Human Rights Commission v. Labrie, Inc.

HUMAN_RIGHTS_COMM_V_LABRIE_INC.94-230; 164 Vt 237; 668 A.2d 659

[Filed:  06-Oct-1995]

  NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.

                                 No. 94-230


Human Rights Commission                           Supreme Court

                                                  On Appeal from
    v.                                            Washington Superior Court

LaBrie, Inc., Ernest LaBrie &                     May Term, 1995
Linda LaBrie

Alan W. Cheever, J.

Susan M. Sussman and Barbara Lelli, Montpelier, for plaintiff-appellee

Oliver L. Twombly, Barre, for defendants-appellants


PRESENT:       Allen, C.J., Gibson, Dooley and Morse, JJ., and
               Davenport, Supr. J., Specially Assigned


       ALLEN, C.J.    Defendants LaBrie Inc., Linda LaBrie and Ernest LaBrie
  appeal from superior court orders, which held that defendants committed
  unfair housing practices by discriminating against persons with minor
  children in violation of 9 V.S.A. § 4503(a). Defendants claim that (1) the
  court's findings on disparate-treatment discrimination are clearly
  erroneous because the evidence did not show any intent to discriminate, (2)
  the court's findings based on plaintiff's experts' testimony should be
  vacated because the court did not qualify the witnesses as experts, (3) the
  court erred in awarding damages to a complainant for emotional distress in
  the absence of expert medical testimony, (4) the court awarded excessive
  attorney's fees to plaintiff, (5) the court committed plain error by
  holding Ernest Labrie personally liable for unfair housing practices, and
  (6) the court erred in ruling inadmissible certain testimony of defendants'
  witness, Reine Jenkins.(FN1)  We affirm.

 

       On May 1, 1981, Linda and Ernest LaBrie purchased Limehurst Mobile
  Home Park. The Park consists of thirty-three mobile home lots.  Most of the
  residents own their own mobile homes and rent only the lot.  LaBrie, Inc.
  purchased the Park from Ernest and Linda LaBrie on October 30, 1987. 
  Ernest and Linda LaBrie are the sole corporate officers and shareholders of
  LaBrie, Inc.  Ernest LaBrie is the president, and Linda LaBrie is the
  vice-president and treasurer.  The office of LaBrie, Inc. is in their home. 
  The Park is managed primarily by Linda, who is responsible for renting
  units, collecting rent, and making all general management decisions.  She
  also sets policies, rules, and lease terms, and approves residents for
  tenancy. Ernest is primarily responsible for maintenance under the
  direction of Linda but is aware of the decisions made by Linda.

       When the LaBries purchased the Park, the lease term on occupancy
  stated "that only one family shall occupy a mobile home on a permanent
  basis."  In 1982, the LaBries changed the occupancy provision to,

        Lessees, who have entered into a lease agreement after April 1,
        1982, shall not be permitted to have children under the age of 18
        years reside in their mobile home unit.  Lessee hereby agrees that
        lessee shall terminate this lease and vacate the premises prior to
        having said children reside in their mobile home.  (Emphasis
        added.)

  In July 1988, the occupancy provision was essentially the same but
  stated in addition, "This age restriction applies to all lots at Limehurst
  Mobile Home Park based on VSA 9-4508(b)."

       In April 1989, the occupancy provision was revised to state,

         [L]essees who have entered into a lease agreement after July 1,
         1988 shall not be permitted to have more than two permanent
         occupants per lease premises. . . .  Lessees prior to July 1, 1988,
         who have more than two permanent occupants shall be
         grandfathered, but the number of occupants cannot expand beyond
         what existed as of July 1, 1988.  (Emphasis added.)

       Currently, only one mobile home in the Park houses a family with a
  minor child.  This family moved into the Park prior to 1982.  No persons
  with minor children moved into the Park after the LaBries purchased it,
  even after the occupancy provision was changed from adults-only

 

  to a two-occupant maximum.  The population of the Park declined from
  May 1981 to May 1990, from ninety-five residents to sixty residents.  The
  LaBries also own two other mobile home parks, four homes leased as
  residential units, and twelve mobile homes throughout Vermont. There are
  minor children living in many of these homes.

       Scott and Luanne McCarthy purchased a mobile home in the Park for
  $7,000 in August 1986.  Linda LaBrie sent them a letter on August 1, 1986,
  accepting their application, and stating: "We remind you that Limehurst
  Mobile Home Park is an adult park and if you should have children in the
  future you will be required to vacate Limehurst Mobile Home Park prior to
  the arrival of said child."  In July 1989, the McCarthys contacted a broker
  to sell their mobile home because Luanne was pregnant.  The broker
  determined that the McCarthys should ask $18,000 for their home.

