#26133-a-GAS
2012 S.D. 30
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
MEADOWLAND APARTMENTS, Plaintiff and Appellee,
v.
HEIDI SCHUMACHER, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
****
THE HONORABLE WILLIAM J. SRSTKA, JR.
Judge
****
GLENN J. BOOMSMA of
Breit Law Offices, PC
Sioux Falls, South Dakota Attorneys for plaintiff
and appellee.
DOUGLAS P. CUMMINGS, JR.
East River Legal Services
Sioux Falls, South Dakota Attorneys for defendant
and appellant.
****
CONSIDERED ON BRIEFS
ON MARCH 19, 2012
OPINION FILED 04/25/12
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SEVERSON, Justice
[¶1.] Heidi Schumacher signed a renewed lease with Meadowland
Apartments (Meadowland). Meadowland later filed an eviction action against
Schumacher, alleging that she was in material non-compliance with the lease.
Schumacher moved for a continuance of the court trial, which the magistrate court
denied. At the conclusion of the court trial, the magistrate court found that
Schumacher was a disabled person under the Fair Housing Amendments Act
(FHAA), but that Meadowland had made reasonable accommodations for her
disability. The magistrate court also found that Schumacher’s conduct constituted
sufficient grounds for termination of the lease. Schumacher appealed to the circuit
court, which affirmed the decision of the magistrate court. Schumacher now
appeals to this Court, raising the following issues: (1) whether the magistrate court
abused its discretion in denying Schumacher’s motion for a continuance; (2)
whether the magistrate court erred in considering evidence of incidents that
occurred prior to the term of Schumacher’s most recent lease with Meadowland;
and (3) whether the magistrate court erred in finding that Meadowland provided
reasonable accommodations for Schumacher’s disability as required under the
FHAA. We affirm.
BACKGROUND
[¶2.] Meadowland is a 120-unit apartment complex in Sioux Falls, South
Dakota. Schumacher moved into Meadowland in 1999. Schumacher’s apartment
was part of a federally subsidized project that was subject to the rules and
regulations of the United States Department of Housing and Urban Development.
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It is undisputed that Schumacher suffers from a mental illness entitling her to
protection under the FHAA.
[¶3.] On September 2, 2010, Schumacher renewed her lease with
Meadowland for a term that was to extend from October 1, 2010, through October
31, 2010. The lease was to continue on a month-to-month basis after October 31,
2010. Under the terms of the lease, Meadowland could not terminate the lease
unless Schumacher violated certain specified conditions. One such condition was
“material non-compliance” with the terms of the lease. “Material non-compliance”
was defined to include:
(1) one or more substantial violations of the lease; (2) repeated
minor violations of the lease that (a) disrupt the livability of the
project; (b) adversely affect the health or safety of any person or
the right of any tenant to the quiet enjoyment to [sic] the leased
premises and related project facilities . . . .
[¶4.] Meadowland served a notice to quit and vacate upon Schumacher on
October 12, 2010, alleging that Schumacher failed to comply with the terms of the
lease by engaging in the following conduct:
(a) Disturbing or harassing other residents;
(b) Having an unauthorized business on premises;
(c) Not putting maintenance requests in writing;
(d) Conducting illegal activities on the premises;
(e) Causing damage/waste to the property;
(f) Having a pet of any type without written consent from
Management;
(g) Washing pet items in washer and leaving pet hair inside;
(h) Failure to provide proper veterinarian documentation of
health of animal;
(i) Failure to register animal with the city and license animal;
(j) Failure to fill out required service animal agreement for
Meadowland Apartments;
(k) Failure to maintain apartment or common areas in a clean
and sanitary condition; and
(l) Excessive noise from [Schumacher’s] apartment.
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[¶5.] After Schumacher failed to surrender the apartment, Meadowland
initiated an eviction action pursuant to SDCL 21-16-1. Schumacher initially
retained William Blewett to represent her in the eviction action. Mr. Blewett
served an answer on behalf of Schumacher on October 28, 2010. A trial was
scheduled for November 18, 2010, before Magistrate Judge John Hinrichs.
[¶6.] On November 8, 2010, Mr. Blewett withdrew from the case. Douglas
Cummings began representing Schumacher. On November 17, 2010, Mr.
Cummings requested a continuance on the grounds that he lacked sufficient time
to adequately prepare for trial. The magistrate court denied the motion for
continuance.
