Curtis W. Andrade v. Westlo Management LLC

June 17, 2022

Supreme Court

No. 2020-112-M.P.
(PC 12-6638)

Curtis W. Andrade et al. :

v. :

Westlo Management LLC et al. :

NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email opinionanalyst@courts.ri.gov, of any typographical
or other formal errors in order that corrections may be
made before the opinion is published.
Supreme Court

No. 2020-112-M.P.
(PC 12-6638)

Curtis W. Andrade et al. :

v. :

Westlo Management LLC et al. :

Present: Suttell, C.J., Goldberg, Robinson, and Lynch Prata, JJ.

OPINION

Chief Justice Suttell, for the Court. The defendants, Westlo Management

LLC (Westlo), Smith/Keen Limited Partners (Smith/Keen), and Lindsey Hahn, seek

review of a Superior Court order granting partial summary judgment on counts one,

two, three, and seven of the plaintiffs’ third-amended complaint against Westlo in

favor of the plaintiffs, Curtis W. Andrade and The Rhode Island Commission for

Human Rights (the commission).1 The defendants assert that the existence of

genuine issues of material fact precluded partial summary judgment and further

contend that the commission did not have standing to intervene in this matter.

1
The order on review also granted the defendants’ cross-motion for summary
judgment in favor of defendant Lindsey Hahn and denied plaintiffs’ motion for
summary judgment against defendant Smith/Keen. The plaintiffs have not sought
review of those portions of the Superior Court order. Therefore, only defendant
Westlo has a stake in seeking to overturn the partial summary judgment against it
for counts one, two, three, and seven of the third-amended complaint.

-1-
We issued a writ of certiorari and directed the parties to appear and show cause

why the issues raised by defendants should not be summarily decided. After

considering the parties’ written and oral submissions and reviewing the record, we

conclude that cause has not been shown and that this case may be decided without

further briefing or argument. For the reasons set forth in this opinion, we quash that

portion of the Superior Court order granting partial summary judgment in favor of

plaintiffs as to liability against Westlo on counts one, two, three, and seven.

I

Facts and Travel

On August 1, 2011, plaintiff Curtis Andrade moved into a low-income

apartment unit at the Westminster Lofts (the complex), a residential apartment

complex located at One Fulton Street in Providence, Rhode Island. The defendant

Smith/Keen owned the complex, and defendant Westlo operated, managed, and

maintained it.

At Andrade’s deposition, he testified that, before moving into the complex, a

leasing agent, Iris Ferguson, informed him that he was not permitted to have his dog,

Enzo, an American Staffordshire terrier, which is commonly known as a pit bull, in

the complex because a pit bull was on the restricted breed list under the complex’s

pet policy. Andrade testified that, in response to Ferguson’s statement, he told her

that the dog was his support animal. Andrade further stated, however, that the

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manager of the complex then told him that he would need to fill out and submit

paperwork for the dog and provide certain information including proof that Enzo

had been vaccinated and neutered. Andrade indicated that he could not recall

whether he ever filled out and submitted the necessary paperwork.

Andrade testified that, when he moved into the complex in August 2011, he

did not bring Enzo with him; the dog stayed with his mother, Lisa Andrade, at her

home. He did, however, bring the dog to the complex in December 2011 because,

according to Andrade, his mother was away for the weekend and he had to watch

Enzo. Andrade stated that the dog was with him at his apartment from Friday until

Saturday morning. He acknowledged that he did not inform Westlo that he was

bringing the dog to his apartment unit for that weekend.

An incident occurred that Saturday, concerning which there are conflicting

accounts. According to Andrade, he was exiting the elevator when another tenant,

Neil Abate, saw him with the dog. Andrade testified in his deposition that Enzo had

a “red, rubber toy” in his mouth and was on a leash while riding in the elevator;

however, Andrade removed the leash just before the elevator doors opened. Andrade

contended that, when the elevator doors opened, Enzo’s tail was “wagging[,]”

indicating, according to Andrade, that the dog wanted to play with Abate. Andrade

maintained that, when Enzo was near Abate, the dog kept his front paws on the

ground and never made physical contact with Abate. Andrade testified that Abate

-3-
appeared “dumbfounded” but did not seem frightened. Andrade further asserted that

he did not grab the dog’s collar at any point during the encounter because “[t]here

was no need.”

When testifying at his deposition, Abate offered a different narrative than that

of Andrade. He stated that he was waiting for the elevator near his apartment unit

when the doors opened and Andrade’s dog came “running out” at him. Abate

additionally asserted that the dog pinned him against the wall, and that Andrade

made no effort to remove the dog. According to Abate, it was not until he made a

second request for the dog to be removed that Andrade pulled the dog off him.

