[00:00:00] Speaker 04:
resumes this session.

[00:00:02] Speaker 00:
Please be seated.

[00:00:07] Speaker 00:
All right, we'll proceed to hear argument in the next case on calendar for argument this morning, which is 24-7774, Melinda Rex versus Ty Falwell.

[00:00:22] Speaker 00:
And we will hear first from Mr. Silvey.

[00:00:27] Speaker 04:
Thank you, your honor.

[00:00:28] Speaker 04:
My name is Greg Sylvie.

[00:00:30] Speaker 04:
I represent Mindy Rex.

[00:00:34] Speaker 04:
And may it please the court.

[00:00:40] Speaker 04:
I'm going to overpower this microphone with my voice if I'm not careful.

[00:00:45] Speaker 04:
May it please the court.

[00:00:47] Speaker 04:
We have a lot going on in this case.

[00:00:48] Speaker 04:
We have a procedural summary judgment issue, we have a substantive summary judgment issue, and we have an implied contract issue.

[00:00:55] Speaker 04:
So court's choice to where I start.

[00:00:58] Speaker 00:
It's your argument, you may proceed.

[00:01:00] Speaker 04:
Okay, I'll start at the beginning.

[00:01:02] Speaker 04:
I'll start with the procedural issue.

[00:01:04] Speaker 04:
So this case should stand for the proposition that if the defendant is going to move for summary judgment on an issue, they should actually recite the elements and apply the law to the elements.

[00:01:15] Speaker 04:
And Clayton did not do this in this case.

[00:01:18] Speaker 02:
May I jump you counsel to where we are now?

[00:01:21] Speaker 02:
We can affirm for any basis supported in the record.

[00:01:25] Speaker 02:
Our review of summary judgment is de novo.

[00:01:28] Speaker 02:
And you all in this appellate briefing have briefed

[00:01:31] Speaker 00:
The issue so why shouldn't we just look at it de novo and and perhaps a firm because it's supported by the record well the reason I would like to give is because that's worse for me, but Appreciate your candor I am I mean would you have put additional facts into the summary judgment record if you had been given formal notice that the

[00:02:00] Speaker 00:
claim was at issue in the distinct way you pleaded it?

[00:02:05] Speaker 04:
Well, that's the exact problem here is the way, you know, the way cases, civil cases evolve is a complaint is notice pleading.

[00:02:15] Speaker 04:
You say some things and then there's some discovery and then there's motion practice.

[00:02:21] Speaker 04:
And in the case of motion practice, the defendant brings a motion for summary and judgment

[00:02:25] Speaker 04:
says no and you say yes and you develop these facts and then a judge makes a ruling and then on appeal you take that judge's ruling and you say blah blah blah blah blah and the plaintiff was not didn't get to do that because Clayton did not challenge the cancellation part

[00:02:48] Speaker 04:
of this case and so we have you know on appeal I have the defendant saying well you know we didn't do this court didn't do this you didn't say this I'm kinda this year saying this first on appeal and that's because of the procedural problem of how this came up so I guess that's the answer of why you just shouldn't jump to the merits and beside the fact that I prefer it

[00:03:13] Speaker 04:
that we should, you know, take things in turn.

[00:03:16] Speaker 00:
But would the factual record change?

[00:03:18] Speaker 00:
I mean, you're asking for a remand so that, you know, the separate issue can be done under the standard of the Morris case.

[00:03:28] Speaker 00:
But would the factual record change if it were remanded?

[00:03:33] Speaker 00:
Would it look different from what we see now?

[00:03:38] Speaker 04:
Well, I guess it's what do you see now?

[00:03:42] Speaker 04:
You know, so we have, okay, so certainly we have the, you know, canceling a contract, canceling the contract, depriving the handicap of housing.

[00:03:56] Speaker 04:
And we have the cancellation of the contract.

[00:03:58] Speaker 04:
I mean, this is always going to be a circumstantial case.

[00:04:00] Speaker 04:
I mean, the defendants were smart enough to not say, and we're canceling this contract

[00:04:08] Speaker 04:
because of Mindy and her crazy relatives.

[00:04:11] Speaker 04:
So they were that smart.

[00:04:12] Speaker 04:
They didn't say that.

[00:04:13] Speaker 00:
So what's the protected conduct for purposes of this claim?

[00:04:19] Speaker 04:
So the protected conduct is obtaining housing for the handicap.

