Houston v. Benttree, Ltd. Brief Opposition Petition for a Writ of Certiorari

    No. 80-1472

IN THE

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1980

ALICE V. HOUSTON,

Petitioner,

V.

BENTTREE, LTD., an  O klahom a Corporation,

Respondent.

BRIEF OPPOSING PETITION FOR A WRIT 
OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS  
FOR THE TENTH CIRCUIT

KENT F. FRATES 
Ellis & Frates
Suite 1250,101 P ark  Ave. Bldg. 
Oklahom a City, OK 73102 
Telephone: (405) 272-0616

M arch, 1981



TABLE OF CO NTENTS
Page

TABLE OF CONTENTS....................................................  i

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

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

STATEM ENT OF THE CASE .............    3

STATEMENT OF FACTS ..................................................  3

REASONS FOR DENYING THE W R IT .........................  5

I. ABSENCE OF ANY FACTUAL FIND IN G
T H A T  D I S C R I M I N A T I O N  O C C U R R E D  
RENDERS INAPPROPRIATE JU D IC IA L RE­
ARTICULATION OF SETTLED STANDARDS 
OF P R O O F .....................................................................  5

II. TIM E LIM ITATION FOR FILIN G  SUIT UN­
DER 42 U.S.C. §3610 IS IRRELEVANT WHEN 
PETITIO N ER  FAILS TO PROVE DISCRIM INA­
TION .......................   7

C O N C L U SIO N .......................................................................  8

CERTIFICATE OF SERVICE ..........................................  9

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Page

Cases:

Bush v. Kaim, 297 F. Supp. 151
(N.D. Ohio 1969).............................................. ............  6

Duckett v. Silberm an, 568 F.2d 1020
(2d Cir. 1978) .................................................. ................  6

Hodge v. Seiler, 558 F.2d 284
(5th Cir. 1977) ...................................................... ...........  6

Statutes:

28 U.S.C. §1343 ....................................................................... 3

42U.S.C. §1981 .......................................................................  3,6

42 U.S.C. §1982 .......................................................................  3,6

42 U.S.C. §1988 ......................... ............................................. 6

42 U.S.C. §3604 .....................................................................  3,8

42 U.S.C. §3610 ..........................................................................2,7,8

42 U.S.C. §3612 .......................................................................  3,7,8

TABLE OF AU TH O R ITIES

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No. 80-1472

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

ALICE V. HOUSTON,

Petitioner,

V.

BENTTREE, LTD., an  O klahom a Corporation 

Respondent.

BRIEF OPPOSING PETITION  
FOR A WRIT OF CERTIORARI TO 

THE UNITED STATES COURT OF APPEALS  
FOR THE TENTH CIRCUIT

INTRODUCTION

It is inconceivable th a t  Petitioner seeks review of the 
subject action by th is  high Court. No is su e sa s  to any legal 
controversy affecting the m erits of Petitioner’s case were 
raised in  the tria l court. The tria l judge decided the case 
strictly  on the facts as he discerned them  from the evidence. 
The law  of the case was of no greater factor in  the  outcome 
th a n  th a t routinely encountered in  rear-end automobile 
collisions or collection of delinquent accounts.

Petitioner, in all events, was given a fair trial. She had 
ample opportunity  to present her case and  was allowed the 
widest possible latitude in  offering all evidence, however 
vague in relevance. By w hatever statu te she m ight have been 
or now seeks to proceed the u ltim ate fact of d iscrim ination 
was not then, and can not now, be proven because, as ruled by 
the tria l court and affirm ed by the T enth Circuit, no 
discrim inatory act ever occurred.

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G rasping a t legal straw s to appeal, the Petitioner im ag­
inatively  created a  superfluous and  esoteric legal argum ent 
dealing w ith the tim e lim it for b ringing  an  action under 42 
U.S.C. §3610. The Tenth Circuit Court of Appeals, after 
reviewing the m erits of the case and preparatory  to affirm ing 
the tria l court, correctly evaluated the applicability of such an  
argum ent and  sta ted  in  its opinion:

“A ppellant urges also th a t  the district 
court erred in  d ism issing her cause of action 
under the F a ir  H ousing Act. As we are con­
vinced th a t  the tria l record supports the tria l 
court’s finding th a t  there was no discrim ina­
tion, we need not consider th is argum ent. We 
have considered appe llan t’s other argum ents 
and find them  to be w ithout m erit.” App. 22a 
and 23 a 1

While Petitioner m ay raise an  in teresting hypothetical 
legal question regard ing  the time fram e for bringing a §3610 
action, the applicability  of such an  argum ent to th is  case is 
to ta lly  absent. Regardless of the theory of law  applied by the 
U. S. D istrict Court and  the Court of Appeals, no prejudice 
resulted to the Petitioner since she was unable to establish  a 
factual basis to prove a case under any  conceivable legal 
theory, including §3610.

