PETERBOROUGH HOUSING ASSOCIATES LP v. GARNIER (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Soon after the onset of the COVID-19 pandemic, tenant Juan Garnier sent obscene and threatening e-mails to his landlord and attacked an exterminator working in his apartment. As a result, a Housing Court judge ordered Garnier to vacate the apartment, both as a remedy for contempt and as injunctive relief pending a summary process eviction trial.³ Garnier appeals, arguing that the order to vacate was tantamount to an eviction order and was not supported by adequate findings, and that the judge failed to consider his claim for reasonable accommodation for his disabilities, including mental illness. We conclude that Garnier sufficiently raised his request for reasonable accommodation, which required the judge to make specific findings related to that issue. We further conclude that the judge should have made more specific factual findings as to what Garnier would need to do to purge himself of the civil contempt.

Background. Garnier and his mother, Yamileth Garnier (mother), rent an apartment on Peterborough Street in Boston (apartment), owned by Peterborough Housing Associates, LP (landlord), with the assistance of Federal housing subsidies. During 2019, Garnier communicated with the landlord's employees with increasing frequency, often by e-mail or telephone. By notice to quit, the landlord terminated the Garniers’ tenancies for their alleged noncompliance with their obligations to recertify their eligibility for their housing subsidies. After Garnier persisted in e-mailing the landlord repeatedly, the landlord filed in the Housing Court the underlying civil complaint, claiming breach of contract and seeking relief including an injunction limiting Garnier's communications with the landlord and a declaration that those communications violated the lease.

On November 1, 2019, the parties entered into their first settlement agreement, by which Garnier agreed to limit his communications to the landlord ⁴ and not to “cause or create any unreasonable disturbances on the property.” In turn, the landlord promised not to proceed with eviction as long as the Garniers completed their recertifications and abided by the agreement. The agreement further provided that Garnier “may request other accommodations” and that “any violation of this agreement can result in contempt.” A judge approved the agreement and entered it as an order of the court.

During late 2019 and early 2020, Garnier gradually resumed sending the landlord many e-mails, some of which were threatening. The landlord filed a complaint for eviction against the Garniers, entered on the summary process docket of the Housing Court. The Garniers asserted their right to a jury trial.

On March 13, 2020, in response to the COVID-19 pandemic, the Supreme Judicial Court suspended jury trials and ordered court houses closed. On March 23, 2020, Garnier sent an e-mail to several employees of the landlord, using obscenities and threatening to kill the landlord's attorney for having “disrespect[ed]” Garnier's mother. The landlord moved in the pending civil case that the Garniers be held in contempt.

While the contempt complaint was pending, Garnier e-mailed the landlord that his mother had accidentally broken a window, asking for its repair as soon as possible. After the landlord's attorney replied that a window had been ordered and the Garniers would be responsible for the cost, Garnier sent three e-mails to the landlord's attorney, with copies to the property manager and the tenancy preservation program (TPP).⁵ In the third e-mail, Garnier used obscenities and threatened, “If the window isn[’]t fixed today I got [a] surprise waiting for you,” and complained that the landlord's staff was “too afraid to enter the apartment.” When the property manager telephoned about the window, Garnier screamed obscenities at her.

With the assistance of a housing specialist, on April 17, 2020, the parties reached a second settlement agreement to govern their relationship until the conclusion of the related summary process trial. It incorporated certain terms of the first agreement, including that Garnier would not “cause or create any unreasonable disturbances on the property,” and sought more specifically to curtail his e-mails to the landlord. It also required Garnier to use TPP and the housing specialist as conduits to communicate with the landlord, and to work with TPP to obtain services with the goal of maintaining his tenancy, “including assistance with reasonable accommodation requests.” The landlord withdrew the contempt complaint without prejudice. Like the first one, the second agreement was signed by a judge and entered as an order of the court. It warned: “[v]iolation of this Agreement shall constitute contempt of court and may result in the [landlord] seeking a remedy for such contempt as determined by the judge, including an order preventing a party from returning to the property.”

