Douglas v. Kriegsfeld Corp., No. 02-CV-711.

• Docket Nº: No. 02-CV-711.
• Citation: 849 A.2d 951
• Case Date: May 13, 2004
• Court: Court of Appeals of Columbia District

849 A.2d 951

Evelyn DOUGLAS, Appellant,
v.
KRIEGSFELD CORPORATION, Appellee

No. 02-CV-711.

District of Columbia Court of Appeals.

Argued December 3, 2003.

Decided May 13, 2004.

849 A.2d 953

Brian Gilmore, through Neighborhood Legal Services Program, for appellant

Timothy P. Cole for appellee.

Rhonda Dahlman and Anthony J. DeMarco filed a brief for Amicus Curiae Legal Counsel for the Elderly.

Tamara Jezic, Jonathan Smith, Eric Angel, and Julie Becker filed a brief for Amicus Curiae The Legal Aid Society of the District of Columbia.

Michael L. Murphy and David T. Beddow, Washington, filed a brief for Amicus Curiae Law Students in Court.

Before SCHWELB and RUIZ, Associate Judges, and FERREN, Senior Judge.

FERREN, Senior Judge:

This case presents the question under the federal Fair Housing Act (and related District of Columbia regulations) whether the trial court erred in denying a tenant the opportunity to defend her landlord's action for possession by claiming discrimination —more specifically, the landlord's failure to provide a "reasonable accommodation" —based on her alleged "handicap" (mental impairment). We rule for the tenant and thus reverse and remand for a new trial.

I.

On August 23, 2001, Kriegsfeld Corporation (landlord) served Evelyn Douglas (tenant)—a beneficiary of federally subsidized "Section 8" housing who was current with her rent—with a thirty-day notice to "cure or quit" for violation of her covenant to "maintain the apartment in clean and sanitary condition." Later, at trial, the landlord presented evidence that the apartment had a foul odor emanating into the rest of the building; that the toilet was frequently filled with feces and urine; and that garbage, rotting food, and dirty laundry were strewn about. An exhibit to the tenant's earlier, unsuccessful motion for summary judgment confirmed that as a result of this situation the landlord's representative, Ms. Deborah Reid, had referred the tenant to St. Elizabeths Hospital for a psychiatric evaluation.

849 A.2d 954

The tenant neither cleaned up the premises nor vacated the property, and the landlord accordingly filed an action for possession on November 30, 2001. Through counsel, the tenant filed a timely answer and asked for a jury trial. Her answer included a general denial, a challenge to the validity of the notice to cure or quit, and a defense of discrimination under the federal Fair Housing Act. She also proffered a defense and counterclaim under the D.C. Human Rights Act (not at issue on appeal)

Soon thereafter, on February 5, 2002, counsel for the tenant sent a letter to the Director of the Department of Consumer and Regulatory Affairs (DCRA) "requesting a reasonable accommodation under the Federal Fair Housing Act" for a "disability (mental)," namely a "mood disorder," that affected the tenant's ability to keep the apartment "safe and sanitary." Counsel added: The "District of Columbia Government is prepared to assist her with cleaning the apartment." DCRA never took action.

On February 20, 2002, two weeks after his letter to DCRA, counsel for the tenant wrote counsel for the landlord "requesting a reasonable accommodation in complying with provisions of [the tenant's] lease." In this letter—filed with the trial court as Exhibit 2 to the tenant's motion for summary judgment and discussed in counsel's supporting memorandum—counsel stated, more specifically:

Ms. Douglas suffers from a mood disorder (mental illness). She is on SSI disability. She has been assigned a case worker with the District of Columbia government and she is an outpatient at a city operated mental health/substance abuse clinic.

... The District of Columbia government has advised me that they are prepared to assist her with her problems because it is their opinion as well that Ms. Douglas would benefit from intervention and a reasonable accommodation.

According to counsel for the tenant's uncontradicted assertion in the trial court, landlord's counsel—who has acknowledged receipt—never responded to this letter.

