Duckworth v. Moore Brief of Appellees

    / I
C t o  a  t >

: IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

NO, 77-1012

RAY C. DUCKWORTH,
Appellant,

WILLIAM B. MOORE, Et al,
Appellees.

Appeal from the United States District Court 
for the Southern District of Alabama

BRIEF OF APPELLEES

JAMES W. GARRETT, JR.
RUSHTON, STAKELY, JOHNSTON 

& GARRETT, P.A.
P. 0. Box 270 
(1201 Bell Building) 
Montgomery, Alabama 36101
ATTORNEY FOR APPELLEES



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

NO. 77-1012

RAY C. DUCKWORTH,
Appellant,

v.
WILLIAM B. MOORE, Et al,

Appellees.

Appeal from the United States District Court 
for the Southern District of Alabama

BRIEF OF APPELLEES

JAMES W. GARRETT, JR.
RUSHTON, STAKELY, JOHNSTON 

& GARRETT, P.A.
P. 0. Box 270 
(1201 Bell Building) 
Montgomery, Alabama 36101
ATTORNEY FOR APPELLEES



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

NO. 77-1012

RAY C. DUCKWORTH,
Appellant,

v.
WILLIAM B. MOORE, Et al,

Appellees.

CERTIFICATE REQUIRED BY FIFTH CIRCUIT 
COURT OF APPEALS, RULE 13(a)_____

The undersigned counsel of record for Appellees William 
B. Moore, Harry Welch and William B. Moore, Jr. certify that 
the following listed parties have an interest in the outcome 
of this case. These representations are made in order that 
the Judges of this Court may evaluate possible disqualifica­
tion or recusal pursuant to Rule 13(a):

William B. Moore, Sr. 
516 Dixie Drive 
Selma, Alabama



Harry Welch
602 Grove Park Drive
Montgomery, Alabama
William B. Moore, Jr. 
2665 Fairmont Road 
Montgomery, Alabama
James W. Garrett, Jr. 
2662 Norwich Drive 
Montgomery, Alabama
James Garrett, Sr. 
2072 Myrtlewood Drive 
Montgomery, Alabama
Charles A. Stakely, Jr. 
1803 Pine Needle Road 
Montgomery, Alabama

Of Counsel: 
RUSHTON, STAKELY

Charles E. Porter 
3345 Boxwood Drive 
Montgomery, Alab̂

Fames W. Garrett, 
'Attorney for Appellees

JOHNSTON & GARRETT, P.A.
Post Office Box 270 
Montgomery, Alabama 36101



TABLE OF CONTENTS

Page
Table of Authorities ....... ....... .............. . ii
Oral Argument Not Warranted ........................... 1
Introduction ....... .......................... ......  1
Statement of the Issues .. .............     2
Statement of the Case .... .....................  3
Statement of the Facts ... ........................  3
Argument ............ ........... ................. . 9

I. The Trial Court Committed No Reversible Error 
By Not Granting Plaintiff's Motion for Directed 
Verdict and Judgment Notwithstanding the Ver­
dict or Plaintiff's Motion for a New Trial ... 9

II. The Trial Court Committed No Reversible Error 
In Granting A Directed Verdict to Defendants
Moore, Jr. and Welch ........................  15

III. The Court Correctly Instructed the Jury In
This Case ..................................  16

IV. The Trial Court Did Not Err in Denying In­
junctive Relief to Plaintiff Class .......... 18

Conclusion . ..........................................  20
Certificate of Service .......................... . 21

