Opinion
23A-EV-1835
07-31-2024
Annemary Nelson, Appellant-Defendant v. Housing Authority of South Bend, Appellee-Plaintiff
ATTORNEYS FOR APPELLANT Kylee Tomblin-Tuthill, Indiana Legal Services, Inc., Jon Laramore, Indiana Legal Services, Inc., Gretel Johns, Indiana Legal Services, Inc. ATTORNEY FOR APPELLEE Tramel R. Raggs, Harris Law Firm, P.C.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Interlocutory Appeal from the St. Joseph Superior Court The Honorable Matthew R. Raper, Magistrate Trial Court Cause No. 71D05-2305-EV-863
ATTORNEYS FOR APPELLANT Kylee Tomblin-Tuthill, Indiana Legal Services, Inc., Jon Laramore, Indiana Legal Services, Inc., Gretel Johns, Indiana Legal Services, Inc.
ATTORNEY FOR APPELLEE Tramel R. Raggs, Harris Law Firm, P.C.
MEMORANDUM DECISION
Kenworthy, Judge.
Case Summary
[¶1] In this interlocutory appeal, Annemary Nelson challenges the trial court's order granting the Housing Authority of South Bend ("HASB") possession of her apartment when Nelson declined to transfer to a one-bedroom unit after HASB determined she was over-housed in a two-bedroom. She raises three issues for our review, which we restate as:
(1) Did the trial court err by failing to find HASB waived its claim Nelson was over-housed when it offered Nelson two-bedroom units during compromise negotiations?
(2) Was the trial court's judgment that Nelson violated her lease agreement clearly erroneous?
(3) Did HASB provide Nelson due process of law?
[¶2] We affirm.
Facts and Procedural History
[¶3] Nelson became a tenant of HASB in 2003. In April 2017, she entered into a lease agreement with HASB to rent a two-bedroom unit on Edison Road. Nelson was the sole resident listed in the lease. Under the lease terms, Nelson agreed to submit to annual recertification regarding income, assets, and family composition. The lease contained the following relevant terms:
C. Transfer to Appropriate Size Dwelling Unit. The Resident agrees to transfer to an appropriate size dwelling unit based on family composition upon notice from HASB that such a dwelling unit is available. Failure to transfer to such dwelling unit is grounds for termination of this Lease by HASB....
D. Notification. When HASB . . . determines that the Resident must transfer to another dwelling unit based on family composition, HASB shall notify the Resident that the Resident may request an explanation stating the specific grounds of the HASB determination, and that if the Resident does not agree with the determination, the Resident shall have the right to request a hearing under the HASB Grievance Procedure.Appellant's App. Vol. 2 at 17.
[¶4] In April 2022, a HASB employee emailed Nelson to say her annual recertification inspection showed she was over-housed in a two-bedroom apartment and offered to show her a one-bedroom unit. In October, HASB mailed Nelson a letter offering her a one-bedroom unit at 501 Alonzo Watson and gave her until October 20 to accept or decline the transfer.
[¶5] Nelson did not want to transfer, so she contacted the HASB office to request they add her adult son to her current lease as an additional adult. HASB met with Nelson soon after and provided her with a list of documentation her son would need to bring to the office. Because he was out of the country, HASB scheduled an appointment for November 21, at which time Nelson was to appear in person with her son and turn in the documents. HASB talked to her "several times" about adding the son. Tr. Vol. 2 at 26. Her son did not appear on November 21 or thereafter.
[¶6] In February 2023, HASB mailed Nelson a second offer of a one-bedroom unit at a different property, which she could accept or decline by March 15. The letter stated refusal of the offer without good cause would result in lease termination, and she must request a grievance hearing within five days if she intended to dispute the transfer. Nelson rejected the second offer. HASB then mailed Nelson a notice to vacate by April 30, listing the reason for lease termination as failure to transfer to an appropriate size dwelling.