In May 2020, Garnier requested through TPP that the landlord exterminate the apartment. In a series of e-mails with TPP, the landlord scheduled the extermination and warned the Garniers to keep distant from the exterminator, consistent with COVID-19 precautions. On May 15, 2020, while the exterminator was spraying insecticide in the apartment's bathroom, Garnier complained about how he was doing it. Then Garnier punched and beat the exterminator dozens of times, pinning him down; the exterminator feared for his life.⁶

The landlord filed a second complaint for contempt and a motion for further injunctive relief, seeking an order that Garnier vacate the apartment. By letter to the landlord dated May 26, 2020, Garnier requested that he be permitted to stay in the apartment as a reasonable accommodation for his mental health disabilities including depression and bipolar disorder, and his physical disabilities including a back injury for which he needed surgery. The landlord denied Garnier's request, citing Garnier's failure to document his disability and the threat that he posed to others on the property. The landlord invited Garnier to submit additional documentation of his request for reasonable accommodation.

The Housing Court scheduled a show cause contempt hearing, then continued it so that Garnier could seek treatment and medication for his disabilities. Until the hearing, the Housing Court ordered Garnier not to leave the apartment for any reason except an emergency or a medical appointment, and notified him that he could supplement his request for a reasonable accommodation. Garnier sent to the landlord a letter from the office manager of Beautiful Mind Psychiatric Mental Health Services, LLC (Beautiful Mind), stating that Garnier “is a patient under Nurse Practitioner Lanika Whyte's care,” and was last seen “on June 16th, 2020 for a follow up appointment and will continue to participate in biweekly therapy and medication management appointments.” The letter noted that Garnier “has been prescribed antidepressants,” but “[i]t may take approximately four to six weeks to start seeing some improvement.” The landlord again denied the request for a reasonable accommodation, maintaining that Beautiful Mind's office manager was not qualified to opine on any disability of Garnier or any nexus between any such disability and his conduct, and that he remained a threat to other persons on the property.

At the June 19, 2020 show cause contempt hearing, the judge heard testimony of the property manager about Garnier's threatening communications, and of the exterminator about Garnier's May 15, 2020 attack. The judge found Garnier in civil contempt for his willful and intentional violation of the court orders effectuating the two settlement agreements. She found that “(1) there is a substantial threat that the [landlord] will suffer immediate and irreparable harm if the injunction did not issue; (2) there is a substantial likelihood that the [landlord] will succeed on the merits; (3) the threatened injury to the [landlord] outweighs the threatened harm this injunction may have upon [Garnier]; (4) granting this motion will not harm the public interest; instead allowing the motion will serve the public interest; ․ and (5) this is a unique remedy for which injunctive relief is necessary.” See Packaging Ind. Group, Inc. v. Cheney, 380 Mass. 609, 616-617 (1980). As both a remedy for contempt and as a preliminary injunction pending the summary process trial then scheduled for June 2021, the judge ordered Garnier to vacate the apartment.

Garnier moved for reconsideration, asserting that he had “a new letter from the [p]sychotherapist and [p]sychiatrist about [his] mental disability and illness,” he had been prescribed three medications and was willing to comply with mental health treatment, and if allowed to remain in the apartment, he promised not to interact with the landlord's employees. At a hearing on that motion, Garnier was sworn and told the judge that because of his disability he had been unable to comply with the court orders, and because of the pandemic he had not been taking the right medication. In response, the landlord argued that Garnier “had a month of continuances” to obtain that evidence and present it at the show cause contempt hearing, but had failed to do so. Apparently referring to an attachment to Garnier's motion, the landlord's counsel argued that the “June 24th letter from a nurse practitioner” actually undermined Garnier's claim.⁷ Finding that Garnier had not presented sufficient evidence to warrant reconsideration, the judge denied the motion.

Garnier moved for a stay pending appeal or pending a trial on the merits. At a hearing on that motion, Garnier was sworn and presented the judge with a letter he said he had “just received” that day and testified that he was in the care of a psychiatrist who had diagnosed him with posttraumatic stress disorder, but “I haven't been treated for over a year for this condition due to circumstances beyond my control.” Apparently reading from that letter, Garnier told the judge that “if there's any health issues relating to my mental illness ․ there will be a liaison with the Boston emergency service team in situations that lead to impulse behaviors or stressful situations.” When Garnier offered that letter into evidence, the landlord's counsel objected; the judge sustained the objection “on the grounds of hearsay unless the doctor is present.”⁸ The landlord's counsel argued that at the show cause contempt hearing Garnier had offered “no evidence at all regarding any disability.” Garnier told the judge “I'm getting better” and “I've done everything possible ․ to show the [c]ourt that I have a disability, and I'm getting treatment for this disability, and ․ I'm requesting accommodations based on this disability.” The judge denied the motion for stay, again based on the insufficiency of the evidence.