i



TABLE OF AUTHORITIES

CASES Page
Alabama Great Southern Railroad Co. v. Evans,
288 Ala. 25, 256 So.2d 861 .....................  15
Arkansas Education Association v. Board of
Education of Portland, Arkansas School Dis-
trict, et al, 446 F.2d 763 (8th Cir. 1971) .... 10
Barnes v. West Point Foundry & Machine Co.,
Inc. , 441 F. 2d* 532 (5 th Cir. 1971) ............ 15
Burns v. Travelers Ins. Co., 344 F .2d 70 ....... 16, 17
Jones and Laughlin Steel Corp. v. Matherne,
348 F. 2d 394 (5th Cir. 1965) ..................  10
Leach v. Millers Life Ins. Co. of Texas,
400 F. 2d 179 (5 th Cir. 1968) .................  10
Mayeaux v. American Mutual Liability Insurance 
Corp. , 409 F. 2d 508 ................ . 17
Simpson v. Townsley, 283 F.2d 743 (10th Cir.
1960) ....... ....................... ...... . 15
Smith v. Birmingham Transit Corp., 286 Ala. 253,
238 So.2d 879 ............................... 15
Sorenson v. Raymond, 532 F .2d 496 (5th Cir.
1972) ........................................  13, 14, 19
Spurlin v. General Motors, 528 F .2d 612 (5th Cir.
1976)  ......... ..............................  9
Thomas v. Board of Education of Plum Bayou-Tucker 
School District No. 1, Wright, Arkansas, 457 F .2d 
1268 (8th Cir. 1972) ..............777........  10

STATUTES AND RULES
Rule 51, Federal Rules of Civil Procedure .....  17
Rule 59, Federal Rules of Civil Procedure .....  9
Rule 61, Federal Rules of Civil Procedure .....  15
42 U.S.C.A. , § 1981 ......     16
42 U.S.C.A., § 1982 ...................... . 13, 14, 16, 18
42 U.S.C.A., § 3601, et seq.................... 13, 14, 18

ii



BRIEF OF APPELLEES

ORAL ARGUMENT NOT WARRANTED

Appellees submit that the issues presented by this 
appeal are relatively simple and straight forward, present 
no novel issues for determination by this Court, and that 
the authorities cited in brief by the litigants are suffi­
cient to resolve the issues presented by this appeal without 
the necessity for oral argument.

INTRODUCTION

For the convenience of the Court, the Appellees shall 
refer to the parties in brief as follows: Plaintiff Ray C.
Duckworth shall be referred to as "Plaintiff"; defendant 
William B. Moore shall be referred to as "Moore, Sr."; de­
fendant Harry Welch shall be referred to as "Welch"; and 
defendant William B. Moore, Jr. shall be referred to as 
"Moore, Jr.". The class represented by plaintiff in his 
allegations seeking injunctive relief shall be referred to 
as "plaintiff class".

1



STATEMENT OF THE ISSUES

The Appellees disagree with the argumentative fashion 
in which the issues are stated by Appellants, and therefore 
submit the following as the issues to be decided by this 
Court:

1. Whether the District Court erred to reversal in
denying plaintiff's motion for directed verdict, motion for 
judgment notwithstanding the verdict and motion for new 
trial.

2. Whether the trial Court erred to reversal in grant­
ing a directed verdict to defendants William B. Moore, Jr. 
and Harry Welch in light of the fact that the jury verdict 
exonerated their alleged agent, William B. Moore, Sr., from 
any charges of discrimination.

3. Whether the trial Court erred to reversal in not
granting injunctive relief to plaintiff’s class in light of 
plaintiff's failure to prove even an isolated incident of 
racial discrimination in this case.

4. Whether the trial Court's instructions to the jury
were correct.

2



STATEMENT OF THE CASE

Defendants agree that plaintiff has accurately restated 
the allegations of the complaint.

STATEMENT OF THE FACTS

In view of the various omissions and mischaracteriza- 
tions in the plaintiff’s Statement of Facts, including but 
not limited to the omission of testimony of witnesses who 
appeared for the defendants, defendants elect to restate the 
Statement of the Facts.

Defendants Moore, Jr. and Welch are the owners of Les 
Chateaux and River Oak Apartment complexes in Selma, Dallas 
County, Alabama (A. 273, 274). Mr. Moore, Sr. has no owner­
ship in either of the apartment complexes (A. 274). Mr. 
Moore, Sr. is the manager and rental agent for both apart­
ment complexes for which he receives $125 per week (A. 274).