Although Abate acknowledged that the dog did not bite or growl at him, he

testified that he was in complete shock when the dog jumped on him. He did not

recall the dog’s tail wagging or a toy being in the dog’s mouth during the incident.

Moreover, Abate testified, the dog was not looking at him when its front paws were

against him; rather, the dog’s head was turned facing Andrade. Abate stated that it

was his belief that the dog was trying to attack him and that, if he had lost his

composure, the dog would have “mauled” him.

After the incident occurred, Abate made a report to the Westlo building

manager, Lindsey Hahn. Shortly after Abate lodged the complaint, Hahn contacted

Andrade informing him that the dog was not allowed on the premises. Andrade

testified that, after his conversation with Hahn, he spoke with his doctor at his annual

-4-
physical examination about being “overwhelmed psychologically [and]

emotionally,” due in part to the issue with the dog. Andrade indicated that this was

the first time he discussed potentially having a support animal with his doctor.

Andrade’s doctor, Wadid Azer, M.D., wrote a note on December 22, 2011, stating

that Andrade “would benefit in having a dog due to his medical condition[.]” Doctor

Azer’s note was attached to a letter sent by Andrade to Hahn, which indicated that

he had a disability and requested that he be allowed to have an emotional support

dog as “a reasonable accommodation under the federal Fair Housing Amendments

Act of 1988[.]”

Hahn rejected Andrade’s request by a letter dated January 11, 2012. In the

letter, Hahn explained that, before Andrade had moved into the complex, he was

made aware of the breed restrictions in the building’s pet policy. Hahn indicated

that Westlo “would be happy to allow [Andrade] to have a dog that falls within

[Westlo’s] pet addendum rules and regulations[.]” She further asserted that Andrade

had violated the building policy by bringing his dog on the premises and that one of

the residents felt threatened by the dog, which had been “allowed to roam the

building off of its leash violating yet again another building policy.” Hahn

concluded the letter by pointing out that, if the dog was an essential part of his

well-being, he could terminate his lease early; however, if the dog returned to the

premises, management would consider eviction.

-5-
On January 30, 2012, Dr. Azer wrote to Hahn explaining in greater detail

Andrade’s need for the dog as a service animal. He stated that Andrade has an

anxiety disability and indicated that Enzo had been trained in a variety of areas and

provided “physical, emotional and therapeutic assistance to Mr. Andrade.” Later,

on February 3, 2012, Andrade sent another letter to Hahn, in which he stressed that

his dog should not be merely considered a “pet” because it is a dog that assists with

his disabilities and requested that she reconsider a reasonable accommodation to

permit the dog to be on the premises as Andrade’s “service” animal. Hahn responded

by a letter dated February 14, 2012, wherein she reiterated the pet policy’s breed

restrictions that Andrade had been made aware of when he moved into the complex

on August 1, 2011. She again stated that she would understand if Andrade needed

to end the lease early as a result of the dog restrictions.

On February 22, 2012, Andrade filed a charge of discrimination with the

commission. Later, on July 16, 2012, the commission found probable cause that

defendants had violated Andrade’s rights. The parties engaged in unsuccessful

settlement discussions in August 2012. In September 2012, Westlo initiated eviction

proceedings against Andrade for nonpayment of rent. The commission issued a

right-to-sue letter to Andrade on November 1, 2012. On December 10, 2012,

pursuant to a court order, Andrade was evicted from his apartment at the complex.

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On December 28, 2012, Andrade filed the instant action. The commission

issued a second right-to-sue letter on April 2, 2013. A hearing justice granted the

commission’s motion to intervene as a party plaintiff by an order entered on

November 17, 2014. The defendants subsequently filed a motion to vacate and a

motion to reconsider the order granting the commission’s intervention. By an order

dated July 28, 2015, the same hearing justice who entered the first order granting the

commission’s intervention denied defendants’ motion to reconsider. The plaintiffs

filed their third-amended complaint on July 3, 2018.

