Opinion
Supreme Court Nos. S-11470, S-11841.
July 25, 2007.
Appeals from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, John Suddock, Judge. Superior Court Nos. 3AN-98-07578 Civil, 3AN-00-07808 Civil, 3AN-04-05244 Civil.
Lois Gilbert, pro se, Anchorage, Appellant. Laura L. Farley, Farley Graves, P.C., Anchorage, for Appellee Nina Plaza Condo Association in S-11470.
Before: Fabe, Chief Justice, Matthews, Eastaugh, and Carpeneti, Justices. [Bryner, Justice, not participating.]
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Lois Gilbert brought suit against Nina Plaza Condo Association (Nina Plaza) and Steven Simonka, alleging various acts of harassment and discriminatory conduct. Gilbert also claimed that under the provisions of the Fair Housing Act and Americans with Disabilities Act, she was entitled to an accommodation of her disabilities, allowing her to walk her dog off-leash under voice control. Nina Plaza brought its own suit against Gilbert, seeking to prevent Gilbert from occupying the condo. The superior court issued thoughtful, thorough, and balanced oral decisions in these matters. Because the superior court's findings of fact are well supported by the record, and because the superior court's discovery and evidentiary rulings fell well within its discretion, we affirm the decision of the superior court in all respects.
II. FACTS AND PROCEEDINGS
A. Facts
Lois Gilbert moved into her Nina Plaza condo in October 1989. Her mother, Muriel Gilbert, bought the condo, but Gilbert lives in it; Gilbert did not have title to the condo at the time of trial. The first winter after Gilbert moved into Nina Plaza, her roof started to leak. Although the condo association completed two different roof repairs, according to Gilbert, neither job fixed the problem, and the roof still leaks in the winter.
Gilbert's trouble with the board of the condo association started after Gilbert repaired and sanded her porch, and some of the board members did not want to pay for the sanding. Gilbert was then board secretary, and at a board meeting in which her porch bill was to be discussed, Gilbert felt that the board president, Bruce Brown, wasted time by reading the bylaws. When Gilbert asked the board to address the issue of her porch repair bill before she had to leave the meeting, she reported that Brown then "threw a fit" and called her lazy and incompetent. As a result, Gilbert resigned as secretary. Brown informed the board that Gilbert should not be a board member because she was not a condo owner, and in December 1991 the remaining board members voted Gilbert off the board. Gilbert believes she was voted off in retaliation for tendering her resignation as secretary.
In October 1992 the condo association cited Gilbert for parking her vehicle on the lawn and sidewalk in the courtyard, in violation of condo rules. Gilbert was also cited many times for having her dog off-leash. Gilbert claims the condo association selectively enforced the rules, because Gilbert was the only one in the association being cited for violations when other dogs were off-leash and other people were parking in the courtyard to unload groceries.
In the winter of 1991 or spring of 1992, the condo association hired a worker to shovel snow, and Gilbert testified that the worker dumped snow on Gilbert's porch and walkway and refused to clean it up. When the condo association failed to remove the snow after Gilbert complained, Gilbert filed a complaint with the Alaska Human Rights Commission. The condo association then sent a letter to all owners in September 1992, informing them that Gilbert had filed a complaint and reminding the owners that they were responsible for snow removal in front of their units. The letter also noted that although the condo association had previously paid people to shovel sidewalks, "Gilbert's complaint now requires that the officers take all reasonable steps to avoid liability for discrimination and follow the rules to the letter." The Human Rights Commission found that the condo association's rules provided that each unit was responsible for its own snow removal and that Gilbert's allegations of discriminatory conduct were not supported by substantial evidence.
Steven Simonka owned four rental units at Nina Plaza. Gilbert claims that Simonka, who is a mail carrier, tampered with her mail and changed the lock on her mailbox to facilitate that tampering. When Gilbert complained, Simonka replaced the original lock. Simonka also heard from renters that they were moving out because of Gilbert.