Plaintiff's complaint of discrimination centers around 
an alleged denial on behalf of Moore, Sr. to rent him an 
apartment at Les Chateaux during the period July 8 through 
July 17 (A. 143, 189). The testimony reveals that during 
this period of time, there were three vacant apartments at 
Les Chateaux Apartment complex, numbers 34, 41 and 8 (R. 108, 
110, 111) .

3



The testimony during the trial showed that Apartment 
Number 34 was at all relevant times being reserved for Miss 
Susan Ward, who at the time of the trial was married and 
testified under the name of Susan Ward Black (A, 291). The 
testimony from Mrs. Black showed that she made inquiry of 
Moore, Sr. regarding the apartment in the latter part of 
June, 1975, and requested him to hold the apartment until 
he heard from her. At the time of Mrs. Black's request, 
she informed Moore, Sr. that she was going to be a student 
at George Wallace Junior College and that he could get in 
touch with her at that address regarding the apartment (A. 
291-298) .

Apartment 41 was, from the undisputed testimony, being 
held for Carolyn Rebecca Cooper, great niece of Mr. Moore, 
Sr., who had resided in Apartment Number 41 from August 1974 
through June of 1975. Miss Cooper in her testimony stated 
that Mr. Moore, Sr. told her around the last of June or 
first of July that "I will hold it for you and won't pres­
sure you, but will hold it." Miss Cooper testified in 
person at the trial that Mr. Moore, Sr. stated to her at 
the end of June that he would leave the apartment open for 
at least a couple of months. The testimony at the trial 
revealed that Miss Cooper had been advised by doctors to 
leave Selma temporarily where she had been holding a teach­
ing position during the previous year (A. 308-312).

4



At the trial Miss Cooper's brother, John D. Cooper, 
testified that he was present when Mr. Moore, Sr. promised 
to hold Apartment 41 for his sister until she made up her 
mind about coming back to Selma (A. 313).

The testimony reveals that at all times relevant Apart­
ment Number 8, which was vacated on June 15, 1975, was dur­
ing the period involved, being held for a friend of Mr. Harry 
Welch, one of the owners, at Mr. Welch's request (A. 79).

Mr. Randy Houston, who testified for plaintiff Duck­
worth, stated that on the night after Mr. Duckworth's arrival 
in Selma he visited several apartment complexes with Duck­
worth (A. 138). Houston stated that about 9:00 p.m. on the 
night of July 7, 1975 he drove to Mr. Moore's personal 
residence and he himself went to the door and arranged a 
meeting with Mr. Moore, Sr. for July 8, 1975 at 5:00 p.m. at 
the swimming pool of Les Chateaux Apartments (A. 140-143).

The testimony is undisputed that the first appoint­
ment was missed because either Mr. Duckworth was five 
minutes late or thirty minutes late (A. 139, 68). In 
any event, he was late and missed the appointment.

A second appointment was made with Moore, Sr. by Housing 
Referral, Craig Air Force Base. That appointment was made 
for July 14, 1975, at 3:00 p.m. (A. 209). When Duckworth 
arrived for that appointment he was shown an apartment by 
Mr. Moore but it was explained to Mr. Duckworth that although

5



there were vacancies at that time, the apartments were 
promised.

On or about the 17th of July Duckworth secured an 
apartment at Candlewood Apartment Complex (A. 184). As 
early as July 8, plaintiff Duckworth had told the Housing 
Referral Office that he liked the Candlewood Apartments best 
and that he was having a problem with the furniture, but was 
waiting to hear from the manager when he could get an apart­
ment there (R. 181). This was before he had ever been 
apprised of the fact that there was nothing available at 
Les Chateaux (A. 182), The apartment sought by Duckworth 
was a one bedroom, furnished apartment (A. 204). There are 
no one bedroom apartments at Les Chateaux (A. 238).

During the course of these events, Mrs. Crear at the 
Housing Referral Office, on complaint from Duckworth, decided 
to send a verifier to Les Chateaux Apartments to "pose" (A. 
242). The verifier told Mr. Moore, Sr. that his wife was 
pregnant and that he had to have an apartment at once. In 
reply to the verifier's plea, Mr. Moore told him that he 
would try to check with his niece to see if she was definite­
ly coming back. Mr. Moore carefully explained to the veri­
fier that the apartments were being held for people. There 
was no record of whether Moore, Sr. checked with his niece 
or offered the apartment to the verifier (R. 242-246).

