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- 655 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
GUENTHER v. WALNUT GROVE HILLSIDE CONDO. REGIME NO. 3
Cite as 309 Neb. 655
Christine Guenther, appellant,
v. Walnut Grove Hillside
Condominium Regime
No. 3, Inc., appellee.
Filed July 2, 2021. No. S-20-574.
1. Declaratory Judgments. 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.
2. Injunction: Equity. An action for injunctive relief is equitable in
nature.
3. Declaratory Judgments: Equity: Appeal and Error. 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.
4. Federal Acts: Discrimination: Proof. The Fair Housing Act requires
accommodation if such accommodation (1) is reasonable and (2) neces-
sary (3) to afford a handicapped person the equal opportunity to use and
enjoy a dwelling. The movant bears the burden of proving each of these
elements by a preponderance of the evidence.
5. Federal Acts: Claims: Proof. The ultimate burden to prove both the
reasonableness and the necessity of a requested accommodation remains
always with the plaintiffs asserting a reasonable accommodation claim
under the Fair Housing Act.
6. Federal Acts: Discrimination: Proof. In order to demonstrate that the
accommodation was necessary under the Fair Housing Act, a claim-
ant is required to show that the accommodation was indispensable or
essential to the claimant’s equal opportunity to use and enjoy his or
her dwelling.
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
GUENTHER v. WALNUT GROVE HILLSIDE CONDO. REGIME NO. 3
Cite as 309 Neb. 655
7. Federal Acts: Discrimination. In order to gauge the necessity of
an accommodation, courts are required to consider whether another
alternative satisfies the Fair Housing Act’s goal to provide equal hous-
ing opportunities.
8. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the District Court for Douglas County:
Gregory M. Schatz, Judge. Affirmed.
Thomas C. Dorwart 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., for appellee.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Funke, J.
Christine Guenther appeals from the dismissal of her com-
plaint 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 emo-
tional support dogs through construction of a fence in a com-
mon 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
1
See, 42 U.S.C. §§ 3601 to 3619 (2018); Neb. Rev. Stat. §§ 20-301 to
30-344 (Reissue 2012).
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
GUENTHER v. WALNUT GROVE HILLSIDE CONDO. REGIME NO. 3
Cite as 309 Neb. 655
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 anxi-
ety 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, yelp-
ing 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 condo-
minium regime].” Walnut Grove stated that Guenther’s request
to construct the fence would violate HOA bylaws and cov-
enants stating that “[t]he general common elements shall be
for the use and enjoyment of all Unit Owners. The owner-
ship of the general common elements shall remain undivided,
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
GUENTHER v. WALNUT GROVE HILLSIDE CONDO. REGIME NO. 3
Cite as 309 Neb. 655
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 grand-
fathered 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
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
GUENTHER v. WALNUT GROVE HILLSIDE CONDO. REGIME NO. 3
Cite as 309 Neb. 655
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 com-
panionship of the family dog.” However, the court referred to
N.G.’s testimony that she was originally diagnosed in approxi-
mately 2015 and that at the time of trial, she no longer received
treatment or medication for her major depressive and anxi-
ety 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
2
See, 42 U.S.C. § 3602(h); § 20-313.
3
See, 42 U.S.C. § 3604(f )(3); § 20-319(2).
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
GUENTHER v. WALNUT GROVE HILLSIDE CONDO. REGIME NO. 3
Cite as 309 Neb. 655
court found that Guenther “offered no evidence that hav-
ing 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 dis-
trict 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) fail-
ing 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 accom-
modation was unreasonable, and (5) failing to award Guenther
attorney fees and costs.
STANDARD OF REVIEW
[1-3] 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 conclu-
sion independent of the findings of the trial court, subject to
the rule that where credible evidence is in conflict on mate-
rial 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
4
Wilkison v. City of Arapahoe, 302 Neb. 968, 926 N.W.2d 441 (2019).
5
See id.
6
Id.
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
GUENTHER v. WALNUT GROVE HILLSIDE CONDO. REGIME NO. 3
Cite as 309 Neb. 655
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 viola-
tion 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.
[4] The FHA makes it unlawful to “discriminate in the sale
or rental, or to otherwise make unavailable or deny, a dwell-
ing to any buyer or renter because of a handicap.” 9 The FHA
prohibits “discrimina[tion] 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.” 10 For purposes of the FHA,
7
Brief for appellant at 16-17.
8
Wilkison, supra note 4.