In order to prevent cars from driving into the courtyard, in May 1993 the condo association replaced the metal bar with a fence. Formerly, Gilbert was able to remove the bar and then drive into the courtyard to her door to unload groceries from her car; the fence prevented this. Gilbert filed a complaint with the federal Department of Housing and Urban Development, which found that the decision to install the fence was not discriminatory.
In March 1999 Gilbert attended a condo association meeting with the intent to tape record it, and the board objected. Gilbert refused to turn the tape recorder off. The police were called, and they removed Gilbert from the meeting. Gilbert filed a complaint with the Anchorage Equal Rights Commission regarding her removal from the meeting. The Commission determined that Gilbert had been removed from the meeting because of her behavior.
Also in March 1999 someone parked a vehicle in Gilbert's assigned parking space, and the towing company refused to tow the intruder vehicle out of her space. Gilbert claimed that this action was discriminatory and filed a claim with the Anchorage Equal Rights Commission. The Commission determined there was insufficient evidence to establish a prima facie case of discrimination.
Gilbert also had a number of problems with her neighbors, particularly those who were Simonka's tenants. The Lundy family lived in one of these units, next door to Gilbert. Gilbert alleges that the animosity can be traced to Gilbert's action in having Frances Lundy's brother's car towed from Gilbert's spot in March 1996. Gilbert testified that Frances Lundy assaulted her in July 1996 and that in September 1996 Frances repeatedly rear-ended Gilbert's car, events which were recorded by Gilbert's surveillance camera. Gilbert also alleges that Frances and her children repeatedly vandalized Gilbert's car and called Gilbert names, and that Frances encouraged her son to shoot Gilbert with a water gun.
Gilbert also complained to animal control about the Lundy family's barking dog and the fact that Frances Lundy ran a childcare center in her unit in violation of condo association bylaws.
The Fickeys also lived in one of Simonka's units from approximately March 1993 until 1995. Becky Fickey has four children, and Gilbert complained to Simonka and the condo association about the noise created by the Fickeys' dog and children, but neither Simonka nor the condo association took any action to address the problem. Gilbert believes that the Fickeys stole her plants because they disappeared the day the Fickeys moved out. Gilbert also had problems with the two older Fickey children, who made degrading comments about Gilbert's weight and gender and blocked her path. Gilbert also claims that she was assaulted twice in 1993 by Becky Fickey and that Simonka, as president of the condo association, threatened to evict Gilbert if she pressed assault charges against Becky. Gilbert also claims that Simonka lied to the police when he claimed that Gilbert knocked over a Fickey child, resulting in Gilbert receiving a misdemeanor citation. Gilbert complained in writing to the condo association board in February 1994 about the Fickey family's behavior. Gilbert testified that her car tires had been slashed numerous times, but the slashing stopped when the Fickeys moved out. Gilbert has not directly sued the Fickeys in connection with any of these incidents.
In August 1999 Nina Plaza's attorney wrote a letter to Muriel Gilbert, offering to buy the condo for $16,800 — the municipal appraisal value of the unit. Nina Plaza made this offer as a solution to the problems between Lois Gilbert and the other owners and renters. Gilbert has characterized this letter as a threat to sue. On November 23, 1999, Nina Plaza's attorney sent a letter to all condo owners recounting problems that Gilbert had caused by filing administrative claims and lawsuits and stating that under the bylaws, a member of the association or tenant can be evicted by a vote of the membership if convicted of violation of a law. The letter attached a copy of the misdemeanor citation against Gilbert for assault and asked the owners for a vote on whether to evict Gilbert. It is unclear if there was ever a vote or what action was taken after the letter was sent.
B. Prior Proceedings
In July 1998 Gilbert filed her first lawsuit against Nina Plaza and Steven Simonka, alleging wrongful exclusion from ownership privileges and discrimination on the grounds of sex and disability. Nina Plaza and Simonka filed a complaint against Gilbert and her mother about seventeen months later, seeking a permanent injunction to prevent Gilbert from residing at the condo. The cases were consolidated and scheduled for trial, but on June 26, 2000 — the trial date — the judge dismissed the cases after learning that both parties had failed to comply with the pretrial scheduling order and were unprepared to proceed.
