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Housing Authority v. Maheux

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 60
Docket:	Pen-99-647
Argued:	March 7, 2000
Decided:	April 7, 2000	




	[¶1]  Defendant Lisa Maheux appeals from a judgment entered in the
Superior Court (Penobscot County, Mills, J.) dismissing her appeal of a
forcible entry and detainer judgment entered in the District Court (Bangor,
Gunther, J.). Maheux argues that she is entitled to a jury trial de novo on her
affirmative defense of reasonable accommodation.  Because we find that
Maheux's appeal to the Superior Court was not timely, we affirm the
dismissal of the appeal.
	[¶2]  The facts may be summarized as follows:  Plaintiff Housing
Authority of the City of Bangor (BHA) notified Maheux that her lease was
being terminated on the grounds that the conduct of her son seriously
disrupted the right of other tenants to the quiet enjoyment of their homes
in violation of the lease.  Those incidents included specific complaints that
her son physically and verbally threatened other tenants.  Thereafter, BHA
filed a complaint for forcible entry and detainer against Maheux.  Maheux
asserted an affirmative defense that BHA was obligated to make a
"reasonable accommodation" for her family in light of her son's diagnosed
"Oppositional Defiant Disorder."{1}  After hearing, a judgment for forcible
entry and detainer was entered in the District Court on December 21, 1998,
stating that "[j]udgment is granted to the plaintiff for possession of
[premises at] 40 Deer Isle Road, Bangor, Maine" and that "[t]he writ of
possession shall issue seven calendar days after the judgment is entered. 
Provided that it is subject to stay in accordance with the findings filed
herewith."  The findings of fact and conclusions of law stated as follows:
	The Court believes that this accommodation [a 6 month
delay in the ability to pursue eviction] is only reasonable in the
context of some supervision of [the son].  It is apparent from the
evidence that his behavior will continue to be offensive for
months before counselling takes effect.  It is not reasonable,
given the criminal nature of some of his verbal attacks and the
potential for additional assaultive behavior for the other
residents to remain at such high risk.  They have no statutory
duty of accommodation, and they have a right not to be made

	The Court will, therefore, enter judgment for the Plaintiff.

	Until the writ is issued, however, Plaintiff remains under
an obligation of reasonable accommodation. . . . If Ms. Maheux
comes forward with a proposal for counselling which
incorporates eyes-on supervision during periods when [the son]
is on the Authority's premises, the "reasonable accommodation"
requirements may be triggered.  Under such circumstances, Ms.
Maheux may move for relief from judgment under Rule 60(b) or
other applicable rule, and a stay may issue pursuant to Rule
	[¶3] Maheux filed a motion for relief from judgment pursuant to Rule
60(b) and for stay of issuance of writ.  The court entered an order granting
Maheux's motion for stay of the issuance of the writ of possession on the
condition that "the family pursues appropriate counselling to address [the
son's] disability, and the mother provides direct supervision (by herself or
another adult) when [the son] is on property of the Authority."  Thereafter, 
BHA filed a motion to vacate the stay due to the son's continued disruptive
and violent behavior and the failure of defendant to supervise the son while
on BHA property. BHA and Maheux entered a stipulation of facts
acknowledging that the son was not supervised on several occasions. After
hearing, the court entered an order on April 13, 1999, vacating the stay of
the writ of possession.  On April 20, 1999, Maheux filed a notice of appeal to
the Superior Court and a demand for a jury trial de novo.  BHA filed a motion
to dismiss the appeal and, after hearing, a judgment was entered in the
Superior Court granting BHA's motion to dismiss the appeal.  Maheux now
appeals to us.
	[¶4]  "The time for filing an appeal of the judgment of the District
Court expires upon the issuance of the writ of possession pursuant to section
6005 or 30 days from the time the judgment is entered, whichever occurs
first."  14 M.R.S.A. § 6008 (Supp. 1999). In this case, the judgment was
entered on December 21, 1998, and thereafter the court stayed the
issuance of the writ of possession. Thus, based on the statute, the first event
to occur was the 30 days from the entry of judgment, so that the appeal
period expired January 20, 1999. Therefore, Maheux's appeal in April,
1999, was not timely.	
	[¶5]  Although the District Court included in its order a specific
provision giving Maheux the opportunity to file a motion for relief from
judgment, such a motion does not affect the finality of the judgment or stay
the time for filing an appeal.  See M.R. Civ. P. 60(b) ("A motion under this
subdivision (b) does not affect the finality of a judgment or suspend its
operation."); M.R. Civ. P. 76D.
	[¶6] Mindful of the confusion surrounding how a reasonable
accommodation defense should be handled procedurally in a forcible entry
and detainer action, however, we offer the following guidance.  If the tenant
raises a reasonable accommodation defense, as with any other defense, the
court should consider both the landlord's claim and the tenant's defense
and either grant or deny the forcible entry and detainer.  If the court
determines that the landlord has a duty to offer a reasonable accommodation
and has failed to do so, then the court should deny the forcible entry and
detainer and not grant possession to the landlord.  If, however, the court
determines that the landlord is otherwise entitled to possession and either
has no duty to offer a reasonable accommodation or has, in fact, offered a
reasonable accommodation, then the court should grant the forcible entry
and detainer.
	The entry is:
					Judgment affirmed.

Attorneys for plaintiff: Edward W. Gould, Esq., (orally) Julie A. Mallett, Esq. Gross, Minsky, Mogul & Singal, P.A. P O Box 917 Bangor, ME 04402-0917 Attorneys for defendant: Michael Guare, Esq., (orally) Judson Esty-Kendall, Esq. Pine Tree Legal Assistance 61 Main Street Bangor, ME 04401
FOOTNOTES******************************** {1} . The obligation of reasonable accommodation is alleged to exist by virtue of the federal Fair Housing Act, 42 U.S.C. §§ 3601 et seq. (1999).