Mrs. Crear testified that she was custodian of the

6



records at the Housing Referral Office of Craig Air Force 
Base, which dated back to 1968. She further testified that 
there had never been a prior complaint of discrimination 
against Mr. Moore, Sr. or these apartment complexes (A.
256). Mrs. Crear testified that during the six months that 
she had been in Housing Referral she had no occasion to 
refer a black to the Les Chateaux or River Oak Apartments 
(A. 250).

Following Duckworth's complaint, Mrs. Crear had a de­
tailed discussion, face to face with Mr. Moore, Sr.; he 
explained to her the circumstances surrounding Apartment 
Number 8, Apartment Number 34 and Apartment Number 41. Mr. 
Moore told Mrs. Crear that he listed apartments with the 
Housing Referral Office that were sometimes spoken for and 
that perhaps he should not do that. Mrs. Crear's own test­
imony is that at times Moore had listed apartments that he 
had reported as holding (A. 228) . The position that Mr. 
Moore took regarding the three apartments is very ably 
summed up in his own testimony, "I had nothing but my word 
was out and I was going to stick with it even if it cost 
me." (A. 320)

The testimony at the trial reveals that Mr. Moore did 
indeed pay the cost of sticking to his word. Mrs. Crear, on 
the basis of the Duckworth complaint, recommended that 
sanctions be placed against Les Chateaux and River Oak

7



Apartments and her recommendation was carried forward by the 
Commanding Officer of Craig Air Force Base (Exhibit "A"). 
Still holding to his word, Mr. Moore paid the further penalty 
of an additional ninety day sanction requested by HUD to put 
additional pressure, "maximum leverage", on him. (A. 237)

8



A R G U M E N T

I

THE TRIAL COURT COMMITTED NO REVERSIBLE 
ERROR BY NOT GRANTING PLAINTIFF'S MOTION 

FOR DIRECTED VERDICT AND JUDGMENT 
NOTWITHSTANDING THE VERDICT 

OR PLAINTIFF'S MOTION FOR A NEW TRIAL

Defendants agree with the standard applied to a 
motion for directed verdict and a motion notwithstand­
ing the verdict as cited in the plaintiff's brief (pp. 
21-22). However, plaintiff makes an incorrect assump­
tion regarding the burden attaching to such motions. 
Plaintiff seems to infer on page 22 of his brief that the 
trial court "must" set aside the verdict and grant a new 
trial if certain of the grounds appearing in Rule 59, 
Federal Rules of Civil Procedure, appear. It is clear 
from a reading of Rule 59 that the trial court "may" set 
aside a verdict and grant a new trial, and the trial 
court's decision is reviewable only for abuse of dis­
cretion. Spurlin v. General Motors, 528 F.2d 612 (5th 
Cir. 1976).

In this case, as is the general rule, plaintiff filed 
jointly motion for judgment notwithstanding the verdict 
and motion for new trial. The court ruled in favor of the 
defendants on both motions. In attempting to upset the 
trial court's ruling, plaintiff faces the burden of show-

9



ing that defendants' evidence, taken even in the strongest 
light in favor of the defendants, does not justify the rul­
ing entered by the trial court. Jones and Laughlin Steel 
Corp. v. Matherne, 348 F .2d 394 (5th Cir. 1965).

In determining whether the trial court in this case 
was bound to enter a judgment notwithstanding the verdict 
in favor of plaintiff, this Court must find that reasonable 
minds could not differ on the conclusions to be drawn from 
the evidence, viewing the evidence in the light most favor­
able to defendants. Leach v. Millers Life Ins. Co. of 
Texas, 400 F.2d 179 (5th Cir. 1968).

