiffs because of 
their Race.

The Defendant violated Section 804(c) of the Fair Housing Act [42 U.S.C. 3604(c)] 

and Section 101.22(2)(b), Wis. Stats, by making statements that indicated that he preferred 

not to sell to the plaintiffs because of their race.

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On April 18, 1990, the defendant met with Joan Hulbert of Century 21, to discuss 

with her the possibility of listing his property for sale with her realty agency. During this 

meeting, Defendant Warner told Joan Hulbert that he preferred not to sell his house to 

blacks. (Hulbert Sw. Statmt. at 8-9; Warner Depo. at 58.) Ms. Hulbert expressed to the 

defendant that she could not and would not discriminate. (Hulbert Sw. Statmt. at 10; 

Warner Depo. at 58.) Although Ms. Hulbert had admonished the defendant that she 

would not discriminate, the defendant thought that due to their long-standing friendship 

that Ms. Hulbert would ultimately acquiesce and not sell his house to blacks, as per his 

request. (Warner Depo. at 116.)

Furthermore, in February, 1992 the defendant discovered that the people he had 

sold his house to were black. This infuriated the defendant. Since his agents did not 

comply with his wishes to not sell to blacks, the defendant reiterated to Penny Hansen on 

February 17, 1992, "I prefer not to sell to blacks." (Warner Depo. at 117.)

These statements made by the defendant to Joan Hulbert and Penny Hansen were 

made in connection with the sale of the defendant’s house. They clearly show that the 

defendant preferred not to sell to the plaintiffs because of their race in violation of the 

law.

II. The Defendant Refused to Negotiate with, Sell and Rent to, or otherwise 
made unavailable a dwelling to the Plaintiffs because of their Race.

The defendant violated sections 804(a) of the Fair Housing Act [42 U.S.C. 

§ 3604(a)]; 42 U.S.C. §§ 1981 and 1982; 101.22(2)(a), Wis. Stats.; and 20.03(l)(a), 

20.03(l)(b), and 20.03(l)(c) of the Beloit Fair Housing Code by otherwise making

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unavailable or denying a dwelling, and refusing to negotiate with, sell or rent to the 

plaintiffs because of their race.

Defendant Warner was quite content with the agreements with the plaintiffs. 

(Warner Depo. at 112.) It was not until after the defendant was informed that the buyers 

of his house were black, that the defendant took actions which demonstrated his refusal 

to negotiate with, sell or rent to the plaintiffs because of their race. The defendant’s 

discovery of the plaintiffs’ race motivated the defendant to repudiate the agreements with 

the plaintiffs.

In January, 1992, the plaintiffs paid to the defendant $2000 for an option to 

purchase the house at 855 Sherwood for $54,000. (Exhibit 33; Hansen Sw. Statmt at 33- 

34.) The option was to expire on May 1, 1992, but could be extended until July 1, 1992 

by the payment of an additional $1000 on or before May 1. 1992. (Exhibit 14.) The 

plaintiffs also submitted an offer to purchase the home for the listing price of $54,000 and 

sought to rent the house for $470 per month. (Hansen Sw. Statmt. at 23-25; Exhibit 14; 

Warner Depo at 96-97.) On January 20, 1992 the defendant agreed to the option and the 

rental and accepted the offer to purchase. (Exhibit 14, 15; Warner Depo. at 93, 95; 

Hulbert Sw. Statmt. at 25.)

The defendant entered into binding contracts with the plaintiffs upon the 

aforementioned terms. At the time that the defendant entered into these contracts with 

the plaintiffs, he was content with the deal (Warner Depo. at 112.); however, he was 

unaware that the plaintiffs were black. (Warner Depo. at 51, 53, 106-109.) It was not

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until one month later that the defendant was informed that the buyers of his home were 

black.

Upon discovering that the plaintiffs were black, defendant Warner, angry that his 

house had been sold to blacks, asserted to Penny Hansen that he would not sell his house 

to blacks (Exhibit 34.), and that he "would do anything legal to get out of it." (Warner 

Depo. at 121.) Thus, but for the plaintiffs race, the defendant would have optioned, 

rented, and sold his house under the terms of the contracts with the plaintiffs.

The defendant then pursued actions which denied the plaintiffs a dwelling in 

violation of the law. In order to avoid selling his house to blacks the defendant sought the 

advice of an attorney, Frank X. Kinast, Esq. The day after the defendant discovered that 

the purchasers of his house were black, defendant Warner visited Frank Kinast and told 

him that he wanted to get out of his contracts with the plaintiffs because they were black. 

(Warner Depo. at 124.) The defendant hired Frank Kinast to find a legal reason for 

cancelling the contracts. The defendant would not have sought a reason to cancel the 

agreements with the plaintiffs, but for the plaintiffs’ race.

The defendant’s actions demonstrated his refusal negotiate with, sell or rent to the 

plaintiffs because of their race. Ultimately, the plaintiffs were denied 855 Sherwood 

because they were black.

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III. The Defendant Discriminated Against the Plaintiffs in the Terms and 
Conditions of the Sale or Rental.

The defendant violated sections 804(b) of the Fair Housing Act [42 U.S.C. 

§§ 3604(b)]; 42 U.S.C. §§ 1981 and 1982; 101.22(2)(b), Wis. Stats.; and 20.03 (1) (d) of the 

Beloit City Ordinances [The Fair Housing Code] by discriminating in the terms and 

conditions of the sale and rental to the plaintiffs because of their race.

The defendant signed the contracts with the plaintiffs, and was content with the 

terms and conditions of the contracts until he discovered that the plaintiffs were black. 

Upon discovering that the buyers of his property were black, the defendant repudiated his 

agreements with the plaintiffs. Because of the plaintiffs’ race, the defendant felt that it was 

necessary that he meet them prior to selling his property to them. (Warner Depo. at 

111, 154.) Therefore, the defendant imposed a term and condition of sale and rental 

because of the plaintiffs’ race, in violation of the law.