Gilbert v. Nina Plaza Condo Ass'n, 64 P.3d 126, 127 (Alaska 2003).
Id.
Id.
On June 9, 2000, Gilbert filed a second complaint against the same defendants, alleging the same general acts of misconduct and adding a new claim for intentional infliction of emotional distress. Gilbert failed to serve the second complaint on the defendants, and the superior court dismissed the complaint without prejudice. Gilbert appealed the dismissal of both suits to this court, and we reversed, reinstating both lawsuits, which were then consolidated in the trial court.
Id.
Id. at 127-28.
Id. at 131.
At trial, Gilbert offered the testimony of three former residents of Nina Plaza, two friends, a clinical psychologist, and Gilbert's primary care physician. When asked if Gilbert was disabled, Gilbert's primary care physician, Dr. Moss, testified:
Ms. Gilbert still has the ability to — to walk around, to swim, to do aqua jogging, to ride a bicycle, to — to drive a — an automobile. Sure, there's pain involved but as far as actual disability to prevent her from employment or — or recreation to some degree, I don't believe so, no.
Dr. Moss also stated that there was no reason Gilbert could not walk her dog on a leash. Nina Plaza presented two witnesses, Steven Simonka and Leo von Keitz, the property manager for Nina Plaza.
Superior Court Judge John Suddock ruled that Frances Lundy had defaulted in the case and awarded Gilbert $3,000 on her claim of intentional infliction of emotional distress against Lundy. Judge Suddock also granted Gilbert's request for an injunction requiring that her roof be repaired, but he did not award Gilbert damages for the damage to the interior of her condo because of a settlement agreement in a previous lawsuit. Judge Suddock found that while the condo association allowed certain bad behavior to go on longer than it should have, Gilbert's remedy was to sue her co-tenants and that there was no actionable claim against a condo association for "insufficient vigilance" in enforcing its regulations. The superior court also found that the situation had improved since Gilbert originally filed her lawsuit and that Gilbert was not now in an extreme situation entitling her to injunctive relief. The superior court found no discrimination against Gilbert on the basis of her disability and ruled that the condo association had adequately addressed the noise problem by promulgating rules on quiet hours. Finally, the superior court ruled that Gilbert would be required to keep her dog on a leash and pick up after her dog. The trial court made this determination based on the doctor's testimony that Gilbert can walk her dog with a leash, as well as Gilbert's own testimony that the dog was under good voice control, so that it was unlikely the dog would pull on the leash.
On March 15, 2004, Nina Plaza filed a complaint against Gilbert and her mother, Muriel. The complaint alleged that Gilbert had failed to keep her dog on a leash and pick up after her dog. Nina Plaza asked for judgment for the $750 in unpaid fines and for an injunction prohibiting Gilbert from occupying the condo. At the status hearing for the case, the court limited the scope of testimony to whether the condo association was enforcing the dog leash rule in a retaliatory manner or in bad faith. The superior court also allowed medical testimony showing changed circumstances with regards to Gilbert's physical condition since the December 2003 decision.
The superior court held a second trial on February 18, 2005. At the conclusion of the trial, Judge Suddock ruled that between the trial in December 2003 and the current trial, Gilbert's physical condition had deteriorated and that Gilbert was no longer able to have the dog on a leash and "scoop the poop." Judge Suddock ruled that a reasonable accommodation could be made to install an I-bolt to Gilbert's porch with a tether or leash attached. Gilbert was to be present while the dog was outside and tethered to the I-bolt. Judge Suddock also ruled that Gilbert must pick up after her dog as soon as reasonably possible, but not longer than a day. Judge Suddock also found that Nina Plaza was not retaliatory in filing its lawsuit. Gilbert appeals the decisions in both cases, and the appeals have been consolidated.