The third-amended complaint pled the following counts: (1) unlawful denial

of the right to make and enforce contracts and lease real property due to Andrade’s

disability, in violation of G.L. 1956 chapter 112 of title 42 (count one); (2) unlawful

denial of full and equal access to housing and public accommodations based on

Andrade’s disability, pursuant to G.L. 1956 chapter 87 of title 42 (count two); (3)

unlawful denial of equal access to public housing and accommodations based on a

disability, in violation of G.L. 1956 chapter 37 of title 34 (count three); (4) unlawful

denial of right to have a service animal, pursuant to G.L. 1956 chapter 9.1 of title 40

(count four); (5) unlawful retaliation under chapter 9.1 of title 40 by moving for

eviction proceedings (count five); (6) unlawful interference, coercion, or

intimidation, in violation of § 34-37-5.1, by moving for eviction proceedings (count

six); and (7) unlawful denial of equal access to public accommodations based on a

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disability, pursuant to 42 U.S.C. § 3604(f)(3)(B), by refusing to make reasonable

accommodations (count seven).2

On August 20, 2018, plaintiffs filed a motion for partial summary judgment

with respect to counts one, two, three, four, and seven of the third-amended

complaint, to which defendants objected on September 28, 2018. The defendants

also filed a cross-motion for summary judgment on all counts of the third-amended

complaint on September 28, 2018, to which the commission objected on October 15,

2018, and to which Andrade objected on November 2, 2018. The defendants’ cross-

motion for summary judgment also asserted that the commission did not have

standing to bring suit as a co-plaintiff. A hearing on the parties’ cross-motions for

2
We note that plaintiffs’ third-amended complaint uses the term “service animal”
within the meaning of G.L. 1956 chapter 9.1 of title 40, which defines “service
animal” as “a dog that has been, or is being, specifically trained to assist an
individual with a disability, and includes a guide dog or hearing dog.”
Section 40-9.1-1.1(6). The plaintiffs’ third-amended complaint also uses the term
“personal assistive animal” within the meaning of G.L. 1956 chapter 87 of title 42,
which defines “personal assistive animal” as “an animal specifically trained, by a
certified animal training program, to assist a person with a disability perform
independent living tasks.” Section 42-87-3(4). The record is devoid of any evidence
that Andrade’s dog received the requisite training to fall within the meaning of these
classifications. Therefore, for purposes of this opinion, we utilize the term
“assistance animal,” which has been defined by the United States Department of
Housing and Urban Development (HUD) as “an animal that works, provides
assistance, or performs tasks for the benefit of a person with a disability, or provides
emotional support that alleviates one or more identified symptoms or identified
effects of a person’s disability.” HUD Office of Fair Housing and Equal
Opportunity, Notice FHEO-2013-01, at 10 (issued Apr. 25, 2013).

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summary judgment was held on December 5 and 7, 2018. The hearing justice3

issued a bench decision on February 12, 2019.

In the decision, the hearing justice granted plaintiffs’ motion for summary

judgment on counts one, two, three, and seven against Westlo, finding that Westlo

had discriminated against Andrade by denying him the reasonable accommodation

of having his dog at the complex as an assistance animal. She denied plaintiffs’

motion on count four because she found there to be a genuine issue of material fact

as to whether the dog had received the requisite training under the statute. Moreover,

the hearing justice refused to interfere with the order granting the commission’s

motion to intervene, noting that no expanded record existed. Additionally, the

hearing justice denied plaintiffs’ motion for summary judgment against Smith/Keen,

and she granted the defendants’ cross-motion for summary judgment in favor of

Hahn. At the conclusion of the hearing, defense counsel highlighted that the incident

with Abate had occurred before Andrade sent the letters requesting a reasonable

accommodation for him to have his dog in his apartment unit as an assistance

animal—a fact that the hearing justice had previously misstated in her bench

decision.

3
The hearing justice who entertained the cross-motions for summary judgment was
a different justice from the one who had granted the commission’s motion to
intervene in 2014.

-9-
Thereafter, plaintiffs filed a motion for approval of proposed findings of

uncontroverted facts under Rule 56(d) of the Superior Court Rules of Civil

Procedure. The defendants objected generally to the hearing justice issuing findings

of fact; however, the hearing justice ultimately found defendants’ argument to be

unpersuasive and indicated that she would review the transcripts and issue findings

of fact at a later date. The hearing justice also acknowledged her having cited to an

incorrect date for the incident involving Abate. She explained that she cited the date

referenced in Abate’s deposition and only later became aware that the parties agreed

that the incident occurred prior to the delivery of Andrade’s letters to Hahn. For that

reason, the hearing justice declined to make a finding of fact on that particular issue.

At a hearing on March 5, 2020, the hearing justice indicated that the order

granting partial summary judgment had not been “circulated amongst the parties, nor

was it ever signed and made part of the record.” Later that same day, an order

granting partial summary judgment was entered, which also included the hearing

justice’s findings of fact. The defendants thereafter filed a petition for writ of

certiorari to challenge the March 5, 2020 order, which this Court granted on

December 24, 2020.