[¶7.] During the court trial, Schumacher testified that she obtained a dog
in the spring of 2010 upon her doctor’s recommendation. After obtaining the dog,
Schumacher left a copy of a doctor’s note and other unspecified paperwork in the
rent payment drop-box. The doctor’s note was signed by Dr. Michael Olson and
stated, “[Schumacher] would benefit from a pet companion on a physical and
emotional basis.”
[¶8.] Schumacher testified that about one or two weeks later, Tamera
VanBockern informed her that she needed to complete additional paperwork.
VanBockern is the community manager for Dominium Management Services,
which provided property management services to Meadowland. VanBockern
testified that the paperwork she requested from Schumacher included the dog’s
vaccination records and proof that it was licensed with the city. Schumacher did
not provide this documentation to Meadowland. Instead, Schumacher testified
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that she placed the dog in the care of her friends so that it would no longer live
with her in the apartment.
[¶9.] On August 24, 2010, Meadowland provided Schumacher with a pet
policy agreement, which she signed. On the agreement, Schumacher checked a box
indicating that she did not have a dog. She testified that at the time she signed the
pet policy agreement, the dog was not living with her.
[¶10.] Schumacher testified that at some point after she signed the pet
policy agreement, the dog began living with her again. She did not inform
Meadowland that the dog was living with her and did not request an
accommodation. On October 5, 2010, an inspection of Schumacher’s apartment
was performed by VanBockern and her assistant, Lisa Hastings. VanBockern
testified that when they walked into Schumacher’s apartment, the smell of pet
urine and feces was overwhelming. She observed several stains on the carpet.
There was damage to the bedroom wall and scratches on the woodwork. The dog
was kenneled, but barked constantly during the inspection.
[¶11.] VanBockern testified that the October 5, 2010, inspection was the first
time she was able to confirm that Schumacher had a dog in the apartment.
However, VanBockern testified that from March 2010 through October 2010,
Meadowland received nine separate written complaints from apartment tenants
regarding Schumacher. Schumacher objected to the admission of evidence
concerning incidents that occurred prior to October 1, 2010, the date Schumacher’s
most recent lease with Meadowland began. The magistrate court allowed this
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evidence to be presented as an offer of proof. It reserved ruling as to the ultimate
admissibility of the evidence.
[¶12.] Meadowland elicited testimony from several of the tenants who
submitted written complaints regarding Schumacher. Among the tenants who
testified during the trial was Lacy Gartamaker, who lived in an apartment on the
floor above Schumacher. She testified that she noticed an overpowering urine
smell coming from Schumacher’s apartment beginning in May 2010. Another
tenant, Kristy King, lived across the hall from Schumacher. She testified that the
smell of animal urine and feces was overwhelming. She stated, “I’ve got a small
crack above my door. It gets so overpowering it does come in my apartment at
times.”
[¶13.] Several tenants testified that Schumacher let her dog run loose in the
hallway of the apartment complex. Jill Johnson, who is visually impaired, lives in
an apartment on the floor below Schumacher. She testified that Schumacher’s dog
jumped on her repeatedly and that Schumacher did not attempt to restrain the
dog. Johnson also testified that the dog’s barking was extremely disruptive. This
testimony was corroborated by several other witnesses, including Shawna Carlson,
who lives in a separate building of the Meadowland apartment complex. Carlson
testified that Schumacher’s dog barked constantly.
[¶14.] At the conclusion of the trial, Schumacher argued that Meadowland
failed to make a “reasonable accommodation” for her disability as required under
the FHAA. 42 USC § 3604(f)(3)(B). The magistrate court rejected this argument
and found that Meadowland had provided reasonable accommodations for
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Schumacher’s disability. The magistrate court went on to find that Meadowland
could terminate the lease. In making this finding, the court did not expressly
decide whether the evidence of Schumacher’s conduct prior to October 1, 2010, was
admissible. Instead, it stated that “enough of the conditions, including the bad
odor and damage to [Schumacher’s] apartment . . . were present in October.” The
magistrate court enjoined Schumacher from having a pet on Meadowland’s
property and ordered that Meadowland was entitled to possession of Schumacher’s
apartment on January 31, 2011. The circuit court affirmed the magistrate court’s
decision.
DISCUSSION
[¶15.] 1. Whether the magistrate court abused its discretion in
denying Schumacher’s motion for a continuance.