III. STANDARD OF REVIEW
We review the superior court's evidentiary rulings under the abuse of discretion standard. A trial court's discovery rulings and the denial of a continuance are reviewed under the abuse of discretion standard. An abuse of discretion will be found when "a party has been deprived of a substantial right or seriously prejudiced by the lower court's ruling." This determination is made based on the "particular facts and circumstances of each case." A trial court's factual findings on disputed facts are reviewed under the clearly erroneous standard. Under the clearly erroneous standard, a finding will be overturned if this court is left with "a definite and firm conviction that a mistake was made." It is the job of the trial court to judge the credibility of witness testimony and weigh conflicting evidence.
Bierria v. Dickinson Mfg. Co., Ltd., 36 P.3d 654, 657 (Alaska 2001).
Marron v. Stromstad, 123 P.3d 992, 998 (Alaska 2005).
State, Dep't of Transp. Pub. Facilities v. Miller, 145 P.3d 521, 528 (Alaska 2006).
Id. (internal quotations and citation omitted).
Id.
Fyffe v. Wright, 93 P.3d 444, 450 (Alaska 2004).
Id.
Id.
IV. DISCUSSION
A. Evidentiary and Procedural Matters 1. Failure to grant the continuance
At the start of trial in the first case, a Monday, Gilbert requested a continuance due to a sinus infection. After dealing with a discovery dispute, the trial judge inquired if Gilbert felt able to continue for the rest of the day. Gilbert indicated that she was not able to continue that day and that her trial preparation had been hampered by the infection. Gilbert stated that she would not be able to continue until Thursday or Friday of that week at the earliest. Judge Suddock gave Gilbert another day to prepare and recover and started the trial on Tuesday. Gilbert claims that her motion to postpone the trial until Thursday or Friday should have been granted. Judge Suddock granted a one-day continuance, and given that a longer continuance would have likely meant postponing the trial for months, his decision to require Gilbert to proceed to trial thereafter was not an abuse of discretion. 2. Evidentiary and discovery matters
Klockenbrink v. State, 472 P.2d 958, 964 (Alaska 1970) (concluding that "granting or denying a continuance traditionally has been within the discretion of the trial judge").
Gilbert argues that the trial court improperly limited her witness list and the testimony of those witnesses who did testify. Gilbert had originally told the court she was going to call three to four witnesses, but later revised her estimate to eighteen. The court then reviewed with Gilbert her list of proposed witnesses and their expected testimony. The trial court ruled that it would not permit lay testimony regarding Gilbert's disabilities because her doctor was testifying on those issues and that it would not allow any "nice pooch" testimony on the obedience and temperament of Gilbert's dog. The trial court also disallowed character evidence regarding Gilbert or Simonka, as well as testimony that constituted impeachment on collateral matters. The superior court did not abuse its discretion in its rulings limiting the number and scope of testimony of Gilbert's witnesses.
See Harris v. Keys, 948 P.2d 460, 467 (Alaska 1997) (stating that a superior court's decision regarding addition of witnesses is reviewed for abuse of discretion).
Gilbert also argues that the trial court should have required Nina Plaza and Simonka to turn over certain items of discovery. Gilbert is particularly concerned about not being provided with a copy of the management contract between Nina Plaza and Hoffman Commercial, the management company for Nina Plaza, and the videotape made of the inspection of Gilbert's condo. But Gilbert has failed to demonstrate how she was prejudiced by not receiving a copy of the contract between Nina Plaza and Hoffman Commercial. Hoffman Commercial did not begin managing Nina Plaza until 2001, and the trial court found the contract to be irrelevant to the issues raised at trial. Gilbert had a contractor walk through her condo to estimate the damages caused by the leaking roof. The trial court informed Gilbert that Nina Plaza would be able to videotape that inspection. Nina Plaza did videotape the inspection but never offered the tape into evidence. When Gilbert inquired about the videotape, asking "is that considered hearsay because it's not sworn to? Would it be admitted or. . ., "the trial court replied that it had not been offered into evidence. Because neither Gilbert nor Nina Plaza offered the tape into evidence, Gilbert therefore has not made a claim of error. If there is no request for relief from the trial court, there is no error in failing to sua sponte grant relief.
See Brandner v. Agre, 80 P.3d 691, 695 (Alaska 2003) (holding that failure to raise argument before trial court results in waiver).