       The McCarthys' son was born September 18, 1989.  When they returned
  home from the hospital, they found a letter from Linda LaBrie informing
  them that they must vacate the premises "upon arrival of your third
  occupant."  Following the letter, the McCarthys received telephone calls,
  visits, and additional letters from Linda LaBrie telling them to vacate the
  Park. On December 28, 1989, the McCarthys were served with a summons and
  complaint for eviction brought by the LaBries in the name of LaBrie, Inc.
  d/b/a Limehurst Mobile Home Park.

       When the McCarthys informed the LaBries that they had accepted a
  deposit for the sale of their home, the LaBries delayed the sale,
  indicating that they would not act on the purchasers' application until the
  eviction action was resolved.  The purchasers' application was approved
  February 25, 1990, and the McCarthys sold their mobile home on March 2,
  1990, for $13,000. At trial, the broker testified that one-half of
  potential purchasers were ineligible because a minor child in the family
  put them over the occupancy limit.  There was conflicting evidence
  regarding the value of the home but the court determined that the fair
  market value of the home at the time of the sale was $13,000.

       From September 1989 through March 1990, while living at the Park,
  Luanne McCarthy

 

  felt humiliated by Linda LaBrie's demands to vacate the premises. 
  Consequently, she did not leave her home often.  She was unable to sleep
  and had chest pains.  The McCarthys moved from the Park to the home of
  Scott McCarthy's parents, where they had to share a family room in the
  basement with their newborn child.  Luanne McCarthy worried about their
  inability to find their own housing; her chest pains increased and she was
  given two medications to relieve stress.

       The McCarthys filed a complaint with the Human Rights Commission,
  which commenced this action in Washington Superior Court in October 1990,
  alleging that defendants LaBrie, Inc., Linda LaBrie, and Ernest LaBrie
  violated the Fair Housing and Public Accommodations Act, 9 V.S.A. §
  4503(a)(1)-(3), by discriminating against persons intending to occupy a
  dwelling with one or more minor children.  The Commission contended that
  the restrictive occupancy limit for the Park (1) was adopted for the
  purpose of discriminating against persons with minor children by either
  limiting or eliminating them from occupancy in the Park, and (2) although
  facially neutral, has an unlawful discriminatory impact because it excluded
  persons with minor children in significant numbers.  Defendants maintained
  that the occupancy limit was necessary due to limited water and septic
  capacity.

       At trial, both parties presented expert testimony on the capacity of
  the septic system and water supply at the Park.  Defendants' expert
  testified that the septic system at the Park was adequate to serve a
  maximum of sixty-six people.  The court found that the expert had not
  performed the tests necessary to properly assess the potential capacity of
  the septic system, and concluded that there was no credible evidence that
  the system could not support an increase in population in the Park. 
  Similarly, the court found that there was no credible evidence that water
  supply or water pressure was inadequate to serve more than sixty-six
  people.  Although the court acknowledged the LaBries' fear that problems --
  which had existed prior to installation of a new well and replacement of
  their leachfields -- would reoccur, it concluded that the LaBries have less
  restrictive alternatives available to them than the two-person occupancy
  limit.

       The court concluded that plaintiff had established that the McCarthys
  were evicted due

 

  to the presence of a minor child, and that persons with minor children
  were constructively denied access to housing in the Park by the two-person
  occupancy limit.  Further, the court concluded that defendants had not
  established the occupancy limit as a legitimate business necessity arising
  from septic and water capacities of the Park.  Accordingly, the court held
  that defendants had violated 9 V.S.A. § 4503(a) and awarded the McCarthys
  $2,700 in attorney's fees for the eviction proceeding, $1,500 for the
  emotional distress and humiliation suffered as a result of defendants'
  actions, $3,000 for loss of civil rights caused by the eviction and by
  restricting potential purchasers, and $3,000 in punitive damages.  The
  court also awarded the Human Rights Commission civil penalties of $6,000. 
  In subsequent orders, the court permanently enjoined defendants from
  adopting or enforcing a two-person-per-lot occupancy limit at the Limehurst
  Mobile Home Park, and awarded plaintiff $51,072 in attorney's fees,
  $2,194.39 for expenses and $240 for discovery costs.  Defendants appeal.

                                I.