[¶16.] Schumacher argues that the magistrate court’s denial of her motion
for continuance deprived her of due process because her counsel was unable to
adequately prepare for the trial. We have stated, “The granting or refusal of a
continuance is within the sound discretion of the circuit court, and its rulings will
not be reversed absent a clear abuse of discretion.” People in Interest of E.D.J., 499
N.W.2d 130, 133 (S.D. 1993) (quoting In re D.H., 408 N.W.2d 743, 746 (S.D. 1987);
In re C.J.H., 371 N.W.2d 345, 349 (S.D. 1985)). “The term ‘abuse of discretion’
refers to a discretion exercised to an end or purpose not justified by, and clearly
against, reason and evidence.” Id. (quoting Gross v. Gross, 355 N.W.2d 4, 7 (S.D.
1984)).
[¶17.] “[A] party is entitled as a matter of right to a reasonable opportunity
to secure evidence on his behalf.” Tosh v. Schwab, 2007 S.D. 132, ¶ 25, 743 N.W.2d
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422, 430 (quoting State v. Moeller, 2000 S.D. 122, ¶ 7, 616 N.W.2d 424, 431). Thus,
“[i]f it appears that due diligence has failed to procure it, and where a manifest
injustice results from denial of the continuance, the trial court’s action should be
set aside.” Id. (quoting Moeller, 2000 S.D. 122, ¶ 7, 616 N.W.2d at 431). In
deciding whether to grant a continuance, a trial court must consider the following
factors:
(1) whether the delay resulting from the continuance will be
prejudicial to the opposing party; (2) whether the continuance
motion was motivated by procrastination, bad planning, dilatory
tactics or bad faith on the part of the moving party or his
counsel; (3) the prejudice caused to the moving party by the trial
court’s refusal to grant the continuance; and (4) whether there
have been any prior continuances or delays.
Id. (quoting Moeller, 2000 S.D. 122, ¶ 8, 616 N.W.2d at 431).
[¶18.] In this case, there is no evidence that Schumacher’s motion for
continuance was “motivated by procrastination, bad planning, dilatory tactics or
bad faith.” See id. There were also no prior continuances or delays in the trial.
However, the magistrate court found that delaying the trial would prejudice
Meadowland because Meadowland had already served subpoenas on seven
witnesses and arranged for the appearance of additional witnesses. Several of the
subpoenaed witnesses informed Meadowland that they made special arrangements
with their employer to appear at the trial. The magistrate court also noted that
Meadowland had incurred significant expenses and service fees.
[¶19.] In contrast, the magistrate court found that the prejudice Schumacher
would suffer as a result of the court’s refusal to grant the continuance was
minimal. It is significant that Meadowland initiated this case as an unlawful
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detainer action pursuant to SDCL chapter 21-16. “The primary concern in an
unlawful detainer action is the question of immediate right to possession.” Heiser
v. Rodway, 247 N.W.2d 65, 67 (S.D. 1976) (citations omitted). Toward that end,
SDCL 21-16-8 shortens the time period within which a trial may be commenced
after the parties are notified of the trial. Id. at 70. SDCL 21-16-8 provides:
An action under this chapter may be brought on for trial upon
two days’ notice after issue is joined. If a jury trial be demanded
and no jury is in attendance on the day the action is noticed for
trial, the court shall cause a special venire to issue as in cases
where extra jurors are required, and proceed to impanel a jury
and try the action as in other civil cases.
[¶20.] On November 2, 2010, counsel for Meadowland notified Schumacher’s
original counsel, Mr. Blewett, of the November 18, 2010, trial date. Counsel for
Meadowland also contacted Mr. Cummings on November 2, 2010, and informed
him of the trial date. Because Schumacher was given a reasonable opportunity to
secure evidence on her behalf, we hold the magistrate court did not abuse its
discretion in denying Schumacher’s motion for continuance.
[¶21.] 2. Whether the magistrate court abused its discretion in
considering evidence of incidents that occurred prior to
October 1, 2010.
[¶22.] The term of Schumacher’s renewed lease with Meadowland was to
extend from October 1, 2010, through October 31, 2010. Schumacher argues that
the magistrate court erred in considering evidence of incidents that occurred prior
to October 1, 2010. She argues that by signing a new lease with Schumacher for a
term to begin on October 1, 2010, Meadowland condoned her previous behavior
and, therefore, should be estopped from using that behavior as a basis for an
eviction.