[¶7] On April 28, Nelson's adult daughter, Caroline, sent HASB an email summarizing a meeting between HASB, Caroline, and Nelson. In the email, Caroline states Nelson is a "senior citizen, disabled, and a wife of a veteran" and asserts they "asked for reasonable accommodations which you have denied us." Ex. at 4.
[¶8] On May 4, HASB sent Nelson a final notice to vacate, informing her HASB would terminate the lease on May 31 because she did not transfer to an appropriate size dwelling or vacate her current unit. HASB also filed an eviction action in the small claims court.
[¶9] At some point, Nelson filed a complaint with the South Bend Human Rights Commission ("HRC") alleging HASB engaged in housing discrimination based on race or disability. In an undated notice, the HRC determined there was probable cause to believe a violation occurred. The case proceeded to conciliation.
A local civil rights commission such as the HRC may investigate, conciliate, and hear complaints of discriminatory practices in housing, among other areas. Ind. Code § 22-9-1-12.1 (2007); I.C. § 22-9-1-2 (2014).
[¶10] On July 10, the small claims court heard the eviction action. During the hearing, Nelson moved to admit an email showing HASB had offered Nelson two-bedroom units in different buildings during conciliation. Over HASB's objection, the trial court admitted the evidence.
[¶11] At the end of the hearing, the trial court stated:
. . . [T]he first request was October when [Nelson] said, "I need my son or somebody to live with me." And the response to that was, "Okay, bring him in, get him on the lease and we're fine with that." . . . That didn't happen. So we got another overhousing notice in February.... She missed the appointment or didn't add somebody or for whatever reason - - and I have no information other than conflicting testimony between the parties about how and when and why this took place.... [T]he purpose of the federal regulations that everybody has relied upon is to provide some consistency and provide timelines and provide knowledge for everybody[.] . . . And these timelines were not followed in this case.
I am going to find, based on the balance of the evidence, that there has been a violation of the lease agreement for failing to recertify; either recertify adult children, add adult children, or transfer to a unit, if that were appropriate. And . . . it appears as
though there were accommodations at least at the time that were attempted to be made that were not followed through by . . .
[Nelson]. So I am going to find that there has been a breach of [Nelson's] obligations pursuant to the lease agreement and pursuant to the CFR[.]Tr. Vol. 2 at 73-74 (paragraph breaks omitted). In a hearing journal entry, the trial court granted HASB possession of Nelson's unit effective July 31, 2023, at 5:00 p.m. After a subsequent hearing, the trial court stayed the possession order pending interlocutory appeal.
Standard of Review
[¶12] Judgments in small claims actions are "subject to review as prescribed by relevant Indiana rules and statutes." Ind. Small Claims Rule 11(A). We will not set aside the factual findings or judgment entered in a bench trial unless clearly erroneous, and we give due regard to the trial court's opportunity to judge witness credibility. Ind. Trial Rule 52(A); Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1067 (Ind. 2006). In determining whether a judgment is clearly erroneous, we do not reweigh the evidence or determine witness credibility. City of Dunkirk Water &Sewage Dep't v. Hall, 657 N.E.2d 115, 116 (Ind. 1995). We consider only the evidence supporting the judgment and the reasonable inferences drawn from that evidence. Id. This "deferential standard of review is particularly important in small claims actions, where trials are 'informal, with the sole objective of dispensing speedy justice between the parties according to the rules of substantive law.'" Id. (quoting S.C.R. 8(A)). We review questions of law de novo. Trinity Homes, 848 N.E.2d at 1068.