       The Vermont Fair Housing and Public Accommodations Act (FHPA), 9
  V.S.A. §§ 4500-4507, prohibits discrimination in renting "a dwelling or
  other real estate to any person because of the race, sex, sexual
  orientation, age, marital status, religious creed, color, national origin
  or handicap of a person, or because a person intends to occupy a dwelling
  with one or more minor children, or because a person is a recipient of
  public assistance."  9 V.S.A. § 4503(a)(2). Discrimination on the basis of
  age, or because a person intends to occupy a dwelling with one or more
  minor children, has been prohibited in the rental of dwelling units in
  Vermont since 1986.  See 1985, No. 175 (Adj. Sess.), § 1 (prohibiting
  discrimination in rental of dwelling unit) (codified at 9 V.S.A. § 4466),
  repealed by 1987, No. 74, § 2(b); 1987, No. 74, § 1 (codified at 9 V.S.A. §
  4504); amended by 1987, No. 253 (Adj. Sess.), §§ 2-3 (codified at 9 V.S.A.
  §§ 4503-04).  FHPA defines "dwelling" as " any building, structure, or
  portion thereof which is occupied as, or designed or intended for occupancy
  as, a residence by one or more families, and any vacant land which is
  offered for sale or lease for the construction or location thereon of any

 

  such building, structure, or portion thereof."  9 V.S.A. § 4501(5)
  (emphasis added).

       Mobile home lot rentals were, however, covered by a separate provision
  enacted in 1988, which did not strictly prohibit discrimination on the
  basis of age or because a person intended to occupy a dwelling with one or
  more minor children.  See 1987, No. 252 (Adj. Sess.), § 4 (allowing
  discrimination based on age in rental of mobile home lots if park is
  occupied or planned for occupancy based on age restrictions as of June 1,
  1988).  The mobile-home-lot-rental provision was repealed in 1989, when
  the Legislature revised Vermont's housing discrimination laws to comply
  with the federal Fair Housing Act Amendments of 1988.  See 1989, No. 89, §
  9 (stating purpose of statutory revision) & § 10 (repealing 9 V.S.A. §
  4508). Thus, Vermont's general housing-discrimination provision has been
  applicable to the rental of mobile home lots since 1989.

       FHPA is patterned on Title VIII of the Civil Rights Act of 1968 (Fair
  Housing Act), 42 U.S.C. §§ 3601-3631, compare 9 V.S.A. § 4503 (unfair
  housing practices) with 42 U.S.C. § 3603 (discrimination in sale or rental
  of housing), and therefore, in construing FHPA, we consider cases
  construing the federal statute.  Cf. Hodgdon v. Mt. Mansfield Co., 160 Vt.
  150, 161, 624 A.2d 1122, 1128 (1992) (Court adopted federal standards and
  burdens of proof under Vermont Fair Employment Practices Act because Act
  patterned on Title VII of Civil Rights Act of 1964).  Courts analyzing
  Title VIII, the federal housing-discrimination statute, often rely on cases
  analyzing Title VII, the federal employment-discrimination statute. 
  Pinchback v. Armistead Homes Corp., 907 F.2d 1447, 1451 (4th Cir. 1990). 
  "The two statutes are part of a coordinated scheme of federal civil rights
  laws enacted to end discrimination" and "require similar proof to establish
  a violation."  Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 935 (2nd Cir. 1988).  Accordingly, we also consider Vermont and
  federal employment-discrimination law in analyzing the instant case.

       Plaintiff alleged violations of FHPA under two theories of
  discrimination law: (1) disparate treatment -- defendants intentionally
  discriminated against members of a statutorily

 

  protected category because of their membership in that group, and (2)
  disparate impact -- defendants' facially neutral policy has a
  disproportionate effect on a statutorily protected category.  The trial
  court found defendants liable for housing discrimination under both
  theories. We do not address defendants' challenges to the trial court's
  finding of disparate impact because we uphold the trial court's decision on
  the theory of disparate treatment.

       Defendants first claim that the court erred in finding disparate
  treatment or intent to discriminate in the absence of any direct evidence
  of discrimination against persons with minor children.  Intentional
  discrimination may be shown by circumstantial or direct evidence.  United
  States v. Lepore, 816 F. Supp. 1011, 1017 (M.D. Pa. 1991).  Thus, the short
  answer to defendants' challenge is that no direct evidence is necessary to
  prove a disparate-treatment discrimination claim.  Indeed, direct evidence
  of unlawful discrimination is often difficult to obtain.(FN2)  Pinchback, 907 F.2d  at 1452; see also United States v. Badgett, 976 F.2d 1176, 1178 (8th
  Cir. 1992) ("McDonnell Douglas test recognizes that direct proof of
  unlawful discrimination is rarely available").

