Hamilton County Municipal Court TRIAL No. 12CV-02818.
Angela Stearns, for Plaintiff-Appellee.
Legal Aid Society of Greater Cincinnati and Virginia Tallent, for Defendant-Appellant.
(¶1} Defendant-appellant Leah D. Brown contests the trial court's entry of summary judgment in favor of her landlord, plaintiff-appellee the Cincinnati Metropolitan Housing Authority ("CMHA"), on its action for forcible entry and detainer. Brown also challenges the trial court's denial of her motion for partial summary judgment on her counterclaim seeking money damages for CMHA's alleged violations of federal fair housing laws. CMHA initiated this eviction action when Brown threatened and yelled racially derogatory names at another public-housing tenant. Because Brown engaged in criminal activity which posed a direct threat to other tenants, CMHA was entitled to terminate her lease and we affirm.
(¶2} Brown had been a CMHA public-housing tenant since 2007. She suffers from bipolar and panic disorders, and from multiple physical disabilities affecting her mobility. Her lease included a federally mandated "zero tolerance" provision that permitted CMHA to terminate her tenancy if Brown engaged in criminal activity that threatened the health, safety, or right to peaceful enjoyment of another tenant. See, e.g., Cincinnati Metro. Hous. Auth. v. Browning, 1st Dist. Hamilton No. C-010055, 2002-Ohio-190, ¶ 3.
(¶3} In December 2011, Brown threatened and yelled racially derogatory names at her fellow public-housing tenant Maimou Ndiaye. Brown was charged with menacing and ethnic intimidation. She ultimately pled guilty to charges of disorderly conduct. CMHA investigated the incident, determined that Brown posed a direct threat to other residents, and served Brown with notice that it was terminating her lease. When Brown failed to vacate, CMHA filed this action seeking her eviction. See Browning at ¶ 27.
(¶4} In response, Brown urged CMHA to make reasonable accommodations for her disabilities, under the federal Fair Housing Amendments Act ("the FHAA"). See 42 U.S.C. 3604. She requested that CMHA dismiss its eviction action and that the housing authority participate in a behavioral-intervention plan, including a provision that CMHA would contact Brown's "case manager and/or therapist if concerns related to her tenancy arose in the future." The housing authority denied the request. Brown then filed an amended answer to the eviction action and raised a counterclaim, in both of which she asserted that CMHA had discriminated against her based upon her disabilities.
(¶5} CMHA moved for summary judgment on its forcible-entry-and-detainer action relying, in part, upon the attached affidavit of the assistant property manager at Brown's housing unit. Brown filed a memorandum in opposition and also filed a motion for partial summary judgment on her housing-discrimination counterclaim. She reserved the issue of damages and fees for trial. On August 14, 2012, the trial court issued its entry granting CMHA's motion for summary judgment and issuing a writ of restitution of the premises. The court also denied Brown's motion for partial summary judgment. The trial court stayed its judgment pending Brown's appeal.
(¶6} The trial court's entry granted the housing authority a present right to possession of the property. Thus the trial court's judgment was immediately appealable by Brown even though other claims remained for adjudication. See Cuyahoga Metro. Hous. Auth. v. Jackson, 67 Ohio St.2d 129, 132, 423 N.E.2d 177 (1981) (holding Civ.R. 54[B] inapplicable in forcible-entry-and-detainer proceedings).
(¶7} In her first assignment of error, Brown argues that the trial court erred in entering summary judgment in favor of CMHA on its eviction action. We review cases decided on summary judgment de novo, without deference to the trial court's determinations. See Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8.
(¶8} Civ.R. 56(A) makes summary judgment available to a party seeking to recover upon a claim or counterclaim. Where, as here, a party seeks affirmative relief on its own claim or counterclaim as a matter of law, it bears the burden of affirmatively demonstrating that there are no genuine issues of material fact with respect to every essential element of its claim. See Civ.R. 56(A); see also Capital Fin. Credit, LLC v. Mays, 191 Ohio App.3d 56, 2010-Ohio-4423, 944 N.E.2d 1184, ¶ 4 (1st Dist.). Its motion for summary judgment must be denied if the party fails to satisfy this initial burden. Only when the movant has met its initial burden does the nonmoving party's reciprocal burden to establish the existence of triable, genuine issues of material fact, by the means listed in Civ.R. 56(C) and 56(E), arise. See Capital Fin. Credit, LLC at ¶ 5; see also Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996).
(¶9} The substantive law governing CMHA's eviction action and Brown's discrimination counterclaim identifies the factual issues that are material and thus could preclude summary judgment. See Gross v. Western-Southern Life Ins. Co., 85 Ohio App.3d 662, 666-667, 621 N.E.2d 412 (1st Dist.1993). The FHAA makes it unlawful to discriminate against a tenant on the basis of that person's mental or physical disability. See 42 U.S.C. 3604(f). But federally subsidized public-housing authorities, such as CMHA, are also charged with providing "decent and safe dwellings" for all of their tenants. 42 U.S.C. 1437(a)(1)(A). To achieve that end, Congress modified federal fair housing laws in 1988. The FHAA now provides that: Each public housing agency shall utilize leases which * * * provide that any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity on or off such premises, engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination of tenancy. 42 U.S.C. 1437d(l)(6). Brown's lease includes this provision.
(¶10} In affirming the constitutionality of the act's eviction provision, the United States Supreme Court held that 42 U.S.C. 1437d(l)(6) "unambiguously requires lease terms that vest local public housing authorities with the discretion to evict tenants for the drug-related activity of household members * * * ." Dept. of Hous. and Urban Dev. v. Rucker, 535 U.S. 125, 130, 122 S.Ct. 1230, 152 L.Ed.2d 258 (2002). The decision to evict is entrusted to the public housing authorities, who are in the best position to take account of, inter alia, the seriousness of the offending action, the duration of the problem, the administrative burden on the housing authority, and the extent to which the tenant has taken reasonable steps to prevent or mitigate the offending action. See id. at 134; see also Groner v. Golden Gate Gardens Apts., 250 F.3d 1039, 1046 (6th Cir.2001). The holding applies equally when non-drug-related criminal activity threatens the safety of other tenants. SeePortage Metro. Hous. Auth. v. Brumley, 11th Dist. Portage No. 2008-P-0019, 2008 ...