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Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

GUENTHER v. WALNUT GROVE HILLSIDE CONDO. REGIME NO. 3

Cite as 309 Neb. 655

Christine Guenther, appellant, 

v. Walnut Grove Hillside 

Condominium Regime 

No. 3, Inc., appellee.

Filed July 2, 2021. No. S-20-574.

1. Declaratory Judgments. An action for declaratory judgment is sui 

generis; whether such action is to be treated as one at law or one in 

equity is to be determined by the nature of the dispute.

2. Injunction: Equity. An action for injunctive relief is equitable in 

nature.

3. Declaratory Judgments: Equity: Appeal and Error. In reviewing an 

equity action for a declaratory judgment, an appellate court tries factual 

issues de novo on the record and reaches a conclusion independent of 

the findings of the trial court, subject to the rule that where credible 

evidence is in conflict on material issues of fact, the reviewing court 

may consider and give weight to the fact that the trial court observed the 

witnesses and accepted one version of the facts over another.

4. Federal Acts: Discrimination: Proof. The Fair Housing Act requires 

accommodation if such accommodation (1) is reasonable and (2) necessary (3) to afford a handicapped person the equal opportunity to use and 

enjoy a dwelling. The movant bears the burden of proving each of these 

elements by a preponderance of the evidence.

5. Federal Acts: Claims: Proof. The ultimate burden to prove both the 

reasonableness and the necessity of a requested accommodation remains 

always with the plaintiffs asserting a reasonable accommodation claim 

under the Fair Housing Act.

6. Federal Acts: Discrimination: Proof. In order to demonstrate that the 

accommodation was necessary under the Fair Housing Act, a claimant is required to show that the accommodation was indispensable or 

essential to the claimant’s equal opportunity to use and enjoy his or 

her dwelling.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

08/27/2021 01:08 AM CDT
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GUENTHER v. WALNUT GROVE HILLSIDE CONDO. REGIME NO. 3

Cite as 309 Neb. 655

7. Federal Acts: Discrimination. In order to gauge the necessity of 

an accommodation, courts are required to consider whether another 

alternative satisfies the Fair Housing Act’s goal to provide equal housing opportunities.

8. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

Appeal from the District Court for Douglas County: 

Gregory M. Schatz, Judge. Affirmed.

Thomas C. Dorwart and Adam J. Kost, of Goosmann Law 

Firm, P.L.C., for appellant.

Minja Herian and Gabreal M. Belcastro, of Koley Jessen, 

P.C., L.L.O., for appellee.

Heavican, C.J., Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ.

Funke, J.

Christine Guenther appeals from the dismissal of her complaint for declaratory judgment. Following a bench trial, the 

court dismissed Guenther’s claim that Walnut Grove Hillside 

Condominium Regime No. 3, Inc. (Walnut Grove), refused 

to make a reasonable accommodation, under the federal Fair 

Housing Act and the Nebraska Fair Housing Act (collectively 

FHA), 1 by denying her request to secure her daughter’s emotional support dogs through construction of a fence in a common area. Finding no error in the court’s decision, we affirm.

BACKGROUND

Guenther owns a condominium unit, consisting of one half 

of a duplex, located in Omaha, Douglas County, Nebraska. 

Walnut Grove is a condominium regime and homeowners’ 

association (HOA) incorporated in Nebraska, which operates 

1 See, 42 U.S.C. §§ 3601 to 3619 (2018); Neb. Rev. Stat. §§ 20-301 to 

30-344 (Reissue 2012).
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through a HOA board. Guenther’s condominium is within the 

Walnut Grove subdivision and is subject to Walnut Grove’s 

bylaws and covenants.

At the time of trial, Guenther’s daughter, N.G., lived in 

Lincoln, Nebraska, where she attended college full time. N.G. 

also lived with Guenther in Omaha for part of the year. N.G. 

has been diagnosed with major depressive disorder and anxiety disorder. She uses two dogs as emotional support animals 

based on the recommendations of her doctor. The animals live 

with Guenther in Omaha.