       In this case, however, plaintiff presented direct evidence of
  discrimination.  We agree with the Lepore court that evidence of a
  discriminatory practice prior to civil rights legislation, coupled with a
  post-legislation pattern of maintaining the status quo, may be sufficient
  to

 

  establish the intent to continue the discrimination through a neutral
  policy.  See Lepore, 816 F. Supp.  at 1021; see also United States v. West
  Peachtree Tenth Corp., 437 F.2d 221, 227 (5th Cir. 1971) (preAct pattern or
  practice of discrimination and little or no evidence of post-Act change
  gives rise to strong inference of post-Act discrimination).  In this case,
  the trial court found that defendants clearly excluded minor children from
  the Park prior to 1989. That year, Vermont's mobile-home-lot-rental
  provision was repealed, and defendants changed the occupancy provision in
  their leases from adults-only to a two-person maximum.  Although the new
  occupancy provision appears neutral on its face, defendants have maintained
  the status quo at the Park -- no minor children have moved into the Park
  since defendants purchased it.  This evidence is sufficient to infer that
  the two-person occupancy limit was adopted for the purpose of eliminating
  or limiting persons with minor children from the Park.  Based on
  defendants' actions against the McCarthys and defendants' pattern and
  practice of excluding minor children from the Park, we conclude that there
  was no clear error in the trial court finding an intent to discriminate
  against persons intending to occupy a dwelling with one or more minor
  children.

       Pursuant to 9 V.S.A. § 4504(4), defendants assert as an affirmative
  defense that their actions against the McCarthys were based on a
  legitimate, nondiscriminatory occupancy limit. Section 4504(4) provides
  that the unfair-housing-practices provisions do not apply "to limit a
  landlord's right to establish and enforce legitimate business practices
  necessary to protect and manage the rental property such as the use of
  references.  However, this subdivision shall not be used as a pretext for
  discrimination in violation of this section."  FHPA is a remedial statute;
  thus, we construe it generously and read exemptions narrowly.  See City of
  Edmonds v. Washington State Bldg. Code Council, 18 F.3d 802, 804 (9th Cir.
  1994) (courts construe federal Fair Housing Act generously and exemptions
  narrowly).

       On appeal, defendants argue that the trial court applied the wrong
  standard in determining

 

       whether they met the business necessity exemption.(FN3)  Relying on
  Mountain Side Mobile Estates Partnership v. Secretary of Housing and Urban
  Dev., 56 F.3d 1243 (10th Cir. 1995), a Title VIII (housing discrimination)
  disparate-impact case, defendants maintain that the business necessity
  exemption standard should be drawn from Griggs v. Duke Power Co., 401 U.S. 424 (1971), a Title VII (employment discrimination) disparate-impact case. 
  They argue that they need not show a compelling need for the two-person
  occupancy limit, nor that there are no less discriminatory means of meeting
  the business necessity; rather, they need show only a significant
  relationship to a significant business objective.  We do not decide whether
  to apply the business necessity test of federal disparate-impact cases in
  disparate-treatment cases under the FHPA exemption but conclude that
  defendants failed to meet even this lower standard that they urge us to
  adopt.(FN4)

       At trial, defendants maintained that their occupancy limit is based on
  legitimate septic and water capacity considerations.  They presented
  evidence that the septic system at the Park was capable of handling a
  maximum of sixty-six people -- or two persons per lot.  They also presented
  evidence on the limits of the Park's water supply.  The trial court
  rejected this defense, finding that defendants had failed to present
  credible evidence that an increase in the number of occupants per living
  unit would adversely affect the septic or water systems.  It also

 

  found that there are less restrictive alternatives available to
  defendants.  The court, therefore, concluded that the business necessity
  advanced by defendants was not legitimate, but rather, a mere pretext for
  discriminating against persons with minor children.  Thus, defendants
  failed to meet even the lower standard of showing that the occupancy limit
  had a significant relationship to a significant business objective.

       The federal Fair Housing Act has no provision comparable to Vermont's
  business necessity exemption.  The federal statute has, however, an
  occupancy restriction provision, which allows only reasonable local, state
  or federal restriction on the maximum number of occupants per dwelling. 
  See 42 U.S.C.A. § 3607(b)(1).  Courts have found privately imposed
  occupancy limits, such as the limit imposed by defendants in this case, to
  unreasonably limit or exclude persons with minor children, and therefore,
  violate the Fair Housing Act.  See, e.g., Lepore, 816 F. Supp.  at 1023
  (court cannot conclude two-person-per-mobile-home lot limitation is
  reasonable when defendants have never attempted any water-saving or
  septic-system alternatives).  We agree that a privately enforced occupancy
  limit must be at minimum reasonable.  See Badgett, 976 F.2d  at 1179 (court
  will scrutinize any nongovernmental occupancy limit to determine whether it
  unreasonably limits or excludes persons with minor children);  Lepore, 816 F. Supp.  at 1021 (same).  Defendants failed to show that their actions
  against the McCarthys were reasonable or that the sixty-six-person limit
  was reasonable.

