Opinion
Civil Action No. 3:O0-CV-0354-D
July 2, 2002
MEMORANDUM OPINION
Plaintiff Cheng Hoa Baker ("Baker") sues defendants The Waterford Square Homeowners Association ("Waterford") and Mark Lillard Randles ("Randles") alleging that they are liable for violating the Fair Housing Act of 1968 ("FHA"), 42 U.S.C. § 3601, et. seq., and 42 U.S.C. § 1981 and 1982 by creating a hostile housing environment based on her race, national origin, and/or sex, and that they are liable under Texas state law for intentional infliction of emotional distress and tortious inference with business relations (her lease agreements with her tenants). The parties tried the case to the court. At the conclusion of Baker's case-in-chief, defendants moved for judgment under Fed.R.Civ.P. 52(c), and the court granted the motions. As required by Rule 52(c), and permitted by Rule 52(a), the court sets out its findings of fact and conclusions of law in this memorandum opinion.
In her amended complaint, Baker alleges a claim under the Texas Condominium Act. See Am. Compl. ¶ 20. This cause of action is not included in the pretrial order, see Pretrial Order ¶ A(I), and was not tried to the court. The parties stipulated in the pretrial order that Waterford is not attempting to force Baker to sell her condominium units. Pretrial Order ¶ B(8). Because this claim is now moot, it is dismissed without prejudice.
Rule 52(c):
If during a trial without a jury a party has been fully heard on an issue and the court finds against the party on that issue, the court may enter judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue, or the court may decline to render any judgment until the close of all the evidence. Such a judgment shall be supported by findings of fact and conclusions of law as required by subdivision (a) of this rule.
Rule 52(a) provides, in relevant part:
In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law[.] . . . It will be sufficient if the findings of fact and conclusions of law . . . appear in an opinion or memorandum of decision filed by the court.
I
Baker is a female of Chinese ancestry who was born in Cambodia and later immigrated to Thailand and then to the United States, arriving in 1981. She met Royce Baker ("Royce"), her neighbor, and the two were married in 1983. They moved into The Waterford Square Condominiums ("Waterford Square") in 1984, where they rented a single condominium unit. By the time of Royce's death on October 19, 1993, Baker and Royce owned five condominium units at Waterford Square. When Royce died, the couple were residing in Units 118 and 119 and leased the other three units to tenants. The Bakers kept four dogs — the City of Dallas limit — in each of their two units, for a total of eight. Baker raised the dogs as her children, which included cooking their meals. Baker also fed stray cats that periodically showed up in the Waterford Square parking lot.
Defendant Waterford is the organization of owners of condominiums at Waterford Square and is its governing body established by an Enabling Declaration under the Texas Condominium Act. Defendant Randles was the largest owner of condominiums (approximately 20%) until Waterford Holdings, L.P. purchased 84 of 93 units on June 30, 2001. Randles served as an officer and member of the seven-member Board of Administration ("Board") of Waterford during the time period pertinent to this lawsuit.
Within months of Royce's death, Waterford began notifying Baker of complaints from other residents concerning the noise and odors caused by the dogs kept in Units 118 and 119. Defendants initially wanted Baker to remove her dogs from her condominiums. During the next several years, from 1994 through 1999, Waterford periodically advised Baker of co-owner and tenant complaints based on the noise and odors caused by the dogs, trash in her unit patios, and noise caused by one of her tenants. It informed her that she was in violation of relevant bylaws and ownership requirements due to a missing divider wall between Units 118 and 119; her practice of keeping stray cats kept in her units and feeding them in the parking lot area; her failure to maintain her mini-blinds and screen doors in good repair; her failure to remove a barbecue grill and doghouse from her patio; her failure to control the traffic caused by one of her tenants and his guests; her failure to control overcrowding in one of her units; and her failure to remove window signs. Waterford directed that she take corrective action. When she did not do so, the Board began fining and assessing her under Waterford's bylaws. It eventually threatened non-judicial foreclosure based on her failure to pay these fines and assessments. Although it frequently referred in subsequent letters to the fact that prior fines and assessments remained unpaid, it never initiated such foreclosure proceedings based on unpaid fines and assessments, and it abated all but $450 of the ones assessed (she paid this amount at the July 1999 annual co-owners meeting).
In October 1994 Waterford attempted to remove the fence on Baker's patio and clean the patio. Baker strenuously objected, and the confrontation between Baker and the worker became so serious that the police were called. Waterford did not remove her fence until mid-1998, when unit fences were removed for different reasons.
Baker testified that, now that there is no fence around her patio, she allows her dogs to defecate and urinate in the units.
Over a period of several years, Randles and Baker had disagreements in which they exchanged cross words and were abusive to each other. Randles told Baker that she stank like a dog, slept with dogs, and lived with dogs. He later repeated similar comments and made barking noises around her. The last such conduct occurred in approximately July 1997.