Nelson contends the trial court did not give reasons for its decision, thus hampering her ability to prepare and present a defense. See Appellant's Br. at 34 ("The trial court's check-box decision . . . provides no reason."). The trial court did not enter written findings of fact but entered judgment on a written form by circling the word "granted," checking the box "final possession," and signing and dating the paper. Appellant's App. Vol. 2 at 7. Judgments of a small claims court "shall be reduced to writing signed by the court, dated, entered in the Record of Judgments and Orders, and noted in the small claims judgment docket and the Chronological Case Summary." S.C.R. 11(A). The small claims court need not enter special findings under Indiana Trial Rule 52; in fact, "formal entry of findings of fact and conclusions of law is contrary to the policy enunciated in Small Claims Rules 8 and 11." Bowman v. Kitchel, 644 N.E.2d 878, 879 (Ind. 1995). The trial court's hearing journal entry coupled with its explanation in the record is sufficient to meet the requirements of the small claims rules and facilitate appellate review. See id. (noting the small claims court's "oral explanation and its straightforward written judgment were sufficient to support the judgment").
1. The trial court did not err by failing to find HASB waived its claim during compromise negotiations.
[¶13] Nelson argues HASB waived its sole basis for evicting her-that she was overhoused in a two-bedroom unit-because it offered her other two-bedroom units during conciliation with the HRC. HASB counters that the trial court should have excluded evidence of HASB's compromise offers and therefore they cannot be relied on as the basis for waiver.
[¶14] The Indiana Small Claims Rules provide for informal trials designed to dispense "speedy justice." S.C.R. 8(A). To meet that objective, small claims actions "shall not be bound by the statutory provisions or rules of practice, procedure, pleadings or evidence except provisions relating to privileged communications and offers of compromise." Id. (emphasis added).
[¶15] Because Indiana courts strongly encourage amicable dispute resolution, "we embrace 'a robust policy of confidentiality of conduct and statements made during negotiation and mediation.'" Berg v. Berg, 170 N.E.3d 224, 228 (Ind. 2021) (quoting Horner v. Carter, 981 N.E.2d 1210, 1212 (Ind. 2013)). Generally, evidence of statements made during compromise negotiations about the claim is not admissible to prove or disprove the validity of a disputed claim. Ind. Evidence Rule 408(a). Compromise negotiations include alternative dispute resolution, id., and conciliation is a recognized A.D.R. method, Ind. Alternative Dispute Resolution Rule 1.1. Evidence Rule 408 therefore "operates to foster an open exchange between the parties during settlement negotiations by excluding from evidence statements made or documents prepared for mediation" and other A.D.R. methods. Berg, 170 N.E.3d at 228.
[¶16] But evidence obtained during compromise negotiations may be admissible "for another purpose," including "proving a witness's bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution." Evid. R. 408(b). The admissibility of evidence offered "for another purpose" pertains to "the use of such evidence only in collateral matters unrelated to the dispute that is the subject of the mediation." Horner, 981 N.E.2d at 1212 (emphasis added).
[¶17] Nelson offered evidence of the compromise offers to prove HASB had no basis to evict her. She therefore offered it to disprove the validity of HASB's claim, in contravention of Rule 408. Nelson points out HASB made the compromise offers in separate litigation between the parties. But the conciliation was not "unrelated to" the eviction claim. Horner, 981 N.E.2d at 1212. In ruling HASB's compromise offers admissible, the trial court acknowledged the "intertwined nature of this situation with discussions between the Parties of how to appropriately resolve the housing situation[.]" Tr. Vol. 2 at 20. Because the proceedings were interrelated, the trial court erred in admitting evidence of HASB's compromise offers. Accordingly, such evidence cannot be used to prove HASB waived its claim. See Worman Enters., Inc. v. Boone Cnty. Solid Waste Mgmt. Dist., 805 N.E.2d 369, 376-77 (Ind. 2004) (holding conciliatory statements made during settlement negotiations in earlier litigation were inadmissible in subsequent, related litigation between the same parties to prove a claim was waived).
[¶18] Because the trial court should not have admitted evidence of the compromise offers, the court did not err by failing to consider HASB's offers of other two-bedroom units a waiver of the eviction claim.