[00:04:25] Speaker 04:
And that's what you enjoy as the handicap.

[00:04:30] Speaker 04:
So back to the circumstantial part.

[00:04:34] Speaker 04:
So the defendants weren't dumb enough to say,

[00:04:38] Speaker 04:
were not, you know, selling to Mindy and your crazy relatives.

[00:04:43] Speaker 00:
So when in the causal, so if it is interfering with the right for housing for the handicap, when does Ms.

[00:04:56] Speaker 00:
Rex first engage in the protected conduct that is the basis for this claim?

[00:05:03] Speaker 04:
As it's all falling apart on February 4th.

[00:05:06] Speaker 00:
So, I mean, because the district court analyzed it, you know, in terms of two pieces, but the district court seemed to focus on pieces that preceded the protected conduct, which struck me as confusing.

[00:05:21] Speaker 04:
Right.

[00:05:22] Speaker 04:
And that's, again, part of this.

[00:05:23] Speaker 04:
We never had a defendant arguing this in summary judgment.

[00:05:27] Speaker 04:
But back to the, I mean, so Ms.

[00:05:31] Speaker 04:
Rex is just, I mean, she's arguing the Fair Housing Act, you know, from the inception of the collapse, you know, in that morning of February 4th.

[00:05:40] Speaker 04:
And she's saying, and you're depriving, you know, handicapped people of their fair housing, and I have a fair housing attorney.

[00:05:48] Speaker 04:
I mean, she's on it, you know, and that's so all of a sudden bringing that up and they,

[00:05:54] Speaker 04:
cancel and continue to cancel and won't reconsider.

[00:05:56] Speaker 00:
So is it really an issue on this claim of whether the refusal to recommence the transaction fits within 3617, that that's the conduct that

[00:06:21] Speaker 00:
you know, interferes with the exercise of her rights?

[00:06:25] Speaker 04:
Well, I don't think there's any question that the failure to re-instate does, but also... You would argue that that was done on pretextual grounds?

[00:06:36] Speaker 04:
Yes, right.

[00:06:37] Speaker 00:
But the district court didn't seem to analyze that piece of it?

[00:06:40] Speaker 04:
No.

[00:06:41] Speaker 04:
And again, it wasn't argued below.

[00:06:44] Speaker 04:
So there's nothing for the plaintiff to respond to below because this argument is never being made by the defendant.

[00:06:53] Speaker 04:
So the plaintiff doesn't have anything to respond to.

[00:06:55] Speaker 04:
And so in oral argument, you know, plaintiff, sorry about overpowering the mic.

[00:07:02] Speaker 04:
So the plaintiff never has anything to respond to in oral argument.

[00:07:06] Speaker 04:
He kind of says a couple sentences about it.

[00:07:08] Speaker 00:
and that's it and i mean the plaintiff gives fair warning to the defendant you are not moving for summary judgment on this and on appeal they pretend they were but they're not well you're kind of talking past each other because their motion clearly says they were moving on all counts but they lumped counts one and two together as if they said the same thing and you came back and said that you're not moving on the thirty six seventeen which is different and and you just sort of

[00:07:35] Speaker 00:
We're talking past each other.

[00:07:36] Speaker 04:
But if I was the defendant, I'd give some reasons why I've included 3617, including perhaps using the elements of the claim.

[00:07:46] Speaker 04:
I mean, the complaint said two different things.

[00:07:49] Speaker 00:
Had the Morris case been decided at the time of this summary judgment briefing?

[00:07:55] Speaker 04:
Sorry, I don't know.

[00:08:02] Speaker 02:
Had you been given notice that you maintain you should have received?

[00:08:06] Speaker 02:
What would you have done differently in the district court that you're not doing now before us?

[00:08:13] Speaker 02:
I wouldn't the arguments and the evidence to be the same as what you're presenting on appeal I?

[00:08:20] Speaker 04:
Guess I'm I wasn't trial counsel.

[00:08:22] Speaker 04:
I don't I don't want to make a concession.

[00:08:25] Speaker 04:
I'm going to

[00:08:26] Speaker 04:
Going to regret since I was not trial counsel fair enough, but it certainly would have been teed up to the district court Which you know which did not?

[00:08:38] Speaker 03:
Rule on what we are talking about here Did you was summer judgment motion filed I assume after the close of discovery or was it filed?

