Revock v. Cowpet Bay W. Condo. Ass'n

• Decision Date: 31 March 2017
• Docket Number: Nos. 14-4776 & 14-4777,s. 14-4776 & 14-4777
• Citation: 853 F.3d 96
• Parties: Liana REVOCK, Executrix of the Estate of Barbara Walters, Appellant in case no. 14–4776 v. COWPET BAY WEST CONDOMINIUM ASSOCIATION; the Board of the Cowpet Bay West Condominium Association; Max Harcourt, in his personal capacity; Alfred Felice; Lance Talkington; Robert Cockayne; Vincent Verdiramo Judith Kromenhoek, Appellant in case no. 14–4777 v. Cowpet Bay West Condominium Association; the Board of the Cowpet Bay West Condominium Association; Max Harcourt, in his personal capacity; Alfred Felice; Lance Talkington; Robert Cockayne; Vincent Verdiramo
• Court: U.S. Court of Appeals — Third Circuit

853 F.3d 96

Liana REVOCK, Executrix of the Estate of Barbara Walters, Appellant in case no. 14–4776

v.COWPET BAY WEST CONDOMINIUM ASSOCIATION; the Board of the Cowpet Bay West Condominium Association; Max Harcourt, in his personal capacity; Alfred Felice; Lance Talkington; Robert Cockayne; Vincent Verdiramo

Judith Kromenhoek, Appellant in case no. 14–4777

v.Cowpet Bay West Condominium Association; the Board of the Cowpet Bay West Condominium Association; Max Harcourt, in his personal capacity; Alfred Felice; Lance Talkington; Robert Cockayne; Vincent Verdiramo

Nos. 14-4776 & 14-4777

United States Court of Appeals, Third Circuit.

Argued: May 19, 2016

Filed: March 31, 2017

Karin A. Bentz, Esq. [ARGUED], Gregory A. Thorp, Esq., Law Offices of Karin A. Bentz, 5332 Raadets Gade, Suite 3, St. Thomas, VI 00802, Counsel for Appellants

W. Todd Boyd, Esq., James K. Parker, Jr., Esq. [ARGUED], Yvette R. Lavelle, Esq., Boyd, Richards, Parker & Colonnelli, P.L., 100 Southeast Second Street, Suite 2600, Miami, FL 33131, Joseph G. Riopelle, Esq., Boyd Richards Parker & Colonnelli, 400 North Ashley Drive, Suite 1150, Tampa, FL 37606, Carl R. Williams, Esq., Birch de Jongh & Hindels, 1330 Estate Taarnebjerg, St. Thomas, VI 00802, Counsel for Appellees Cowpet Bay West Condominium Association, Inc., Board of the Cowpet Bay West Condominium Association, Robert Cockayne and Vincent Verdiramo ; former counsel for Appellee Max Harcourt, deceased

John H. Benham, III, Esq., Boyd L. Sprehn, Esq. [ARGUED], Benham & Chan, P.O. Box 11720, St. Thomas, VI 00801, Counsel for Appellee Lance Talkington

Kyle R. Waldner, Esq. [ARGUED], Ryan C. Meade, Esq., Quintairos, Prieto, Wood & Boyer, P.A., 9300 South Dadeland Boulevard, Fourth Floor, Miami, FL 33156, Former counsel for Appellee Alfred Felice, deceased

Vanita Gupta, Esq., Mark L. Gross, Esq., April J. Anderson, Esq. [ARGUED], United States Department of Justice, Civil Rights Division, Appellate Section, Ben Franklin Station, P.O. Box 14403, Ben Franklin Station, Washington, DC 20044, Counsel for Amicus Appellant United States of America

Before: FUENTES,^* VANASKIE and RESTREPO, Circuit Judges

OPINION OF THE COURT

RESTREPO, Circuit Judge

Appellants Barbara Walters and Judith Kromenhoek filed these civil rights actions under the Fair Housing Act. Walters and Kromenhoek sought accommodations for their disabilities in the form of emotional support animals, which were not permitted under the rules of their condominium association. They allege violations of their right to a reasonable accommodation of their disabilities, 42 U.S.C. § 3604(f)(3)(B), and interference with the exercise of their fair housing rights, 42 U.S.C. § 3617. They also allege supplemental territorial claims.

Among other issues, these cases raise the question whether a Fair Housing Act claim survives the death of a party. We hold that the District Court improperly answered this question by applying a limited gap-filler statute, 42 U.S.C. § 1988(a), and, in turn, territorial law. We conclude that the survival of claims under the Fair Housing Act is not governed by Section 1988(a), but rather by federal common law, under which a Fair Housing Act claim survives the death of a party. Accordingly, we will reverse the District Court's grant of summary judgment against Walters' executrix.

On the merits of the summary judgment motions, we will reverse in part and vacate in part. We will remand to the District Court with instructions to consider whether to permit substitution for two deceased Appellees.

I¹

Appellants Walters and Kromenhoek suffered from disabilities, for which each was prescribed an emotional support animal. Each woman obtained a dog. This violated the "no dogs" rule of their condominium association, Cowpet Bay West. Cowpet's "no dogs" rule provided that "Dogs and farm animals are prohibited, and owners will be fined as specified by the Board of Directors." App. 104. The rule had no exceptions and Cowpet had no policy regarding assistive animals, such as emotional support animals.² The "no dogs" rule was enforced by the Cowpet Board of Directors, which has the authority to enforce the Cowpet "Rules and Regulations with monetary fines and other sanctions...." App. 100.