See discussion infra at § V concerning the statute of limitations.
Waterford attempted at one point to persuade Baker to reduce the number of dogs to two per unit, but she refused.
In 1999 a prospective buyer sought to purchase Waterford Square if 100% of the units could be acquired. When Baker refused to sell her units, Waterford sought a legal opinion concerning whether Baker could be forced to sell. The opinion concluded that a sale of the entire property would require the unanimous consent of all owners. As a result, Waterford assessed a fine of $6,570 against her for refusing to sell. Waterford would not assess the fine if she consented in writing to the sale. Waterford advised her that if she did not comply, it would disconnect her utilities and those of her tenants, would notify her tenants that they could not use any Waterford Square common areas (including the parking lot), and would prevent her from using the parking lot. Waterford also voted to make a contingent special assessment of $25,000, of which Baker's share was $1,710.56, to pay for legal fees if a co-owner attempted to delay or block the sale. Waterford hoped the assessment would not be necessary. One aspect of the attorney's duties would be to represent Waterford in the instant litigation, meaning that Baker would be required to fund part of the costs incurred by a party whom she was suing. In an attempt to force the remaining 6 or 7% of owners (including Baker) to sell, the Waterford Council of Co-owners (i.e., the owners of the condominium units) also voted to declare Waterford Square obsolete.
Two other owners also opposed the sale. See PX 35.
Before Waterford could cut off her utilities and impose the other threatened sanctions, Baker sued Waterford in Texas state court. She obtained a temporary restraining order that prevented Waterford from disconnecting or interfering with the utilities of her five units, prohibiting or interfering whether her or her tenants' rights to utilize the Waterford Square common areas (including the parking lot), or from assessing or imposing further penalties or fines or promulgating regulations as a result of her failure to sell her units. Following removal, Judge Solis granted a temporary restraining order that provided for similar relief, as well as a prohibition against selling any of Baker's units or property at a non-judicial foreclosure sale. Judge Kendall later granted a preliminary injunction that prevented Waterford from foreclosing or attempting to foreclose on Baker's units; prohibiting or interfering with Baker's or her tenants' rights to utilize the Waterford Square common areas (including the parking lot, swimming pool, laundry room, or office); threatening, assaulting, harassing, or attempting to harm Baker or her tenants; or assessing or imposing further assessments, penalties, or fines, or promulgating regulations as a penalty for her failure to sell her property, or for any other purpose, without her agreement or court approval.
II
Baker sues defendants to recover under the EHA and 42 U.S.C. § 1981 and 1982. Although she does not specify in the pretrial order or in her amended complaint the section of the FHA that she contends defendants have violated, see Pretrial Order ¶ A(1); Am. Compl. ¶¶ 2, 16, it is apparent from her proposed findings of fact and conclusions of law, and from the evidence she presented at trial, that she maintains that defendants are liable under the FHA for creating a hostile environment, see Prop. Findings Nos. 6-8; Prop. Concl. Law No. 2. Courts that have recognized hostile environment cases under the FHA appear to rely on § 3604(b), which provides that "it shall be unlawful . . . [t]o discriminate 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 therewith, because of race, color, religion, sex, familial status, or national origin." Because defendants do not contest the legal premise that an FHA hostile environment claim can be based, not only on sexual harassment, which several courts have recognized, but also on race and national origin harassment, the court will assume that Baker can recover on all three grounds.
To the extent that Baker relies on a non-hostile environment FHA claim, she must still prove that her race, national origin, or sex "was a consideration and played some role." See Hanson v. Veterans Admin., 800 F.2d 1381, 1386 (5th Cir. 1986) (addressing § 3604(a) claim). For the reasons explained infra, she has not made the required showing.
In addressing FHA hostile environment claims, courts have generally looked to employment law precedent to determine what must be proved. See, e.g., Honce v. Vigil, 1 F.3d 1085, 1090 (10th Cir. 1993). The Fifth Circuit has held that a plaintiff must prove inter alia that the harassment was based on her protected class status. See Waymire v. Harris County, Tex., 86 F.3d 424, 428 (5th Cir. 1996) (addressing Title VII sex discrimination hostile work environment claim). In the present case, this means that Baker is required to prove that the defendant in question harassed Baker based on her race, national origin, and/or sex.
Baker also seeks relief under §§ 1981 and 1982. To sustain a § 1981 claim, Baker must establish three elements: (1) that she is a member of a racial minority; (2) that the defendant in question had intent to discriminate on the basis of race; and (3) that the discrimination concerned one or more of the activities enumerated in the statute. See Morris v. Dillard Dep't Stores, Inc., 277 F.3d 743, 751 (5th Cir. 2001). Section 1982 closely parallels § 1981. Therefore, Baker must at least prove that the defendant in question had intent to discriminate against her on the basis of her race.