Gilbert also complains that the trial court did not provide adequate assistance to her as a pro se litigant. However, the record belies this assertion. Judge Suddock was extremely patient with Gilbert and on numerous occasions gave her direction as to what steps she needed to take or what evidence she needed to present in order to maintain her claims. The trial judge carefully analyzed the evidence, and he treated the parties with courtesy and respect. Gilbert's claim that the trial court failed to assist her adequately is entirely without merit.
B. Gilbert's Claims Against Steven Simonka
Gilbert argues that Simonka not only harassed her but that he also incited his tenants to harass Gilbert and vandalize her property. In his oral findings on the record regarding Gilbert's claims against Steven Simonka, Judge Suddock ruled:
It seems to me that some of the tenants that Mr. Simonka agreed to move in were a little rough around the edges and I regret that but that does not make Mr. Simonka or any other landlord in Anchorage liable for the bad conduct of the tenants. There's simply no body of law that says that a landlord or a condominium owner who leases or subleases to a tenant thereby assumes a duty to all other owners for the conduct of those tenants. . . . It wouldn't surprise me if Mr. Simonka took a little glee in some of [Gilbert's] discomfort but he doesn't — that doesn't make him the originator of that conduct or, if he was, it hasn't been proven so I'm going to find that he is not liable to Ms. Gilbert.
Judge Suddock concluded that there was no legal basis for Gilbert's claims against Simonka and therefore found against her on those claims. The superior court's determination is supported by the record and is not in error.
C. Gilbert's Claims Against Nina Plaza
Gilbert raised a number of claims against Nina Plaza, including failure to enforce bylaw provisions regarding noise, failure to stop assaults and vandalism against her, failure to repair her roof, and discrimination against her on the basis of sex and disability.
1. Damages for the roof
While the superior court granted Gilbert part of her requested injunctive relief, ordering that Nina Plaza repair her roof, it did not award damages for the interior damage to Gilbert's condo caused by the leaking roof because of an earlier settlement of the matter. Gilbert challenges this ruling, claiming that Nina Plaza should be responsible for at least $4,000 in damages caused by the leaking roof. Judge Suddock ruled that Gilbert failed to prove her entitlement to additional damages:
I also would have granted damages — in fact, I kind of bent over backwards trying to get Ms. Gilbert to come up to an adequate standard of proof for the consequential damages inside the condo from, apparently, a decade of a leaking roof. That's why I granted more time for the walk-through and the contractor but, unfortunately. . . [t]here was a settlement and the settlement specifically references that it's a walk-away and it's a walk-away from interior damage as well so I find that Muriel Gilbert has been, in fact, compensated for [those] damage[s]. . . .
Judge Suddock's ruling is supported by the record and not clearly erroneous. Although Gilbert now argues that roof leaks caused new damage after the settlement was reached, she failed to present any evidence on additional damages suffered after the settlement. In the absence of such information, it was not clear error for Judge Suddock to rule that Gilbert was not entitled to any damages for the damage caused by the leaking roof.
2. Claims that Nina Plaza should have stopped the assaults and vandalism against Gilbert
Gilbert claims that Nina Plaza should have put a stop to the vandalism inflicted on her by other Nina Plaza owners and tenants. In his decision on the record, Judge Suddock found that Gilbert's remedy was to sue her co-tenants and that, in any event, the conduct had abated by the time of trial.
The relief of the aggrieved condominium owner seems to be to step into the [a]ssociation's place and sue to enforce or perhaps sue the condo association for an injunction requiring them to enforce but I don't. . . think you can sit back, fail to sue the [other tenants] for injunctive relief and then years later sue the condo association for what the [other tenants] did to you years before.
I would grant injunctive relief against the condo association if I saw today the kind of behaviors and conditions that Ms. Gilbert proved much earlier in the nineties, the appalling level of trash around the dumpster, the increasing disrepair, the crack heads in adjoining premises, the cries of abused children, the cruelty that was going on, if that — if she had proved that that was happening currently, I think that's the kind of thing that she would be entitled to injunctive relief. Fortunately, the condo association has gotten better about managing the premises and it does not seem to me that Ms. Gilbert is in the kind of extremity now that entitles her to injunctive relief.