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[¶23.] We find Schumacher’s argument to be without merit. The record
reveals that, on at least two separate occasions, Meadowland inquired as to
whether Schumacher had a dog in the apartment. Schumacher indicated that she
did not. Although Meadowland received complaints from other tenants,
VanBockern testified that she was unable to confirm that Schumacher was keeping
a dog in her apartment until October 5, 2010.1 Under these facts, Meadowland
cannot reasonably be said to have “condoned” Schumacher’s conduct.
[¶24.] Nonetheless, Schumacher argues that evidence of her conduct prior
to October 1, 2010, was irrelevant and that the magistrate court abused its
discretion in allowing this evidence to be presented at trial. We review the
evidentiary rulings of a trial court “under an abuse of discretion standard.” State
v. Ralios, 2010 S.D. 43, ¶ 38, 783 N.W.2d 647, 658 (quoting State v. Fool Bull, 2008
S.D. 11, ¶ 10, 745 N.W.2d 380, 385. “An abuse of discretion refers to a discretion
exercised to an end or purpose not justified by, and clearly against reason and
evidence.” Id. (quoting State v. Shaw, 2005 S.D. 105, ¶ 18, 705 N.W.2d 620, 625).
“Any evidentiary errors by the trial court must be prejudicial in nature to warrant
reversal on appeal.” Id. (citing Fool Bull, 2008 S.D. 11, ¶ 14, 745 N.W.2d at 385).
“Error is prejudicial when, in all probability, it produced some effect upon the final
1. During the court trial, VanBockern testified as follows:
Q: Did there come a point in time in which you did learn for
sure or for certain that she did have a dog?
A: Yes.
Q: When did you learn that?
A: For sure when we saw it, when we went in to the unit
inspections . . . on . . . the 5th of October.
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result and affected rights of the party assigning it.” Id. (citing Fool Bull, 2008 S.D.
11, ¶ 14, 745 N.W.2d at 385).
[¶25.] In addressing Schumacher’s argument, we begin by noting that the
magistrate court only allowed Meadowland to present evidence regarding
Schumacher’s conduct prior to October 1, 2010, as an offer of proof. The magistrate
court explained,
I’ll decide after I’ve heard all of the evidence whether or not the
things that are asserted to have occurred before October 1st are
material. I may not have to make that decision if I conclude
that the matters that are asserted to have occurred after
October 1st are grounds to grant the relief in the Complaint.
[¶26.] In its decision letter, the magistrate court referred to evidence of
events that took place prior to October 1, 2010, in order to show Schumacher’s
course of conduct. When considered for this purpose, we believe the evidence was
relevant.2 Indeed, Schumacher failed to notify Meadowland that she had a dog in
her apartment. The magistrate court found, “some of the conditions caused by the
presence of the dog were unnoticed by [Meadowland], because [Schumacher] failed
to notify [Meadowland] of the presence of the dog for much of the summer and fall.”
[¶27.] Ultimately, the magistrate court indicated that Schumacher’s conduct
after October 1, 2010, provided sufficient grounds for eviction. In its decision
2. The factual relevance of evidence is determined under SDCL 19-12-1 (Rule
401), which provides:
“Relevant evidence” means evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.
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letter, the magistrate court stated: “It is true that much of the evidence established
that the unwelcome conditions created by the dog’s presence occurred before the
new lease. . . . However, enough of the conditions, including the bad odor and
damage to [Schumacher’s] apartment . . . were present in October.” Thus, after
reviewing the record in its entirety, we cannot conclude that the magistrate court
abused its discretion.
[¶28.] 3. Whether the magistrate court erred in finding that
Meadowland made reasonable accommodations for
Schumacher’s disability under the FHAA.
[¶29.] Schumacher argues that Meadowland failed to make reasonable
accommodations for her disability as required under the FHAA. The FHAA makes
it illegal “[t]o discriminate against any person in the terms, conditions, or
privileges of sale or rental of a dwelling, or in the provision of services or facilities
in connection with such dwelling, because of a handicap of . . . that person . . . .” 42
U.S.C. § 3604(f)(2)(A). Under 42 U.S.C. § 3604(f)(3)(B), discrimination includes “a
refusal to make reasonable accommodations in rules, policies, practices, or services,
when such accommodations may be necessary to afford such person equal
opportunity to use and enjoy a dwelling . . . .”3 See Arnold Murray Const., L.L.C. v.
