Bennington Housing Authority v. Bush , 2007 Vt. 60 ( 2007 )

Skoglund, J.

¶ 1. The Bennington Housing Authority (BHA) brought an eviction action against appellants, Diane Bush and Scott Heaton, on the ground that they withheld information from their lease application which, if known, would have disqualified them as eligible lessees. Ms. Bush and Mr. Heaton appeal the trial court’s determination that they committed fraud in the inducement and that BHA appropriately exercised its discretion in evicting the family when, five years after admitting the family, it discovered material inaccuracies in their application concerning one family member. We reverse.

¶ 2. In April of 2000, Ms. Bush, her daughter, and Mr. Heaton were homeless, and Ms. Bush was pregnant with triplets. Ms. Bush filled out an application for public housing, listing herself as head of household. She provided information on her income, vehicles, previous landlord, and personal references. In a section entitled “other required information” the application asked two questions about criminal history which Ms. Bush answered in the negative. The answers were truthful as to Ms. Bush. She testified that she did not think Mr. Heaton’s criminal history was required on the form. She also testified that she asked Mr. Heaton to sign the section of the form that authorized the housing authority to do a record check on them both. BHA ran a background check on the couple which revealed no criminal history in Vermont. BHA admitted the family to the subsidized housing unit, and the family has lived there since May of 2000. Although there have been one or two termination notices, all complaints have been satisfactorily resolved. The director of BHA testified that the family had been tenants in good standing at all times relevant to the appeal.

¶ 3. Each year, public-housing tenants are required to affirm in writing that they do not exceed the income caps for subsidized housing, and that all the answers they gave on the application are true and correct. In 2003, BHA upgraded its background checking software, and in 2005, BHA ran a new check on Ms. Bush and Mr. Heaton. The search revealed that Mr. Heaton had a 1992 conviction for sale of a controlled substance and a 1994 conviction for burglary, both in New York State.

¶ 4. On March 16, 2005, BHA sent Ms. Bush and Mr. Heaton a notice of termination of their tenancy in accordance with the provision of the lease which states “[mjanagement shall not terminate or refuse to renew this lease other than for serious and repeated violations of material terms of the lease such as failure ... to fulfill the tenant obligations as set forth herein, or for other good cause.” The letter claimed that the tenants gave false information on their application, referencing Mr. Heaton’s criminal record in New York. Thus, BHA sought to terminate the lease due to misrepresentation on the application filed in 2000.

¶ 5. After receiving the eviction letter, Ms. Bush and Mr. Heaton participated in an informal conference with Deborah Reed, BHA’s executive director. According to the testimony of the executive director, Ms. Bush admitted she was aware Mr. Heaton had a criminal record but claimed she did not know the specifics such as whether he had been convicted of a felony. During that meeting, Mr. Heaton offered to move out if Ms. Reed would allow the rest of the family to stay, but she refused. Ms. Reed testified at trial that she did not consider any course of action other than evicting the entire family. She further testified that she knew she had the authority to evict them and the discretion to choose not to do so based on materials she received from the U.S. Department of Housing and Urban Development (HUD).

¶ 6. The trial court concluded that Ms. Reed had not abused her discretion in deciding to evict the entire family. Further, the court found by clear and convincing evidence that Ms. Bush had fraudulently misrepresented the family’s position on the application. For these reasons the trial court affirmed Ms. Reed’s decision.

¶ 7. We review the trial court’s findings concerning BHA’s abuse of discretion for clear error. N.A.S. Holdings, Inc. v. Pafundi, 169 Vt. 437, 438, 736 A.2d 780, 783 (1999). Our review of its conclusions of law is nondeferential and plenary. Id. at 438-39, 736 A.2d at 783. In reviewing a trial court’s conclusion that fraud in the inducement was proven by clear and convincing evidence, “ ‘[t]he test ... is not whether this Court is persuaded that there was clear and convincing evidence, but whether the factfinder could reasonably have concluded that the required factual predicate was highly probable.’ ” In re E.T., 2004 VT 111, ¶ 13, 177 Vt. 405, 865 A.2d 416 (quoting In re N.H., 168 Vt. 508, 512-13, 724 A.2d 467, 470 (1998)). Where the record indicates that the trial court clearly erred in finding clear and convincing evidence, this Court will reverse such a finding. N.H., 168 Vt. at 514, 724 A.2d at 471.

¶ 8. We turn our attention first to the trial court’s finding that Ms. Bush and Mr. Heaton committed fraud in the inducement. Although BHA made a general allegation of fraud in its complaint, it has not met its burden of proof. To succeed on this claim, BHA must prove the elements of fraud by clear and convincing evidence. Gavala v. Claassen, 2003 VT 16, ¶ 5, 175 Vt. 487, 819 A.2d 760 (mem.) (in all cases where fraud is alleged, it must be proved by clear and convincing evidence).