                                II.

       Defendants next claim that the trial court's findings that rely on the
  testimony of plaintiff's experts must be vacated because the court did not
  qualify the witnesses as experts. At trial, defendants withdrew their
  objection to the qualifications of plaintiff's expert, Gerard Guertin, and
  failed to object to those of plaintiff's expert, Howard Flanders;
  accordingly, we do not consider these challenges on appeal.  See Hudson v.
  Town of East Montpelier, 161 Vt. 168, 180, 638 A.2d 561, 568-69 (1993)
  (attack on qualification of expert not raised before trial court will not
  be considered on appeal).

 

                               III.

       Defendants argue that the trial court erred in awarding damages to a
  complainant for emotional distress in the absence of expert medical
  testimony showing that defendants' conduct caused the complainant's
  distress.  Defendants do not indicate any objection in the record to the
  award of damages for emotional distress on this ground and cite no
  authority to support this proposition on appeal.  Not surprisingly, we have
  found no authority to support defendants' contention that expert testimony
  is necessary to support a claim for emotional distress resulting from
  humiliation due to unlawful discrimination.

       Generally, expert medical testimony is required to support a finding
  of causation where the link is "`obscure and abstruse'" such that a
  layperson "`can have no well founded knowledge and can do no more than
  indulge in mere speculation.'"  Merrill v. University of Vermont, 133 Vt.
  101, 104, 329 A.2d 635, 637 (1974) (quoting Burton v. Holden & Martin
  Lumber Co., 112 Vt. 17, 19, 20 A.2d 99, 100 (1941)).  Thus, we have
  required expert medical testimony on whether a sliver in the thumb caused
  death from cerebral thrombosis, see Burton, 112 Vt. at 19-20, 20 A.2d  at
  101, and on whether a breast injury resulted in cancer, see Howley v.
  Kantor, 105 Vt. 128, 133, 163 A. 628, 631 (1933).  On the other hand, we
  did not require expert medical testimony to support a finding of continuing
  disabling pain.  See Merrill, 133 Vt. at 106, 329 A.2d  at 638.  We noted
  that "`the testimony of the injured party may outweigh that of medical
  witnesses . . . who are generally not in as good a position as the injured
  party to evaluate the severity of his pain and the disabling effects
  thereof.'"  Id. at 105-06, 329 A.2d  at 638 (quoting American Gen. Ins. Co.
  v. Florez, 327 S.W.2d 643, 648 (Tex. Civ. App. 1959)).

       Damages for embarrassment, humiliation, and emotional distress may be
  awarded in a housing-discrimination case brought under Title VIII. 
  Secretary of United States Dep't of Housing and Urban Dev. v. Blackwell,
  908 F.2d 864, 872 (11th Cir. 1991).  Most state antidiscrimination statutes
  also provide for compensatory damages, which may include damages for mental
  anguish or emotional distress.  Johnson v, Alaska Dep't of Fish & Game, 836 P.2d 896, 913 (Alaska 1990).  Such damages, "as creatures of statute, are
  entirely distinct from damages for emotional distress available under
  common law tort theories, which normally require a showing of extreme
  mental injury."  Id.

       Both federal and state courts have upheld awards for emotional
  distress resulting from unlawful housing discrimination without expert
  testimony on causation.  See, e.g., Blackwell, 908 F.2d  at 872-73
  (upholding $40,000 award for humiliation and emotional distress where
  housing-discrimination complainants testified concerning disappointment
  that they could not move, humiliation that they were denied right to buy
  house because of their race, invasion of privacy due to publicity, and
  physical symptoms such as loss of sleep and headaches).  Damages from
  emotional distress may be established by testimony or inferred from
  circumstances beyond the usual difficulties in securing suitable housing. 
  Morgan v. Secretary of Housing and Urban Dev., 985 F.2d 1451, 1459 (10th
  Cir. 1993); accord Johnson v. Hale, 940 F.2d 1192, 1193 (9th Cir. 1991);
  Blackwell, 908 F.2d  at 872; see also Branch-Hines v. Herbert, 939 F.2d 1311, 1318 (5th Cir. 1991) (reversed and remanded to allow plaintiff to
  testify to mental anguish suffered as a result of employment discrimination
  although this was only evidence to support damages for emotional distress).