9
42 U.S.C. § 3604(f )(1). Accord § 20-319(1)(a).
10
42 U.S.C. § 3604(f )(2). Accord § 20-319(1)(b).
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
GUENTHER v. WALNUT GROVE HILLSIDE CONDO. REGIME NO. 3
Cite as 309 Neb. 655
discrimination includes a refusal to make “reasonable accom-
modations in rules, policies, practices, or services, when such
accommodations may be necessary to afford such person equal
opportunity to use and enjoy a dwelling.” 11 The FHA requires
accommodation if such accommodation (1) is reasonable and
(2) necessary (3) to afford a handicapped person the equal
opportunity to use and enjoy a dwelling. 12 The movant bears
the burden of proving each of these elements by a preponder-
ance of the evidence. 13
[5] Guenther has argued that in considering her claim, this
court should apply a burden-shifting analysis so that the mov-
ant must show that the requested accommodation is reason-
able on its face and then the opponent must show the accom-
modation creates an undue hardship. However, the analysis
proposed by Guenther applies only in the context of a defend
ant’s motion for summary judgment regarding a reasonable
accommodation claim. 14 Here, we are reviewing a judgment
following a bench trial. “The ultimate burden to prove both the
reasonableness and the necessity of a requested accommoda-
tion remains always with the plaintiffs asserting a reasonable
accommodation claim under the [FHA].” 15 Pursuant to our
de novo review, we must determine whether Guenther carried
her burden of proving her request to build a fence in Walnut
Grove’s common area (1) is reasonable and (2) necessary (3) to
afford a handicapped person the equal opportunity to use and
enjoy a dwelling.
11
42 U.S.C. § 3604(f )(3)(B). Accord § 20-319(2)(b).
12
See, id.; Howard v. City of Beavercreek, 276 F.3d 802 (6th Cir. 2002);
Oconomowoc Residential Prog. v. City of Milwaukee, 300 F.3d 775 (7th
Cir. 2002).
13
Bryant Wood Inn, Inc. v. Howard County, Md., 124 F.3d 597 (4th Cir.
1997).
14
See US Airways, Inc. v. Barnett, 535 U.S. 391, 122 S. Ct. 1516, 152 L. Ed.
2d 589 (2002).
15
Wilkison, supra note 4, 302 Neb. at 977, 926 N.W.2d at 449.
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
GUENTHER v. WALNUT GROVE HILLSIDE CONDO. REGIME NO. 3
Cite as 309 Neb. 655
To determine whether an accommodation is reasonable, the
inquiry is highly fact specific, requires balancing the needs
of the parties, and involves assessing both financial and
administrative costs and burdens. 16 An accommodation is rea-
sonable if it is both efficacious and proportional to the costs
to implement it, and an accommodation is unreasonable if it
imposes undue financial or administrative burdens or requires
a fundamental alteration in the nature of the program. 17 As
stated, in this appeal, we need not engage in a reasonableness
inquiry. Instead, the question we address is whether Guenther
adduced sufficient evidence that construction of the fence
is necessary.
[6] The FHA “‘links the term “necessary” to the goal of
equal opportunity. . . . Plaintiffs must show that, but for the
accommodation, they likely will be denied an equal opportu-
nity to enjoy the housing of their choice.’” 18 “‘[T]he necessity
element is, in other words, a causation inquiry that examines
whether the requested accommodation or modification would
redress injuries that otherwise would prevent a disabled resi-
dent from receiving the same enjoyment from the property as a
non-disabled person would receive.’” 19 In order to demonstrate
that the accommodation was necessary, a claimant is required
to show that the accommodation was indispensable or essential
to the claimant’s equal opportunity to use and enjoy his or
her dwelling. 20
Upon our review of the record, although it is undisputed that
N.G. suffers from major depressive and anxiety disorders and
16
Id.
17
Id.
18
Id. at 979, 926 N.W.2d at 450, quoting Smith & Lee Associates v. City of
Taylor, Mich., 102 F.3d 781 (6th Cir. 1996).
19
Id., quoting Hollis v. Chestnut Bend Homeowners Ass’n, 760 F.3d 531 (6th
Cir. 2014).
20
See Wilkison, supra note 4.
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
GUENTHER v. WALNUT GROVE HILLSIDE CONDO. REGIME NO. 3
Cite as 309 Neb. 655
that the family dogs have a positive impact on her health, we
conclude there is insufficient proof that the fence is necessary. 21
Guenther cites to an unpublished opinion, Oregon Bureau of
Labor and Industries ex rel. Mayorga v. Housing Authority
of Douglas County, 22 to argue that a service animal, like any
other assistance device, may require an additional accommoda-
tion to enable its effective use. However, this authority merely
establishes that the fence qualifies as an accommodation; such
does not establish that the fence is necessary. The undisputed
evidence shows that, without the fence, N.G. freely enjoys the
use of the animals while at Walnut Grove. As such, Guenther
failed to prove that the fence is indispensable or essential to
achieving equal housing opportunities for N.G.
