June 19, 2008
VILLA VICTORIA, PLAINTIFF-RESPONDENT,
KELLY SCHULER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. LT-11473-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 2, 2008
Before Judges Wefing, R. B. Coleman and Lyons.
This is a summary disposses action brought by plaintiff landlord against defendant tenant whose residential tenancy is federally subsidized. The trial judge entered a judgment of possession against tenant for causing damage and destruction to landlord's property through gross negligence or an intentional act. Tenant has appealed. After reviewing the entire record in this matter, we reverse and remand for a new trial.
The relevant facts and procedural history are as follows. Tenant resides at Villa Victoria, a federally subsidized multi-family complex. Tenant has suffered from bipolar disorder since 1999 when she was twenty-five years old. In 2004, tenant was found by the Social Security Administration to be disabled by reason of her mental condition and entitled to Social Security disability benefits.
In March 2005, landlord leased an apartment in Villa Victoria to tenant in her own name. Prior to that, she had been living with her mother who also had an apartment in the same complex. Tenant qualified for the apartment based on her disability and other income.
In July 2003, tenant began treatment with Dr. Young, a psychiatrist in Newark. Dr. Young placed tenant on various medications and tenant attended therapy with a psychotherapist on a weekly basis. In July 2005, tenant's visits to her psychotherapist were reduced from once weekly to once every other week, and her visits to her psychiatrist were reduced from once a month to once every eight weeks. In October 2006, tenant's psychotropic medicines were reduced and modified.
Sometime in December 2006, tenant's mother was diagnosed with breast cancer and underwent a mastectomy. In late January 2007, tenant was told by her doctor that she may have glaucoma and could eventually become blind. In February 2007, tenant's close friend died of a stroke at the age of forty. Shortly thereafter, tenant terminated her relationship with her then-boyfriend.
On February 17, 2007, tenant was in her apartment. She was depressed and alone. She consumed "a couple glasses of wine." The chair on which she was sitting had been broken by her former boyfriend. Tenant noticed that her Christmas tree was still in the living room, even though it was two months past Christmas. She "then decided to throw the broken chair, which reminded [her] of [her] boyfriend at the Christmas tree. The chair struck the tree and the window behind the tree." The glass broke. Tenant then called her mother for help. Tenant's mother called emergency medical services which arrived and transported tenant to the hospital.
At the hospital, tenant was diagnosed with bipolar disorder and mixed episodic alcohol abuse. She was given an anti-depressant and released. On March 1, 2007, tenant visited Dr. Young who, after learning of the incident, increased tenant's psychotropic medicines.
On March 15, 2007, landlord served tenant with a Notice to Quit, terminating her tenancy as of April 1, 2007, for violating N.J.S.A. 2A:18-61.1(c), "willfully or by reason of gross negligence causing or allowing destruction, damage or injury to premises." On April 10, 2007, tenant and her attorney, at the request of tenant, met with landlord's property manager and its attorney to discuss the Notice to Quit. Tenant explained that her mental illness, combined with the events that occurred prior to the incident, had made her severely depressed. She explained to the property manager that on February 17, 2007, this depression caused her to throw the chair toward the Christmas tree which hit the window. She argued that she did not intend to cause any damage to the window and offered to pay for the repairs. Tenant claimed that because her offending conduct was precipitated by her mental illness that the landlord should withdraw the Notice to Quit and enter into a settlement agreement as a reasonable accommodation.
Tenant offered the following terms as a reasonable accommodation to her disability and to settle the matter: (1) she would refrain from throwing objects in the apartment; (2) her tenancy would be placed on probation for one year; (3) she would visit her therapist more frequently to better control her impulses; and (4) she would reimburse her landlord for damages to the window, which were estimated at $63.80.
The landlord rejected the request, but offered tenant a short hardship stay, conditioned on her willingness to vacate. The landlord and tenant exchanged correspondence through counsel. Tenant's counsel again sought a settlement and reasonable accommodation while the landlord declined to withdraw the eviction action and tenant's request for a reasonable accommodation. On April 23, 2007, the landlord filed this eviction action against tenant.
On May 22, 2007, at tenant's request, Dr. Shah, a psychiatrist, conducted a psychiatric evaluation of tenant to determine her mental state on the date of the incident. Dr. Shah set forth his findings and conclusion in a letter dated May 23, 2007. In that letter, he diagnosed tenant as suffering from manic depressive illness and mixed episodic alcohol abuse on February 17, 2007. He said that
[t]he events which took place on February 17, 2007 were precipitated by an exacerbation of symptoms and deterioration of her psychiatric condition secondary to the above referenced stressors [her mother's recent diagnosis of breast cancer, death of a friend, a failed relationship and a questionable condition of glaucoma/possible loss of eyesight.] It is also noted in the report that she was drinking, which is maladaptive of dealing with stress by patients with a Manic Depressive Illness and leads to a mood disorder secondary to alcohol abuse. [Tenant's] actions were directly related to decompensation due to the aforementioned stressors, with proper management, support and monitoring further instances may be avoided and this should be taken into account in making a decision about her future.