This Court is asked to deny the Petition for Certiorari and 
allow the decision of the tria l court to stand , as affirm ed by 
the appellate court, for the reason th a t  these decisions 
correctly decided the  m erits of the controversy and  did 
m anifest justice to the litigan ts under the facts of the case.

While Respondent feels th a t it is necessary to briefly 
advise the Court of its  position on the issues raised  by 
Petitioner, as stated, Respondent’s fundam ental opposition to 
Petitioner’s request for certiorari is simply th a t  the in stan t 
case rested upon a factual and not a legal controversy.

App. references are to Appendix of Petition for A Writ of Certiorari to 
the U nited S tates Court of Appeals for the Tenth Circuit.

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STATEMENT OF THE CASE

Because of its disagreem ent with portions of Petitioner’s 
S tatem ents of the Case and Facts, Respondent offers its own 
Statem ents.

On June  6,1978, Alice V. Houston filed a com plaint in  the 
U nited S tates D istrict Court, W estern D istrict of Oklahoma, 
aga in st Defendants, Benttree, Ltd., and Kilpatrick, alleging 
discrim inatory housing practice under 42 U.S.C. §§1981, 1982 
and 3604. Jurisd iction  was invoked pu rsuan t to 28 U.S.C. 
§1343 and 42 U.S.C. §3612. The Court sustained D efendants’ 
M otion to D ism iss on A ugust 26, 1978, as to P la in tif fs  cause 
of action brought pursuan t to 42 U.S.C. §3612. C ontrary to 
Petitioner’s S tatem ent of the Case, the Court did not dism iss 
P la in tiff  s claim s under 42 U.S.C. §3604.

The claim  ag a in s t D efendant K ilpatrick was dism issed 
w ithout P la in tif fs  opposition on November 30, 1978. The case 
proceeded to tria l on February  26 and 27, 1979, Honorable 
Ralph G. Thom pson presiding, w ith judgm ent rendered on 
M arch 16, 1979, by the Court for D efendant Benttree, Ltd., 
w ith m em orandum  opinion of th a t  same date.

P la in tiffs  appeal to the United States Court of Appeals 
for the Tenth Circuit resulted in affirm ance of the D istrict 
Court opinion on December 2, 1980. The Tenth Circuit found, 
inter alia, th a t (1) A ppellant did not prove several elements 
essential to her case, (2) the tria l court’s findings were 
supported by substan tia l evidence, (3) the correct legal 
s tandards were applied and  (4) the issue of fa ir housing act 
d ism issal was rendered m ute by the tria l court’s finding of no 
discrim ination.

STATEMENT OF FACTS

The following facts are adopted directly from the Tenth 
Circuit Court of Appeals’ opinion, which capsulizes the 
findings of fact from Judge Thom pson’s M emorandum

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Opinion. As illustrated  by reference to the tria l transcrip t, the 
T enth  Circuit find ings of fact are am ply supported by the 
evidence.

The P la in tiff  is a black person who h ad  come to 
O klahom a City to assum e an  im portan t position w ith the 
school system . (T. 63) She was looking for a suitable place to 
live and  saw  a “for sale” sign a t the D efendant’s 
condom inium s. (T. 63, 71) She contacted a real esta te  agen t to 
assis t her in  looking a t the property. (T. 8, 64)

The agent told P laintiff, about September 26, th a t  the con­
dom inium s would not go on sale until October 1 or 2 a t which 
tim e the D efendant w as to have an  “open house” on the 
property. (T. 73, 74, 78, 211, 273, 278, 333, 461, 467, 472) How­
ever, the  D efendant w as show ing the  fin ished un its to pro­
spective buyers. (T. 95, 319, 323) P la in tiff was shown the 
property on September 26, and she expressed in terest in 
purchasing  a two-bedroom unit. (T. 64, 65, 79, 96, 449) 
D efendant’s sales agen t told her th a t  the one in  which she 
was in terested  h ad  already been sold. (T. 65, 96) P lain tiff 
looked a t ano ther un it and sta ted  she would buy it. (T. 65, 96) 
The sales agen t explained th a t  the contracts were not yet 
ready and th a t  the com pany would only use contracts 
prepared by its  own attorney. (T. 65, 75, 82, 97,114, 461-2, 464) 
An appoin tm ent was m ade to see the lawyer. (T. 65, 75, 97, 
452, 464) A t th is  point P la in tiff  fully expected th a t  she would 
be sold a unit. (T. 65, 75, 114)