3. However, 42 U.S.C. § 3604 (f)(9) specifies, “Nothing in this subsection
requires that a dwelling be made available to an individual whose tenancy
would constitute a direct threat to the health or safety of other individuals . .
. .” The magistrate court found that Schumacher’s conduct did not constitute
a “direct threat to the health or safety of other individuals.” Therefore, the
magistrate court concluded that 42 U.S.C. § 3604 (f)(9) did not relieve
Meadowland of its obligation to provide a reasonable accommodation to
Schumacher. Meadowland does not challenge the magistrate court’s finding
on this issue.
(continued . . .)
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Hicks, 2001 S.D. 7, ¶¶ 8-10, 621 N.W.2d 171, 174-75 (discussing when a landlord’s
duty to provide reasonable accommodations arises).
[¶30.] To establish a cause of action for failure to accommodate under 42
U.S.C. § 3604(f)(3)(B), a plaintiff must show that “(1) [she] is disabled or
handicapped within the meaning of the [Fair Housing Act], (2) [she] requested a
reasonable accommodation, (3) such accommodation was necessary to afford [her]
an opportunity to use and enjoy [her] dwelling, and (4) the defendant[] refused to
make the requested accommodation.” Hawn v. Shoreline Towers Phase I Condo.
Assoc., Inc., 347 F. Appx. 464, 467 (11th Cir. 2009) (citation omitted). In this case,
Schumacher has failed to show that she “requested a reasonable accommodation,”
or that Meadowland “refused to make the requested accommodation.” See Wallace
H. Campbell & Co., Inc. v. Md. Comm’n on Hum. Rel., 33 A.3d 1042, 1053 (Md.
App. 2011) (noting that “federal courts have consistently interpreted 42 U.S.C. §
3604(f)(3)(B) to require a prior request”); Groteboer v. Eyota Econ. Dev. Auth., 724
F. Supp. 2d 1018, 1024 (D. Minn. 2010) (recognizing that to prevail on a claim for
failure to make a reasonable accommodation under the FHAA, a plaintiff must
show that he or she requested an accommodation that was “reasonable on its
face”).
_______________________________
(. . . continued)
It is important to emphasize that although the magistrate court found that
Schumacher’s conduct did not constitute a “direct threat to the health or
safety of other individuals,” the magistrate court did find that Schumacher’s
conduct constituted “material non-compliance” with the lease, thus justifying
Meadowland’s termination of the lease. The magistrate court also found
that Meadowland had made reasonable accommodations for Schumacher’s
disability.
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[¶31.] During the court trial, Schumacher testified that when she obtained
a dog in the spring of 2010, she left a copy of her doctor’s note and other
unspecified paperwork in the rent payment drop-box. Meadowland then requested
that Schumacher produce the dog’s vaccination records and proof that it was
licensed with the city. Instead of providing Meadowland with the requested
documentation, Schumacher signed a form indicating that she did not own a dog.
After signing this form in August 2010, it is undisputed that Schumacher did not
request permission from Meadowland to have a dog in the apartment. Nor did
Schumacher inform Meadowland when the dog began staying in her apartment
again.
[¶32.] As the District of Columbia Court of Appeals has recognized, “a
landlord is only obligated to provide a reasonable accommodation” to a tenant “if a
request for the accommodation has been made.” Douglas v. Kriegsfeld Corp., 884
A.2d 1109, 1122 (D.C. 2005) (quotation omitted); see Schwarz v. City of Treasure
Island, 544 F.3d 1201, 1219 (11th Cir. 2008) (holding that “a plaintiff must actually
request an accommodation and be refused in order to bring a reasonable
accommodation claim under the [Fair Housing Act],” and the failure to do so is
normally “fatal to the claim.”). There is no evidence in the record to support
Schumacher’s assertion that she requested a reasonable accommodation, or that
Meadowland denied such a request. To the contrary, the record indicates that
Meadowland made contact with Schumacher on at least two separate occasions and
attempted to obtain information from her so that reasonable accommodations could
be made. Schumacher refused to cooperate with Meadowland and denied that she
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even owned a dog. When viewed in its entirety, the record supports the magistrate
court’s findings of fact. The magistrate court did not err in denying Schumacher
relief under the FHAA.
[¶33.] Affirmed.
[¶34.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and
WILBUR, Justices, concur.
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