Because Nina Plaza had no duty to intervene in Gilbert's dispute with her neighbors, the trial court correctly decided this point. 3. Discriminatory conduct by Nina Plaza
See Lawrence v. Courtyards at Deerwood Ass'n, Inc., 318 F. Supp. 2d 1133, 1145 (S.D. Fla. 2004) (holding that Fair Housing Act did not impose duty on homeowner's association to intervene in a neighbor-to-neighbor dispute); Siino v. Reices, 628 N.Y.S.2d 757, 758 (N.Y.App.Div. 1995) (holding that a landlord does not have a duty to protect a neighbor from the conduct of a tenant where the neighbor sued the landlord for harassment by the tenants).
Gilbert claims that the condo association discriminated against her on the basis of sex and disability by preventing her from participating in the condo association. Although Judge Suddock concluded that the conduct of the condo association members was mean-spirited, he found no evidence of discrimination on the bases of Gilbert's disability or gender.
In no sense does this mean that I'm putting any kind of imprimatur of approval on how people behaved out there. It was an appallingly — it was a playground world. People were behaving on really kind of rude, brute emotions and responses but I find absolutely nothing that suggests that the condo association harassed you or discriminated against you on account of any handicap that you might have. I think what you found in meetings is if you try to take over meetings or dominate meetings, you know, people are going to speak up and push back but I find that there is no proof to the required standard of any conduct of the condo association at any time that is a discrimination against you because of your handicap status.
Because Gilbert has not shown any evidence of discriminatory intent by the condo association, Judge Suddock's conclusion that Nina Plaza had not discriminated against Gilbert was not erroneous.
Cf. Era Aviation, Inc. v. Lindfors, 17 P.3d 40, 44 (Alaska 2000) (stating that in order to establish a prima facie case of discrimination, the plaintiff must eliminate nondiscriminatory reasons for the actions complained of).
The trial court also found that Nina Plaza need not permit Gilbert to drive into the condo courtyard to unload groceries in order to accommodate her disability:
A further question becomes is the condo association required under federal if not Alaska law to accommodate you in some fashion. . . . I don't find that you require any accommodation that I can perceive or understand from the condo association. . . . It's absolutely not to minimize that you have problems, discomforts, hurts, things you can't do but they don't rise to a level and match things that the condo association is legally obligated to do to help you through life's path. I don't believe that it's necessary that you drive your car to your front door. I just find that that's an intrusive thing in a condominium. . . . If you have some difficulty getting groceries in, you can get a wheeled cart and break them down into manageable components and get people to help you. So I don't find that preventing you from driving a car to your door was an unreasonable act. . . .
Judge Suddock's ruling that Nina Plaza was not required to accommodate Gilbert was not error. 4. Diminution of value claim
Cf. Prindable v. Ass'n of Apartment Owners of 2987 Kalakaua, 304 F. Supp. 2d 1245, 1254 (D. Hawaii 2003) (stating that while the Fair Housing Act requires accommodations for handicapped residents, there is no preference for handicapped residents, and "accommodations that go beyond affording. . . an equal opportunity to use and enjoy a dwelling are not required") (internal quotations and citation omitted).
Gilbert also claimed substantial damages for deficient management of the condo which she claims has degraded its value. But this claim fails for two reasons. First, Gilbert was not the owner of the condo, so it is unclear what standing she has to bring a claim for diminution of value. Second, Judge Suddock correctly concluded that there was "just no legal support" for Gilbert's claim for damages "in excess of $100,000" because she thought that her "unit should be more valuable."