[00:08:47] Speaker 03:
While discovery was still open.

[00:08:48] Speaker 03:
Do you know do you recall again?

[00:08:50] Speaker 00:
I'm

[00:08:51] Speaker 04:
The district court said it was after that was one of the reasons just record gave for reaching and in the brief opposing counsel's brief said it was after as well So yes, it would have been after So back to somewhere where I was in the middle of this Back to the sir.

[00:09:10] Speaker 04:
It's a circumstantial case and part of it is

[00:09:15] Speaker 04:
While I've started this sentence a few times while the defendants weren't stupid enough to say yeah, we're doing it because of Mindy and her stupid inner Crazy relatives that we never want to deal with again.

[00:09:26] Speaker 04:
They also weren't smart enough to deny it I mean she directly says you know you're Depriving handicapped people of housing in one of those first emails on February 8th or 4th, and they don't say no or not and

[00:09:44] Speaker 04:
And she accuses everybody.

[00:09:46] Speaker 04:
You know, when she's telling Tom Brenner, the manager, this is what's happening, this is what I'm trying to do, nobody says no or not.

[00:09:52] Speaker 04:
I mean, if this was a criminal case in a noncustodial interrogation, that prosecutor would be saying, this is huge evidence of intent.

[00:10:06] Speaker 04:
That gets to go to the jury.

[00:10:08] Speaker 04:
This district judge should not have granted summary judgment on this case.

[00:10:17] Speaker 04:
I think I'll save the rest for rebuttal.

[00:10:20] Speaker 00:
All right.

[00:10:20] Speaker 04:
I have a feeling I'm going to have a lot to say.

[00:10:22] Speaker 00:
All right.

[00:10:22] Speaker 00:
Thank you, counsel.

[00:10:24] Speaker 00:
We'll hear now from Mr. Weber.

[00:10:31] Speaker 01:
May it please the court.

[00:10:32] Speaker 01:
Daniel Weber for the Epolize defendant, CMH Homes, Inc., and its two employees.

[00:10:37] Speaker 01:
Appellant's briefing and its arguments to this court confirms without a doubt what the district court already correctly held under the exact same factual record

[00:10:46] Speaker 01:
before this court now, and that's that there is no evidence of any sort of discriminatory intent on CMH's behalf that is necessary to support a section 3617 interference claim under the Fair Housing Act.

[00:11:00] Speaker 01:
The evidence in this case is undisputed, and it's taken almost entirely from the appellant Mindy Rex's 190 paragraph declaration to the district court with 46 exhibits attached, outlining every discussion she had with any interested party in this case.

[00:11:16] Speaker 00:
Rule 56 expressly states in the provision on sui sponte motions, it says, after giving notice and a reasonable time to respond, the court may grant summary judgment for a non-movement.

[00:11:39] Speaker 00:
So by its terms, it says that the court

[00:11:44] Speaker 00:
must give notice and a reasonable opportunity to respond.

[00:11:47] Speaker 00:
That was not done here.

[00:11:49] Speaker 00:
Wasn't this a flagrant violation of Rule 56F?

[00:11:54] Speaker 01:
No, Your Honor.

[00:11:56] Speaker 01:
The rule states that notice is required.

[00:11:58] Speaker 01:
But the holdings of the Supreme Court in Celotex and this court's holdings state that notice is only the opportunity to notice that the non-moving party's claims are at issue and that they have the opportunity to develop facts.

[00:12:14] Speaker 01:
and that was absolutely present here.

[00:12:16] Speaker 00:
How was that present?

[00:12:17] Speaker 00:
Because the district court didn't even seem to correctly understand the claim.

[00:12:21] Speaker 00:
The district court thought that the complaint had pleaded them as basically parasitic of one another, but that just doesn't seem to be correct with, if you look at the complaint, because the second cause of action in paragraph 132, you know, and I'm going to skip over

[00:12:42] Speaker 00:
alternative language and just read the relevant part.

[00:12:46] Speaker 00:
Defendants canceled plaintiff's purchase transactions after plaintiff Melinda Rex's statement of her belief that defendant's conduct was a violation of fair housing laws.

[00:12:58] Speaker 00:
That allegation is completely independent of whether there was a violation of 3604.

[00:13:05] Speaker 00:
And the district court totally missed that.

[00:13:08] Speaker 00:
The opening summary judgment motion totally missed that.