The requirement that an accommodation be necessary is
expressly linked to the goal of affording equal opportunity to
use and enjoy a dwelling. 23 Thus, a necessary accommodation
is one that alleviates the effects of a disability. 24 The only evi-
dence in the record that construction of a fence in the common
area is necessary is N.G.’s testimony that knowing the dogs
were safe in the yard “would give [her] much more peace of
mind.” However, this aspect of Guenther’s theory depends on
the assertion that without the fence, the animals will be at risk
of being attacked by other dogs. There is no evidence to sup-
port this assertion. Guenther thought that the first emotional
support dog was attacked by a larger dog owned by one of her
neighbors. However, Guenther admitted that she did not know
if the dog was attacked by another dog or hit by a car. The
21
See Landmark Props. v. Olivo, 5 Misc. 3d 18, 783 N.Y.S.2d 745 (2004).
22
Oregon Bureau of Labor and Industries ex rel. Mayorga v. Housing
Authority of Douglas County, No. 6:13-cv-01205-MC, 2014 WL 5285609
(D. Or. Oct. 15, 2014).
23
Cinnamon Hills Youth Crisis v. St. George City, 685 F.3d 917 (10th Cir.
2012).
24
Bhogaita v. Altamonte Heights Condominium Ass’n, 765 F.3d 1277 (11th
Cir. 2014).
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
GUENTHER v. WALNUT GROVE HILLSIDE CONDO. REGIME NO. 3
Cite as 309 Neb. 655
neighbor testified that Guenther told her at the time of the inci-
dent that the dog was hit by a car. Furthermore, Bolton, another
neighbor, allows the emotional support animals to be kept in
her fenced-in yard, next to Guenther’s condominium.
[7] Even if there were factual support for Guenther’s stated
need for a fence, Guenther failed to adequately address Walnut
Grove’s proposed alternatives. In order to gauge the necessity
of an accommodation, courts are required to consider whether
another alternative satisfies the FHA’s goal to provide equal
housing opportunities. 25 Walnut Grove proposed the alterna-
tives of using underground invisible fencing, using a privacy
fence around Guenther’s patio, or tethering the animals while
outside. There is no evidence that any of these alternatives
would not have been effective. Additionally, there is evidence
that using Bolton’s yard is an effective alternative. Guenther
argues that she and N.G. are in the best position to make a spe-
cific request for an accommodation. But the facts simply do not
support Guenther’s request, and Guenther has no right to her
preferred means of accommodation. 26 Therefore, we conclude
that the district court correctly found that Guenther “offered no
evidence that having the dogs outdoors, in a fenced-in back-
yard, would be required to afford [N.G.] an equal opportunity
to use and enjoy [Guenther’s home].”
[8] Because Guenther failed to meet her burden to prove that
construction of the fence is necessary, her claim for refusal of
a reasonable accommodation under the FHA fails, and we need
not consider her other assignments of error. An appellate court
is not obligated to engage in an analysis that is not necessary
to adjudicate the case and controversy before it. 27
25
See Wilkison, supra note 4. See, also, Vorchheimer v. Philadelphian
Owners Association, 903 F.3d 100, 108 (3d Cir. 2018) (“food is necessary
to survive. But if soup and salad are on offer, a sandwich is not necessary”).
26
See id. See, also, Loren v. Sasser, 309 F.3d 1296 (11th Cir. 2002); Temple
v. Hudson View Owners Corp., 222 F. Supp. 3d 318 (S.D.N.Y. 2016).
27
In re Adoption of Yasmin S., 308 Neb. 771, 956 N.W.2d 704 (2021).
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
GUENTHER v. WALNUT GROVE HILLSIDE CONDO. REGIME NO. 3
Cite as 309 Neb. 655
Lastly, Walnut Grove argues that it is entitled to attorney
fees as the prevailing party. However, Walnut Grove’s request
for attorney fees is premature. 28
CONCLUSION
The district court did not err in dismissing Guenther’s claim
for refusal of a reasonable accommodation under the FHA.
Affirmed.
Miller-Lerman, J., not participating.
28
See Neb. Ct. R. App. P. § 2-109(F) (rev. 2021).