IV. The Defendant was Motivated by his Intent to Discriminate.

Under the second part of the analysis of McDonnell Douglas, the defendant must 

articulate a legitimate reason for rejecting the plaintiffs. Upon such a demonstration, the 

burden shifts to the plaintiffs, who must show that the defendant’s proffered reason is 

pretextual.

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The evidence shows that the defendant has not proffered a legitimate reason for 

discontinuing the transaction with the plaintiffs. In fact, direct evidence proves that after 

the defendant discovered that the Forrests were black, he sought to identify a pretext to 

avoid his contractual obligations to the plaintiffs. On February 17, 1992, during his 

telephone conversation with Penny Hansen of Century 21, Mr. Warner expressed his anger 

with the sale of his house to blacks. (Warner Depo. at 117.) Furthermore, defendant 

Warner inquired as to whether or not Ms. Hansen knew of a legitimate reason he could 

utilize to avoid the enforcement of the contracts. (Warner Depo. at 119.) Thus, 

defendant Warner wanted to establish a disguise for his intent to discriminate.

Defendant Warner has admitted that he retained an attorney, Frank X. Kinast, in 

order to identify a legal reason for avoiding the agreements with the plaintiffs and that 

prior to discovering that the plaintiffs were black, that he was content with the deal. The 

defendant told his attorney that he did not want to sell to blacks. (Warner Depo. at 124.) 

Thus, he gave Frank Kinast the responsibility of identifying a reason to void the contracts. 

The sole motivation for the defendant’s actions were that the buyers of his property were 

black.

In the February 27, 1992 letter (Exhibit 19), Frank X. Kinast, Esq. sent to Penny 

Hansen on behalf of defendant Warner, he stated that the plaintiffs had not complied with 

the terms of the offer which required them to secure a commitment for financing by 

February 15, 1992. However, this reason for terminating the transaction was a pretext for

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refusing to sell the house to the plaintiffs merely because of their race.4 The defendant’s 

agents at Century 21 did not require that the plaintiffs adhere to the February 15th 

financing commitment deadline. The Century 21 personnel assured the plaintiffs that the 

transaction was proceeding smoothly. In fact, defendant Warner has admitted that he 

knew that the financing commitment was not necessary until the plaintiffs decided to 

exercise their option to purchase the property. (Warner Depo. at 101-102.) The plaintiffs 

had until May 1, 1992 (under the terms of the option) to do so. Thus, the "financing 

commitment" was used as a pretext to circumvent the fair housing laws.

The defendant has admitted that he understood the intent of the Fair Housing Act. 

(Warner Depo. at 153, 157.) He understood that Joan Hulbert couldn’t openly 

discriminate (Warner Depo. at 152); however, he believed that he could circumvent the 

intent of the law (Warner Depo. at 152-153) by using a legitimate reason to void the 

contracts. The reason that the defendant used to void the contracts was used only because 

the plaintiffs were black. It was not until after the defendant was informed that the 

Forrests were black that he sought legal advice to cancel the agreements with the plaintiffs. 

Had the Forrests not been black the transaction would have proceeded smoothly.

V. The Defendant Interfered with the Plaintiffs and with Century 21 Realty in 
the Exercise of Rights Granted by Section 818 of the Fair Housing Act [42 
U.S.C. § 3617].

Section 818 of the Fair Housing Act [42 U.S.C. § 3617] provides that it shall be 

unlawful to "interfere with any person in the exercise or enjoyment of...any right...protected

4 Not only was this reason pretextual, it misstated the terms of the offer, which on its face allowed a longer period of time in which 
to obtain financing.

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by" the Fair Housing Act or to "interfere with any person...on account of his having aided 

or encouraged any other person in the exercise or enjoyment of...any right...protected by" 

the Act. In showing the plaintiffs the house at 855 Sherwood, N.W., and in preparing the 

documents to effectuate the plaintiffs’ objectives of obtaining the house, the staff at 

Century 21 were aiding the plaintiffs in the enjoyment of a right protected by the Fair 

housing Act; a right the defendant sought to scuttle, because he did not want to sell his 

home to blacks.

The defendant, motivated by the race of the plaintiffs, used Frank Kinast, Esq. to 

attempt to block the plaintiffs from moving into 855 Sherwood, NW, as scheduled, and 

delivered the February 27, 1992 letter, authored by Kinast, and approved by the defendant, 

to Century 21 offices himself. (Warner Depo. at 124.) Joan Hulbert of Century 21 had 

indicated to the defendant that it was unlawful to refuse to sell or rent to persons because 

of their race, and Penny Hansen informed the defendant, when he angrily called her, that 

she believed there was no way out of the deal. (Hansen Sw. Statmt. at 35-36; Warner 

Depo. at 117-121.) Nevertheless, the defendant sought to and did interfere with the efforts 

of not only the plaintiffs to buy the property, but of Century 21 to sell it to the plaintiffs.

In doing so, Warner not only violated the provisions of the Century 21 listing 

contract, which required that he not discriminate, but violated § 3617 as well. See. People 

Helpers. Inc, v. City of Richmond. 789 F. Supp. 725 (E.D.Va. 1992).

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C O N C L U S I O N

The direct evidence in this case proves that the defendant, Fred R. Warner 

intentionally discriminated against the plaintiffs because of their race, in violation of the 

federal, state, and local law. The defendant’s agents have admitted that the defendant 

did not want to sell his property to blacks. The sworn statements of the defendant’s agents 

also demonstrate that upon discovering that the plaintiffs were black, the defendant refused 

to complete the transaction with the plaintiffs.

More significant, the defendant himself admits that in his initial meeting with Joan 

Hulbert, he told her that he did not want to sell his house to blacks. He has also stated 

that when Ms. Hulbert presented the Forrests’ offer to him, he understood its terms and 

was content with deal. However, upon discovering that the plaintiffs are black, defendant 

Warner became quite angry at the prospect that he had entered into agreements to sell 

to blacks. The defendant resolved to undo these agreements, if possible, and to avoid the 

sale of his property to blacks.