An action for fraud and deceit will lie upon an intentional misrepresentation of existing fact, affecting the essence of the transaction, so long as the misrepresentation was false when made and known to be false by the maker, was not open to the defrauded party’s knowledge, and was relied on by the defrauded party to his damage.

Union Bank v. Jones, 138 Vt. 115, 121, 411 A.2d 1338, 1342 (1980); see also Powell v. D.C. Housing Auth., 818 A.2d 188, 196-97 (D.C. 2003) (outlining the elements of common law fraud in the context of a termination of public housing subsidy payments for under-reporting income).

¶ 9. Relying on its finding that both Ms. Bush and Mr. Heaton knew that they were required to reveal a felony conviction or involvement with drugs on the application form, and further relying on the finding that both applicants knowingly failed to do so, the court found the misrepresentations were false when made, that they were known to be false by the makers and were meant to be relied upon by the injured party. The evidence does not support these findings or the conclusion. “To find that a misstatement was made with knowledge of its falsity, the person accused, and not a hypothetical reasonable person, must be found to have known that the statement was false, or to have made that statement with reckless indifference as to its truth.” Powell, 818 A.2d at 197-98 (citation and quotation omitted). Here, there was no evidence of any intent to deceive by Ms. Bush. The only evidence adduced indicated that Ms. Bush knew Mr. Heaton had participated in some criminal activity in the past. The housing application, however, asks only about the criminal history of the head of household in a section called “other required information.” Question number seven in that section asks, “have you ever been charged with a felony? Yes_No_” Question number eight asks “are you currently using illegal drugs? Yes_ No_” Question number nine asks “have you ever been charged with the sale, distribution or possession of illegal drugs? Yes_ No_” (Emphasis added.) The form contains other sections that allow space for different information to be supplied for each family member, but the “other required information” section does not. The only evidence adduced on this point was Ms. Bush’s testimony that, at the time she filled out the housing application, she did not know that Mr. Heaton had committed a felony or that he had been involved in drugs. She knew only that he “had a past” and had been incarcerated at some time before they met.

¶ 10. In addition, Ms. Bush testified that she knew the housing authority would conduct a criminal record check when she submitted the application. Mr. Heaton signed the authorization for a criminal record check as well. This is not evidence of intent to defraud. The BHA testified that it investigated the information supplied on the application and found no information connecting either party to drug use or felony charges in Vermont, and accordingly, the application was accepted. Ms. Bush could reasonably rely on the housing authority to pick up any criminal activity which would be troublesome to it. However, the trial court found that misrepresentations were made not once, but repeated in subsequent applications, and the court concluded that “[t]o maintain that the failures to disclose were not made with fraudulent intent would fly in the face of the evidence and common sense.” We disagree. No evidence was presented to indicate that Ms. Bush’s knowledge of Mr. Heaton’s record changed in the years that Mr. Heaton and Ms. Bush signed the five additional certifications. There was no reason for the tenants to believe, having already authorized a record check prior to being admitted to the housing project, that Mr. Heaton’s past criminal record would disqualify them from housing. Thus, evidence of misrepresentation is scant at best, and evidence that the information given was “known to be false,” Union Bank, 138 Vt. at 121, 411 A.2d at 1342, is even harder to come by.

¶ 11. Moreover, BHA did not show that the information was not “open to the defrauded party’s knowledge” or that the information was “relied on by the defrauded party to his damage.” Id. There was no evidence in the record that either Mr. Heaton or Ms. Bush knew the limitations of the BHA system when they applied for housing. And BHA did not rely on the information provided by Ms. Bush — it did indeed conduct its own criminal record check. The fact that BHA did not run a more extensive check does not tend to prove an intent to defraud on Ms. Bush or Mr. Heaton’s part. Finally, BHA has not made any claim of damage. For these reasons, it was error for the trial court to find that fraud had occurred.

¶ 12. Next, we must examine the trial court’s formulation of the standard of review. The trial court’s order states, “[ajbuse of discretion, as the term is currently applie[d], appears to mean that another reasonable person acting under the same circumstance would have resorted to another course of action.” The trial court’s articulation of the abuse-of-discretion standard is in error, and for this reason, as well, we must reverse. When reviewing for abuse of discretion, we must determine whether the court, and BHA, “failed to exercise . . . discretion altogether or exercised it for reasons that are clearly untenable or unreasonable.” Herald Ass’n v. Dean, 174 Vt. 350, 360, 816 A.2d 469, 478 (2002). In other words, an entity, vested with discretion, abuses that discretion when it behaves as if it has no other choice than the one it has taken, or when it makes a decision for which there is not adequate support.