[00:13:12] Speaker 00:
And the Morris case was decided before this briefing was done, where we had absolutely made clear that you could lose your 3604 and still have a 3617, which is what the majority ended up holding in that case.

[00:13:26] Speaker 00:
And so this just seems to have been completely botched by the district court.

[00:13:31] Speaker 00:
So I don't understand why we would try and sort this out ourselves rather than just send it back and do it right.

[00:13:38] Speaker 00:
Your honor respectfully paragraph 132 also refers back to the reasonable accommodation and but that's why I said it's there's two theories as to how it was violated and I skipped over the other one which is the parallel one but it had this other element here which the district court just missed and we've said that it's legally distinct so this whole idea that it was the plaintiff's fault that

[00:14:06] Speaker 00:
You know, it was how you pleaded it, and so you deserve this sua sponte that I'm giving you.

[00:14:10] Speaker 00:
It was just wrong.

[00:14:11] Speaker 00:
The alternative theory is in the complaint.

[00:14:14] Speaker 00:
It's a distinct theory.

[00:14:16] Speaker 00:
And the district court missed it.

[00:14:19] Speaker 00:
So it's a violation of the rule and a misreading of the complaint.

[00:14:25] Speaker 00:
This seems like it needs to go back.

[00:14:29] Speaker 01:
Well, Your Honor, we respectfully disagree.

[00:14:31] Speaker 01:
The Morris case did hold that the claims can be distinct.

[00:14:34] Speaker 01:
But it also held in the same breath as in other cases before this court that a 3617 claim and a 3604 claim are often coextensive and, in fact, can be.

[00:14:44] Speaker 01:
And the appellants, importantly, the district court specifically held in its order that it was reasonable to read the complaint the way that the appellees did and move for summary judgment in the way that they did.

[00:14:55] Speaker 01:
And the appellants have not disputed that characterization of the Second Amendment complaint.

[00:15:00] Speaker 00:
What about the fact that it

[00:15:03] Speaker 00:
The district court on page 26 of its order, when it focuses on the retaliation claim, it focuses on two acts as being, you know, the basis of the retaliation claim.

[00:15:22] Speaker 00:
And the first is to require Mindy to choose between paying cash or financing when purchasing the homes rather than accepting her hold money proposal.

[00:15:32] Speaker 00:
and to terminating the negotiations after Mindy told Tellez to sue him, extremely dissatisfied.

[00:15:39] Speaker 00:
Both of those actions occurred prior to the protected conduct.

[00:15:47] Speaker 00:
So it just makes no sense because conduct that preceded the protected conduct can't be the retaliation.

[00:15:54] Speaker 00:
If there's a retaliation claim here, it has to be the

[00:16:01] Speaker 00:
Refusal to recommence and that draws in the whole long letter which suddenly hauls out a lot of alternative grounds that we're hearing for the first time and maybe raises a tribal issue of pretext just now you're bringing up stuff that Didn't come up before and so maybe there is something here Well your honor we respectfully disagree on that front as well the entire case was postured and stems from the

[00:16:30] Speaker 01:
first request, which Ms.

[00:16:31] Speaker 01:
Rex couched as a reasonable accommodation request, which was to hold money, Clayton Holmes to hold money and try to move up the delivery of the home, which CMH denied.

[00:16:43] Speaker 01:
If it was after all of that behavior, that is when Ms.

[00:16:46] Speaker 01:
Rex, who is not in a protected class, that is perfectly undisputed, became very upset.

[00:16:52] Speaker 01:
She expressed her extreme dissatisfaction in an email to Clayton Holmes.

[00:16:56] Speaker 01:
and then had an aggressive phone call with Clayton Homes' manager.

[00:16:59] Speaker 00:
But suppose we agree with you that there's just no triable issue that that was retaliatory.

[00:17:06] Speaker 00:
That, you know, they put in the expert, they had really good reasons for not wanting to do this whole money thing, which just created a lot of trouble.

[00:17:14] Speaker 00:
No triable issue that that was pretextual.

[00:17:16] Speaker 00:
All right, set that aside.

[00:17:18] Speaker 00:
Why isn't the recommence issue

[00:17:21] Speaker 00:
She ultimately said, I'll do it your way.

[00:17:25] Speaker 00:
Give you the cash, just give me the home.

[00:17:27] Speaker 00:
And she really wanted to get this back on track.