Defendants maintain in the pretrial order that Baker cannot recover under § 1982 for discrimination based on the conditions of housing because a § 1982 claim is limited to denial of housing because of one's race. See Pretrial Order ¶ A(2)(2). Because the court finds that Baker did not prove this claim on the merits, it may assume arguendo that § 1982 would provide Baker a remedy for a hostile environment claim.
Section 1981(a) provides:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
Section 1982 provides:
All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.
The court holds that Baker failed to prove that Waterford or Randles discriminated against her based on her race, national origin, and/or sex. Although the evidence shows that defendants initially undertook efforts to enforce Waterford's bylaws after Royce's death, Baker failed to prove that either defendant created a hostile environment that was based on her race, national origin, or sex. The evidence instead shows that Waterford received numerous complaints, over a sustained period of time, about the noise and odors caused by Baker's dogs, her practice of feeding stray cats, the condition of her property, and the conduct of some of her tenants. It believed that her conduct violated Waterford's Bylaws, and it assessed fines on that basis, not based on her race, national origin, and/or sex. When Waterford threatened penalties (including cutting off her utilities and depriving her of access to common areas) based on her failure to consent to the sale of Waterford Square, it did so because she failed to consent. Regardless whether this conduct was unlawful in some other respect, it was not based on her race, national origin, and/or sex. And although the evidence shows that Randles made some stray remarks that reflect regrettable insensitivity to women and minorities, the court is persuaded by the evidence as a whole that Randles' conduct toward Baker was based on his profound disagreement with the manner in which she maintained her units and conducted herself concerning her dogs and stray cats, not on her race, national origin, and/or sex. At bottom, this is a dispute about the exercise of property rights, not unlawful discrimination under federal law.
To controvert the significant evidence that Baker's dogs were a nuisance, she offered only the testimony of Tom Moore ("Moore") that he never witnessed such problems and her testimony that the conditions were essentially the same after Royce died, when no complaints were registered, as they were before his death. Moore, however, left Waterford Square no later than 1995, and the complaints continued several years thereafter. Baker's assertion that there was no change concerning the dogs after her husband's death does not persuade the court, in view of the other evidence adduced at trial, that they did not present a legitimate nuisance to other owners and tenants.
It is possible that, had the court not ruled in defendants' favor at the close of the evidence, it would have found from evidence that Randles adduced that he did not make some or all the stray remarks alleged. For purposes of this decision, the court must assume that he did, unless it rejects the testimony of Moore and Baker as not credible in these respects. Because the court finds this testimony to be credible, it assumes that Randles made these stray remarks.
Accordingly, Baker is not entitled to recover under the FHA, § 1981, or § 1982.
III
Baker also seeks to recover for intentional infliction of emotional distress. To establish this claim, Baker must prove that (1) the defendant in question acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's actions caused Baker emotional distress; and, (4) the emotional distress was severe. See Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993); see also Stults v. Conoco, Inc., 76 F.3d 651, 658 (5th Cir. 1996).
Extreme and outrageous conduct is that which is so extreme in degree, or so outrageous in character, as to go beyond all bounds of decency, to be regarded as atrocious, and utterly intolerable in a civilized community. Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex. 1993); see also Stults, 76 F.3d at 658. "Generally, the case is one in which a recitation of the facts to an average member of the community would lead him to exclaim, `Outrageous.'" Cantu v. Rocha, 77 F.3d 795, 810 (5th Cir. 1996) (quoting Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th Cir. 1989)). "It is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery." McKethan v. Texas Farm Bureau, 996 F.2d 734, 742 (5th Cir. 1993) (quoting Wornick Co., 856 S.W.2d at 734). Whether a party's conduct may reasonably be regarded as extreme and outrageous is a question of law. Bradford v. Vento, 48 S.W.3d 749, 758 (Tex. 2001). Insensitive or even rude behavior does not constitute extreme and outrageous conduct. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). "Similarly, mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not rise to the level of extreme and outrageous conduct." GTE S.W., Inc. v. Bruce, 998 S.W.2d 605, 612 (Tex. 1999).
Baker did not prove by a preponderance of the evidence that either defendant engaged in conduct that was extreme and outrageous. At most, she proved that defendants attempted over a period of several years to enforce the Waterford Square bylaws in response to complaints of co-owners and tenants; that Waterford acted in the face of a contrary legal opinion when it fined and assessed her, and threatened to cut off her utilities and those of her tenants, following her refusal to sell her units in Waterford Square; and that defendants engaged in insults, indignities, threats, annoyances, petty oppressions, or other trivialities that do not rise to the level of extreme and outrageous conduct.