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II

Standard of Review

“Summary judgment is a drastic remedy, and a motion for summary judgment

should be dealt with cautiously.” Cruz v. DaimlerChrysler Motors Corp., 66 A.3d

446, 451 (R.I. 2013) (brackets omitted) (quoting DeMaio v. Ciccone, 59 A.3d 125,

129 (R.I. 2013)). We “review the grant of a motion for summary judgment de novo,

employing the same standards and rules used by the hearing justice.” Oliver v.

Narragansett Bay Insurance Company, 205 A.3d 445, 449 (R.I. 2019) (quoting

Cancel v. City of Providence, 187 A.3d 347, 349 (R.I. 2018)). This Court will

“affirm a trial court’s decision only if, after reviewing the admissible evidence in the

light most favorable to the nonmoving party, we conclude that no genuine issue of

material fact exists and that the moving party is entitled to judgment as a matter of

law.” Id. (quoting Cancel, 187 A.3d at 350). A party opposing a motion for summary

judgment “bears the burden of proving by competent evidence the existence of a

disputed issue of material fact and cannot rest upon mere allegations or denials in

the pleadings, mere conclusions or mere legal opinions.” Id. (quoting Cancel, 187

A.3d at 350). “Summary judgment should enter against a party who fails to make a

showing sufficient to establish the existence of an element essential to that party’s

case.” Id. at 449-50 (quoting Cancel, 187 A.3d at 350).

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Regarding intervention as of right under Rule 24(a) of the Superior Court

Rules of Civil Procedure, “this Court reviews a trial justice’s grant of a motion to

intervene for abuse of discretion, reversing only if the justice failed to apply the

standards set forth in Rule 24(a)(2), or otherwise committed clear error.” Hines

Road, LLC v. Hall, 113 A.3d 924, 928 (R.I. 2015) (brackets omitted) (quoting Town

of Coventry v. Baird Properties, LLC, 13 A.3d 614, 619 (R.I. 2011)). In a similar

fashion, “we have also utilized the abuse of discretion standard of review in the

context of Rule 24(b)(2)”—permissive intervention. Id.

III

Discussion

A

Summary Judgment

The defendant Westlo first argues that, because plaintiffs’ third-amended

complaint contains claims sounding in both law and equity, Westlo was denied its

right to a trial by jury when the hearing justice granted summary judgment.

Specifically, Westlo contends that there were genuine issues of material fact that

precluded summary judgment. For example, Westlo argues that there was no

evidence introduced that Andrade’s dog was a professionally trained service animal.

Additionally, Westlo asserts that the question of whether an accommodation is

reasonable under the Fair Housing Act (FHA) is one of fact, requiring a close

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examination of particular circumstances. Thus, Westlo argues, it was an error for

the hearing justice to make determinations of factual issues.

Andrade argues that the hearing justice did not err in granting partial summary

judgment because, he contends, there were no genuine issues of material fact as to

any of the elements of a reasonable-accommodation-or-modification claim.

Andrade presents explanations as to why he satisfied the requirement of proving by

a preponderance of the evidence the elements of a reasonable-accommodation claim.

The commission similarly argues that the hearing justice did not err in granting

plaintiffs’ motion for summary judgment. In particular, the commission argues that

Westlo did not present any argument that Andrade’s request would involve undue

expenses or other burdens. The commission further contends that the existence of

Andrade’s dog at the complex would not fundamentally alter Westlo’s operations,

as it would still be able to offer housing. In sum, the commission maintains that

Andrade presented sufficient evidence of his disability and the reasonableness of his

requested accommodation.

At the outset, we observe that counts one, two, three, and seven of the

third-amended complaint, which contain both state and federal claims, are based on

the theory that Westlo refused to make a reasonable accommodation or modification

of its pet policy to allow for Andrade’s dog to serve as his personal assistance animal.

The Rhode Island Fair Housing Practices Act (FHPA), in relevant part, closely

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parallels the federal FHA. Specifically, the relevant language of the FHA appearing

in 42 U.S.C. § 3604(f)(3)(B) and the language of the FHPA appearing in

§ 34-37-4(e)(1) are virtually identical, yet state caselaw on the relevant subsections

of the FHPA is sparse. We therefore address plaintiffs’ claims by referring solely to

federal decisions dealing with the FHA. See Narragansett Electric Company v.