The defendant admits that upon discovering that the Forrests are black, he again 

told his agents at Century 21 that he did not want to sell to blacks. He has stated that he 

retained an attorney in order to void his contracts with the Forrests because of their race. 

The defendant was in search of any reason, whatsoever, to void the contracts, and his 

attorney was hired in order to aid him in his quest to circumvent the law. If the plaintiffs 

had not been black, the defendant would not have sought to void the agreements with the 

plaintiffs.

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The defendant’s actions were motivated solely by his intent to discriminate. 

Defendant Warner’s only consideration was that the plaintiffs were black. The 

uncontroverted evidence shows that the defendant intended to, and ultimately did, deny 

the plaintiffs of their right to secure housing and enter into contracts for such, regardless 

of race, in violation of the law.

Accordingly, the Court should grant plaintiffs summary judgement as to defendant’s 

liability as prayed for in the complaint.

Respectfully submitted,

PERCY L. JULIAN^ JR.

JULIUS LeVONNE CHAMBERS 
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

PENDA D. HAIR 
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

ATTORNEYS FOR PLAINTIFFS

PERCY L. JULIAN. JR. 
Julian, Olson & Lasker, S.C. 
330 East Wilson Street 
P.O. Box 2206 
Madison, WI 53701-2206 

(608) 255-6400

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JEWEL FORREST AND 
LARRY E. FORREST,

Plaintiffs,

v.

FRED R. WARNER.

Defendant.

No. 92-C-0298-C

STATEMENT OF FINDINGS OF FACT PROPOSED BY THE PLAINTIFFS 

STATEMENT OF CONCLUSIONS OF LAW PROPOSED BY THE PLAINTIFFS

JULIUS LeVONNE CHAMBERS 
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

PERCY L. JULIAN, JR. 
Julian, Olson & Lasker, S.C. 
330 East Wilson Street 
P.O. Box 2206 
Madison, WI 53701-2206 
(608) 255-6400

PENDA D. HAIR 
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

ATTORNEYS FOR PLAINTIFFS



IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JEWEL FORREST AND 
LARRY E. FORREST,

Plaintiffs,

V. No. 92-C-0298-C

FRED R. WARNER,

Defendant.

STATEMENT OF FINDINGS OF FACT 
PROPOSED BY THE PLAINTIFFS

1. Jewel Forrest is an African-American female citizen of the United States and 

until March, 1992 was a resident of the State of California. She currently resides in the 

Western District of Wisconsin. She is married to plaintiff Larry E. Forrest. (J. Forrest Aff.1

11 I-)

2. Larry E. Forrest is an African-American male citizen of the United States 

and until March, 1992 was a citizen of the State of California. He now resides in the 

Western District of Wisconsin. He is married to plaintiff Jewel Forrest. (L. Forrest Aff. 

H  1 . )

1 Affidavit is abbreviated Aff.

J u l i a n . O l s o n  a La s k e r . S C.



3. Mr. Forrest is retired from the United States military. Through most of 

February, 1992, Mr. and Mrs. Forrest lived and owned a home in Los Angeles, California. 

(J. Forrest Aff. 2; L. Forrest Aff. f  2.)

4. Defendant Fred R. Warner is a white citizen of the United States and resides 

at 825 N. Osborne Avenue, Janesville, Wisconsin, which is located in the Western District 

of Wisconsin. (Warner Depo.: at 4.) During the time relevant herein he was (and is) a 

shareholder and the president of DeVere Chemical Company, Incorporated, located in 

Janesville, Wisconsin. The defendant is also in the business of selling or renting real 

estate. (Warner Depo. at 12-18.)

5. Defendant and his wife, Lou Jane Warner, are the owners of a house and 

lot located at 855 Sherwood Drive, NW, in Beloit, Wisconsin (hereinafter "855 Sherwood"). 

(Warner Depo. at 5, 37.)

6. Defendant Warner attempted to sell his house by "word of mouth" for a 

couple of months prior to listing it with a realty company. The defendant told neighbors 

and business associates that the house was for sale. (Warner Depo. at 44-54.)

7. At certain times herein defendant acted through or by his agent Century 21, 

Hart, Kruse & Boutelle, Inc. (hereinafter "Century 21"), a realty company in Beloit, 

Wisconsin. (Exhibits 5-8.)

8. Ms. Joan Hulbert is a realtor salesperson at Century 21. (Exhibit 18.) She 

has known the defendant since they attended college together, approximately 43 years ago.

’ Deposition is abbreviated Depo.

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(Hulbert Sw. Statmt.3 at 4, 6-7.) Mr. Warner listed his property with Joan Hulbert because 

he trusted her. (Warner Depo. at 54.)

9. Defendant Warner employed Joan Hulbert as his agent to sell his property 

because he thought that based upon her loyalty and friendship, she would present a buyer, 

preferably white. (Warner Depo. at 116.)

10. On April 18, 1990, Joan Hulbert met with the defendant and his wife to 

discuss listing 855 Sherwood for sale. During this meeting Mr. Warner told Joan Hulbert, 

"I would prefer not to sell to blacks." (Warner Depo. at 58; Hulbert Sw. Statmt. at 8-9.)

11. On April 18. 1990, during her meeting with Fred Warner, Joan Hulbert told 

Defendant Warner that she could not and would not discriminate on the basis of race. 

(Hulbert Sw. Statmt. at 10; Warner Depo. at 58.)

12. From April 18, 1990, until on or about November 15, 1990, the defendant 

instructed Century 21 that no "For Sale" sign, or sign of any kind, be displayed in front 

of 855 Sherwood. (Warner Depo. at 61; Exhibits 5, 18.) Defendant Warner believed that 

the lack of a sign would limit the traffic of people who would view his property. (Warner 

Depo. at 61.)

13. On April 18, 1990, Fred and Lou Jane Warner entered into an Exclusive 

Right to Sell contract (hereinafter "listing contract") with Joan Hulbert for the sale of 855 

Sherwood for $64,900. (Warner Depo. at 64, 71; Hulbert Sw. Statmt. at 10-12; Exhibits 5, 

18.)