[00:17:33] Speaker 00:
But they actually say in the letter that one of the reasons why they don't want to go forward is because you're engaged in protected conduct.

[00:17:40] Speaker 00:
They didn't put it that way, but they refer to the conduct that is the protected conduct.

[00:17:46] Speaker 01:
The first request was sort of the linchpin of the case, it's not on appeal under the reasonable accommodation claim.

[00:17:54] Speaker 01:
But all of these future issues grow from that initial contact.

[00:17:59] Speaker 01:
It was Ms.

[00:17:59] Speaker 01:
Rex's reaction to what is now a justified reason for refusing what she characterized as a reasonable accommodation.

[00:18:07] Speaker 01:
Everything after that is Ms.

[00:18:08] Speaker 01:
Rex asking to undo the termination, which all reverts back to the first conduct, which was the reasonable accommodation.

[00:18:15] Speaker 01:
which further denotes why the Appellees moved and paired those two claims together.

[00:18:21] Speaker 01:
And importantly, Your Honor, in the briefing, the appellants did not uncouple the analysis.

[00:18:28] Speaker 01:
They continued down the same road that the Appellees moved.

[00:18:31] Speaker 01:
They paired the claims together, and in fact, they talked about the two different activities, the hold money which was denied and sort of an undoing the termination, and held that they were both reasonable accommodations.

[00:18:42] Speaker 01:
They didn't say anything that

[00:18:44] Speaker 01:
would suggest to anyone, most notably the district court, that, hold on, coupling those two claims together is not appropriate.

[00:18:51] Speaker 01:
They are different claims.

[00:18:52] Speaker 01:
They stand on their own.

[00:18:53] Speaker 01:
They went down the same path.

[00:18:55] Speaker 00:
So they're not raising a Morris claim, in your view?

[00:18:57] Speaker 00:
They seem clearly to be doing that.

[00:19:00] Speaker 01:
They do that now, Your Honor.

[00:19:02] Speaker 01:
But for the very first time, they stated that there was an interference separate and apart from the reasonable accommodation.

[00:19:09] Speaker 00:
But their first time where?

[00:19:10] Speaker 01:
At oral argument.

[00:19:13] Speaker 01:
Sellotex and Rule 56, that is notice.

[00:19:16] Speaker 01:
And it was worth noting that was completely unprompted by the district court.

[00:19:20] Speaker 01:
The appellants came out at oral argument and said for the very first time, these are different claims.

[00:19:26] Speaker 01:
Here is my basis for the 3617 claim.

[00:19:27] Speaker 00:
Well, they had said in the opposition, we don't read the motion as extending to the 3617 claim, because it's different.

[00:19:35] Speaker 00:
And they didn't say anything about that claim.

[00:19:38] Speaker 01:
Well, it didn't say that latter part, Your Honor.

[00:19:40] Speaker 01:
It just, in our judgment, misread

[00:19:42] Speaker 01:
the motion for summary judgment as simply not moving but clearly the claims were considered together in the motion for summary judgment as they frequently are as held by this court and the appellants never clarified that.

[00:19:55] Speaker 00:
Why wouldn't the letter create a triable issue of pretext as to retaliation under 3617 with respect to the protected conduct of her invoking her

[00:20:11] Speaker 00:
FHA writes.

[00:20:13] Speaker 01:
Because there is no evidence that there is a discriminatory motive in any of those reasons.

[00:20:19] Speaker 01:
As your honor correctly referred to, each one of those reasons set forth in that letter is supported by unrebutted expert testimony from a manufactured home.

[00:20:28] Speaker 00:
Well, it is as to if she wanted to recommence the transaction based on the whole money idea.

[00:20:40] Speaker 00:
There are other issues here.

[00:20:43] Speaker 00:
I mean, it raises this issue about, well, now we've decided the modification, which came out of nowhere, that that's actually grounds for not recommencing.

[00:20:55] Speaker 00:
And they refer to the protected conduct in the letter.

[00:21:03] Speaker 00:
Our concerns are exacerbated by the fact that you have already threatened legal action against

[00:21:09] Speaker 00:
CMH prior to entering into any written contracts.

[00:21:13] Speaker 00:
These threats alone aren't reason enough to part ways.

[00:21:17] Speaker 00:
I mean, that's admitting that her engaging in the protected conduct is the basis for the decision.

[00:21:24] Speaker 00:
So why isn't this just a tribal issue of a 3617 violation right there?

