          Case: 18-10537   Date Filed: 05/21/2019   Page: 1 of 10


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 18-10537
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 8:16-cv-01076-SDM-JSS



KIMBERLY JOHNSON,
DEBORAH BRAZELL,

                                                        Plaintiffs - Appellants,

                                  versus

KELLIE JENNINGS,
SHELLEY MORRIS,

                                                      Defendants - Appellees.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                             (May 21, 2019)

Before TJOFLAT, MARCUS, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      This appeal is from a judgment entered pursuant to a jury verdict on a

reasonable-modification claim under the Fair Housing Act (“FHA”), 42 U.S.C.

§§ 3601−31. Because we write for the parties, we set out facts only as they are

needed to support our analysis.

      Plaintiffs Kimberly Johnson and Deborah Brazell are the mother and

grandmother, respectively, of K.J., a ten-year old autistic girl who suffers from

Fabry Disease. Fabry Disease, per Plaintiffs’ brief, is a rare genetic disorder that

causes pain in the hands and feet, decreased ability to sweat, cloudy vision,

gastrointestinal problems, ringing in the ears, and hearing loss. K.J.’s

gastrointestinal problems necessitated surgery to create an abdominal stoma, which

is a small opening on the skin’s surface to divert the flow of feces. K.J.’s stoma

must be flushed twice per day for a total of five to ten hours.

      Johnson and K.J. were living in a small one-bathroom home with inadequate

plumbing. This deficiency, though surely problematic for anyone, was particularly

difficult for Johnson given the twice-daily flushings that K.J. requires as well as

the risk that cross-contamination poses for K.J.’s compromised immune system.

So Johnson began to search for a new residence, a search that led her to Defendant

Shelley Morris, Defendant Kellie Jennings’s leasing agent.

      When Morris showed Plaintiffs the rental property at issue in this case,

Plaintiffs emphasized the urgency of their need for a larger home with adequate



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plumbing. After co-signing the lease, they also informed Morris that they would

need a chain lock on the front door to prevent K.J. from “eloping.” 1

       After seventeen days had passed from the time Plaintiffs signed the lease,

the request for the chain lock had not been fulfilled. Plaintiffs abandoned their

plans to move into the residence and sought to avoid their obligations under the

lease. When Defendants refused, Plaintiffs sued for the denial of a reasonable

modification. 2

       After granting in part and denying in part Plaintiffs’ Motion for Summary

Judgment, the District Court determined that two questions remained for the jury to

decide: (1) whether Defendants denied Plaintiffs’ request for a modification and

(2) whether the requested modification was reasonable. The jury returned a special

verdict and found that Defendants had not denied Plaintiffs’ request and thus, per

the Court’s instructions, did not reach the second question.

       Plaintiffs raise two evidentiary objections on appeal. First, that the District

Court erroneously excluded certain evidence of K.J.’s gastrointestinal problems as

unduly prejudicial. See Fed. R. Evid. 403. And second, that the Court erroneously

admitted a code-enforcement official’s testimony as lay testimony when it should




       1
        We find this choice of words a bit odd, but the parties have used it to describe K.J.’s
tendency to escape from home, despite being told to stay indoors.
       2
           Defendants concede that K.J.’s tendency to elope is related to her disability.


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have been qualified as expert testimony. Compare Fed. R. Evid. 701, with Fed. R.

Evid. 702.

      We hold that the District Court did not abuse its discretion in limiting the

evidence of K.J.’s gastrointestinal problems. This is because (1) the marginal

value of the proffered evidence was slight compared to the risk of unfair prejudice

and (2) to the extent it was relevant to Johnson’s credibility as a witness, Plaintiffs

themselves undermined her credibility and thus have no basis to admit otherwise

irrelevant evidence to cure a problem they created. We further hold that any error

pertaining to the code-enforcement official’s testimony was necessarily harmless:

The testimony was relevant only to the second question submitted to the jury—the

reasonableness of the modification request—which the jury did not reach.

                                           I.

      The District Court excluded certain evidence of K.J.’s gastrointestinal

problems as unduly prejudicial under Rule 403 of the Federal Rules of Evidence.

