Guenther v. Walnut Grove Hillside Condo. Regime No. 3, Inc.

309 Neb. 655

961 N.W.2d 825

Christine GUENTHER, appellant,

v.WALNUT GROVE HILLSIDE CONDOMINIUM REGIME NO. 3, INC., appellee.

No. S-20-574.

Supreme Court of Nebraska.

Filed July 2, 2021

Thomas C. Dorwart, Omaha, and Adam J. Kost, of Goosmann Law Firm, P.L.C., for appellant.

Minja Herian and Gabreal M. Belcastro, of Koley Jessen, P.C., L.L.O., Omaha, for appellee.

Heavican, C.J., Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Funke, J. Christine Guenther appeals from the dismissal of her complaint for declaratory judgment. Following a bench trial, the court dismissed Guenther's claim that Walnut Grove Hillside Condominium Regime No. 3, Inc. (Walnut Grove), refused to make a reasonable accommodation, under the federal Fair Housing Act and the Nebraska Fair Housing Act (collectively FHA),¹ by denying her request to secure her daughter's emotional support dogs through construction of a fence in a common area. Finding no error in the court's decision, we affirm.

BACKGROUND

Guenther owns a condominium unit, consisting of one half of a duplex, located in Omaha, Douglas County, Nebraska. Walnut Grove is a condominium regime and homeowners’ association (HOA) incorporated in Nebraska, which operates through a HOA board. Guenther's condominium is within the Walnut Grove subdivision and is subject to Walnut Grove's bylaws and covenants.

At the time of trial, Guenther's daughter, N.G., lived in Lincoln, Nebraska, where she attended college full time. N.G. also lived with Guenther in Omaha for part of the year. N.G. has been diagnosed with major depressive disorder and anxiety disorder. She uses two dogs as emotional support animals based on the recommendations of her doctor. The animals live with Guenther in Omaha.

In February 2018, Guenther made a request to Walnut Grove to construct a fence through part of the common area behind her condominium, or to repair an existing fence, for the purpose of allowing the dogs to safely spend time outside. Guenther offered to pay for the cost of the fence. Guenther asserted that releasing the dogs into a fenced-in area would alleviate N.G.’s anxiety regarding the dogs’ safety, because N.G.’s first emotional support dog was killed outside the condominium shortly after they had moved in. According to Guenther, when the first dog was killed, she heard "horrible screeching, yelping sounds," and found the dog lying on the street close to the curb. Though Guenther thought the dog might have been attacked by a neighbor's dog, she did not know if the dog was attacked or was hit by a car. N.G. was not present when the animal was killed.

Walnut Grove denied Guenther's request. Based on its bylaws and covenants, Walnut Grove stated that it lacked the authority to divide or partition one of the "general common elements." "[G]eneral common elements" consist of, among other property features, "[t]he land on which the Units stand, including all surrounding lands embraced within [the condominium regime]." Walnut Grove stated that Guenther's request to construct the fence would violate HOA bylaws and covenants stating that "[t]he general common elements shall be for the use and enjoyment of all Unit Owners. The ownership of the general common elements shall remain undivided, and no Unit Owner or other person shall have the right to partition or division of the general common elements of the Condominium Regime."

In August 2018, Guenther again requested to install the fence to alleviate N.G.’s depression and anxiety. Walnut Grove again denied the request, and it suggested alternatives that would be permitted under the bylaws and covenants, such as installing an underground invisible fence, constructing a privacy fence around Guenther's patio, or tethering the dogs while outside.

On January 30, 2019, Guenther filed a complaint in the district court for Douglas County seeking a declaration that Walnut Grove refused a reasonable accommodation under the FHA. Guenther alleged that N.G. has been diagnosed with major depressive disorder, anxiety disorder, and anorexia; that an emotional support dog is required for her treatment; and that N.G. suffered from severe depression and anxiety as a result of the death of the previous dog. Guenther alleged that Walnut Grove engaged in selective enforcement of HOA bylaws and covenants, because two adjacent neighbors have fences around their common areas, which fences were grandfathered in. Guenther alleged that she has a partial fence that was also grandfathered in and that constructing the rest of the fence would not divide the general common area if the fence included a gate to allow neighbors to pass through. Guenther requested a declaration that Walnut Grove violated her equal protection rights under the U.S. and Nebraska Constitutions, a declaration that Walnut Grove violated her rights under the FHA, an order allowing her to construct the fence, and an award of attorney fees.