Walters and Kromenhoek each attempted to request an accommodation for an emotional support animal by filing paperwork with Cowpet's office manager, Louanne Schechter. The paperwork included a doctor's letter prescribing an emotional support animal, and a dog certification. Each certification stated that the dog was "prescribed and deemed necessary to assist ... the confirmed disabled handler" and that "property managers and landlords are required to make reasonable accommodation" under the Fair Housing Act. App. 1304, 2231. Walters submitted her paperwork in February 2011 and Kromenhoek in July 2011. Cowpet took no action at the time.

The presence of dogs at Cowpet drew the ire of some residents. One resident, Appellee Lance Talkington, fanned the flames by writing about dogs at Cowpet on his blog about the community. In October 2011, Talkington wrote on his blog that "Barbara[ ] [Walters] has a dog and claims to have ‘papers' that allow her to have it." App. 1904. He also wrote that he had asked the office manager "whether the office has Barbara[ ] [Walters'] paperwork in their files and whether monetary fines have been assessed if not," but had not received an answer. Id.

In response to this blog post, Appellee Alfred Felice posted the first of many inflammatory comments on Talkington's blog.³ Felice wrote that dog owners might be "happier in another community rather than ostracized at [Cowpet], which would be another fine recourse, besides a significant $ $ fine, with progressive amounts." App. 1905.

Walters, having been named by Talkington, responded on the blog. She wrote that "[s]ince you so tactfully used my name in this blog, I am required to defend myself, not as a ‘violator’ of any laws, but a person with a disability...." App. 1906. Walters also wrote that she was "mortified, that my personal business has been laid out over the internet without my permission or forewarning." App. 1912. Felice replied that someone who needed an emotional support dog "might go off his/her gourd without the pet at his/her side" in a "violent reaction. We don't even know we need protection![ ] Bad Law![ ]" App. 1906–07. Talkington also commented that Walters "has a pet and should be fined." App. 1910.

There followed a flurry of emails among the Cowpet Board, Walters and Kromenhoek. On October 27, 2011, Walters emailed the members of the Board that "[m]y paperwork is on file in the office, but my medical information is no ones [sic] business and since this board has a history of violating confidentiality, how the hell can I trust any one of you to keep their mouth shut. Am I going to find my information on Lance[ ] [Talkington's] blog again?" App. 492.

On October 28, 2011, the Board president, Appellee Max Harcourt, notified Walters and Kromenhoek by email that they were in violation of the "no dogs" rule. Harcourt wrote that the office manager "tells me that both you have ‘papers in the office’ regarding service dogs; however you have not applied for an exception to the rule." App. 495. Harcourt gave Walters and Kromenhoek ten days to submit a request to the Board or be fined. Harcourt copied his email to Talkington, who posted it on his blog.

The same day, Walters emailed the Board that "I am in possession of a service dog, and under the disabilities act set forth in the Fair Housing Amendment ... I qualify to keep [a] service animal even when policy explicitly prohibits pets.... If any medical information is disclosed to Anderson, Talkington or any one [sic] else, that will be taken as violation of privacy, and will be dealt with accordingly." App. 581.

Kromenhoek also emailed Harcourt, although the copy of the email in the record is undated. Like Walters, Kromenhoek wrote that she had "filed the necessary paperwork in the office and according to the Disabilities Act set forth in the Fair Housing Amendment ... I qualify to keep a service animal even when policy explicitly prohibits pets." App. 583. She further wrote that she trusted the office manager with her medical information, but not the Board "as you have proved time and again that you cannot be trusted.... This is not a request for you to consider but this is informing you that I have a service dog and I am not in any violation." Id. Kromenhoek wrote that she would "disclose my history and paperwork [to Harcourt] provided you sign a confidentiality agreement with a monetary penalty for disclosure...." App. 584. Kromenhoek avers that she personally spoke to Harcourt and "invited him" to review her paperwork and to sign a confidentiality agreement, which he refused to sign. App. 110.

Significantly, the parties dispute how the Board responded. According to Walters and Kromenhoek, Harcourt did review their paperwork in the Cowpet office. They point to the affidavit of the office manager, Schechter, who avers that Harcourt "came to the office and reviewed the documents...." App. 263, 349. Schechter further avers that Harcourt "also sent his ‘representative’ Bill Canefield, another Board member to review the documents." App. 263–64, 349–50.

Appellees deny that the Board reviewed the paperwork on file in the Cowpet office. They rely on the affidavit of Board treasurer, Sharon Koehler, who avers that the Board "neither reviewed nor discussed the content of [Walters and Kromenhoek]'s medical verification and accommodation request, until March 2012, when Plaintiff submitted same to then president, Ed Wardwell." App. 526, 612. There is no testimony from Harcourt, who died while the case was pending in the District Court.

The Board did not grant an accommodation to Walters or Kromenhoek in the fall of 2011. To the contrary, at a January 2012 Board meeting, Appellee Vincent Verdiramo moved to impose fines on dog owners. The Board voted to fine...