J Swom Slatemenl is abbreviated Sw. Slatml.

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14. The listing contract included a provision that the seller would not discriminate 

on the basis of race. (Exhibits 5-8.) The defendant had notice that it was illegal to 

discriminate on the basis of race. (Warner Depo. at 158.)

15. The listing contract was renewed three times in order to extend the listing 

period through June 2, 1992. (Exhibits 6, 7, 8; Warner Depo. at 73-74, 78-80.)

16. On September 19, 1991, the listed price was reduced to $54,000. (Exhibits

4, 11.)

17. Prior to December, 1990, Joan Hulbert found tenants to rent 855 Sherwood 

for $500 per month. The tenants were a non-black family who rented the house for four 

or five months. There was no written lease for this tenancy. (Warner Depo. at 67-69.)

18. At some time in December, 1990, or January, 1991, Joan Hulbert of Century 

21 found a tenant, Chris Burki, a white male, for 855 Sherwood, and, commencing in 

January 1991, defendant rented to this tenant on a month-to-month basis tor approximately 

$500 per month. There was no written lease for this tenancy. (Hulbert Sw. Statmt. at 48- 

50; Warner Depo. at 81-83.)

19. In December 1991, the plaintiffs decided to sell their Los Angeles home and 

relocate to Beloit, Wisconsin. (J. Forrest Aff. ^ 3; L. Forrest Aff. f  3.) Mrs. Forrest 

traveled to Beloit and spent the latter part of December 1991 and early part of January, 

1992, looking for a place to live. (J. Forrest Aff. H 3.)

20. Ms. Penelope Hansen (hereinafter Penny Hansen) is a licensed realtor at 

Century 21. (Hansen Sw. Statmt. at 4.)

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21. Penny Hansen showed Mrs. Forrest several homes, including the defendant’s 

property at 855 Sherwood. Mr. and Mrs. Forrest were interested in renting 855 Sherwood 

with an option to buy. (Hansen Sw. Statmt. at 9-10, 13; J. Forrest Aff. f  4; L. Forrest Aff.

H 4.)

22. On January 15, 1992, Jewel and Larry Forrest signed two contracts — a Grant 

of Option and an Offer to Purchase the house at 855 Sherwood. (J. Forrest Aff. f  5; L. 

Forrest Aff. ^ 5; Hansen Sw. Statmt. at 16.) Penny Hansen drafted these contracts. 

(Hansen Sw. Statmt. at 13-14.)

23. The Offer to Purchase provided that the Forrests offered to pay $54,000 for 

the property at 855 Sherwood in the form of $2000 in option money payable at the time 

of the offer and the balance due at closing. (Exhibit 15.)

24. The Forrests’ offer included a rental of $470 per month which would begin 

on March 1, 1992. This tenancy was to terminate upon the expiration of the option. 

(Warner Depo. at 89; Hulbert Sw. Statmt. at 23-25.)

25. The Offer to Purchase stated that the rent of $470 per month would be 

applied toward the downpayment on the purchase price of the house. (Exhibit 15; Warner 

Depo. at 103-104.)

26. The Grant of Option stated that the defendant granted to the Forrests the 

option to purchase the property at 855 Sherwood for $54,000. (Exhibit 14.)

27. The Grant of Option stated that the Forrests would pay $2000 for the option 

to purchase 855 Sherwood. The option price was to be applied toward the downpayment

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on the house if the plaintiffs exercised the option. (Warner Depo. at 99; Hansen Sw. 

Statmt. at 23; Exhibit 14.)

28. The Grant of Option stated that the Option would expire on May 1, 1992, at 

which time the Forrests could extend it until July 1, 1992 by paying an additional $1000. 

(Warner Depo. at 89; Exhibit 14.)

29. The Grant of Option provided that the Forrests would gain occupancy of the 

entire premises at 855 Sherwood on March 1, 1992. (Exhibit 14.)

30. On January 20, 1992, during her meeting with the defendant, Joan Hulbert 

explained the contracts and the option in detail to the defendant. (Warner Depo. at 89, 

95; Hulbert Sw. Statmt. at 23.)

31. Defendant Warner understood the concept of an option to purchase. 

(Warner Depo. at 95.)

32. Defendant Warner understood that the option would allow the Forrests to 

purchase 855 Sherwood for $54,000 on or before May 1, 1992, which was the expiration 

date of the Option. (Warner Depo. at 95; Exhibit 14.)

33. Defendant Warner understood that the option to purchase could be extended 

until July 1, 1992 by the Forrests’ payment of an additional $1000. (Warner Depo. at 95.)

34. Defendant Warner understood that the Forrests were going to rent the 

property beginning on March 1, 1992 for $470 per month. (Warner Depo. at 96.)

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35. Defendant Warner understood that the Forrests could exercise their option 

to purchase the property for $54,000 at a time prior to May 1, 1992. (Warner Depo. at 

97.)

36. Defendant Warner understood that the Forrests’ moving in (i.e. rental) had 

precedence over their purchase of the property. (Warner Depo. at 98.)

37. Defendant Warner understood that the Forrests wanted to purchase 855 

Sherwood. In addition, he understood that the Forrests were utilizing a rental with an 

option to buy in order to rent the house for two months while they were closing on the 

sale of their house in Los Angeles. (Warner Depo. at 99.)

38. Defendant Warner understood that the Forrests need not secure financing 

until May 1, 1992. (Warner Depo. at 101.) Defendant Warner wanted to sell the house 

and did not care when the Forrests’ secured financing, as long as it was before May 1, 

1992. (Warner Depo. at 102.)

39. The defendant read and signed the contracts in the presence of Joan Hulbert. 

(Hulbert Sw. Statmt. at 25.)

40. The defendant, unaware that the plaintiffs were black (Warner Depo. at 51- 

53, 106-109), granted the option to buy and accepted the offer to purchase and rent 855 

Sherwood on January 20, 1992. (Exhibits 14, 15; Warner Depo. at 93, 95.)