Rhode Island Commission for Human Rights, 118 R.I. 457, 459-60, 374 A.2d 1022,

1023 (1977) (explaining the Court’s reliance on federal caselaw when the relevant

language of the State Fair Employment Practices Act, which had seldom been

interpreted by this Court, closely mirrored the relevant sections of Title VII of the

Civil Rights Act of 1964).

Under the FHA, specifically 42 U.S.C. § 3604(f)(3)(B), unlawful

discrimination includes “a refusal to make reasonable accommodations in rules,

policies, practices, or services, when such accommodations may be necessary to

afford such person equal opportunity to use and enjoy a dwelling[.]” See

§ 34-37-4(e)(1) (“An owner may not refuse to make reasonable accommodations in

rules, policies, practices, or services when those accommodations may be necessary

to afford an occupant with a disability equal opportunity to use and enjoy a

dwelling.”). An alteration to a pet policy to allow for an assistance animal has been

determined to be a reasonable accommodation. See Warren v. Delvista Towers

Condominium Association, Inc., 49 F. Supp. 3d 1082, 1086 (S.D. Fla. 2014) (holding

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that a “building with a ‘no pets’ policy must accommodate a blind person and his

seeing eye dog[,]” otherwise “the blind person will not have an equal opportunity to

use and enjoy a dwelling”) (quoting 24 C.F.R. § 100.204(b)).

In order to establish that a defendant failed to provide a reasonable

accommodation in the form of an assistance animal, a plaintiff must show that (1) he

or she is a person with a disability, (2) the plaintiff requested an accommodation,

(3) the defendant knew or should have known that the plaintiff is a person with a

disability, (4) the defendant denied the plaintiff’s request for a reasonable

accommodation, and (5) an assistance animal is reasonable and necessary to afford

him or her an equal opportunity to use and enjoy his or her dwelling. See Castillo

Condominium Association v. United States Department of Housing and Urban

Development, 821 F.3d 92, 98 (1st Cir. 2016); Astralis Condominium Association v.

Secretary, United States Department of Housing and Urban Development, 620 F.3d

62, 67 (1st Cir. 2010). “The reasonable accommodation inquiry is highly fact-

specific, requiring case-by-case determination.” Dubois v. Association of Apartment

Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2006) (quoting United

States v. California Mobile Home Park Management Company, 107 F.3d 1374, 1380

(9th Cir. 1997)).

Beginning with the first step in the analysis—determining whether Andrade

is a person with a disability—we turn to the FHA’s definition of “handicap” with

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respect to a person, which defines it as “(1) a physical or mental impairment which

substantially limits one or more of such person’s major life activities, (2) a record of

having such an impairment, or (3) being regarded as having such an impairment[.]”

42 U.S.C. § 3602(h)(1)–(3). In the case at bar, Andrade presented a medical note

from Dr. Azer that specifically stated that Andrade had been treating with him since

2009 and that Andrade had been diagnosed with anxiety and depression.

Upon reviewing the hearing justice’s decision on summary judgment, we

observe that there was some discussion as to whether this medical note would have

been admissible. However, the hearing justice found this to be inconsequential

because Andrade, in an affidavit, attested to his anxiety and depression and further

stated that his condition substantially limits his ability to sleep and work. In relying

on Andrade’s affidavit, the hearing justice cited to Katz v. City Metal Co., Inc., 87

F.3d 26 (1st Cir. 1996), for the proposition that “[t]here is * * * no general rule that

medical testimony is always necessary to establish disability.” Katz, 87 F.3d at 32.4

4
Although the issue in Katz pertained to the Americans with Disabilities Act (ADA),
we note that the United States Supreme Court has held that the definition of
“disability” in the ADA and the definition of “handicap” in the FHA should be
construed similarly. See Bragdon v. Abbott, 524 U.S. 624, 631 (1998) (“The ADA’s
definition of disability is drawn almost verbatim from the definition of * * *
‘handicap’ contained in the [FHA]. Congress’s repetition of a well-established term
carries the implication that Congress intended the term to be construed in accordance
with pre-existing regulatory interpretations.”).

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Not only did Andrade in his affidavit attest to having anxiety and depression,

but he also testified at his deposition to his condition and its implications on his daily

activities. In particular, Andrade testified that he has been treated for anxiety for

years, which includes the use of medication. He asserted that his disability has

prevented him from working since 2003, resulting in his receiving Social Security

disability benefits. Significantly, in its papers before this Court, Westlo does not

specifically challenge the hearing justice’s finding that “plaintiff has provided

sufficient evidence to demonstrate a lack of genuine issue of fact as it pertains to the

disability element” of the reasonable-accommodation analysis.