Later, at a pretrial conference, the court asked for briefs on the question whether the tenant should be permitted to present her discrimination defense based on the landlord's failure to make a "reasonable accommodation" of her alleged mental disability.¹ Thereafter, the trial court denied the tenant's motion for summary judgment, and on the day set for trial, June 17, 2002, the court heard testimony and argument on the reasonable accommodation issue outside the presence of the jury. The trial court conducted this hearing primarily to find out whether the tenant's proffered "mental health experts" were qualified to testify, and whether their testimony would support a finding that the tenant's mental illness caused her to leave the apartment in an unclean, unsanitary condition —the factual predicate required for a "reasonable accommodation" defense.

After the tenant's proffered experts had testified, but before the trial court ruled, the landlord's counsel acknowledged to the court that counsel for the tenant (presumably sometime after his letter of February 20) had requested, as an accommodation, a stay of eviction that would permit an agency

849 A.2d 955

of the D.C. government to "clean up" the apartment. The landlord's counsel further acknowledged: "I did not specifically talk to [tenant's counsel] about that until a couple of weeks ago," around the first of June 2002, "when I told him that his proposal simply lacked any specifics for us to really make an evaluation on." Landlord's counsel added his opinion that tenant's counsel "had no authority to speak for the D.C. government," and thus could not assure that the apartment would be cleaned or, if so, how long it would stay that way. Earlier in the proceeding, landlord's counsel had stated his bottom-line position, communicated to tenant's counsel on June 14, three days before trial: "We are willing to allow Ms. Douglas to stay in the unit through the end of August, the beginning of September, but the landlord would definitely request possession of the unit after a period of time"—whether the apartment was clean or not

The court was troubled that no one at the hearing had asked the tenant's experts, who were in a position to know, exactly "what the possibilities [were] for Adult Protective Services to do cleaning of this apartment." Whereupon counsel for the tenant proffered that the District government had a fund for paying contractors to clean apartments for the disabled, and that his expert was in a position to use this fund to help the tenant. Counsel made clear, however—and the court appeared willing to accept—that the District government would not incur the cleaning expense without assurance that the tenant could remain in her apartment as long as it stayed clean; the District would not restore the apartment merely for the landlord's benefit. Accordingly, it was clear to everyone that the tenant was seeking, as a "reasonable accommodation," a stay of eviction for a period long enough for the District government to clean the premises and thus cure the tenant's breach of the lease. Significantly, moreover, counsel for the tenant was unequivocal in conceding that if the requested delay, coupled with government intervention, "didn't work out"—meaning that if the apartment became filthy again either because the tenant (after counseling) failed to change her ways, or because the government failed to continue its cleaning services on the tenant's behalf—the landlord would have an acknowledged remedy, eviction. According to counsel, a reasonable accommodation, once given, need not be repeated if the tenant or her government protector failed to comply with its terms. In short, the tenant was asking for one brief extension of the "cure" period under the lease, and no more, based on a proffered mental illness that allegedly had caused her to foul the premises unremittingly.

The trial court, after hearing evidence and argument, saw the point clearly and questioned the landlord's bottom-line position:

[T]his case almost sounds to me like it's resolvable if the government could make assurances that would satisfy the plaintiff. I mean, I don't want to put the plaintiffs in an awkward position.... [T]hey have their right to a trial and they have waited now for several months until today's trial date as well. And I don't want to speak for them; but it sounds like they feel sorry for the defendant, too, and if they could just—if they could be assured that this place was going to be clean and not posing a danger to other tenants that they might be willing to let this go, or at least to see what happens....

[I]f the place really got cleaned up, and there was some assurance—some reasonable assurance that it was going to be maintained—these people [i.e, the landlord's representatives] don't have any—they're not out for blood. I mean,

849 A.2d 956

I don't think—I don't know, the client [representative of the landlord] is nodding with me as if she agrees.

I don't have the sense that [the client representative of the landlord is] anxious to see this poor woman out on the street homeless. Everybody knows that if she gets evicted in this case, it's not going to be very easy for her to get another apartment through the Section 8 Program or otherwise.

... I'm just trying to figure out whether there is a way to resolve this case without the need to—without the need to move someone who might not have to be moved in order to satisfy both parties. And there have been these statements made that the Adult Protective Services can provide the services that the landlord presumably would think were necessary, but won't, because the case is pending. But I mean, if that's the only impediment to Adult Protective Services going in there and doing the cleaning, both initially and on an ongoing basis, presumably they could [be] disabused of the erroneous view that they shouldn't act while the case is

...