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Vermett v. State ex rel. Henderson

Court of Appeals of Missouri, Eastern District, Fourth Division

February 27, 2018

LINDA VERMETT, ET AL., Appellants,

         Appeal from the Circuit Court of St. Charles County Cause No. 1411-CC00987 Honorable Jon A. Cunningham


          COLLEEN DOLAN, J.

         Linda Vermett ("Ms. Vermett"), Sally Dickherber ("Ms. Dickherber"), and Villa Roma Apartments (collectively, "Appellants") appeal the order and judgment of the Circuit Court of St. Charles County denying their petition for judicial review of the administrative ruling and order of the Missouri Commission on Human Rights (the "MCHR") finding Appellants had violated § 213.040.1(1).[1] After holding a public hearing, the MCHR concluded that Appellants had refused to rent to Jacqueline Henderson ("Mrs. Henderson") and Scott Henderson ("Mr. Henderson") (collectively, "Respondents") because of Mrs. Henderson's disability that confined her to a wheelchair. The MCHR ordered Appellants to pay actual damages to Respondents in the amount of $5, 000 and to pay a civil penalty in the amount of $2, 000.

         Appellants offer two points on appeal. In Appellants' first point, they argue that the MCHR's decision and order was not supported by competent and substantial evidence upon the whole record. Specifically, Appellants contend that they did not violate § 213.040(1) because they did not refuse to rent or negotiate a rental agreement with Respondents and that Mrs. Henderson's disability was not a contributing factor in their decision. In Appellants' second point, they assert that the MCHR's determination of damages was also not supported by competent and substantial evidence upon the whole record, as the MCHR's calculations of actual damages were incorrect and Appellants' attempts to accommodate Respondents should have been given more weight in the assessment of damages.

         We affirm the judgment of the circuit court.

         I. Factual and Procedural Background

         The MCHR hearing examiner who presided over the administrative hearing in this case made the following findings that were adopted by the MCHR in its decision and order. In early 2010, Respondents searched for an apartment to rent that was closer to Mrs. Henderson's work and Mr. Henderson's school. Mrs. Henderson suffers lower-body paralysis due to a severance of her spinal cord that resulted from an accident in 1994. Mrs. Henderson is unable to walk, is confined to a wheelchair, and has several limitations to major activities in her daily life; it is undisputed by the parties that Mrs. Henderson's condition meets the definition of "disability" as defined in § 213.010(5) and that both Respondents are protected under § 213.040.

         Seeking an apartment at the Villa Roma apartment complex, Respondents visited Villa Roma on February 10, 2010, after they had determined it could potentially accommodate Mrs. Henderson's disability. Ms. Vermett, the manager of Villa Roma, showed Respondents the Villa Roma two-bedroom display apartment (because there were no available apartments on the first floor and the one-bedroom model could only be accessed using stairs); Mrs. Henderson was able to easily navigate the display unit in her wheelchair. Ms. Vermett relayed to Respondents that a two-bedroom apartment on the first floor would become available in April 2010.

         Ms. Vermett then took Respondents to the exterior of Building 1915, opened the security door to Building 1915, and allowed Mr. Henderson to lift Mrs. Henderson over the one-step threshold (that was three to four inches high) into the building. Ms. Vermett explained that she could not show Respondents the ground-floor two-bedroom apartment in this building (Unit 1915C) because it had not yet been cleaned. Ms. Vermett then attempted to show Respondents another unit in a different building, but Respondents declined to view the apartment because it required using stairs to access it. Before departing, Respondents told Ms. Vermett that they would need a ramp to be built in order to access the security door (that had a one-step threshold equaling three to four inches) at Building 1915; Ms. Vermett told Respondents that she would need to speak to Ms. Dickherber, Villa Roma's owner.