On Septem ber 28, P la in tiff and her agent m et w ith the 
attorney  for D efendant who also sta ted  the contracts were not 
ready and  th a t  an  option to buy would not be extended to 
P la in tiff as the com pany insisted th a t  the contract it prepared 
be used. (T. 66, 67, 76, 77, 82, 84, 89, 100, 116, 206, 208, 233) 
P la in tiff then  asked if  she could see a three-bedroom 
apartm ent. (T. 67) The law yer arranged  an  appointm ent for 
her w ith Mr. Calhoun, Vice President of Benttree. (T. 67, 78) 
P la in tiff understood th a t  the contract forms would be ready in 
a few days. (T. 77, 81, 82, 116, 331, 474) She was shown a unit

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by Mr. Calhoun. (T. 67, 79, 102, 330) P la in tiff and  her agent 
both testified th a t  Mr. Calhoun was an tagonistic  and rude. (T, 
68,103,105) Mr. Calhoun testified th a t  he told P la in tiff a t th is 
showing th a t  she could sign a contract a t the open house on 
October 2. (T. 331) P la in tiffs  agent phoned the attorney 
several tim es after their m eeting seeking to obtain the 
contract forms but w as not successful. (T. 106,120, 210) On the 
afternoon of September 30, the attorney completed the 
contracts. (T. 203, 210, 235, 236, 255, 364)

P la in tiff  felt she w as badly  and  rudely trea ted  by 
D efendant’s agents. She decided th a t Benttree refused to 
allow her to m ake a b inding  offer because of her race. 
P la in tiff  thus alleged th a t  D efendant’s excuse regard ing  the 
contracts was m erely a sham . Also, she had  been told th a t  one 
un it had  been sold and nevertheless she could not then  buy 
one.

The open house did take place on October 2, but P lain tiff 
did not m ake an  offer nor tender a deposit on or after th a t 
date. (T. 68, 83, 84, 85, 86, 106, 120, 121, 210, 273, 278, 333, 377, 
388, 467, 472) P la in tiff filed a com plaint with the D epartm ent 
of Housing and U rban  Development on October 6,1977. (T. 84, 
472)

REASONS FOR DENYING THE WRIT

I. ABSENCE OF ANY FACTUAL FINDING  
THAT DISCRIMINATION OCCURRED REN­
DERS INAPPROPRIATE JUDICIAL REARTI­
CULATION OF SETTLED STANDARDS OF 
PROOF.

Petitioner devotes ten pages of the Petition to convoluted 
argum ent based upon the generalities of national policy, 
citing as au thority  everything from sta te  of the union 
m essages to law  review articles and surveys. The fact 
rem ains, however, th a t  Petitioner’s evidence fell far short of 
any stan d ard s  of proof acknowledged by any  court as

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supportive of d iscrim ination. No am ount of g rand  verbage 
can elevate Petitioner’s evidence beyond the succinct 
description applied by the Tenth Circuit:

“P la in tiff  felt th a t  she was badly and rudely 
treated  by defendant’s agents.” App. 20a

H urt feelings are not equivalent to discrim ination. 
Petitioner’s confusion between the two follows a seemingly 
logical pa th  in  ligh t of the u tter deluge of literature and 
com m ent on the topic. Nevertheless, the fac t rem ains th a t 
h ighest judicial in tervention in  resta ting  settled s tandards of 
proof m ay not occur unless the seeking p a rty ’s claim  is 
m eritorious and  unless the  s tan d ard s  are in  a sta te  of 
disarray . Petitioner fails on both counts. She h as  been a 
victim  of no th ing  more, if  anyth ing , th a n  garden-variety 
rudeness. Furtherm ore, as indicated by the T enth Circuit and 
the  D istrict Court, d iscrim ination s tandards are adequately 
and lucidly enum erated in  D uckett v. Silberman, 568 F.2d 
1020 (2d Cir. 1978), and  B ush  v. Kaim , 297 F.Supp. 151 (N.D. 
Ohio 1969). Obviously those s tandards by their very term s 
deal w ith housing. Surely, Petioner does not suggest th a t 
standards applied under F a ir  H ousing actions should differ in 
degree of leniency of stringency from §1981-1982 proceedings.

The last vestige of differentiation -  the opportunity for an 
attorney fee -- was obliterated by the am endm ent of 42 U.S.C. 
§1988. Courts have uniform ly applied identical s tandards  of 
proof in m easuring housing discrim ination allegations. 
Hodge v. Seiler, 558 F .2d 284 (5th Cir. 1977). To ask  th is Court 
to fictionalize a difference between housing discrim ination 
and housing discrim ination is ludicrous.