It permitted counsel to allude to K.J.’s “extraordinary gastrointestinal issues and

frequent bathroom usage” but barred him from “detailing . . . those issues,”

particularly as it related to the “[stoma] and how many times a day she has to go to

the bathroom.” We review a district court’s evidentiary rulings for abuse of

discretion. Shealy v. City of Albany, 89 F.3d 804, 806 (11th Cir. 1996) (per

curiam).



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      Rule 403 permits a district court to exclude otherwise relevant evidence

when the “probative value is substantially outweighed by a danger of . . . unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.” Fed. R. Evid. 403. To review a

district court’s Rule 403 determination, we must assess both the relevance and the

risk of unfair prejudice.

      Begin with relevance. A fact, to be relevant, must be “of consequence in

determining the action.” Fed. R. Evid. 401(b). To determine whether a fact is of

consequence, we look to the elements of the cause of action.

      The FHA makes it unlawful, among other things, “[t]o discriminate in the

sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or

renter because of a handicap.” 42 U.S.C. § 3604(f)(1). “Discrimination” includes

the “refusal to permit . . . reasonable modifications of existing premises . . . if such

modifications may be necessary to afford . . . full enjoyment of the premises.” Id.

§ 3604(f)(3)(A). A reasonable-modification plaintiff must prove “that she suffers

from a disability, that she requested an accommodation or modification, that the

defendant housing provider refused to make the accommodation or to permit the

modification [the denial element], and that the defendant knew or should have

known of the disability at the time of the refusal.” Hollis v. Chestnut Bend




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Homeowners Ass’n, 760 F.3d 531, 541 (6th Cir. 2014). The claim also requires

proof of “both the reasonableness and necessity of the requested modification.” Id.

       Evidence of K.J.’s stoma and the details of her bathroom needs are relevant

to two elements of the claim. 3

       First, it is “of consequence” to the disability element, even if Defendants

conceded that this element was met. See, e.g., Old Chief v. United States, 519 U.S.

172, 186–87, 117 S. Ct. 644, 653 (1997) (stating the “standard rule that the

prosecution is entitled to prove its case by evidence of its own choice, or, more

exactly, that a criminal defendant may not stipulate or admit his way out of the full

evidentiary force of the case as the Government chooses to present it”).

       And second, it is relevant to the denial element. As Plaintiffs argue, the

“urgent need for new housing because of the existing inadequate facilities is

probative of and an essential factor in whether 17 days after the refusal to allow the

modification was a constructive denial.”

       A “denial” can be actual or constructive. As we explained in Bhogaita v.

Altamonte Heights Condominium Ass’n, 765 F.3d 1277 (11th Cir. 2014), the

“failure to make a timely determination after meaningful review amounts to



       3
         Plaintiffs contend that the evidence is relevant to the reasonableness and damages
elements. But because we hold that the District Court did not abuse its discretion in excluding
the evidence, and because the jury did not reach the questions of reasonableness and damages,
we need not reach these arguments.


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constructive denial of a requested accommodation, ‘as an indeterminate delay has

the same effect as an outright denial.’” Id. at 1286 (quoting Groome Res. Ltd. v.

Parish of Jefferson, 234 F.3d 192, 199 (5th Cir. 2000)). In so holding, we afforded

Skidmore deference4 to a joint statement of the Department of Justice and the

Department of Housing and Urban Development. See Bhogaita, 765 F.3d at 1286.

This action, to be sure, is a reasonable-modification claim, not, as was the case in

Bhogaita, a reasonable-accommodation claim. Fortunately, the same agencies

published a joint statement on reasonable modification, too, and the meaning of

“denial” is essentially the same. A housing provider must give “prompt responses

to a reasonable modification request.” U.S. Dep’t of Justice & U.S. Dep’t of Hous.

and Urban Dev., Reasonable Modifications Under the Fair Housing Act 10 (March

5, 2008). And “undue delay in responding to a reasonable modification request

may be deemed a failure to permit a reasonable modification.” Id.