Garnier filed timely notices of appeal from the June 29, 2020 order finding him in contempt and granting injunctive relief, as well as from the denials of his motions to reconsider and for a stay. A single justice of this court granted Garnier's motion to stay the injunction pending further order of the court. Shortly thereafter, the landlord commenced a second summary process action against the Garniers. Both summary process actions are pending in the Housing Court.

Discussion. 1. Reasonable accommodation. Garnier argues that he sufficiently raised a reasonable accommodation defense, and so the judge was required to make special factual findings as to whether Garnier was entitled to a reasonable accommodation. We agree.

As landlord's counsel correctly outlined in his May 28, 2020 letter to Garnier's counsel, the factors to be considered upon a tenant's request for reasonable accommodation include whether (1) the tenant is disabled; (2) there is a nexus between his disability and his conduct; and (3) the requested accommodation is reasonable. See Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833, 843-844, 848-849 (2009).

We begin with the landlord's argument that the issue was not before the Housing Court judge because Garnier “failed to present a scintilla of evidence” establishing that he was entitled to a reasonable accommodation. On the record before us, we are satisfied that Garnier sufficiently raised a request for a reasonable accommodation. At the beginning of the June 19, 2020 hearing, the judge noted that she had reviewed the landlord's most recent refusal of Garnier's reasonable accommodation request. Garnier's counsel then offered as “exhibit[s]” a letter from the office manager of Beautiful Mind, Garnier's treatment provider, as well as a memorandum from TPP documenting his situation and progress. The judge noted that she had reviewed both proffered documents. During the hearing, Garnier's counsel also moved for the appointment of a guardian ad litem to help Garnier access services for his disability and “provide an objective viewpoint to the [c]ourt.” The judge orally denied that motion.

In his opening statement, Garnier's counsel alerted the judge that Garnier's “defense ․ is that he has disabilities and is entitled to accommodation,” citing Bridgewaters and Glendale Assocs., LP. See Bridgewaters, 452 Mass. at 844-849; Glendale Assocs., LP v. Harris, 97 Mass. App. Ct. 454, 462-464 (2020). Counsel told the judge that Garnier was seeing a therapist, had begun taking new medications, was getting support from TPP, and for the past month had complied with the lease and all court orders. Garnier did not testify or call any witnesses.⁹ However, the landlord's first witness, the property manager at Peterborough Housing, testified on direct examination that Garnier had been working with TPP. The landlord's second witness, the exterminator, testified on direct examination that Garnier's mother “said she was sorry for [Garnier's behavior],” and that he was “very sick.” In closing, Garnier's counsel reiterated his claim that Garnier was disabled and was seeking a reasonable accommodation, and requested a continuance, explaining that because of the “especially high demand for mental health services during the pandemic,” he had had “grave difficulty securing documentation.” The judge denied the request for a continuance; this was error. See Glendale Assocs., LP, 97 Mass. App. Ct. at 463 & n.20 (treatment plan proposed by judge was unduly burdensome, where it required mentally ill tenant to force medical providers to comply).

At the subsequent hearings on Garnier's motions for stay and for reconsideration, Garnier was sworn. He described his progress in getting psychiatric treatment, offered documentation of his disability -- though those documents are not before us, see notes 6 and 7, supra -- and repeatedly requested an accommodation. Therefore, based on Garnier's proffered exhibits at the beginning of the hearing, his repeated arguments asserting his request for a reasonable accommodation, the testimony that Garnier was “sick” and involved in TPP, and Garnier's sworn testimony at the subsequent hearings, we conclude that Garnier sufficiently raised the issue. See Bridgewaters, 452 Mass. at 846-847 (tenant raised request for reasonable accommodation by testifying about his disability, lapse in medication, and need for accommodation).

Moreover, the judge did not make specific findings related to Garnier's request for a reasonable accommodation. “[J]udges considering requests for reasonable accommodations should accompany their decisions with ‘findings adequate to permit [appellate] review.’ ” Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830, 849 (2019), quoting McDonough, petitioner, 457 Mass. 512, 526 (2010). Accordingly, since Garnier sufficiently raised the request for a reasonable accommodation, the judge should have addressed his request and made specific factual findings as to whether he established the requisite elements.

2. Civil contempt. Garnier also argues that the judge improperly issued the order for civil contempt. Because we remand for further findings on reasonable accommodation, we need not reach this issue. However, because this issue is intertwined with the reasonable accommodation issue, we note the following.