       Medical evidence on mental or physical symptoms is not required. 
  Johnson, 940 F.2d  at 1193; Morgan, 985 F.2d  at 1459; see also Johnson, 836 P.2d  at 915 (complainant's testimony alone may establish fact and amount of
  damages for emotional distress in discrimination case); Franklin Publishing
  Co. v. Massachusetts Comm'n Against Discrimination, 519 N.E.2d 798, 800
  (Mass. App. Ct. 1988) (testimony by psychiatrist or psychologist not
  necessary where testimony of complainant, her husband, and coworker who
  witnessed unlawful dismissal supported award for emotional distress);
  Cosmos Forms, Ltd. v. State Div. of Human Rights, 541 N.Y.S.2d 50, 51 (N.Y.
  App. Div. 1989) (award for mental anguish may be based solely on
  complainant's testimony in employment discrimination case).

       In the instant case, we conclude that the emotional distress to which
  Luanne McCarthy

 

  testified is not beyond the understanding of a layperson.  The award
  for emotional distress was supported by Luanne's testimony and could be
  inferred from the circumstances.  No expert testimony on causation was
  necessary, and therefore, we uphold the award.  See Lepore, 816 F. Supp.  at
  1023-24 (housing-discrimination complainant who testified to fear of being
  thrown out on street with newborn child entitled to $500 damages for
  emotional distress).

                               IV.

       Defendants argue that the court awarded excessive attorney's fees. 
  First, they maintain that the court erred in awarding attorney's fees under
  9 V.S.A. § 4553(7)(D) at the market rate of the private bar, rather than at
  the actual cost to plaintiff.(FN5)  Defendants cite no case law to support
  this contention but rely on the language of the statute.  Section
  4553(7)(D) provides that the Human Rights Commission may seek "costs and
  reasonable attorney's fees associated with the investigation and
  enforcement of actions."  (Emphasis added.)  Defendants maintain that fees
  "associated with" means fees actually incurred in investigation and
  enforcement of the action. We find no support for this construction in the
  language of the statute, the legislative purpose in providing for
  attorney's fees, or the case law.

       The initial estimate of a reasonable attorney's fee in federal civil
  rights actions is properly calculated by multiplying the number of hours
  reasonably expended on the litigation times a reasonable hourly rate.  Blum
  v. Stenson, 465 U.S. 886, 888 (1984).  Adjustments to that fee may be made
  if necessary in the particular case.  Id.  In Blum, the petitioner argued
  that fee awards should be calculated based on the cost of providing the
  services, rather than based on the prevailing market rate; otherwise, civil
  rights counsel would receive windfalls from exorbitant fee awards.  The
  Court held that reasonable fees are to be calculated based on the
  prevailing market rate in the community whether plaintiff is represented by
  private or nonprofit

 

  counsel.  Id. at 895.  This method of calculating attorney's fees
  prevents any windfall to civil rights attorneys because the fee award by
  definition represents "the reasonable worth of the services rendered in
  vindication of a plaintiff's civil rights claim."  Blanchard v. Bergeron,
  489 U.S. 87, 96 (1989).

       We agree with the analysis of the United States Supreme Court in Blum. 
  See Bisson v. Ward, 160 Vt. 343, 347-48, 628 A.2d 1256, 1259-60 (1993)
  (relying in part on Blum and holding tenant entitled to award of attorney's
  fees although represented by Vermont Legal Aid at no cost to her).  Thus,
  where reasonable attorney's fees are authorized by statute, nonprofit legal
  services are generally entitled to a fee award based on prevailing market
  rates.  "Fee awards are to be reasonable, reasonable as to billing rates
  and reasonable as to the number of hours spent in advancing the successful
  claims."  Blanchard, 489 U.S.  at 96.  There is a strong presumption that
  this "lodestar figure" represents a reasonable fee.  Id. at 95.  We find no
  reason to apply a different rule in this case.  Cf. Illinois v. Sangamo
  Constr. Co., 657 F.2d 855, 860 (7th Cir. 1981) (rejecting defendants'
  argument that state is entitled only to actual cost of state-employed
  attorneys and upholding reasonable attorney's fees based on lodestar
  figure).

       The fact that plaintiff's attorney is a state employee is irrelevant
  to a determination of reasonable attorney's fees.  See Dennis v. Chang, 611 F.2d 1302, 1307 (9th Cir. 1980) (state-funded legal services entitled to
  reasonable attorney's fee); Ihler v. Chisholm, 855 P.2d 1009, 1014 (Mont.
  1993) (trial court abused its discretion in denying attorney's fees for
  period that attorney was employed by state).  Indeed, it would be
  unreasonable to allow landlords who discriminate unlawfully to pay
  less-than-reasonable enforcement costs where the state employs the
  attorneys who enforce the law.  Cf. Bisson, 160 Vt. at 348, 628 A.2d  at
  1260 (1993) (would be unreasonable to allow noncomplying landlords to avoid
  enforcement costs where tenant is financially unable to hire private
  attorney).  We assume the Legislature did not intend the public to
  subsidize landlords found in violation of FHPA.