[00:21:32] Speaker 01:
Well, we don't agree, Your Honor, that the statement about the history

[00:21:37] Speaker 01:
with respect to the hold money request and the denial and Ms.

[00:21:40] Speaker 01:
Rex's escalation is the protected activity.

[00:21:42] Speaker 01:
The protected activity started with the hold money request and then was escalated by Ms.

[00:21:49] Speaker 01:
Rex with respect to her response to it.

[00:21:52] Speaker 01:
And to answer one of your honor's previous questions, this is a very unique type of transaction.

[00:21:57] Speaker 00:
But the request for the hold money, I understand they have the accommodation claim, which they abandoned.

[00:22:06] Speaker 00:
You know, that was for her convenience, financially.

[00:22:09] Speaker 00:
It's nothing to do with the disability, which is why we don't have that claim here in front of us.

[00:22:14] Speaker 00:
So that's not really the protected conduct.

[00:22:17] Speaker 00:
The only thing that is potentially triable as protected conduct is she says, hey, these are bogus.

[00:22:25] Speaker 00:
this is I folded and agreed to your terms and you're canceling the contract anyway and this is really going to deprive these two disabled people of their housing and you know if you're going to go forward with that then you know I'm going to talk to my lawyer and now lawyers are going to need to talk

[00:22:42] Speaker 00:
And then they send a letter that says, you know, because you said that, that alone is enough not to do the transaction.

[00:22:50] Speaker 00:
We will retaliate against you for invoking your FHA rights.

[00:22:53] Speaker 00:
It's kind of right there in the letter.

[00:22:56] Speaker 01:
We do not agree with that, Your Honor, as stated previously, that the reasons in the letter are additional reasons.

[00:23:03] Speaker 01:
The true reason why negotiations were terminated was because of Ms.

[00:23:06] Speaker 01:
Rex's escalation and response to the denial of the hold money request.

[00:23:11] Speaker 01:
The reasoning set forth, the additional reasons in the letter were also supported by unrebutted expert testimony as valid and legitimate and are further evidence that CMH was willing to overlook some of the other difficulties in the transaction.

[00:23:25] Speaker 01:
You have to understand, getting into a manufactured housing transaction denotes at least another year of working with the customer.

[00:23:33] Speaker 01:
And here, as stated in the original reason and again in the February 12th letter, this is all the reasons why we have an unsuccessful relationship already.

[00:23:42] Speaker 01:
We can't just undo the termination.

[00:23:43] Speaker 01:
We are going to have a terrible relationship.

[00:23:46] Speaker 01:
You've already expressed your extreme dissatisfaction.

[00:23:50] Speaker 01:
Unrebutted expert testimony in this case is when that happens, it is reasonable and in fact expected to simply walk away.

[00:23:59] Speaker 01:
And again, there's no causal connection, but every fact in this case is CMH did not want to do business with Ms.

[00:24:07] Speaker 01:
Rex.

[00:24:07] Speaker 01:
There is not one iota of evidence

[00:24:10] Speaker 01:
that CMH had any discriminatory motive towards the relatives.

[00:24:13] Speaker 01:
It is pure speculation.

[00:24:16] Speaker 01:
My colleague said that this is an entirely circumstantial evidence case.

[00:24:19] Speaker 01:
We would submit there's no evidence of CMH's intent whatsoever, but this court holds that circumstantial evidence of pretext must be specific and it must be substantial.

[00:24:31] Speaker 01:
That's held in the Bergin case and in the Brown case.

[00:24:34] Speaker 01:
And Judge Collins, I'm sort of reminded of your partial dissent, partial concurrence in Morris.

[00:24:39] Speaker 01:
where you use the word lynchpin, I believe.

[00:24:41] Speaker 01:
And there was a letter in that case as well, but there was a whole lot of evidence that a jury could find.

[00:24:49] Speaker 01:
That's a lynchpin.

[00:24:50] Speaker 01:
That's a bridge between what we said we were doing and why it's not true.

[00:24:55] Speaker 01:
But the fact remains that everything that CMH did was because of Ms.

[00:24:59] Speaker 01:
Rex's response and she already admitted she was extremely dissatisfied.

[00:25:04] Speaker 01:
And there is no evidence in the record and all the evidence states that a reasonable retailer

[00:25:09] Speaker 01:
in this situation would simply walk away.