¶ 13. The regulations clearly vest public housing authorities with discretion in dealing with violations of lease terms or regulations. 24 C.F.R. § 966.4(1)(2) (2006). BHA certainly may evict an entire family for the misdeeds of one member, but it need not do so. Dep’t of Housing & Urban Dev. v. Rucker, 535 U.S. 125, 128-29 (2002). Furthermore, it should not do so without considering all of the available options. See id. at 133-34.¹ Here, BHA, acting through its executive director, apparently believed that evicting the entire family was its only choice. Ms. Reed testified that she never considered any other course of action, even when Mr. Heaton offered to leave. She stated that BHA would not have admitted the family in the first place if it had known of Mr. Heaton’s criminal record. As we noted above, however, the regulations are not so black and white. BHA certainly is not required to admit anyone who has a history of criminal activity, and such a history will be considered in evaluating an application. 24 C.F.R. §§ 960.202(a)(2)(iii), 960.203(c)(3). However, the regulations permit BHA to overlook drug history if the person is no longer engaging in drug abuse or has been rehabilitated. Id. § 960.204(a)(1). Thus, although Ms. Reed testified that BHA would not have accepted the application originally if it had included Mr. Heaton’s convictions, such testimony is somewhat speculative and self-serving based on the regulations as they are written.

¶ 14. The abuse of discretion in this case arose when BHA applied what it claims was a black and white eligibility rule five years after the original eligibility determination. First, as explained above, the rules are not inflexible. BHA could have admitted the family despite Mr. Heaton’s criminal history. 24 C.F.R. § 960.204(a)(1)®. Second, the import of the regulations is to protect public housing from criminal elements, especially drug activity, that could adversely affect the community. The underlying community protection goals are not met by removing a family that has not been engaged in criminal activity during the five years of their tenancy. Third, federal advisory information counsels against the application of rigid rules in public housing because of the hardship that arises when tenants lose their housing. Thus, any reasonable approach to this problem should have included a balancing in this particular case of the current situation and tenant history against a failure to include information in the original application. In the end, it is still BHA’s decision, but the decision must not be made arbitrarily or without an apparent consideration of the alternatives laid out in the regulations. See, e.g., 24 C.F.R. § 966.4(l)(5)(vii)(C). In affirming BHA’s decision under an erroneous abuse-of-discretion standard, without examination, the trial court erred.

¶ 15. The Court recognizes that there are significant policy reasons for applying public housing restrictions stringently. It is important to keep subsidized housing as free as possible from the very real danger posed by crime. Furthermore, as BHA notes, the waiting list to get into public housing is long. For these reasons, it may have been appropriate to require Mr. Heaton to leave. Although the record indicates that he has not been involved in any criminal activity for more than a decade, the regulations clearly state that the housing authority has the discretion to evict persons who are ineligible for public housing. 24 C.F.R. § 966.4(1)(2)(iii)(B), (C). It is not for this Court to evaluate the wisdom or effectiveness of such regulations in the context of rehabilitating offenders. However, as discussed above, BHA failed to exercise its discretion in evaluating this apparently rehabilitated tenant.

¶ 16. Furthermore, this decision should not be read to bar a housing authority from evicting a family if the head of household had intentionally misrepresented the criminal history of any family member on an application. As BHA notes, there are many honest families in equally dire situations who do not resort to fraud to obtain housing. The facts in this case simply do not meet the necessary standards of proof, and for this reason, it was an abuse of discretion to evict this family.

The trial court’s decision is reversed.

1 The regulations set out numerous circumstances in which the housing authority “may” terminate a lease, but only a very few circumstances in which it “must” terminate a lease. See, e.g., 24 C.F.R. § 966.4(1)(2) (“The PHA may terminate the tenancy only for: . . . (in) Other good cause ineludfing], but . . . not limited to, the following: . . . (B) Discoveiy after admission of facts that made the tenant ineligible.”); id. § 966.4(l)(5)(i)(B) (“In addition, the lease must provide that a PHA may evict a family when the PHA determines that a household member is illegally using a drug . . . .”). But see id. § 966.4(l)(5)(i)(A) (“The PHA must immediately terminate the tenancy if the PHA determines that any member of the household has ever been convicted of drug-related criminal activity for manufacture or production of methamphetamine on the premises of federally assisted housing.”).

In addition, the regulations list certain things the housing authority may consider when deciding how to act.

(B) . . . [T]he PHA may consider all circumstances relevant to a particular case such as the seriousness of the offending action, the extent of participation by the leaseholder in the offending action, the effects that the eviction would have on family members not involved in the offending activity and the extent to which the leaseholder has shown personal responsibility and has taken all reasonable steps to prevent or mitigate the offending action.

(C) . . . The PHA may require a tenant to exclude a household member in order to continue to reside in the assisted unit, where that household member has participated in or been culpable for action or failure to act that warrants termination.

Id. § 966.4(1)(5)(vii)(B), (C.)