Despite all of Petitioner’s argum ent about insignificant 
factual incongruities, even Petitioner was forced to note th a t 
the District Court held that:

“P la in tiff failed to prove th a t the units were 
availab le for sale a t the tim e her offer was 
made. This is fa ta l to p la in tiffs  righ t to relief.”
App. 13a

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The Tenth Circuit Court of Appeals reiterated that:

“The court [trial court] found as a fact th a t  the 
units were not placed on the m arket until 
October 2. The court also found th a t  p lain tiff 
was aw are of th is fact.” App. 21a - 22a

Respondent h as  been unable to locate any  case law by 
which a discrim ination allegation w as sustained  when the 
housing site to be acquired was not on the m arket. Petitioner’s 
accusation of owner m anipulation  of a u n it’s placem ent on 
the m arket m ight be well taken  if there were any  evidence to 
support th a t  charge. Not a scin tilla  of evidence, however, 
exists. None of the units in  the entire condom inium  project 
were for sale to anyone. No units had  been sold, but some were 
being reserved. In fact, Chris Calhoun testified th a t  he would 
have held a un it for Petitioner if  requested to do so. (T. 331) 
Adm ittedly, th is  would have been difficult since Petitioner 
changed her m ind several tim es as to the size and  location of 
un it she desired. There was no evidence th a t  term s had  been 
given to any  prospective purchaser; no negotiations were 
entered into, no offers entertained and no sales contracts 
accepted until after the “open house”.

The s tandards of proof for d iscrim ination are settled and 
Petitioner’s evidence fell short. Therefore, th is Court should 
not g ran t Petitioner’s Writ for Certiorari.

II. TIME LIMITATION FOR FILING  
SUIT UNDER 42 U.S.C. §3610 IS IRRELE­
VANT WHEN PETITIONER FAILS TO 
PROVE DISCRIMINATION.

Petitioner to ta lly  m isspeaks the applicability of her 
second question for review. At no tim e did the tria l court 
dism iss Petitioner’s 42 U.S.C. §3610 action. On A ugust 26, 
1978, Petitioner’s 42 U.S.C. §3612 action was dism issed, and 
properly so because the law suit was undisputably  filed more 
th a n  one hundred eighty days after the alleged act of 
discrim ination.

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The §3610 question which Petitioner a ttem pts to raise has 
noth ing  to do w ith the in s ta n t case. The District Court’s 
reasoning, th a t §3610 and §3612 are dual avenues for 
enforcem ent of §3604, left open §3610 as an  option to 
Petitioner. Respondent certainly had  no responsibility for the 
m anner in  which Petitioner fram ed her com plaint or 
presented her evidence. Petitioner was never denied an  
opportunity  to am end her com plaint and  all evidence relating  
to an y  aspect of the  alleged d iscrim ination was accepted by 
the D istrict Court. Petitioner’s choice to ignore §3610 until the 
appellate stages of th is  proceeding indicates noth ing  more 
th an  an  am bitious non sequitur.

CONCLUSION

Respondent is a t a loss to ascerta in  why thi,s Court should 
be called upon to reconsider any th ing  about th is case. The 
Petition is to ta lly  devoid of any  substan tia l and  applicable 
ground for review. Petitioner did not prove discrim ination 
during her two-day tria l and cannot now prove it from the 
tr ia l’s record. F urther proceedings herein would avail nothing 
and  resu lt only in  continued expense and  inconvenience for 
the Respondent.

For the reasons set forth  herein, the Petition for Writ of 
Certiorari should stand  denied.

RESPECTFULLY SUBMITTED,

ELLIS & FRATES
Suite 1250, 101 Park  Avenue Bldg.
Oklahom a City, OK 73102
Telephone: (405) 272-0616

By: _______ __________
KENT F. FRATES

CO UNSEL FOR R E SP O N D E N T

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CERTIFICATE OF SERVICE

I, Kent F. F rates, a tto rney  for Benttree Ltd., Respondent,
hereby certify th a t  on the _______________ day of M arch,
1981,1 served a copy of the foregoing Brief Opposing Petition 
for a Writ of Certiorari to the U nited S tates Court of Appeals 
F or the  T en th  C ircuit by m ailing  th ree  copies in  a duly 
addressed envelope, w ith firs t class postage prepaid, to: Jack  
Greenberg, Jam es M. N abrit, III, Beth J . Lief, 10 Columbus 
Circle, Suite 2030 New York, New York 10019; and John  W. 
Walker, Suite 1191, F irst N ational Bank Building, Little Rock, 
A rkansas 72201, Counsel for Petitioner.

KENT F. FRATES

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