It is my professional opinion that the incident which took place on February 17, 2007 was a direct result of an exacerbation of symptoms of Manic Depressive Illness and mood disorder as a result of alcohol intoxication.
On June 7, 2007, the trial court heard the eviction action. The parties stipulated to various facts. Tenant's attorney advised the trial court that she was intending to produce her expert, Dr. Shah, as well as her client to testify. The trial court concluded as to Dr. Shah, "[w]e don't need the witness. Unless [landlord's counsel] feels some need to cross-examine him, but I leave that to [landlord's counsel]." With respect to the tenant, rather than have her testify, her counsel agreed to submit tenant's certification regarding the incident. The trial court then decided to resolve the case on stipulated facts without testimony being presented, but afforded the parties an opportunity to brief the legal issues.
On June 25, 2007, the trial court heard argument and rendered its decision. Tenant argued that the trial court should dismiss the action, because the landlord had failed to provide tenant with a reasonable accommodation as required under the Fair Housing Amendment Act of 1988, 42 U.S.C.A. § 3601-31, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. § 794. The trial court found that tenant broke the window and that she does suffer from a "psychological disability." It reviewed tenant's expert doctor's report and noted the tenant's diagnosis of Manic Depressive Illness with episodic alcohol abuse, as well as the stressors on tenant. The trial court found, though, that tenant's actions were "alcohol related conduct [that] could lead to serious physical and, more importantly, personal injury." It stated that the problem in this case for tenant was "in the alcohol." The trial court concluded that "the landlord does not have to tolerate destruction to their property as a result of alcohol abuse."
The trial court explained its decision by noting that if tenant had no psychological problem, but had gotten drunk due to stress and damaged the property, there would be no basis to require a reasonable accommodation. It described tenant's action as an "alcohol induced episode of destructive violence" and stated "nobody . . . under any law, federal, state or otherwise" should accommodate such action. In effect, the trial court concluded that tenant's behavior did not merit a reasonable accommodation arising from her mental disability because there was an insufficient nexus between her behavior and her mental disability. The trial court, therefore, granted the judgment for possession to landlord. This appeal ensued. On July 10, 2007, tenant applied to the trial court for a stay pending appeal which was granted on July 16, 2007.
On appeal, tenant presents the following arguments for our consideration:
PLAINTIFF HAD AN OBLIGATION TO CONSIDER DEFENDANT'S REQUEST FOR REASONABLE ACCOMMODATIONS UNDER THE FHAA AND SECTION 504 OF THE REHABILITATION ACT.
PLAINTIFF'S FAILURE TO CONSIDER DEFENDANT'S REQUEST FOR REASONABLE ACCOMMODATIONS DEPRIVED THE TRIAL COURT OF JURISDICTION TO ENTER JUDGMENT FOR PLAINTIFF.
THE TRIAL COURT'S FINDING THAT DEFENDANT'S DISABILITY HAD NOT CAUSED THE OFFENDING CONDUCT IS UNSUPPORTED BY THE RECORD.
Before we discuss tenant's arguments, it is useful to review the legislative and regulatory scheme that governs this case. In Douglas v. Kriegsfeld Corp., the District of Columbia Court of Appeals, sitting en banc, summarized the Federal Housing Act Amendments of 1988 as follows:
[T]he Federal Housing Act, as amended in 1988[, 42 U.S.C.A. § 3601-31,] prohibits a landlord from discriminating (among others) against a tenant in the "rental" or "terms, conditions, or privileges . . . or in the provision of services or facilities" of a dwelling because of the tenant's "handicap." A "handicap" is defined to include a "mental impairment" and even applies to someone who is merely "regarded as having such an impairment," whether impaired or not. "Discrimination" includes not only specified acts by a landlord that overtly deny equal treatment, but also a landlord's "refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling." In sum, actions based on a landlord's perception of mental impairment, not only on the reality of it, can give rise to actionable discrimination; and discrimination can be found even in a landlord's failure to offer a tenant assistance, not merely in affirmative acts of rejection.
The Federal Fair Housing Act, however, also contains an important limitation. It does not "require that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others." The Act's administrators, as well as the courts, have also ruled that an accommodation will not be reasonable, and thus will not be required, if it "would impose an undue financial and administrative burden" on the landlord or "would fundamentally alter the nature" of the landlord's operation. [footnotes omitted.]
[Douglas v. Kriesfeld Corp., 884 A.2d 1109, 1120 (D.C. 2005).]
In addition, Section 504 of the Federal Rehabilitation Act of 1973 prohibits discrimination on the basis of handicap. 29 U.S.C.A. § 794. Section 504 states in relevant part "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance . . . ." Ibid. In Southeastern Community College v. Davis, 442 U. S. 397, 413, 99 S.Ct. 2361, 2370, 60 L.Ed. 2d 980, 992 (1979), the Supreme Court held that in situations where Congress' goals may be met without undue financial or administrative burdens on the recipient of federal funds, "refusal to modify an existing program might become unreasonable and discriminatory." The Supreme Court subsequently in Alexander v. Choate, 469 U.S. 287, 300, 105 S.Ct. 712, 720, 83 L.Ed. 2d 661, 671 (1985), "struck a balance between the statutory rights of the handicapped to be integrated into society and the legitimate interest of federal grantees in preserving the integrity of their programs . . ." noting that "while a grantee may not be required to make 'fundamental' or 'substantial' modifications to accommodate the handicap, it may be required to make 'reasonable' ones."