2. The trial court's judgment that Nelson violated her lease agreement was not clearly erroneous.
[¶19] Nelson next argues the trial court's judgment that Nelson violated her lease agreement by failing to transfer to an appropriate size unit was clearly erroneous.
[¶20] Under the lease terms, Nelson agreed to transfer to an appropriate size dwelling unit based on family composition, and failure to transfer was grounds for lease termination. HASB offered Nelson two one-bedroom units because she was the sole leaseholder and unit resident. HASB also allowed Nelson to add an adult to her current lease. Nelson neither completed the required steps to add an adult nor transferred to an appropriate size unit. The trial court's judgment Nelson violated her lease terms was not clearly erroneous.
[¶21] Still, Nelson contends she had good cause to refuse the transfer because she is disabled and entitled to reasonable accommodation. Nelson first points out HASB's Occupancy Plan "fails to list any specific ground for 'good cause' refusal of a proposed transfer" and asserts HASB's plan violates HUD guidelines. Appellant's Br. at 18. But Nelson did not raise this issue with the trial court and therefore waived any argument on appeal about the legal shortfalls of HASB's Occupancy Plan. See Tamko Roofing Prods., Inc. v. Dilloway, 865 N.E.2d 1074, 1080 (Ind.Ct.App. 2007) ("[A] party may not present an argument or issue to an appellate court unless the party raised that argument or issue to the trial court.").
The Fair Housing Act prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, familial status, and disability. See 42 U.S.C. § 3601 et seq. Rather than "disability," the Act uses the term "handicap," which means, with respect to a person:
(1) a physical or mental impairment which substantially limits one or more of such person's major life activities,
(2) a record of having such an impairment, or
(3) being regarded as having such an impairment, but such term does not include current, illegal use of or addiction to a controlled substance[.]42 U.S.C. § 3602(h) (1988). Disability discrimination in housing 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." 42 U.S.C. § 3604(f)(3)(B) (1988).
[¶22] At trial, Nelson testified she is disabled and received Social Security income for her disability before retirement. She introduced an October 2021 benefit letter from the Social Security Administration, which did not state the reason for her monthly benefit. She also produced three letters from medical professionals dating from May and July 2023 stating she needed assistance with activities of daily living. The trial court did not credit her testimony or find the documents established Nelson had a disability within the meaning of the Fair Housing Act. See 42 U.S.C. § 3602(h) (1988) (defining "handicap" under the Act).
[¶23] More importantly, Nelson argued to the trial court she was "not making a claim of failure to accommodate." Tr. Vol. 2 at 64. To the extent Nelson now asks us to find she was entitled to reasonable accommodation due to disability, we again decline her request to take up an argument not presented to the trial court. Tamko, 865 N.E.2d at 1080.
[¶24] Nelson's attorney acknowledged to the trial court that evidence of Nelson's disability was not well-developed. See Tr. Vol. 2 at 64 (stating in response to the trial court's questions about the nature of Nelson's disability and timing of becoming disabled, "I believe that those are good questions, but they weren't asked of my client."). Nelson attributes the lack of probative evidence to HASB's failure to inquire into Nelson's accommodation requests.
[¶25] The parties presented conflicting evidence as to what Nelson requested and when. Nelson testified she repeatedly told HASB staff she was disabled and needed someone to live with her. But HASB representative Cheryl Carrell testified Nelson never asked for reasonable accommodation due to disability, only to add an adult child to the lease. Evidence shows HASB provided Nelson opportunities to add another person to her lease, but Nelson did not follow through.
On cross-examination and when confronted with Caroline's April email to HASB, Carrell agreed the email requested accommodation. On re-direct, Carrell testified she believed Nelson wanted an additional family member to move in, not a live-in aide. Under the lease, a "live-in aide" is different than an additional adult. "Live-in aide" means:
a person who resides with an elderly, disabled or handicapped person and who:
(a) Is determined by HASB to be essential to the care and well-being of the person;
(b) Is not obligated for the support of the person; and
(c) Would not be living in the Dwelling Unit except to provide the necessary supporting services.Appellant's App. Vol. 2 at 18.