Similarly, we agree that plaintiffs satisfied the second, third, and fourth

prongs—plaintiff made a request for an accommodation, defendant knew or should

have known of plaintiff’s disability, and defendant denied plaintiff’s request for a

reasonable accommodation. Andrade submitted two separate letters, delivered to

Westlo, that alerted Westlo to Andrade’s disability and requested an accommodation

under the FHA. Hahn replied to both letters denying Andrade’s request for a

reasonable accommodation. Furthermore, Hahn testified that she was not

“skeptical” about Andrade’s disability and, in her February 14, 2012 letter, she

acknowledged that Andrade’s dog provided him with “the physical, emotional and

therapeutic assistance” that he needed. For these reasons, we see no genuine issues

of material fact that exist as to the second, third, and fourth prongs.

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Finally, we shift our focus to the fifth prong—whether plaintiff’s dog is

reasonable and necessary to afford plaintiff an equal opportunity to use and enjoy

his dwelling. Although neither the FHA nor the FHPA specifically define a

“reasonable accommodation,” courts have essentially determined that a request for

an assistance animal may be denied and an accommodation can be deemed

unreasonable if it “imposes * * * fundamental alteration in the nature of [the housing

provider’s services] or undue financial and administrative burdens.” Anderson v.

City of Blue Ash, 798 F.3d 338, 362 (6th Cir. 2015) (quoting Hollis v. Chestnut Bend

Homeowners Association, 760 F.3d 531, 542 (6th Cir. 2014)).

Moreover, HUD issued a final rule in 2008 that states that a request for an

assistance animal may also be denied if “that animal’s behavior poses a direct threat

and its owner takes no effective action to control the animal’s behavior so that the

threat is mitigated or eliminated.” Pet Ownership for the Elderly and Persons with

Disabilities, 73 Fed. Reg. 63837 (Oct. 27, 2008) (codified at 24 C.F.R. pt. 5). The

rule further states that the FHA “requires the existence of a significant risk—not a

remote or speculative risk.” Id. “Accordingly, the determination cannot be the result

of fear or speculation about the types of harm or damage an animal may cause, or

evidence about harm or damage caused by other animals[.]” Id. The 2008 HUD rule

also adds that:

“The determination of whether an assistance animal poses
a direct threat must rely on an individualized assessment

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that is based on objective evidence about the specific
animal in question, such as the animal’s current conduct
or a recent history of overt acts. The assessment must
consider the nature, duration, and severity of the risk of
injury; the probability that the potential injury will actually
occur; and whether reasonable modifications of rules,
policies, practices, procedures, or services will reduce the
risk. In evaluating a recent history of overt acts, a provider
must take into account whether the assistance animal’s
owner has taken any action that has reduced or eliminated
the risk.” Id.

Although we see no direct evidence of undue financial and/or administrative

burdens imposed on Westlo, a close review of the record reveals conflicting

testimony between Andrade and Abate as to whether Andrade’s dog posed a direct

threat. Abate specifically testified that he felt threatened by Andrade’s dog and

further indicated that he believed he would have been “mauled” had he lost his

composure during the incident with the dog. The hearing justice initially

emphasized that the incident with Abate occurred after the requests for a reasonable

accommodation had been denied, which was later corrected by the parties. The

hearing justice stated in her bench decision, “I’m struck by and I kind of kept coming

back to the fact that that incident happened after plaintiff’s request had twice been

denied[,] in January of 2012 [and] in February of 2012 [when] that incident between

the dog and Mr. Abate didn’t occur until March.” The hearing justice ultimately

determined that, in reviewing the evidence, she “at best * * * could say that Mr.

Abate was startled by a large dog running up to him on an elevator and putting his

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paws on him which then pinned him against the wall.” She found that the incident

was not indicative of violent behavior.

We take note that the hearing justice in rendering her decision seemed to rely

on the incorrect fact that the incident with Abate occurred after the denials of the

reasonable accommodation requests. We underscore that Westlo’s letters denying

Andrade’s request cited the incident with Abate as a factor for its denial. In addition,

the conflicting testimonial evidence regarding the incident with Abate alert us to a

question of a material fact concerning whether the dog posed a direct threat.

Therefore, due to the highly fact-specific nature of the assessment of an assistance

animal as well as the conflicting evidence presented, we disagree with the hearing

justice and conclude that this issue was not appropriate for summary judgment.