It has been held in cases concerning racial discrimi­
nation that the scope of appellate review is limited to 
determining whether the findings of the trial court are 
clearly erroneous and further that each case of this type 
must be decided upon the basis of its own peculiar facts. 
Thomas v. Board of Education of Plum Bayou-Tucker School 
District No. 1, Wright, Arkansas, 457 F.2d 1268 (8th Cir. 
1972); Arkansas Education Association v. Board of Educa­
tion of Portland, Arkansas School District, et al, 446 F.
2d 763 (8th Cir. 1971) .

In reviewing the evidence in this case most strongly
in favor of the defendants it cannot be said as plaintiff
contends in brief on page 24:

"* * * defendants failed to come forward
with sufficient evidence to explain their re­
fusal to rent plaintiff Duckworth any one of

10



three vacant apartments at Les Chateaux; they 
presented not a single legitimate justifica­
tion for their actions."

Taking issue with this statement, defendants call the 
Court's attention to the live testimony of defendant Moore, 
Sr. that each of the apartments which were vacant at the 
time plaintiff viewed the apartments were spoken for (A. 
73-79). The defendants further call the Court's attention 
to the live testimony of defendant Moore, Jr. that he and 
Welch were in Washington State up near the Canadian border 
on a camping trip in the wilderness when the Duckworth 
incident occurred so that Moore, Sr. could not have con­
tacted Welch to free apartment number 8 (A. 275-276).

Further testimony supporting the fact that the three 
apartments were vacant but promised came from Carolyn 
Rebecca Cooper, further collaborated by that of her brother 
John D. Cooper (A. 308-313). Mrs. Susan Ward Black stated 
that Mr. Moore had given her his word to hold an apartment 
until "he heard from us." (A. 291-294, 298)

When the first face to face encounter occurred between 
Mrs. Crear and Mr. Moore, Sr., Mr. Moore explained in full 
and complete detail the circumstances surrounding apartments 
number 8, number 34 and number 41 (A. 231-234). Mrs. Crear 
further supports defendants' plea of not guilty to the dis­
crimination complaint by her testimony that she had no 
record since the inception of the Housing Referral Office

11



in 1968 of any other complaint of discrimination involving 
Les Chateaux or River Oak Apartments (A. 256).

The plaintiff states incorrectly in brief on pages 
19 and 20 that:

"Three white disinterested witnesses stated 
that Moore offered apartments as available 
for rent shortly before and after Duckworth's 
first visit to Les Chateaux, and, indeed, on 
the same day the plaintiff made his second 
inquiry at the apartment complex. The only 
witness at trial who testified of being told 
by defendant Moore, Sr. that there were no 
available apartments was plaintiff Duckworth."
I presume from the statement quoted above that the 

plaintiff is referring to Lt. Wells, Randy Houston and 
the verifier, Sgt. Lipscomb. Mr. Moore, Sr. in his testi­
mony directly stated that he had not offered an apartment 
to Lt. Wells (A. 82). Lt. Wells did not testify at the 
trial. Mr. Houston's only connection with this matter was 
to make an appointment for a prospective tenant to see 
Moore, Sr. Presumably, the next person referred to in 
plaintiff's statement is the verifier who was told by Mrs. 
Crear to "pose" as an apartment seeker, but who, according 
to Mrs. Crear's testimony, told Mr. Moore that his wife was 
expecting a baby momentarily and that he had to have an 
apartment at once (A. 242) . It is the further testimony 
of Mrs. Crear that Sgt. Lipscomb, the verifier, was told 
by Moore, Sr. that he would have to check with his niece 
before offering an apartment. If anything, the verifier's 
statement that Mr. Moore stated to him, a white man, posing

12



as a prospective tenant, that he was holding apartments, 
is indicative of the truth of Mr. Moore's statement, "I had 
nothing but the word was out and I was going to stick with 
even if it cost me." (A. 320)

The undisputed evidence in this case is that there had 
never been a black who made application to Les Chateaux or 
River Oak Apartments (A. 101, 103) . Les Chateaux and River 
Oak do not advertise vacancies or solicit tenants (A. 55).
It is further undisputed that there had never been a com­
plaint of racial discrimination made against Les Chateau 
or River Oak Apartments to the Housing Referral Office since 
its inception in 1968.