The purpose of civil contempt is to “secur[e] for the aggrieved party the benefit of the court's order.” Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 565 (1997). A judge may find someone in civil contempt “if the judge concludes that it is more likely than not that the person clearly and undoubtedly disobeyed a clear and unequivocal command.” Birchall, petitioner, 454 Mass. 837, 852 (2009). The goal of civil contempt is to coerce the contemnor to comply with “an affirmative command” to do something. Id. at 848, quoting International Union, United Mine Workers v. Bagwell, 512 U.S. 821, 828 (1994). See Department of Revenue Child Support Enforcement v. Grullon, 485 Mass. 129, 137 (2020) (pay child support); Matter of a Grand Jury Investigation, 92 Mass. App. Ct. 531, 536 (2017) (enter cell phone passcode). The contemnor is able to purge the contempt “by committing an affirmative act, and thus ‘carries the keys of his prison in his own pocket.’ ” Birchall, supra, quoting International Union, United Mine Workers, supra.

As Garnier concedes, a remedy formulated to coerce compliance is lawful.¹⁰ The judge held Garnier in contempt for his failure to comply with the two court-ordered agreements, which required that he limit his communications to the landlord and not cause any unreasonable disturbances on the property. As part of the contempt order, Garnier was required to “further continue to comply with all prior Agreements and Orders” of the court. At the hearing the judge stated, “Should [Garnier] believe that a motion is in order prior to the resolution of this case for the Court to consider [Garnier] being able to move back into the premises, you certainly are free to mark that up.” But the judge made no finding as to whether that contempt was based on Garnier's abusive and threatening communications to the landlord's employees in March and April 2020, his vicious attack on the exterminator on May 15, or both. Thus it is unclear from the record what specific affirmative act Garnier would need to do to purge himself of the contempt. While we do not condone Garnier's conduct, if the judge had made findings as to Garnier's request for reasonable accommodation, those findings might well have clarified this issue.¹¹

Conclusion. We recognize that the COVID-19 pandemic limited the landlord's and the judge's options, and that they may have proceeded differently under normal circumstances. Moreover, Garnier's circumstances may have changed again in the meantime. Numbered paragraph three of the June 29, 2020 order is affirmed. In all other respects, the order is vacated, and the case is remanded for a new evidentiary hearing and for findings and rulings on Garnier's reasonable accommodation defense to the contempt proceeding.¹²

So ordered.

affirmed in part; vacated in part and remanded

FOOTNOTES

3.   A single justice of this court stayed the order to vacate pending further orders of this court or a single justice thereof.

4.   Garnier agreed not to send more than one e-mail per day or more than five per week, to limit their content to matters involving the property or the tenancy, and to restrict his verbal communications with the landlord's staff to emergencies.

5.   A “ ‘cooperative effort’ between the Housing Court and private nonprofit agencies,” TPP is intended to assist tenants suffering from mental illness. See Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833, 845 (2009). TPP investigates “whether a tenancy can be preserved through reasonable accommodations for a tenant's disability.” Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830, 847 n.23 (2019).

6.   Garnier was about six feet, five inches tall and 300 pounds; the exterminator was five feet, nine inches tall and 165 pounds.

7.   References in the transcript indicate that the judge reviewed the letter, but it was not marked as an exhibit. Neither party has included it in the record appendix. See Mass. R. A. P. 18 (a), (b) (5), as appearing in 481 Mass. 1637 (2019).

8.   References in the record seem to indicate that the letter was dated July 9, 2020, and was from Dr. Muriana Jeanniton, a psychiatrist. The judge reviewed it at the hearing, but it was not marked as an exhibit. Neither party has included it in the record appendix. See Mass. R. A. P. 18 (a), (b) (5).

9.   Garnier's counsel informed the court that Garnier was “assert[ing] his Fifth Amendment right not to testify.” On the record before us, there is no information whether any criminal charges were brought against Garnier.

10.   Indeed, Garnier's own testimony at the July 10, 2020 hearing on the motion for stay demonstrated that the order successfully achieved its goal: he told the judge that since being held in contempt, he was complying with all of the court's orders, presumably with the hope of being allowed to occupy the apartment.

11.   On the view we take of the case, there is no need to reach the issue of whether the order to vacate was appropriately issued in this context as a form of injunctive relief, or whether it violated the eviction moratorium imposed as a result of the pandemic, see St. 2020, c. 65.

12.   Garnier's request for an award of attorney's fees in connection with this appeal is denied.