41. Defendant Warner signed the agreements offered by the Forrests prior to 

consulting his wife, Lou Jane Warner. However, he assured Joan Hulbert that if the deal 

was acceptable to him, it would be acceptable to his wife. (Warner Depo. at 93.)

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42. After meeting with Joan Hulbert on January 20. 1992, defendant Warner 

explained the Forrests’ offer to Lou Jane Warner, and she accepted its terms. (Warner 

Depo. at 94.)

43. Defendant Warner had authority to enter into transactions concerning 855 

Sherwood on behalf of his wife. (Warner Depo. at 94.)

44. On January 17, 1992, the plaintiffs paid the $2000 option price, which was 

placed into a Century 21 trust account. (Exhibits 17, 33; Hansen. Sw. Statmt. at 33-34.)

45. During the process of securing financing, the plaintiffs spoke with and 

received correspondence from Century 21 who assured them that matters were proceeding 

smoothly, and that they could pick up the keys to 855 Sherwood when they arrived in 

Beloit on or about March 1, 1992. (J. Forrest Aff. ^ 6.)

46. Betty and Rick Montenero were neighbors of the defendant, when the 

defendant lived at 855 Sherwood. (Warner Depo. at 45.)

47. On or about February 17 or 25, 1992, the defendant’s wife spoke to Betty 

Montenero on the telephone. Rick Montenero asked his wife to ask defendant Warner 

if the defendant had sold his house to blacks. (Warner Depo. at 51-53.)

48. During her telephone conversation with Betty Montenero, Lou Jane Warner 

told the defendant that Rick Montenero wanted to know if he had sold the house to 

blacks. (Warner Depo. at 52.) Defendant Warner responded that he had not sold 855 

Sherwood to blacks. (Warner Depo. at 52.)

8

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49. During the telephone conversation with Betty Montenero, Lou Jane Warner 

informed the defendant that the Montenero’s had seen several blacks looking at the house 

and that Betty Montenero’s husband. Rick, had asked if the house had been sold to blacks.

50. On or about February 17, 1992, the detendant called Joan Hulbert and asked 

her whether or not he had sold his house to blacks. (Warner Depo. at 106-107.) When 

Joan Hulbert asked, "What difference does it make?", Warner stated that his neighbors 

told him that they had seen blacks going in and out of the house. (Hulbert Sw. Statmt. at 

31.) At that point, Joan Hulbert indicated that the plaintiffs were black. (Warner Depo. 

at 109; Hulbert Sw. Statmt. at 31.) Defendant Warner then asked which realtor had sold 

the house, and Ms. Hulbert told him it was Penny Hansen. (Hulbert Sw. Statmt. at 31; 

Exhibit 18.)

51. On or about February 17, 1992, after speaking to detendant Warner, Joan 

Hulbert told Penny Hansen about her telephone conversation with Mr. Warner. (Hulbert 

Sw. Statmt. at 37.)

52. In a fury, on or about February 17, 1992, defendant Warner telephoned 

Penny Hansen at Century 21. (Warner Depo. at 119-120.) During that conversation, 

defendant Warner stated that Joan Hulbert told him that he had sold 855 Sherwood to 

blacks. (Warner Depo. at 117.) Penny Hansen asked the detendant what difference it 

made if the house was sold to blacks. (Warner Depo. at 117.) Detendant Warner again 

asked Penny Hansen if he had sold the house to blacks, to which Penny Hansen finally 

replied that he had. (Hansen Sw. Statmt. at 35-36.)

9

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53. On or about February 17, 1992 during his telephone conversation with Penny 

Hansen, the defendant stated that he preferred not to sell his house to blacks. 

Furthermore, the defendant told Ms. Hansen that he was a bigot. (Warner Depo. at 117.)

54. During his telephone conversation with Penny Hansen on or about February 

17, 1992. the defendant asked Penny Hansen if there was a way he could void the contracts 

with the Forrests. Ms. Hansen stated that the contracts were legally binding. (Warner 

Depo. at 119.) The defendant told Ms. Hansen that he would not sell to blacks; he would 

not do that to his neighbors. Defendant Warner then asserted that he would do anything 

legal to get out of the contracts. (Warner Depo. at 121; Hansen Sw. Statmt. at 35-36; 

Exhibit 34 at 21.)

55. Defendant Warner was angry because his agents had not adhered to his 

preference not to sell to blacks. (Warner Depo. at 117.)

56. Defendant Warner would have wanted to meet blacks prior to their purchase 

of the house. (Warner Depo. at 111, 154.)

57. On or about February 17, 1992. Joan Hulbert and Penny Hansen recounted 

their conversations with defendant Warner to Mr. Dwight Kruse, a partner of Century 21, 

Hart, Kruse & Boutelle. They both told Mr. Kruse that defendant Warner asked them if 

his house had been sold to blacks. In addition, Mr. Kruse was told that defendant Warner 

admitted that he was a bigot. (Kruse Sw. Statmt. at 5-6.)

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58. Dwight Kruse, Joan Hulbert and Penny Hansen decided not to worry about 

defendant Warner’s statements. They believed that Mr. Warner was upset, but that he 

intended to go forward with the sale. In addition, they believed that there were legally 

binding contracts between the plaintiffs and the defendant. (Hansen Sw. Statmt. at 41- 

42.)

59. On February 17, 1992, Joan Hulbert, agent for defendant Warner, withdrew 

the listing of 855 Sherwood from the Multiple Listing Service (MLS) and indicated to the 

MLS that the property was under contract with an option to buy. (Exhibit 13.)

60. Sometime after the conversation among Mr. Kruse, Ms. Hulbert, and Ms. 

Hansen, Ms. Hulbert told Mr. Kruse about the April 18, 1990 conversation that she had 

with Mr. Warner, in which he stated that he did not want to sell his house to blacks. 

(Kruse Sw. Statmt. at 5-6.)

61. On February 19, 1992, the plaintiffs paid $470 to defendant Warner for the 

March rent, tendering the rent to Century 21, which forwarded it to the defendant. (Exhibit 

31; J. Forrest Aff. ^ 7; L. Forrest Aff. f  7.)