Andrade’s decision to remove the dog’s leash while in the elevator

additionally calls into question whether he could safely handle the dog in the

complex. To that end, Hahn’s letters specifically cited the incident between

Andrade’s dog and Abate as a factor in denying his reasonable-accommodation

request and further highlighted that Andrade’s unleashing of his dog was also against

the complex’s policy. Accordingly, we hold that there is a genuine issue of material

fact as to whether Andrade’s dog was a direct threat to the health and safety of others

in the complex. See Warren, 49 F. Supp. 3d at 1089 (denying summary judgment

because a genuine issue of material fact remained as to whether a dog “pose[d] a

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direct threat to members of the condominium association, and whether that threat

can be reduced by other reasonable accommodations”).

We are likewise of the opinion that there is a genuine issue of material fact as

to whether Andrade’s dog was necessary for him to fully enjoy his dwelling. “[A]

‘necessary’ accommodation is one that alleviates the effects of a disability.”

Bhogaita v. Altamonte Heights Condominium Ass’n, Inc., 765 F.3d 1277, 1288 (11th

Cir. 2014). The necessity determination “asks whether the requested

accommodation ameliorates the disability’s effects.” Id. at 1289. In her bench

decision, the hearing justice emphasized that the test is not whether “plaintiff

requires assistance from the dog one hundred percent of the time”; rather, the test is

“whether or not the dog alleviates a disability to ensure plaintiff’s enjoyment of his

dwelling[.]”

Although we do not disagree with the hearing justice’s characterization of the

test, our assessment of the record on review demonstrates that there is conflicting

evidence on this issue, thus removing it from the purview of summary judgment.

While Dr. Azer’s letter and Andrade’s affidavit indicated that the dog assisted

Andrade in social situations, reduced his anxiety, and prevented him from

oversleeping, there was also evidence to suggest that Andrade’s dog was not a

necessity.

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When Andrade was signing the required paperwork for the apartment, he was

told by the leasing agent that he would not be able to keep the dog at the complex;

whereas, the building manager told him he needed to fill out additional paperwork

in order to keep the dog; ultimately, though, the dog went to live with Andrade’s

mother. The evidence shows that Andrade lived for over one year without his dog

while residing at the complex, and the record is devoid of any evidence suggesting

that his disability was affected in any way by not having his dog. The question

remains “whether the requested accommodation ameliorates the disability’s effects.”

Bhogaita, 765 F.3d at 1289.

Additionally, Westlo presented Andrade with the option of terminating his

lease early when it informed him that his dog was not permitted on the premises;

Andrade, however, continued to live at the complex until he was evicted for

nonpayment of rent in December 2012. Andrade also testified at his deposition that,

as he prepared for an upcoming trip, he had no plans of bringing the dog along with

him. Taking these facts into consideration, we conclude that a genuine issue of

material fact exists as to the issue of necessity.

As the commission recognizes in its counterstatement pursuant to Article I,

Rule 12A of the Supreme Court Rules of Appellate Procedure, “the question of

whether a companion or assistance animal is an appropriate and reasonable

accommodation for a disability is a question of fact, not a matter of law.”

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Accordingly, we are of the opinion that the hearing justice erred in granting the

plaintiffs’ motion for partial summary judgment as to the issue of the liability of

Westlo.

B

Intervention

Finally, Westlo argues that the commission did not have standing to intervene

in the case at bar. Westlo specifically states that the commission, as support for its

motion to intervene, cited to G.L. 1956 § 28-5-28, which does not provide a statutory

basis for the commission’s intervention in this case. Westlo argues that, even if

§ 28-5-28 had been properly triggered, the commission’s rules only allow for the

commission to file a substantive complaint if neither the attorney general nor the

complainant has commenced a civil action.

The commission contends that it sought to intervene pursuant to Rule 24(a) of

the Superior Court Rules of Civil Procedure, which states that, upon timely

application and satisfaction of the requirements set forth in the rule, “anyone shall

be permitted to intervene in an action[.]” The commission contends that it has a duty

to protect the public interest, which, it argues, would not be adequately represented

by either Andrade or Westlo. As to the timeliness of its application, the commission

avers that Westlo has failed to establish how the determination of timeliness of the

application by the hearing justice was the product of an abuse of discretion or was

- 23 -
clear error. Moreover, the commission argues that it also properly moved to

intervene under Rule 24(b)(2), which allows for permissive intervention.

The travel of the commission’s motion to intervene in the Superior Court is

confusing to say the least. It first appears on the docket with the entry of an order

on November 17, 2014, granting the motion. The order indicates that a hearing on

the motion was held on November 12, 2014. The docket itself, however, contains

no entry that such a motion was ever filed. Regrettably, Westlo has not provided us

with a transcript of the November 12, 2014 hearing.