       Defendants also argue that the hourly rate awarded for chief counsel
  should have been

 

  $80 because this rate was the law of the case.  During trial, the
  court ordered defendants to pay plaintiff $80 per hour to take depositions
  of surprise witnesses presented by defendants. According to defendants,
  this order established an $80-per-hour rate for fees for chief counsel in
  this case.  We disagree for two reasons.  First, an order for discovery
  sanctions does not establish the rate for reasonable attorney fees under §
  4553(7)(D).  Second, the discovery sanction did not establish an hourly
  rate for chief counsel.  At the time of the order, there was no indication
  from plaintiff regarding which attorney would take the depositions.(FN6)

       Defendants next argue that the court failed to reduce the award for
  attorney's fees by amounts associated with prosecution of unsuccessful
  claims.  An award of attorney's fees must be based on the facts of each
  case, and therefore, the trial court is in the best position to determine a
  reasonable fee.  Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).  Trial
  courts have wide discretion in determining a reasonable fee, Parker, Lamb &
  Ankuda, P.C. v. Krupinsky, 146 Vt. 304, 307, 503 A.2d 531, 533 (1985);
  therefore, we will not reverse a fee award based on the lodestar approach
  absent an abuse of discretion.  Ihler, 855 P.2d  at 1013.

       Once the court has determined the lodestar amount, the court may
  adjust the fee up or down based on other factors.  Hensley, 461 U.S.  at
  434.  The result obtained by plaintiff's attorneys is one factor the court
  must consider.  Id.; Krupinsky, 146 Vt. at 307, 503 A.2d  at 533.

         Where the plaintiff has failed to prevail on a claim that is distinct
         in all respects from his successful claims, the hours spent on the
         unsuccessful claim should be excluded in considering the amount
         of a reasonable fee.  Where a lawsuit consists of related claims, a
         plaintiff who has won substantial relief should not have his
         attorney's fee reduced simply because the [trial] court did not
         adopt each contention raised.

   Hensley, 461 U.S.  at 440.

       In this case, defendants contend that the trial court should have
  adjusted the fee

 

  downward because (1) the original complaint alleged three complainants
  and only one complainant was successful, (2) plaintiff failed to achieve
  total removal of occupancy limits, and (3) plaintiff failed to prove lost
  value on the resale of the complainants' mobile home.  We find no abuse of
  discretion.  Plaintiff asserted claims of housing discrimination based on a
  core of facts and related legal theories.  Although the trial court did not
  provide all the relief requested, plaintiff was clearly successful in this
  suit, and the trial court so acknowledged.  Accordingly, the trial court
  did not abuse its discretion in failing to reduce the fee on the bases
  asserted.  See Hensley, 461 U.S.  at 435 (fee award should not be reduced
  simply because plaintiff failed to prevail on every contention in lawsuit).

       Next, defendants argue that plaintiff was not entitled to attorney's
  fees for time spent preparing the motion for allowance of attorney's fees
  and the time sheets.  Although plaintiff is entitled to fees for time spent
  on the motion, see Goodman v. Heublein, Inc., 682 F.2d 44, 48 (2d Cir.
  1982), we agree with defendants that plaintiff is not entitled to fees for
  time spent reconstructing time sheets that should have been kept
  contemporaneously.  Moreover, plaintiff's attorneys have not distinguished
  the hours spent on time-sheet reconstruction from other activities
  performed in a single day, and thus, we are unable to determine the number
  of hours by which the total fee must be reduced.  On remand, the court must
  make this determination or subtract all hours for days on which plaintiff
  claims time spent preparing time sheets.

       Defendants claim the court awarded excessive fees to plaintiff based
  on hours claimed for various activities that defendants' expert maintained
  were excessive.  Such a factual determination is best left undisturbed
  absent strong evidence of excessiveness.  See Krupinsky, 146 Vt. at 307,
  503 A.2d  at 533.  No such showing is made here.  Finally, defendants claim
  that plaintiff is not entitled to recover fees for trial time of both
  attorneys.  Again, the trial court was in a better position to determine
  whether plaintiff was entitled to be compensated for two attorneys during
  trial.  We find no abuse of discretion.

 


                               V.

       Defendants next argue that the trial court committed plain error by
  holding Ernest LaBrie personally liable for unlawful discrimination because
  Linda Labrie is the primary manager of the Park.  Defendants did not raise
  this issue before the trial court,(FN7) and therefore, we do not address it
  on appeal.  Hudson, 161 Vt. at 180, 638 A.2d  at 569 (where specific
  objection not raised before trial court, we need not address it on appeal).