[00:25:12] Speaker 01:
And you can't just undo a termination when you already have an extremely dissatisfied customer.

[00:25:19] Speaker 01:
My colleague basically asked the court to lay down a bright line rule that a moving party must recite the elements of every claim.

[00:25:26] Speaker 01:
But that is contrary to Seletex and Rule 56.

[00:25:29] Speaker 01:
There's no such rule.

[00:25:31] Speaker 01:
And it's important to note that the court granting suespante is judged on an abusive discretion standard.

[00:25:37] Speaker 01:
I see I'm out of time.

[00:25:38] Speaker 01:
All right.

[00:25:39] Speaker 00:
Thank you, counsel.

[00:25:40] Speaker 00:
We'll hear rebuttal now.

[00:25:46] Speaker 04:
Hello again.

[00:25:47] Speaker 04:
To start where he left off, actually, you do have to cite the elements.

[00:25:56] Speaker 04:
I mean, we all went to law school.

[00:25:58] Speaker 04:
We know what claims are.

[00:25:59] Speaker 04:
We know how to apply facts to the law.

[00:26:02] Speaker 04:
And even in opposing counsel's the entire presentation, it was just

[00:26:11] Speaker 04:
denying that a claim could exist outside of the original reasonable accommodation claim.

[00:26:19] Speaker 04:
And the defendant's position is if that's not right, then nothing can flow to it.

[00:26:24] Speaker 00:
But our discussion that we've been having here... I think what he was saying was that even if you get past all of this and you get to whether there's a tribal issue of retaliation, his point is that

[00:26:37] Speaker 00:
This relationship, by the time she engages in the real protected activity, which is I'm going to call my lawyer, FHA lawyer, the relationship was so obviously poisoned, they were so definitive in terminating this, that it's not triable.

[00:26:54] Speaker 00:
And it was pretext, they just, before they even knew she was going to do that, they wanted nothing to do with her, so it's not triable.

[00:27:01] Speaker 00:
What's your response to that?

[00:27:03] Speaker 04:
My response to that is, I mean, that's one thing that he argues to the jury, and it needs to go to the jury, because the other side of that, the circumstantial evidence is, again, they didn't, that doesn't seem good.

[00:27:19] Speaker 04:
The circumstantial evidence is they didn't deny the direct accusation of depriving handicapped people of housing.

[00:27:27] Speaker 04:
The jury gets to consider that.

[00:27:29] Speaker 04:
So was it just Mindy that they didn't want anything to do with?

[00:27:32] Speaker 04:
because there's the year warranty and such, or was it Mindy and her mentally handicapped relatives that they didn't want anything to do with?

[00:27:40] Speaker 04:
And then, again, the incredible disingenuineness of the letter and some of the pretexts, I mean,

[00:27:52] Speaker 04:
The more that they make things up in that letter also shows that they're, you know, they're trying everything they can to get out of this.

[00:27:59] Speaker 00:
Is there any evidence that Tellez de Souza knew that these units or these homes were for handicapped persons?

[00:28:12] Speaker 04:
Yes, that's, it's clear.

[00:28:14] Speaker 00:
At the time that she said, you're not a happy customer, go somewhere else.

[00:28:20] Speaker 00:
On February 4th.

[00:28:22] Speaker 04:
February 4th.

[00:28:22] Speaker 04:
She knows it because I know it's in an email and in February 4th So I know she knows it on that day But I mean because it it's not mentioned in the conversation so ms.

[00:28:34] Speaker 00:
Rex sends something says I want to do this You know she had been raising this whole idea of want to do the whole money and then tell us D'Souza sends us something you know We're gonna do it one way or the other and tell me what you want to do and

[00:28:49] Speaker 00:
And then she says, all right, I'll do it your way, but I want you to know I'm really not happy.

[00:28:54] Speaker 00:
And then tell us as soon as it just says, we're done.

[00:28:58] Speaker 00:
We're done.

[00:28:58] Speaker 00:
You're going to be that cranky with me.

[00:29:00] Speaker 00:
We are done.

[00:29:01] Speaker 00:
And did she know at that point, there's no mention in that whole discussion of anything about handicapped or the FHA or rights.

[00:29:09] Speaker 00:
Did she know that this, these units that she was then canceling summarily.

[00:29:15] Speaker 00:
were for disabled persons.