Walnut Grove filed an answer on March 7, 2019, which alleged that it had proposed reasonable alternatives that would keep N.G.’s dogs safe without violating the HOA bylaws and covenants.

The court held a trial on the matter on June 25, 2020. On July 17, the court entered its order of judgment dismissing Guenther's complaint, finding that she failed to sustain her burden of proof. The court found that for Guenther to prevail on her claims under the FHA, she had to show that a person residing in her dwelling is a "handicapped person,"² as defined under the FHA, and that the reasonable accommodation is "necessary to afford [the] handicapped person ... an equal opportunity to use and enjoy the premises."³ The court referred to exhibit 2, which contained a doctor's note dated August 12, 2019, confirming N.G.’s major depressive disorder and anxiety disorder diagnoses and stating her dog "is a great source of comfort to her" and that "[h]er health benefits from the companionship of the family dog." However, the court referred to N.G.’s testimony that she was originally diagnosed in approximately 2015 and that at the time of trial, she no longer received treatment or medication for her major depressive and anxiety disorders.

The court found that, under the circumstances, Guenther failed to show that N.G. suffered from a physical or mental impairment which substantially limits one or more of her major life activities and that therefore, Guenther failed to show that N.G. is a handicapped person as defined under the FHA. In addition, the court found that Guenther failed to prove that her requested accommodation is necessary to afford N.G. an equal opportunity to use and enjoy the home. The court noted N.G.’s testimony that she primarily lived in Lincoln and that when she is at Guenther's home, "she is able to interact with the ... dogs" and "is able to take them for walks ... outside." Notably, Guenther testified that her next-door neighbor, Carol Bolton, permits the animals to be kept in a fenced-in yard. Bolton testified and confirmed that she offered the use of her fenced-in yard and that Guenther had kept the dogs in Bolton's yard for about 2 years. The court found that Guenther "offered no evidence that having the dogs outdoors, in a fenced-in backyard, would be required to afford [N.G.] an equal opportunity to use and enjoy [Guenther's home]."

Guenther filed an appeal. We moved the case to our docket on our own motion.

ASSIGNMENTS OF ERROR

Guenther assigns, summarized and restated, that the district court erred in (1) finding insufficient proof that N.G. is a handicapped person, (2) finding insufficient proof that the requested accommodation was necessary to afford N.G. an equal opportunity to use and enjoy Guenther's home, (3) failing to apply the proper burden-shifting analysis for a claim under the FHA, (4) failing to find that Walnut Grove did not meet its burden of proving that Guenther's requested accommodation was unreasonable, and (5) failing to award Guenther attorney fees and costs.

STANDARD OF REVIEW

An action for declaratory judgment is sui generis; whether such action is to be treated as one at law or one in equity is to be determined by the nature of the dispute.⁴ An action for injunctive relief is equitable in nature.⁵ In reviewing an equity action for a declaratory judgment, an appellate court tries factual issues de novo on the record and reaches a conclusion independent of the findings of the trial court, subject to the rule that where credible evidence is in conflict on material issues of fact, the reviewing court may consider and give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over another.⁶

ANALYSIS

We first discuss Guenther's second assignment of error, because resolution of that issue is dispositive. Guenther argues that the district court erred in finding that she failed to prove that the requested accommodation was necessary to afford N.G. an equal opportunity to use and enjoy Guenther's home. Guenther argues that "the fence would enhance [N.G.’s] quality of life by ameliorating the effects of her disability."⁷ She argues that N.G.’s emotional support dogs help N.G. with her anxiety and depression and that N.G. worries about the dogs being attacked. Walnut Grove argues the court correctly found that construction of a fence in a common area, in violation of the HOA bylaws and covenants, was not necessary to achieve equal housing opportunities for N.G.

In this court's recent decision of Wilkison v. City of Arapahoe ,⁸ we resolved an appeal involving a therapy animal and a reasonable accommodation claim under the FHA. In that case, we set forth the legal standards governing reasonable accommodation claims and the applicable burden of proof. As such, our analysis from Wilkison contains everything necessary to decide this case. Pursuant to Wilkison , we conclude that the district court correctly determined that Guenther failed to prove that the requested accommodation was necessary.

The FHA makes it unlawful to "discriminate in...