         Without any reply from Appellants concerning the ramp, Respondents returned to Villa Roma on February 16, 2010, when they completed and signed a lease application, paid a $25 application fee, and paid a $100 security deposit. Respondents believed the security deposit was for Unit 1915C-the ground-floor unit where Ms. Vermett had led them six days earlier and indicated that the apartment would be available in April 2010. Respondents claimed that after they had paid the application fee and security deposit, Ms. Vermett informed Respondents that it would not be possible to build the ramp for Building 1915, which obviously made it impractical for Respondents to rent Unit 1915C. Ms. Vermett's statements about not building the ramp led to a heated exchange between Ms. Vermett and Respondents that left both Respondents feeling shocked, angry, and humiliated.

         In a letter addressed to Villa Roma's management office sent February 18, 2010, Mrs. Henderson formally requested to have a ramp to Building 1915 installed at Respondents' expense. This letter was returned to Respondents as "refused." Mrs. Henderson sent a second similar letter to Villa Roma's Post Office Box address in St. Charles on March 2, 2010; Respondents did not receive a response to this letter. Subsequently, Villa Roma suggested that Respondents could use the ground-level sliding glass door as a means of entrance into Unit 1915C instead of the primary entrance, which would thereby negate the need to build a ramp.[2]However, the entryway through the sliding glass door was too narrow for Mrs. Henderson's wheelchair and it was not possible to lock the sliding glass door from the outside (meaning that the apartment would remain unlocked if Mrs. Henderson chose to leave the apartment when Mr. Henderson was not there). Unit 1915C was rented to another individual on April 23, 2010.

         Respondents filed a complaint with the MCHR on March 30, 2010.[3] The Attorney General, on behalf of the MCHR, filed an amended complaint against Appellants on February 9, 2012. After a public hearing held on July 6, 2012, the MCHR issued its decision and order adopting the Findings of Fact and Conclusions of Law of the MCHR hearing examiner. Specifically, the MCHR concluded that Respondents had established a prima facie case that they were protected by § 213.040, Appellants had refused to rent to them after they had made a bona fide offer to rent, and Mrs. Henderson's disability was a factor in Appellants' refusal to rent to Respondents. Further, the MCHR concluded that Respondents had met their burden to prove Appellants' stated non-discriminatory reason to not rent to Respondents (that Unit 1915C was unavailable) was pretextual. Concluding that Appellants had violated § 213.040.1(1), the MCHR ordered Appellants to pay actual damages to Respondents, pursuant to § 213.075.11(1), in the amount of $3, 000 for deprivation of Respondents' civil rights and $2, 000 for emotional distress and humiliation; the MCHR also ordered Appellants to pay a civil penalty of $2, 000 pursuant to § 213.075.11(2). Appellants filed their petition for judicial review of the MCHR's decision and order on October 13, 2014; that petition was denied by the circuit court.

         This appeal follows.

         II. Standard of Review

         This Court reviews the decision of the administrative agency, not the circuit court. Coffer v. Wasson-Hunt, 281 S.W.3d 308, 310 (Mo. banc 2009). Our review extends to a determination of whether the administrative agency's action (1) is in violation of constitutional provisions; (2) is in excess of the statutory authority or jurisdiction of the agency; (3) is unsupported by competent and substantial evidence upon the whole record; (4) is, for any other reason, unauthorized by law; (5) is made upon unlawful procedure or without a fair trial; (6) is arbitrary, capricious or unreasonable; or (7) involves an abuse of discretion. § 536.140. We review the record before the administrative agency in its entirety, not simply the evidence that supports the agency's decision. Lake Ozark-Osage Beach Joint Sewer Bd. v. Missouri Dep't of Nat. Res., 491 S.W.3d 667, 672 (Mo. App. W.D. 2016). "Although the commission's decision is afforded substantial deference, this Court must still 'examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight of the evidence.'" Malam v. State, Dep't of Corr., 492 S.W.3d 926, 928 (Mo. banc 2016) (quoting Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003)). Further, we defer to the administrative agency's ability to determine witness credibility. Van Der Berk v. Missouri Com'n on Human Rights, 26 S.W.3d 406, 410 (Mo. App. E.D. 2000). We review questions of law de novo. Lake Ozark-Osage Beach Joint Sewer Bd., 491 S.W.3d at 672.

         III.Discus ...

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