The action in this case is not one brought under the
Fair Housing Acts, U.S.C.A., Title 42, § 3601, et seq.,
but is one brought under Title 42, U.S.C.A., § 1982. This
Court in the recent case of Sorenson v. Raymond, 532 F.2d
496 (5th Cir. 1976), stated:

"Appellants argue in the alternative that the evi­
dence so strongly supports a finding that race was 
a dominant factor in the eviction decision that 
they were entitled to either a directed verdict or 
new trial. But after examining the record, we can­
not say that the evidence considered in the light 
most favorable to appellee, so strongly supports 
appellants that they deserved a directed verdict.
Nor can we say that the verdict was so contrary 
to the greater weight of the evidence that we 
should find that the trial Judge abused his dis­
cretion in refusing to grant a new trial."(532 F.2d at 500)

It is significant to note that this Court in Sorenson makes 
a distinction between those actions brought under the Fair

13



Housing Act, Title 42, § 3601, et seq., and actions brought 
under Title 42, § 1982.

Plaintiff, in his brief, attempts to cite numerous Fair 
Housing cases which place some weight on statistical evidence 
by coupling it with evidence of an act of discrimination to 
prove a "pattern or practice." It is noteworthy that in 
Sorenson v. Raymond, supra, this Court pointed out in Foot­
note 5 at page 498 that: "* * * no black had ever applied 
* * *" This is precisely the case at hand. There is no 
evidence in the record before this Court that any black has 
ever applied to Les Chateaux or River Oak Apartments. In 
fact, the evidence is to the contrary. The further immut­
able fact is that a jury has found that the actions of Mr. 
Moore, Sr. did not violate any rights of plaintiff Duckworth 
under Title 42, § 1982.

14



II

THE TRIAL COURT COMMITTED NO REVERSIBLE ERROR IN 
GRANTING A DIRECTED VERDICT TO DEFENDANTS MOORE, 
________________ JR. AND WELCH__________________

Defendants contend that the trial court was correct in 
granting a directed verdict to defendants Moore, Jr. and 
Welch and refer this Court to the trial court's written 
order and opinion supporting that decision (A. 37-41).

However, even if the trial court was incorrect in 
directing a verdict in favor of the principals, the plain­
tiff cannot show prejudice from this error in view of the 
fact that the agent himself was exonerated of any wrong­
doing. It is firmly established in the law that a judgment 
exonerating the servant relieves the master, when the serv­
ant's conduct is the only basis of liability against the 
master. Barnes v. West Point Foundry & Machine Co., Inc., 
441 F .2d 532 (5th Cir. 1971); Simpson v. Townsley, 283 F .2d 
743 (10th Cir. 1960); Smith v. Birmingham Transit Corp.,
286 Ala. 253, 238 So.2d 879; Alabama Great Southern Rail­
road Co. v. Evans, 288 Ala. 25, 256 So.2d 861. Under Rule 
61, Federal Rules of Civil Procedure, an error, if any, 
made by the court in directing a verdict in favor of Moore, 
Jr. and Welch would be harmless to plaintiff since in the 
final analysis a jury decided that plaintiff's complaint 
against the alleged agent, Moore, Sr., was unfounded.

15



Ill

THE COURT CORRECTLY INSTRUCTED 
THE JURY IN THIS CASE

Plaintiff in brief complains that the court gave an 
incorrect charge which is set out on page 41 of the plain­
tiff's brief. Plaintiff further contends that at the close 
of the instructions, plaintiff's counsel properly objected.
A close reading of the record shows that plaintiff's objec­
tion to the burden of proof charge was not to the charge set 
out in plaintiff's brief at page 41, but was "we object to 
the omission of our charge concerning the burden of proof.
I think it was charge number 3 * * *" (A. 359, 360) The
charge which plaintiff claims was omitted was actually given 
verbatim by the trial Judge as follows:

"The plaintiff is not required to prove that the 
defendant acted with specific intent of violat­
ing 42 United States Code, 1981 and 1982. It 
is enough if the defendants' acts, practice and 
conduct had the effect of discriminatorily deny­
ing the plaintiff the housing opportunities."
(A. 355)

How can plaintiff ask this Court to reverse the trial court 
for giving the charge which plaintiff claims was omitted.