62. On or about February 20, 1992, the closing took place on the plaintiffs’ Los 

Angeles home. Five days later, the plaintiffs, unaware of the defendant’s expressed racial 

preferences, left Los Angeles with their furniture and car, expecting to move into 855 

Sherwood when they arrived in Beloit on March 1 or 2, 1992. (J. Forrest Aff. ^ 8; L. 

Forrest Aff. ^ 8.)

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63. Defendant Warner was content with his agreement with the Forrests until he 

discovered that the Forrests are black. (Warner Depo. at 112.) The defendant was 

concerned because the Forrests were black. (Warner Depo. at 115.) The defendant 

wanted to keep the neighborhood Caucasian. (Warner Depo. at 145.)

64. On or about February 19, 1992, the defendant met with an attorney, Frank 

X. Kinast, because he heard from Joan Hulbert and Penny Hansen that he had sold his 

house to blacks. (Warner Depo. at 53.)

65. When the defendant met with Frank X. Kinast, he explained the 

circumstances to Mr. Kinast and indicated that he had asked that the property not be sold 

to blacks. Mr. Kinast told the defendant he would look at the contracts and get back to 

him. (Warner Depo. at 124.)

66. On or about February 26, 1992, Defendant Warner received a telephone call 

from his attorney, Frank X. Kinast. Mr. Kinast told the defendant that there was a breach 

of contract. He asked defendant Warner to meet with him on February 27, 1992 at Mr. 

Kinast’s office. (Warner Depo. at 125.)

67. The defendant and his wife, Lou Jane Warner, met with Frank X. Kinast, 

Esq. at his office on February 27, 1992. During this meeting, Frank Kinast pointed out to 

the Warners that the Forrests had not forwarded a written financing commitment to the 

Warners. He also pointed out that Lou Jane Warner had not signed the contracts. 

(Warner Depo. at 126; Exhibit 16.)

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68. On February 27, 1992, Penny Hansen returned a call from Frank X. Kinast 

she had received while she was out of her office. Mr. Kinast indicated that he was 

representing the defendant; that the defendant and his wife were there in his office with 

him; that they were talking over his speaker phone; and that he was speaking on the 

defendant’s behalf. Mr. Kinast stated that the defendant was not going to proceed with 

the sale of 855 Sherwood to the plaintiffs and that the plaintiffs could not move in. When 

Penny Hansen protested that the plaintiffs had already left California and would be 

expecting to move in when they arrived, Mr. Kinast indicated that he was going to be 

delivering a letter on behalf of the defendant and that the defendant did not wish to deal 

further with the plaintiffs. Penny Hansen stated "Mr. Warner, 1 know why you re doing 

this," referring to the racial preferences previously expressed by Warner. Mr. Warner did 

not reply. (Warner Depo. at 244-245; Hansen Sw. Statmt. at 44-47.)

69. On February 27, 1992 Penny Hansen called Mr. Kinast immediately following 

her first conversation with him, to ask him whether anti-discrimination laws applied to 

sellers, as they applied to realtors. Mr. Kinast stated that he could not discuss the matter 

any further. (Hansen Sw. Statmt. at 47-48.)

70. On February 27, 1992, Penny Hansen received a letter from Frank X. Kinast, 

on behalf of defendant Warner. In the letter, he returned the plaintiffs’ rent check 

(Warner Depo. at 135-136) and stated that:

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a) Mr. Warner did "not desire to deal further with the plaintiffs, as he 

preferred not to have anyone occupying 855 Sherwood until such time as any sale of the 

premises would be complete and closed."

b) "[T]he plaintiffs had not complied with the provision of the offer [to 

purchase] requiring them to submit to Mr. Warner by February 15, 1992, a specific 

commitment for financing in writing. In this way Mr. Warner would know the Forrests 

were financially responsible and no problems would arise down the road after they had 

occupied the house before closing."

c) Penny Hansen should "promptly contact the Forrests by telephone and 

letter so they do not follow through on any plans they have to move in March 1, 1992 .

. ." (Exhibit 19)

71. The February 27, 1992 letter from Frank X. Kinast to Penny Hansen was 

approved by defendant Warner. The defendant delivered the letter to the Century 21 

office. (Warner Depo. at 127.)

72. On February 28, 1992, defendant Warner telephoned the white male tenant 

who had been living at 855 Sherwood since January, 1991, but who, because the Forrests 

were to move in, had been preparing to move out on February 29, 1992. Despite the fact 

that defendant Warner had represented to Penny Hansen, through his lawyer, that he 

wanted no one to occupy 855 Sherwood (Exhibit 19.), he asked the white tenant if he 

would like to continue to rent 855 Sherwood. Defendant Warner has continued to rent 

855 Sherwood to this tenant. (Warner Depo. at 246-247.)

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73. On or about February 28, 1992, Mr. Kinast telephoned Joan Hulbert and 

asked her who changed the name on the utility accounts. The accounts had been changed 

to the Forrests’ name. Mr. Kinast stated that the current tenant would be remaining on 

the premises and that the accounts would be placed back in his name. (Hulbert Sw. 

Statmt. at 45.)

74. On February 28, 1992, Mr. Kinast telephoned Penny Hansen and asked her 

who had transferred the utility accounts to the Forrests’ name. Penny Hansen stated that 

the Forrests had arranged this transfer and that it was normal procedure to transfer the 

accounts to a new owner’s name. (Hansen Sw. Statmt. at 54-55.) In another telephone 

conversation on that same day, Mr. Kinast informed Penny Hansen that the current tenant 

would continue his tenancy. (Hansen Sw. Statmt. at 55-56.)

75. On March 2, 1992, the plaintiffs arrived in Beloit, Wisconsin with all of their 

furniture and belongings, expecting to pick up the keys and move into 855 Sherwood. 