                               VI.

       Defendants contend that the trial court erred by excluding testimony
  of defendants' witness regarding a telephone call the witness allegedly
  received from the attorney for plaintiff on the evening before the witness
  was scheduled to testify, discouraging her from testifying. The trial court
  held that the testimony was not relevant because the witness appeared at
  trial and testified.  At trial, defendants argued that the testimony was
  relevant to the claim that the action was brought in bad faith and should
  be dismissed.  On appeal, defendants have not reasserted this position. 
  Although we are uncertain of the grounds for relevancy asserted by
  defendants on appeal, it is clearly not the same ground raised before the
  trial court.  Accordingly, we do not consider it.  Id.

       Affirmed in all respects except the award of attorney's fees; cause is
  remanded for  deduction of time spent reconstructing time sheets.


                              FOR THE COURT:



                              _______________________________________
                              Chief Justice



  ---------------------------------------------------------------------------
                                  Footnotes


FN1.    Defendants also argue that unfair housing practices in
  violation of 9 V.S.A. § 4503(a) cannot be proven by disparate impact alone. 
  We do not reach this issue because we uphold the trial court's decision on
  the theory of disparate treatment.

FN2.    In the absence of direct evidence of discrimination, we have
  applied the McDonnell Douglas burden-shifting framework.  See McDonnell
  Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); State v. Whitingham
  Sch. Bd, 138 Vt. 15, 19, 410 A.2d 996, 998-99 (1979).  This framework
  permits the plaintiff to make an initial showing of circumstantial evidence
  that gives rise to a presumption of illegality, and then the burden shifts
  to the defendant to present admissible evidence of a legitimate
  nondiscriminatory reason for the challenged action. Whitingham Sch. Bd.,
  138 Vt. at 19, 410 A.2d  at 998-99.  Finally, the plaintiff has the
  opportunity to prove that the reasons asserted are mere pretext.  Id. at
  999.  The McDonnell Douglas framework is designed to ensure that plaintiffs
  without direct evidence get their day in court.  Trans World Airlines, Inc.
  v. Thurston, 469 U.S. 111, 121 (1985).  There is no need to apply the
  McDonnell Douglas framework in this case because plaintiff presented direct
  evidence of discrimination.  See Id. at 621-22 (McDonnell Douglas method of
  proof inapplicable where plaintiff presents direct proof of age
  discrimination in employment); Pinchback, 907 F.2d  at 1452 (same in racial
  discrimination in housing); Lepore, 816 F. Supp.  at 1017 (same in "family
  status" housing discrimination).

FN3.    Neither party has addressed whether Vermont's business
  necessity exemption, 9 V.S.A. § 4504(4), is applicable in a
  disparate-treatment claim, or is limited to disparate-impact claims. 
  Accordingly, we do not address this issue in the instant case; rather, we
  proceed on the assumption that it is applicable here.  We note there is no
  business necessity exemption in the federal Fair Housing Act.  See 42
  U.S.C.A. § 3607.  Under Title VII (employment discrimination), the business
  necessity defense is applicable only in disparate-impact cases.  See 42
  U.S.C.A. § 2000e-2(k)(2) (business necessity defense may not be used
  against claim of intentional discrimination).  Courts have also applied the
  business necessity defense in disparate-impact Title VIII (housing
  discrimination) cases.  See, e.g., Huntington Branch, NAACP v. Town of
  Huntington, 844 F.2d 926, 939 (2nd Cir. 1988); Betsey v. Turtle Creek
  Assocs., 736 F.2d 983, 988 (4th Cir. 1984); Mountain Side Mobile Estates
  Partnership, 56 F.3d  at 1254.

FN4.    We do not decide the appropriate test to apply for the
  business necessity defense in a disparate treatment case because we do not
  decide without briefing whether this defense is even applicable in a
  disparate treatment claim.

FN5.    Before the trial court, plaintiff requested hourly rates of
  $125 for its chief counsel and $90 for its associate counsel.  Based on the
  fees customarily charged for legal services by the private bar, the court
  awarded hourly rates of $100 and $80 respectively.  Plaintiff has not
  appealed this award.

FN6.    We note that the court determined that a reasonable hourly fee
  under § 4553(7)(D) for plaintiff's second attorney was $80.

FN7.    Before the trial court, defendants maintained that they could
  not be held liable for housing discrimination because during the period
  that they owned the Park personally, the FHPA did not apply to mobile home
  lots.  The court held that the complaint referred to events after Labrie,
  Inc. purchased the Park, but that defendants, as corporate officers, could
  nonetheless be held liable for their tortious acts.