Tenant argues that landlord had an obligation to consider tenant's request for a reasonable accommodation within the law. The trial court, in its oral opinion, concluded that while tenant suffered a mental disability, her actions were not the result of that disability, but of an "alcohol induced episode." It found further that the destruction of property resulting from an alcohol induced episode does not fall within those conditions for which a landlord must be required to make a reasonable accommodation.
Normally, we accord deference to the factual findings of a trial judge. See Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). However, in cases such as this one where no testimony was taken, "we are not called upon to give deference to the findings of the trial judge since, in the absence of oral testimony, his findings could not have been 'influenced by his opportunity to hear and see the witnesses and to have the "feel" of the case.'" Cemetery Workers v. Roman Catholic Diocese, Newark, 127 N.J. Super. 277, 284 (App. Div. 1974), certif. denied, 65 N.J. 563 (1974) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).
We note that because of the intensely factually sensitive nature of reasonable accommodation cases, the determination of what disabilities must be recognized, whether the disability is appropriately connected to the need for a reasonable accommodation, what would constitute a reasonable accommodation, and whether there is an overriding threat to public safety or an impermissible burden on a landlord is likely to vary from case to case. See Jennifer L. Dolak, Comment, FHAA's Reasonable Accommodation & Direct Threat Provisions As Applied To Disabled Individuals Who Become Disruptive, Abusive, Or Destructive In Their Housing Environment, 36 Ind. L. Rev. 759, 775 (2003).
Given the factually sensitive nature of the determinations that need be made in a case such as this and the ambiguity in Dr. Shah's report as to the cause of tenant's behavior on February 17, 2007, we hold the view that an adequate decision cannot be rendered on the record as it now stands. See Peluso v. Ocean Twp., 45 N.J. 51, 53 (1965).
Absent the testimony of Dr. Shah and any cross-examination, given his ambiguous report findings, we are without a sufficient basis to conclude as the trial judge did that tenant's action was the product solely of alcohol abuse. Certainly, the language in Dr. Shah's report, which states that the event was precipitated by a deterioration of her psychiatric condition, leads one to question what role, if any, her mental disability had. Moreover, should the trial court find a nexus between her actions and her disability that warrants an examination of the appropriateness of any reasonable accommodation, the record is devoid of testimony concerning those related issues.
The appellate courts have the right to -- and do -- remand cases for more testimony or for testimony which the parties themselves did not offer. Polulich v. J.G. Schmidt Tool Dye & Stamping Co., 46 N.J. Super. 135, 143 (Cty. Ct. 1957) (citing McBride v. Royal Laundry Serv., Inc., 44 N.J. Super. 114, 119 (App. Div. 1957)). Therefore, we reverse the judgment for possession and remand the matter for a plenary hearing at which time Dr. Shah and any other witnesses sought by tenant may be heard, as well as any experts or fact witnesses the landlord wishes to present. The stay currently in place shall remain.
Tenant also argues that landlord's failure to consider tenant's request for reasonable accommodations deprived the trial court of jurisdiction to enter judgment for plaintiff. Tenant argues that in this case the trial court was without jurisdiction since the landlord did not engage in an interactive dialogue to determine whether a reasonable accommodation could be had. Tenant, citing Riverview Towers v. Jones, 358 N.J. Super. 85 (App. Div. 2003), argues that compliance with federal regulations which require an interactive dialogue regarding reasonable accommodations, is a jurisdictional prerequisite to suit.
We note that this issue was not raised in the trial court. Issues not raised in the trial court ordinarily are not considered on appeal unless they are jurisdictional in nature or substantially implicate public interest. Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973). Moreover, it is clear to us that there is an unresolved factual issue concerning the efficacy of the dialogue that was engaged in by landlord and tenant with their respective counsel prior to the trial of this matter. Landlord appears to argue that there is no nexus between tenant's mental disability and the offending conduct and that any accommodation granted would result in a fundamental alteration of landlord's operation. Tenant disagrees. As we noted, this jurisdictional argument concerning a "required dialogue" was not raised at the trial. Accordingly, the trial court did not have the opportunity to make factual and legal findings concerning the issue. Absent such a record, it is not appropriate for us to opine on the issue at this time. However, given our resolution of tenant's reasonable accommodation argument, tenant may raise her jurisdictional issue on remand.
Lastly, we have not directly addressed the final point of tenant's brief, that the trial court's finding that tenant's disability had not caused the February 17, 2007, event is not supported by the record. We find, as noted above, that the record is inadequate to permit us to review that issue as well.
We stress that in remanding this matter for a new trial, we have not made a finding that tenant's actions on February 17, 2007, were or were not attributable to her mental disability. Nor have we concluded that a reasonable accommodation should, can, or must be afforded her. Those issues shall be addressed by the trial court in the first instance following a plenary hearing.
Reversed and remanded.
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