Penny Hansen telephoned the Forrests to tell them that they would not be able to move 

into 855 Sherwood. (Warner Depo. at 137-138; J. Forrest Alt. 9; L. Forrest Atf. 9; 

Exhibit 37.) She requested that the Forrests meet with her immediately. (Hansen Sw. 

Statmt. at 58.)

76. On March 2, 1992, the plaintiffs met with Penny Hansen. Ms. Hansen 

showed the Forrests the February 27, 1992 letter written by Frank X. Kinast, on behalf 

of defendant Warner. In addition, Penny Hansen told the Forrests that defendant Warner

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had stated that he would not sell his house to blacks; that he would find a way to get out 

of his contract; and that he is a bigot. (Hansen Sw. Statmt. at 58-59.)

77. Because the defendant’s conduct left plaintiffs without a place to live, on 

March 2, 1992, the Forrests moved into the Holiday Inn Hotel, where they resided until 

April 6, 1992, when they were finally able to move into another residence. During this 

time, the Forrests kept their belongings in Penny Hansen’s garage and in their moving van, 

which was parked in the driveway of Penny Hansen. They later moved the van to the 

parking lot of the Holiday Inn. (J. Forrest Aff. f  9; L. Forrest Aff. f  9; Hansen Sw. 

Statmt. at 59.)

78. On March 3, 1992, the Forrests met with Penny Hansen and Dwight Kruse 

at Century 21. During their meeting, they discussed the alternatives available to the 

Forrests, including filing a complaint with the Beloit Equal Opportunities Commission. 

(Kruse Sw. Statmt. at 11-12.)

79. On March 5, 1992, the defendant, through Frank X. Kinast, requested that 

Dwight Kruse of Century 21 return to the plaintiffs the $2000 which they had paid for 

the option to purchase, and which had been held in the Century 21 Broker’s Trust 

Account. (Exhibit 36.)

80. On March 5, 1992 Dwight Kruse received a letter from Frank X. Kinast 

indicating that Century 21 was still obligated to list the defendant’s house pursuant to the 

listing contract. (Exhibit 36.)

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81. On March 9, 1992 Edward Grutzner, Esq. sent a letter on behalf of Century 

21 stating that Century 21 would no longer list the defendant’s property, because the 

defendant breached the provision of the listing contract prohibiting the seller from 

discriminating against potential buyers in violation of the law. (Kruse Sw. Statmt. at 31- 

33; Exhibits 40, 41.)

82. Defendant Warner preferred not to sell his house to blacks. (Warner Depo. 

at 152.)

83. Defendant Warner understood that it would be illegal for Century 21 to state, 

"Well these people are black, and if you don’t want to sell to them, you don’t have to." 

(Warner Depo. at 152.) However, the defendant thought there might be some way around 

the law. (Warner Depo. at 152-153.)

84. Defendant Warner understood that the intent of the Fair Housing Act was 

to allow anyone to buy property, regardless of their race. (Warner Depo. at 153.) 

Defendant Warner understood that it was against the law to discriminate in the sale or 

rental of housing. (Warner Depo. at 157.)

85. After repudiating the contracts with the plaintiffs, the defendant never offered 

to close and conclude the transaction upon the terms and conditions in the contract. 

(Warner Depo. at 206.) At no time did the defendant offer to negotiate with and sell to 

the plaintiffs 855 Sherwood upon the terms of the contract, without the contingencies 

agreed upon. (Warner Depo. at 208.)

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86. On March 18, 1992, the plaintiffs filed a complaint with the U.S. Department

of Housing and Urban Development. (Exhibit 49)

Dated this 1st day of December, 1992.

Respectfully submitted,

P E R p ^ L . JULIAN,pt. /

JULIUS LeVONNE CHAMBERS 
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

PENDA D. HAIR 
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

ATTORNEYS FOR PLAINTIFFS

PERCY L. JULIAN, JR. 
Julian, Olson & Lasker, S.C. 
330 East Wilson Street 
P.O. Box 2206 
Madison, WI 53701-2206 

(608) 255-6400

1 8

J u l i a n , O l s o n  a La s k e r , S.C.



IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF WISCONSIN

JEWEL FORREST AND 
LARRY E. FORREST,

Plaintiffs,

V. No. 92-C-0298-C

FRED R. WARNER,

Defendant.

STATEMENT OF CONCLUSIONS OF LAW
PROPOSED BY THE PLAINTIFFS

The Fair Housing Act

1. The defendant violated rights secured to the plaintiff's by Section 804(c) of the 

Fair Housing Act [42 U.S.C. § 3604(c)] by making or causing to be made statements with 

respect to the sale or rental of a dwelling that indicated a preference, limitation, or 

discrimination, based on race or color, or an intention to make such a preference, 

limitation, or discrimination.

2. Specifically, the defendant violated rights secured to the plaintiffs by Section 

804(c) of the Fair Housing Act [42 U.S.C. § 3604(c)] on April 18, 1990, and again on or 

about February 17, 1992, by making or causing to be made statements with respect to the 

sale or rental of a dwelling that indicated a preference, limitation, or discrimination based

J u l i a n , O l s o n  a La s k e r , S.C.



on race or color, or an intention to make such preference, limitation, or discrimination, to 

wit: that defendant did not want to sell to blacks.

3. The defendant violated rights secured to the plaintiffs by Section 804(a) of the 

Fair Housing Act [42 U.S.C. § 3604(a)] by refusing to rent, after the making of a bona fide 

offer, a dwelling to the plaintiffs because of their race or color.

4. The defendant violated rights secured to the plaintiffs by Section 804(a) of the 

Fair Housing Act [42 U.S.C. § 3604(a)] by refusing to sell, after the making of a bona fide 

offer, a dwelling to the plaintiffs because of their race or color.

5. The defendant violated rights secured to the plaintiffs by 804(a) of the Fair 

Housing Act [42 U.S.C. § 3604(a)] by refusing to negotiate for the sale or rental of a 

dwelling because of their race or color.

6. The defendant violated rights secured to the plaintiffs by Section 804(a) of the 

Fair Housing Act [42 U.S.C. § 3604(a)] by otherwise making unavailable or denying a 

dwelling to the plaintiffs because of their race or color.

