Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Steven E. McCullough, Judge.
The opinion of the court was delivered by: Sandstrom, Justice.
AFFIRMED IN PART AND REVERSED IN PART.
[¶1] A. William Lucas appeals from an amended judgment dismissing his action against Riverside Park Condominiums Unit Owners Association under the federal Fair Housing Act and the state Housing Discrimination Act for failing to grant him an accommodation for his disability, and awarding the Association its costs and attorney fees. We conclude the district court did not err in granting summary judgment dismissal of Lucas's action, but should not have awarded the Association costs and attorney fees related to Lucas's fourth request for an accommodation contained in his second amended complaint. We affirm in part and reverse in part.
[¶2] In 1999 Lucas purchased a unit in Riverside Park Association's Condominiums in Bismarck. The condominium's declaration of covenants and restrictions prohibits unit owners from keeping domestic pets on the premises. According to Lucas, a dog owned by his former wife would periodically visit him at his unit. The Owners Association eventually sued Lucas, seeking an injunction prohibiting him from keeping a pet in violation of the restrictive covenant. Lucas contended the restrictive covenant was invalid and raised numerous counterclaims, but stated that "he was not requesting an accommodation under the Fair Housing Act" but "will claim the need for an accommodation under the Fair Housing Act in the event a court holds valid the restrictive covenant prohibiting pet ownership." The district court upheld the validity of the restrictive covenant and enjoined Lucas "from having or keeping a dog in or at his unit or upon the common areas." The court held "Lucas does not have a valid claim for an accommodation under the Federal Fair Housing Act; or if he had a valid claim, the claim was voluntarily waived by his failure to make a valid request to the Association for an accommodation." The court further ruled the "Association need not honor a future request by Lucas for an accommodation under the Act, unless there is a significant change in Lucas's health (disability status.)." This Court affirmed the district court's decision in Riverside Park Condominiums Unit Owners Ass'n v. Lucas, 2005 ND 26, ¶ 36, 691 N.W.2d 862 ("Lucas I").
[¶3] On September 9, 2004, while Lucas I was pending on appeal, Lucas requested that the Association grant him an accommodation under the federal Fair Housing Act and state Housing Discrimination Act to keep an "assistive therapeutic companion animal (dog)." The request was accompanied by a December 22, 2001, letter from a licensed clinical psychologist stating Lucas "needs a therapeutic companion assistive animal," and a January 5, 2002, letter from a physician "prescribing for him a therapeutic pet . . . as a medically needed part of his treatment." Because the medical opinions relied upon predated the district court's judgment in Lucas I and did not allege or demonstrate a significant change in Lucas's disability status, the Association denied the request. On September 19, 2005, Lucas made a second request for an accommodation and relied on the same letters submitted with the first request. The Association denied the request for the same reason. On March 3, 2007, Lucas, relying on the same letters, made a third request for an accommodation, which the Association again denied.
[¶4] On March 29, 2007, Lucas brought this action against the Association seeking damages and injunctive relief for its alleged violation of the federal Fair Housing Act and the state Housing Discrimination Act, and seeking damages for intentional infliction of emotional distress. The Association moved to dismiss the action for failure to state a claim and sought sanctions against Lucas under N.D.R.Civ.P. 11.
[¶5] On June 6, 2007, Lucas sent the Association a fourth request for an accommodation "to keep, maintain, and raise an assistive therapeutic companion animal (dog)." With the request, Lucas submitted forms titled "Certification Of Status As An Individual With A Disability" which contained identical statements from two physicians dated May 8 and 11, 2007, declaring: Accommodation/Modification: To permit A. William to keep, maintain, and raise an assistive therapeutic companion service animal (dog). It is also my opinion that there has been a significant change in Mr. Lucas' health (disability status) since the last time he was examined by me.