The next listing in the docket with respect to a motion to intervene is

defendants’ motion to vacate the November 17, 2014 order for reason that the motion

to intervene is not listed in the docket and the motion is not on file “on either the

electronic filing system or in the [c]ourt’s file.” The docket reflects that the motion

to vacate was heard and denied on July 15, 2015, although no order can be found in

the electronic filing system.

Ultimately, on June 29, 2015, the commission filed a motion to intervene,

which presumably is a copy of the original motion to intervene because it lists a

hearing date of November 12, 2014, and includes a date stamp of October 27, 2014.

On July 7, 2015, defendant filed a motion to reconsider the November 17, 2014

order, which motion was denied at the hearing on July 15, 2015, and by order entered

on July 28, 2015.

- 24 -
Pursuant to Article I, Rule 10(b)(1) of the Supreme Court Rules of Appellate

Procedure, “within twenty (20) days after filing the notice of appeal the appellant

shall order from the reporter a transcript of such parts of the proceedings not already

on file as the appellant deems necessary for inclusion in the record.” We have

previously underscored that “it is the appellant’s duty ‘to ensure that the record is

complete and ready for transmission.’” Sentas v. Sentas, 911 A.2d 266, 270 (R.I.

2006) (quoting Small Business Loan Fund Corporation v. Gallant, 795 A.2d 531,

532 (R.I. 2002)). Moreover, “the deliberate decision to prosecute an appeal without

providing the Court with a transcript of the proceedings in the trial court is risky

business.” Id. (brackets omitted) (quoting 731 Airport Associates, LP v. H & M

Realty Associates, LLC, 799 A.2d 279, 282 (R.I. 2002)). Absent excusable neglect

for failure to transmit a record, “[u]nless the appeal is limited to a challenge to

rulings of law that appear sufficiently on the record and the party accepts the findings

of the trial justice as correct, the appeal must fail.” Id. (quoting 731 Airport

Associates, LP, 799 A.2d at 282).

In the case at bar, Westlo has failed to provide the Court with a proper

transcript of the purported November 12, 2014 hearing on the commission’s motion

to intervene or the subsequent July 15, 2015 hearing conducted on Westlo’s motion

to vacate and motion to reconsider the respective orders granting the commission’s

intervention. After a careful review, we are further satisfied that the record in this

- 25 -
case is devoid of any explanation for defendant’s failure to order the transcripts of

these hearings. Without transcripts of these hearings, we are unable to conduct a

meaningful review of the Superior Court’s decisions on the issue of the

commission’s intervention. Our review is further complicated by the puzzling lack

of a docket entry concerning the original filing of the commission’s motion to

intervene, as well as defendants’ representation in their motion to vacate that the

motion “is not on file on either the electronic filing system or in the [c]ourt’s file.”

Accordingly, we are unable to determine whether the hearing justice who ruled on

the motions concerning the commission’s intervention abused his discretion in

granting the commission’s motion to intervene.5 See Petrone v. Davis, 118 R.I. 261,

267, 373 A.2d 485, 488 (1977) (holding that this Court was unable to “ascertain

whether the trial justice abused his discretion in not granting punitive damages”

because the plaintiffs failed to provide a transcript).

5
We pause to note that Westlo additionally failed to provide this Court with a
transcript of the hearing(s) on the cross-motions for summary judgment. This is
inconsequential to our holding supra on the issue of Westlo’s liability as to counts
one, two, three, and seven. We were able to locate a copy of the hearing justice’s
bench decision on the cross-motions for summary judgment in the record, which
enabled us to conduct a proper review of the issues pertaining to the cross-motions
for summary judgment.

- 26 -
IV

Conclusion

For the reasons stated above, we quash that portion of the March 5, 2020

Superior Court order that grants the plaintiffs’ motion for summary judgment “as to

the [l]iability of Westlo Management, on [c]ounts 1, 2, 3, and 7[.]” The record shall

be remanded to the Superior Court for further proceedings in accordance with this

opinion.

Justice Long did not participate.

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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Curtis W. Andrade et al. v. Westlo Management LLC
Title of Case
et al.
No. 2020-112-M.P.
Case Number
(PC 12-6638)

Date Opinion Filed June 17, 2022

Justices Suttell, C.J., Goldberg, Robinson, and Lynch Prata, JJ.

Written By Chief Justice Paul A. Suttell

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Maureen B. Keough

For Plaintiffs:

Mark P. Gagliardi, Esq.
Attorney(s) on Appeal
For Defendants:

Daryl E. Dayian, Esq.

SU-CMS-02A (revised June 2020)