7. The defendant violated rights secured to the plaintiffs by Section 804(b) of the 

Fair Housing Act [42 U.S.C. § 3604(b)] by discriminating against the plaintiffs in the terms, 

conditions, or privileges of sale or rental of a dwelling because of race or color by treating 

plaintiffs differently than white persons on account of their race.

8. The defendant violated rights secured to the plaintiffs by Section 818 of the Fair 

Housing Act [42 U.S.C. § 3617] by interfering with the plaintiffs in the exercise or 

enjoyment of, or on account of their having exercised or enjoyed, rights granted or

J u l i a n , O l s o n  a La s k e r , S.C.



protected by Sections 803, 804, and 805 of the Fair Housing Act [42 U.S.C. §§ 3603, 3604, 

and 3605].

42 U.S.C. § 1982.

9. The defendant violated rights secured to the plaintiffs by 42 U.S.C. § 1982 by, 

on account of their race, failing to accord them same rights as are enjoyed by white 

citizens to purchase, lease, or hold property.

42 U.S.C. § 1983.

10. The defendant violated rights secured to the plaintiffs by 42 U.S.C. § 1981 by, 

on account of their race, failing to accord plaintiffs the same rights, to make and enforce 

contracts and to equal treatment, as are enjoyed by white citizens.

The Wisconsin Open Housing Law [Sec. 101.22, Wis. Stats.].

11. The defendant violated rights secured to the plaintiffs by Section 101.22(2)(a), 

Wis. Stats., by refusing to sell or lease housing or by refusing to discuss the terms thereof 

on account of race or color.

12. The defendant violated rights secured to the plaintiffs by Section 101.22(2)(b), 

Wis. Stats., by utilizing or extracting different terms or conditions for the rental, leasing, 

or sale of housing because of race or color.

13. The defendant violated rights secured to the plaintiffs by Section 101.22(2)(d), 

Wis. Stats., by issuing or causing to be issued communications or notices in connection with

J u l i a n , O l s o n  a La s k e r , S.C.



the sale, lease, or rental of housing which stated or indicated an exclusion or discrimination 

or unequal treatment because of race or color in connection with housing.

14. The defendant violated rights secured to the plaintiffs by Section 101.22(4)(m), 

Wis. Stats., by interfering with the plaintiffs in the exercise or enjoyment of rights granted 

or protected by Section 101.22, Wis. Stats., or by interfering with persons who aided or 

encouraged plaintiffs in the exercise or enjoyment of rights granted or protected by Section 

101.22, Wis. Stats.

Beloit Fair Housing Code

15. The defendant violated rights secured to the plaintiffs by Section 20.03(l)(a) 

of the Beloit City Ordinances [The Fair Housing Code] by refusing to rent or sell based 

on discrimination because of race or color.

16. The defendant violated rights secured to the plaintiffs by Section 20.03(l)(b) 

of the Beloit City Ordinances [The Fair Housing Code] by refusing to negotiate for the 

rental or sale of a dwelling based on discrimination because of race or color.

17. The defendant violated rights secured to the plaintiffs by Section 20.03(l)(c) 

of the Beloit City Ordinances [The Fair Housing Code] by otherwise making unavailable 

or denying a dwelling based on discrimination because of race or color.

18. The defendant violated rights secured to the plaintiffs by Section 20.03(l)(d) 

of the Beloit City Ordinances [The Fair Housing Code] by discriminating in the conditions 

or privileges of sale or rental of a dwelling or in the provision of facilities n connection 

therewith based on discrimination because of race or color.

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19. The defendant violated rights secured to the plaintiffs by Section 20.03(l)(g) 

of the Beloit City Ordinances [The Fair Housing Code] by interfering with the plaintiffs 

in the exercise or enjoyment or on account of him or her having exercised or enjoyed a 

right granted or protected by Chapter 20 of the Beloit City Ordinances [The Fair Housing 

Code].

JURISDICTION AND VENUE

20. Jurisdiction over the plaintiffs’ claims under the Fair Housing Act is conferred 

upon this court by Section 813(a)(1)(A) of the Fair Housing Act [42 U.S.C.

§3613(a)(1)(A)], 28 U.S.C. § 1331, and 28 U.S.C. § 1343(a)(4)].

21. Jurisdiction over plaintiffs’ claims under 42 U.S.C. §§ 1981 and 1982 is 

conferred upon this court by 28 U.S.C. §§ 1331 and 1343(a)(4).

22. Authority to entertain plaintiffs’ requests for a declaratory judgment is conferred 

upon this court by 28 U.S.C. § 2201(a); as well as § 813(c)(1) of the Fair Housing Act [42 

U.S.C. § 3613(c)(1)].

23. Jurisdiction over plaintiffs’ claims under the Wisconsin Open Housing Law, 

Section 101.22, et seq.. Wis. Stats., which, in Section 101.22(7), authorizes the bringing of 

a civil action, is conferred upon this court by 28 U.S.C. § 1367(a), and further, this court’s 

pendant jurisdiction is invoked for such claims.

24. Jurisdiction over plaintiffs’ claims under the City of Beloit Fair Housing Code, 

Section 20.01, et seq., of the Beloit City Ordinances, which in Section 20.05(12) provides 

that the Fair Housing Code may be enforced by an aggrieved person by commencement

J u l i a n , O l s o n  a La s k e r , S . C



of a civil action, is conferred upon this court by 28 U.S.C. § 1367(a), and this court’s 

pendant jurisdiction is invoked for such claims.

Respectfully submitted,

PERjCY, L. JULIAN!, JR.

JULIUS LeVONNE CHAMBERS 
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

PERCY L. JULIAN, JR.
Julian. Olson & Lasker, S.C.
330 East Wilson Street 
P.O. Box 2206 
Madison, W1 53701-2206 

(608) 255-6400

PENDA D. HAIR 
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

ATTORNEYS FOR PLAINTIFFS

J u l i a n , O l s o n  a La s k e r . S.C