[00:29:19] Speaker 04:
Well, her manager, Falwell, was the salesperson she was dealing with, who certainly knew, because that was the whole thing from the premise.

[00:29:27] Speaker 00:
But the person who's canceling this transaction, the causal one is Teller's decisions.

[00:29:32] Speaker 00:
She makes the decision that she's done.

[00:29:35] Speaker 04:
Right.

[00:29:36] Speaker 04:
So we know the salesperson did, and we know that there were

[00:29:40] Speaker 04:
Emails between them beforehand before the fourth and I know that there was emails from Mindy I Don't know I It's all in In my brief it says exactly what was said by who so I know it came up with them on the fourth so Whether or not it comes up later.

[00:30:06] Speaker 00:
I don't I didn't see anywhere in the

[00:30:09] Speaker 00:
Exchanges with Telus D'Souza leading up to Telus D'Souza's pulling the plug.

[00:30:15] Speaker 00:
I didn't see any reference to FHA protective activity disabled.

[00:30:18] Speaker 04:
The one that I can see in my head is just on the morning of the 4th.

[00:30:22] Speaker 04:
I know it's in Europe.

[00:30:23] Speaker 00:
Right away it comes up.

[00:30:24] Speaker 04:
Right away.

[00:30:25] Speaker 00:
But you know, she's burned the bridge at that point, Telus D'Souza.

[00:30:30] Speaker 00:
And so does that create a problem for you in terms of causation on a retaliation claim?

[00:30:36] Speaker 04:
Well, I mean, is it imputed from the salesperson?

[00:30:38] Speaker 04:
For months they've been doing this to put handicapped people in because, you know, a defendant was also Falwell in this case.

[00:30:47] Speaker 00:
I know, but then, you know, she goes up the chain and, you know, the

[00:30:52] Speaker 00:
fellow at the next level, I don't remember his name.

[00:30:54] Speaker 00:
He basically said, oh, well, the salespeople get their commissions based on the customer rating.

[00:31:00] Speaker 00:
And so we give them a lot of discretion to pull the plug.

[00:31:03] Speaker 00:
And so he basically was, was just saying it was Teller's D'Souza's call.

[00:31:09] Speaker 04:
Right.

[00:31:09] Speaker 00:
But yeah, so, well, but there's no taint in Teller D'Souza's decision because she, she's not, doesn't look like there's a tribal issue that she did this based on any

[00:31:21] Speaker 04:
retaliation she just she just doesn't want to deal with difficult people well and then and as she sees it right I mean she's still the employee Clayton is the defendant we're talking about she's Clayton's employee agent slash manager could I ask just maybe a basic question I'm just completely missed but CMH homes just builds the homes it's not in

[00:31:45] Speaker 03:
their own mobile park homes right it's a separate correct there are retailer and then the home goes to a trailer part of the theory here is they don't want they just don't want to build a home for someone who's handicapped I'm making

[00:32:01] Speaker 03:
There seems a stronger inference if it's in the community.

[00:32:04] Speaker 03:
Maybe they don't want that.

[00:32:05] Speaker 04:
So what the defendants, the various ones, said in their depositions and so buying a mobile home is not like buying a pair of shoes.

[00:32:13] Speaker 04:
It's like a long-term relationship that they're servicing this home for at least a year afterwards.

[00:32:19] Speaker 04:
So that was the ostensible grounds that we do not want to deal with Mindy for this year afterwards.

[00:32:27] Speaker 04:
They want out of this.

[00:32:31] Speaker 04:
Did that answer your question?

[00:32:34] Speaker 04:
Okay, so back to the yes, I cannot tell you from this podium when the first handicapped to Katie when that When it happened for her, but certainly the salesperson knew it beforehand she knew it at the morning of the fourth and you've gone over your time, but I have actually one question on the state law claim and

[00:32:59] Speaker 00:
which is you complain about the delay from the asserted decision in October until the carrying out of the decision in December and that this was somehow unfair and deprived her of the

[00:33:17] Speaker 00:
Never mind, I'm sorry.

[00:33:21] Speaker 00:
We'll just.

[00:33:22] Speaker 00:
No, I'm sorry.

[00:33:24] Speaker 00:
All right.

[00:33:25] Speaker 00:
I'm mixing things up.

[00:33:26] Speaker 00:
It's been a long week.

[00:33:28] Speaker 00:
So, okay.

[00:33:29] Speaker 00:
All right.