It may be true that with tip-top management and the formation of a community there, that the place could have been made more desirable over the years. Clearly, once the condo association made the decision and voted to allow rentals rather than owner occupancy, that implies that it's — you're going to have a rougher clientele with less vested interest in keeping the joint up and so that makes it harder to make it a desirable place to sell units to other owners for owners to live there. I mean, that just goes with the territory. People buy condominiums because they want condominiums, not apartments and they behave differently. It makes it a different place but the court is not in the business of second-guessing the [b]oard on its decisions. If there were a cause of action or a claim of the nature Ms. Gilbert is asserting — I mean, any condominium owner could come into court and say I want you to second-guess the [b]oard, this would make our units more valuable if we all did this and I find your relief is to try to convince your board to take more responsible self-interested actions. It's not to come to court and seek money damages in — apparently, in excess of $100,000 because you think your unit should be more valuable. There's just no legal support for a claim like that.
Because Gilbert had not presented any evidence to substantiate her claim for lost value, Judge Suddock's ruling does not constitute error. 5. Excessive noise complaint
See Bennett v. Weimar, 975 P.2d 691, 693 (Alaska 1999) (stating "[c]ourts. . . generally do not substitute their judgment for condominium association officers' decisions unless they are unreasonable").
Gilbert argues that the trial court erred in failing to require Nina Plaza to control the noise of children in the courtyard. Nina Plaza bylaws state: "All occupants shall exercise extreme care about making noises or in the use of musical instruments, radios, televisions and amplifiers that may disturb other occupants." The condo association chose to enforce this provision by issuing a house rule with quiet hours. Judge Suddock addressed this claim in his oral findings:
You also make a claim that the condominium should be required — you style it to strictly enforce noise limits in the courtyard. . . . Read literally, the bylaw provision for extreme quiet might be construed to say no kids could ever play in the courtyard because, by definition, when you have kids playing in the courtyard, you do not have extreme quiet. They're just — extreme quiet and kids playing in the courtyard don't go together very well. What I find is that the [a]ssociation has reasonably addressed the situation by passing [a] regulation that. . . set[s] up quiet hours and that permit[s] children to play there during the day. It's unreasonable to construe that regulation otherwise. . . . [S]o I'm not going to enjoin children from playing in the courtyard during the day. . . .
The trial court's decision that this constituted a reasonable action by the condo association was not erroneous.
6. Accommodation for the dog
Gilbert argues that she should be permitted to walk her dog without a leash by using voice control, which she claims would be a reasonable accommodation to her disabilities. After the resolution of Gilbert's suit against Nina Plaza, which required Gilbert to keep her dog on a leash, Nina Plaza sought to remove Gilbert from the complex because she continued to refuse to walk her dog on a leash. Judge Suddock held a one-day trial on this claim and at its conclusion, he ruled that Gilbert's physical condition had deteriorated since the first case to the point that she could no longer walk her dog on a leash. Judge Suddock ruled that a reasonable way to accommodate Gilbert's disability would be to install an I-bolt and allow the dog to be tethered to it outside. Judge Suddock refused to order Gilbert removed from the condo, although he warned her that she had to abide by his ruling or he would grant injunctive relief to evict her.
Because the trial court ruled in favor of Gilbert and denied Nina Plaza's request that Gilbert be evicted, instead, crafting an accommodation for Gilbert, we need not address Gilbert's alternative defense that Nina Plaza's lawsuit was retaliatory.
Because the trial court fashioned a reasonable accommodation for Gilbert's disabilities relating to her capacity to keep her dog on a leash, its resolution of this issue was not error.
See Bronk v. Ineichen, 54 F.3d 425, 431 (7th Cir. 1995) (stating: "The accommodation must facilitate a disabled individual's ability to function, and it must survive a cost-benefit balancing that takes both parties' needs into account"); Prindable, 304 F. Supp. 2d at 1257 (holding that while a reasonable accommodation can involve changing a generally applicable rule so that the burden is "less onerous" on the handicapped person, there is "no obligation to do everything humanly possibly to accommodate a disabled person; cost (to the defendant) and benefit (to the plaintiff) merit consideration as well") (internal quotations and citation omitted); In re Kenna Homes Co-Op. Corp., 557 S.E.2d 787, 794, 799 (W. Va 2001) (noting that only accommodations that are "reasonable" are required and holding that a landlord can require that a service animal not be a nuisance).
V. CONCLUSION
The judgment of the superior court is AFFIRMED.