The court holds in the alternative that, even if Baker proved extreme and outrageous conduct, she did not establish that she suffered severe emotional distress. "`Severe emotional distress' means distress so severe that no reasonable person could be expected to endure it without undergoing unreasonable suffering." Blanche v. First Nationwide Mortgage Corp., 74 S.W.3d 444, 454 (Tex.App. 2002, n.w.h.) (quoting Escalante v. Koerner, 28 S.W.3d 641, 646 (Tex.App. 2000, pet. denied)). Baker "must show more than mere worry, anxiety, vexation, embarrassment, or anger." Id A plaintiff who fails to provide evidence of unreasonable suffering is not entitled to recover. See id.
Baker testified in general and conclusory terms that defendants' actions caused her to lose her ability to trust people and lose her confidence, that she was shaking all the time, really nervous, did not want to go out anymore, and that every time someone knocked on the door, she wondered what had happened. Baker also testified in general terms that she kept shaking, did not feel like eating, started throwing up, lost a lot of sleep, her head constantly hurt, she blacked out a lot, she worried and felt bad, and she had a hard time reading. Baker did not see a doctor for any of her symptoms or take any medications for them. Although she testified that she could not afford medical care and that her Cambodian cultural background influenced her not to seek it, she did not adduce persuasive evidence that her symptoms required medical treatment. Assuming that evidence of persistent vomiting and blacking out are sufficient, Baker failed to persuade the court that these symptoms were caused by defendants' conduct. When she did see a doctor, it was for an abdominal obstruction that she concedes was not related to defendants' conduct. Absent expert testimony to support her claimed injuries, the court can reasonably infer that symptoms such as persistent vomiting and blacking out are more likely linked to a medically-verified abdominal obstruction than to defendants' conduct.
Baker testified that, in connection with the fence incident in October 1994, she was nervous, shaking, and could not eat or sleep because she was worried about her dogs. She also threw up. Later, she fell a lot, felt nauseous, suddenly fell on the ground, and experienced black outs. Assuming arguendo that such evidence is sufficient, any claim for relief on this basis is time-barred. See infra § V.
Accordingly, Baker is not entitled to recover on her claim for intentional infliction of emotional distress.
IV
Baker maintains that defendants interfered with her lease agreements with her tenants. "A party alleging tortious interference must prove four elements to sustain its claim: (1) that a contract subject to interference exists; (2) that the alleged act of interference was willful and intentional; (3) that the willful and intentional act proximately caused damage; and (4) that actual damage or loss occurred." ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997).
Baker failed to prove that she suffered actual damage or loss to a lease with one or more of her tenants. She did not prove that any tenant terminated a lease with her or that she incurred any quantifiable damages or loss in connection with her performance of a lease. Although she did adduce evidence that defendants engaged in conduct that made her performance of the leases more difficult, she did not prove that this conduct caused her actual damages or loss. The only evidence she introduced of damage or loss was that she reimbursed a tenant approximately $165 for towing costs that the tenant incurred. She failed, however, to tie this incident to a specific defendant, to establish that the tenant's car was towed because the defendant tortiously interfered with the lease agreement (there is ample evidence in the record, for example, that a tenant was barred from parking because of activities related to his unit), or to show that it occurred on or after January 31, 1998 or October 2, 1998 (and thus was within the limitations period, see infra at § V).
Accordingly, Baker is not entitled to recover on her claim for tortious interference.
V
Baker filed this suit in state court against Waterford on January 31, 2000. She added Randles as a defendant on October 2, 2000. Many of the actions of which Baker complains occurred before January 31, 1998 and October 2, 1998, respectively. Although defendants have the burden of proof on this affirmative defense, they proved through evidence adduced during Baker's case-in-chief that much of the conduct of which she complains is time-barred, even if it does not fail on the merits.
VI
The court has indicated supra at note 1 that Baker's claim under the Texas Condominium Act must be dismissed without prejudice as moot. Because Baker obtained favorable injunctive relief regarding the forced sale of her units, and, under the parties' stipulation in the pretrial order, Waterford is not attempting to force Baker to sell her units, the court holds that defendants should bear all their taxable costs of court, and 50% of Baker's taxable costs, incurred to May 15, 2001, when defendants made a Rule 68 offer of judgment. Baker is taxed all taxable costs of court incurred by any party on or after May 15, 2001. Accordingly, the court's judgment will tax to defendants 50% of Baker's taxable costs and all of defendants' taxable costs incurred to May 15, 2001. The court will tax to Baker all taxable costs incurred by any party on or after May 15, 2001.
Rule 68 provides, in pertinent part:
At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. . . . If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.
Defendants made a second offer of judgment on September 7, 2001.
* * *
The court holds that defendants are entitled to judgment dismissing with prejudice the claims tried to the court in the bench trial. Baker's claim under the Texas Condominium Act is dismissed without prejudice as moot. The preliminary injunction filed August 21, 2000 is dissolved. A judgment in conformity with this opinion will be filed today.