       Turn now to the risk of unfair prejudice. The evidence of K.J.’s stoma and

the details of her bathroom needs created a straightforward risk: The jury would

find for Plaintiffs not because Defendants violated the FHA but because someone




       4
        Under Skidmore v. Swift & Co., 323 U.S. 134, 65 S. Ct. 161 (1944), a policy statement,
though non-authoritative, “is nonetheless ‘entitled to respect’ to the extent it has the ‘power to
persuade.’” Bhogaita, 765 F.3d at 1286 n.3 (quoting Christensen v. Harris County, 529 U.S.
576, 587, 120 S. Ct. 1655, 1663 (2000)).


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should compensate Plaintiffs for their suffering, regardless of whether that person

is legally liable.

       We cannot say the District Court committed a clear error of judgment in

excluding the evidence on this basis. Cf., e.g., Fed. R. Evid. 403 advisory

committee’s note to proposed rules (stating that Rule 403 guards against, among

other things, “decision on an improper basis, commonly, though not necessarily, an

emotional one”). Defendants conceded that K.J. had a disability. And the district

judge permitted reference to K.J.’s “extraordinary gastrointestinal issues and

frequent bathroom usage.” The evidentiary value of further references to K.J.’s

stoma and to the details of her bathroom needs is slight, and the danger of unfair

prejudice is great.

                                          II.

       Plaintiffs also argue that in light of an email they moved into evidence,

evidence of K.J.’s stoma and the details of her bathroom needs should have been

admitted under the rule of completeness. The email from Jennings to Plaintiffs

states, in relevant part,

       I have read your emails addressed to my Leasing agent, Shelley
       Morris. She has reinforced several times to you what I am about to
       tell you as well. You both have read and signed a legally binding
       contract allowing you to reside in my property. We both signed an
       agreement of how we expect the property to be treated called “The
       Lease”. The lease spells out CLEARLY what procedures you must
       take if you would like for me to consider alterations to the premises.
       Please do not use your daughter as a means of manipulating our legal

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      contract. Just because she has special needs does not mean that you
      can violate the lease and tell me what you will do to my property.

      All alteration to my property will be submitted to me in writing
      (mailed on paper) for consideration and working out the best solution
      for both of us. If you believe that this is too much work for you or
      you are not willing to abide by our written agreement, I will gladly
      accept your written letter of Early Termination as stated in the lease.

      I have submitted your emailed correspondence to my attorney to
      ensure I am within my rights and not violating any another’s rights.
      He even made one more suggestion of putting a double key bolt lock
      on the door.

      I will also be sending this in as a letter to both of you at your address
      stated on the lease and my property address, as due notice.

      By permitting the jury to hear Jennings accuse Plaintiffs of “manipulation,”

the argument goes, the jury might have drawn an adverse inference against

Johnson’s credibility if it failed to appreciate just how dire Plaintiffs’

circumstances actually were.

      But Plaintiffs introduced the email. And even assuming introduction of the

email were somehow unavoidable to prove their case, Plaintiffs drew attention to

the language by referencing it in their opening statement. See Tr. of Jury Trial at

35, Johnson v. Jennings, No. 8:16-cv-01076-SDM-JSS (M.D. Fla. April 30, 2018),

ECF No. 166 (MR. DIETZ: “Then, Kellie Jennings wrote Ms. Johnson and her

mother that Ms. Johnson was using her daughter’s special needs as an excuse to

manipulate a legal contract to violate the lease and tell her what she could do with

her property.”). And again during direct-examination of Johnson. Tr. of Jury Trial

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at 178, Johnson v. Jennings, No. 8:16-cv-01076-SDM-JSS (M.D. Fla. April 30,

2018), ECF No. 167.

      We doubt that the language had the prejudicial effect Plaintiffs claim. In

any event, the rule of completeness is a tool for the adversary of the party that

introduced the evidence sought to be made complete, not for the evidence’s

proponent. 1 McCormick On Evidence § 56 (Robert P. Mosteller, ed., 7th ed.

2014).

                                         III.

      For these reasons, the judgment entered pursuant to the jury’s verdict for

Defendants is AFFIMRED.

      SO ORDERED.




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