Plaintiff made no objection to the charge now claimed 
in brief to have been erroneously given. Proper objection 
not having been entered, plaintiff cannot now claim error. 
This Court in Burns v. Travelers Ins. Co. stated:



"If the proper objection does not appear in the 
record then the appellate court need not consid­
er the alleged error. 9 Encyclopedia of Federal 
Practice, § 31.106 (3d ed. 1951). Even if the 
appellants had properly objected to the speci­
fied portions of the trial court's charge, they 
could not prevail in the present appeal since 
the charge when read as a whole gives a full 
and comprehensive statement of the applicable 
law." 344 F .2d 70, 73.

It is clearly the law under Rule 51, Federal Rules of Civil 
Procedure, that a claim of error to the court's charge is 
not properly subject to review when the appellant fails to 
lodge a timely objection to the instruction when it is 
given. Mayeaux v. American Mutual Liability Ins. Corp,,
409 F.2d 508, 510.

At the completion of the trial court's oral charge 
all parties were given an opportunity to object (A. 359).
The plaintiff's only objections were:

1. "We object to the word malicious." Plaintiff has 
not claimed this as error.

2. "For the record we object to the omission of our 
charge concerning the burden of proof. I think it was charge 
number 3." Plaintiff’s Charge Number 3 was given.

17



IV

THE TRIAL COURT DID NOT ERR IN 
DENYING INJUNCTIVE RELIEF TO PLAINTIFF CLASS

Plaintiff contends that defendants engaged in policies 
and practices of racial discrimination. In support of this 
statement, plaintiff offered in evidence some statistical 
data regarding the racial makeup of Dallas County, Alabama. 
Plaintiff cites numerous cases (mostly based on the Fair 
Housing Act, not §1982) for the proposition that injunctive 
relief can be awarded based on statisical data coupled with 
actual proof of specific discriminatory acts. There is no 
such evidence in this case. The undisputed and uncontro­
verted evidence is that Les Chateaux and River Oak Apart­
ments do not advertise for tenants and have never sought 
tenants publicly. Mrs. Crear at the Housing Referral Of­
fice testified that in her six months at the Housing Re­
ferral Office she never referred a black to Les Chateaux 
or River Oak Apartments, and further that the records of 
the Housing Referral Office showed no complaints of racial 
discrimination against either apartment complex since the 
inception of the Housing Referral Office in 1968. The 
further uncontroverted evidence is that no black had ever 
made application to Les Chateaux or River Oak, and there­
fore there had never been a black turned away by Les

18



Chateaux or River Oak. This Court found the fact of no 
black applications significant in Sorenson v. Raymond, 
supra.

The trial court was eminently correct in its order 
denying injunctive relief (A. 34).

19



CONCLUSION

A jury carefully considered all evidence in this case 
and decided unanimously that William B. Moore, Sr. was 
guilty of no discrimination in his dealings with plain­
tiff Duckworth. The trial court, after hearing all the 
evidence, correctly denied injunctive relief and correct­
ly denied the various motions complained of by plaintiff 
in this appeal.

Of Counsel:
RUSHTON, STAKELY, JOHNSTON & GARRETT, P.A. 
Post Office Box 270 
(1201 Bell Building)
Montgomery, Alabama 36101

20



CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the 
foregoing Brief of Appellees upon Jack Greenberg, 10 
Columbus Circle, New York, New York 10019, Ms. Beth J. 
Lief, 10 Columbus Circle, New York, New York 10019, and 
Ms. Rose Mary Sanders, Post Office Box 773, Selma, Ala­
bama 36701, Attorneys for Appellant, by depositing same 
in the United States Mail, postage prepaid, directed to 
their respective addresses, on this the 20th day of June,
1977

- 21