[¶26] Nelson urges us to "construe [her] actions as invoking the reasonable accommodation process available to public housing tenants[.]" Appellant's Br. at 23. She also argues HASB knew or should have known Nelson is disabled, in part because Nelson paid her rent from Social Security checks. But these are requests to reweigh the evidence and credibility of the witnesses, which we cannot do. Trinity Homes, 848 N.E.2d at 1067.
Even assuming Nelson was entitled to reasonable accommodations, and the accommodation was a live-in aide, her ability to stay in her current two-bedroom apartment was not guaranteed on that basis. Under HASB's Occupancy Plan, an "approved live-in aide may be assigned a bedroom" but "[s]ingle, elderly, or disabled residents with live-in attendants will be assigned either one- or two-bedroom units." Appellant's Addend. at 8 (emphasis added).
[¶27] The trial court's judgment that Nelson violated her lease terms was not clearly erroneous.
3. HASB did not deny Nelson due process of law.
[¶28] Nelson next argues HASB denied her due process of law by failing to construe her requests as invoking its grievance procedure and then engaging in that process.
[¶29] A Public Housing Agency ("PHA") must establish and implement a grievance procedure which affords a tenant an opportunity for a hearing "if the tenant disputes within a reasonable time any PHA action or failure to act involving the tenant's lease with the PHA[.]" 24 C.F.R. § 966.50 (1991). A grievance is "any dispute which a tenant may have with respect to PHA action or failure to act in accordance with the individual tenant's lease or PHA regulations which adversely affect the individual tenant's rights, duties, welfare or status." 24 C.F.R. § 966.53(a) (2016). A tenant must personally present grievances, orally or in writing, to the PHA office to first be discussed informally and settled without a hearing. 24 C.F.R. § 966.54 (2016). If a tenant requests a hearing, a PHA must provide a fair hearing with certain procedural due process protections. See 24 C.F.R. § 966.56 (2016). The tenancy shall not terminate until the time for the tenant to request a grievance hearing has expired and, if the tenant timely requested a hearing, the grievance process is complete. 24 C.F.R. § 966.4(1)(3)(iv) (2023).
[¶30] The lease agreement informed Nelson of these rights. It required HASB to notify Nelson of the specific grounds for any proposed adverse action, including transfer to another unit. In that case, HASB needed to inform Nelson of her right to request a hearing. Section 14 of Nelson's lease states all disputes "shall be resolved in accordance with the HASB Grievance Procedure which is in effect at the time such grievance or appeal arises, and a copy of which is posted in the HASB central management office and is incorporated in this Lease by reference." Appellant's App. Vol. 2 at 28. Both the October 10 and February 28 transfer notices HASB sent Nelson stated refusal of the offer without good cause would result in lease termination, and she had a right to request a grievance hearing within five days if she disagreed with HASB's determination.
Neither party introduced into evidence HASB's grievance procedure.
[¶31] Again, the parties presented conflicting evidence as to what Nelson requested and when. The trial court weighed the conflicting testimony and concluded HASB provided Nelson with notice and opportunity to add an adult to the lease or dispute the transfer. But Nelson did not do so until after the period for requesting a hearing passed and lease termination was imminent. Evidence supports the trial court's assessment that Nelson's requests were untimely, and we do not reweigh the evidence. Trinity Homes, 848 N.E.2d at 1067. Based on the record before us, we cannot say HASB denied Nelson due process of law.
Conclusion
[¶32] The trial court did not err by failing to find HASB waived its claim during compromise negotiations. The trial court's judgment that Nelson violated her lease agreement was not clearly erroneous. And HASB did not deny Nelson due process of law.
[¶33] Affirmed.
May, J., and Vaidik, J., concur.