[¶6] In response to Lucas's fourth request for accommodation, the Association's attorney wrote him a letter stating in part: The information you have provided the Association is insufficient to support your request for an accommodation. The Association needs additional information from you before it can decide whether to grant or deny your request. Please provide the following additional information from your healthcare provider: 1) a description of the claimed disability; 2) the date that you were first diagnosed or treated for the disability; 3) whether the claimed disability was treated or diagnosed prior to November 10, 2003 and, if so, a description of how the disability has changed since November 10, 2003; 4) an explanation from your healthcare providers of the relationship between your disability and your need for a "therapeutic companion service animal;" 5) an explanation from your healthcare providers as to why allowing you to keep a "therapeutic companion service animal" is a reasonable accommodation for your disability; and 6) a description of the "therapeutic companion service animal" you propose keeping at your unit, including any special training the dog has received.
[¶7] On June 27, 2007, Lucas responded in a letter to the Association's attorney:
I have tried to provide all of the medical information normally required by the requirements of the fair housing laws. I sent my medical information to three of our Board members who I thought would keep that information confidential, but you apparently advised them not to review the information.
I will again attempt [to] provide you with the required additional medical information on the following conditions:
1. The information will be in a sealed envelope, with return postage on it. If you cannot accept the information upon the following conditions, please simply mail the envelope back to me unopened.
2. That the medical information is used only for requirements of the Federal and North Dakota Fair Housing Law, and that you and members of your group will not publicize the information or otherwise use it for your malicious harassment purposes.
3. That you do not attach my medical information to anything that you file with a court without my permission or a court order. You have done that in the past as a harassment tactic simply to get the information public with the information having no relevance to the document filed.
4. If Ms. Wahl was required to provide any medical information, that you treat and use my medical information with the same confidentiality and limited purposes as the medical information provided by Ms. Wahl.
5. That you keep a record of possession of every person that has possession or an opportunity to review my medical information, and that the record of possession/review is furnished to me every thirty days or whenever it changes.
6. If you think you need additional medical information from me, please prepare an acceptable confidentiality agreement executed by you and Mr. Workman on behalf of the Board. The only other way for me to give additional medical information to you would be pursuant to a protective court order to limit the information to proper purposes.
7. If you can accept the above conditions, please review the attached schedule I prepared in May which was previously furnished to three board members.
[¶8] On July 5, 2007, the Association's attorney wrote a letter to Lucas informing him the Association was returning the medical information that had been enclosed in a sealed envelope:
I am writing to inform you that the Association will not agree to the terms contained in your June 27, 2007 letter. The Association is willing to review any medical information that you wish to provide in support of your request. The Association will treat the information as confidential as required by state and federal law. The information will only be reviewed by the Association's Board of Directors and, if necessary, any individual retained by the Board to assist it in evaluating your request. The information will be used only to determine whether or not to grant your request for an accommodation.
Lucas did not respond to this letter.
[¶9] In August 2007, the district court granted the Association's motion to dismiss Lucas's action, but later granted Lucas's motion for reconsideration. Lucas eventually moved to amend his complaint to add a claim based on his June 2007 fourth request for accommodation and moved for summary judgment. The Association also moved for summary judgment. The court ultimately denied Lucas's motion and granted the Association's motion, concluding Lucas had failed to provide competent evidence that his disability status had changed in regard to his first three requests for accommodation or that the Association's conduct had caused him emotional distress. The court also granted summary judgment dismissal of Lucas's fourth request for accommodation, concluding "Lucas has provided the Court with no evidence that the Association has unreasonably denied him a reasonable accommodation." The court awarded the Association $926.30 as a sanction for Lucas's failure to appear at a deposition; $5,834.94 in costs and attorney fees for its defense of his claim in his complaint and amended complaint based on the first three requests for accommodation; and $16,597.21 in costs and attorney fees for its defense of his claim in his second amended complaint based on the fourth request for accommodation.
[¶10] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Lucas's appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.
[¶11] Lucas argues the district court judge should have granted his request to recuse himself from the case for "[j]udicial bias and prejudice against Lucas." Lucas relies on adverse legal rulings by the judge, who did not preside over Lucas I, to support his claim of judicial bias.
[¶12] Adverse rulings alone are not evidence of judicial bias or partiality. Reems v. St. Joseph's Hosp. and Health Ctr., 536 N.W.2d 666, 671 (N.D. 1995). Lucas has provided no evidence of judicial bias or ...