In February 2018, Guenther made a request to Walnut Grove 

to construct a fence through part of the common area behind 

her condominium, or to repair an existing fence, for the purpose 

of allowing the dogs to safely spend time outside. Guenther 

offered to pay for the cost of the fence. Guenther asserted 

that releasing the dogs into a fenced-in area would alleviate 

N.G.’s anxiety regarding the dogs’ safety, because N.G.’s first 

emotional support dog was killed outside the condominium 

shortly after they had moved in. According to Guenther, when 

the first dog was killed, she heard “horrible screeching, yelping sounds,” and found the dog lying on the street close to 

the curb. Though Guenther thought the dog might have been 

attacked by a neighbor’s dog, she did not know if the dog was 

attacked or was hit by a car. N.G. was not present when the 

animal was killed.

Walnut Grove denied Guenther’s request. Based on its 

bylaws and covenants, Walnut Grove stated that it lacked the 

authority to divide or partition one of the “general common 

elements.” “[G]eneral common elements” consist of, among 

other property features, “[t]he land on which the Units stand, 

including all surrounding lands embraced within [the condominium regime].” Walnut Grove stated that Guenther’s request 

to construct the fence would violate HOA bylaws and covenants stating that “[t]he general common elements shall be 

for the use and enjoyment of all Unit Owners. The ownership of the general common elements shall remain undivided, 
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GUENTHER v. WALNUT GROVE HILLSIDE CONDO. REGIME NO. 3

Cite as 309 Neb. 655

and no Unit Owner or other person shall have the right to 

partition or division of the general common elements of the 

Condominium Regime.”

In August 2018, Guenther again requested to install the 

fence to alleviate N.G.’s depression and anxiety. Walnut Grove 

again denied the request, and it suggested alternatives that 

would be permitted under the bylaws and covenants, such 

as installing an underground invisible fence, constructing a 

privacy fence around Guenther’s patio, or tethering the dogs 

while outside.

On January 30, 2019, Guenther filed a complaint in the 

district court for Douglas County seeking a declaration that 

Walnut Grove refused a reasonable accommodation under the 

FHA. Guenther alleged that N.G. has been diagnosed with 

major depressive disorder, anxiety disorder, and anorexia; that 

an emotional support dog is required for her treatment; and 

that N.G. suffered from severe depression and anxiety as 

a result of the death of the previous dog. Guenther alleged 

that Walnut Grove engaged in selective enforcement of HOA 

bylaws and covenants, because two adjacent neighbors have 

fences around their common areas, which fences were grandfathered in. Guenther alleged that she has a partial fence that 

was also grandfathered in and that constructing the rest of the 

fence would not divide the general common area if the fence 

included a gate to allow neighbors to pass through. Guenther 

requested a declaration that Walnut Grove violated her equal 

protection rights under the U.S. and Nebraska Constitutions, 

a declaration that Walnut Grove violated her rights under the 

FHA, an order allowing her to construct the fence, and an 

award of attorney fees.

Walnut Grove filed an answer on March 7, 2019, which 

alleged that it had proposed reasonable alternatives that would 

keep N.G.’s dogs safe without violating the HOA bylaws 

and covenants.

The court held a trial on the matter on June 25, 2020. On 

July 17, the court entered its order of judgment dismissing 
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Guenther’s complaint, finding that she failed to sustain her 

burden of proof. The court found that for Guenther to prevail 

on her claims under the FHA, she had to show that a person 

residing in her dwelling is a “handicapped person,” 2 as defined 

under the FHA, and that the reasonable accommodation is 

“necessary to afford [the] handicapped person . . . an equal 

opportunity to use and enjoy the premises.” 3 The court referred 

to exhibit 2, which contained a doctor’s note dated August 12, 

2019, confirming N.G.’s major depressive disorder and anxiety 

disorder diagnoses and stating her dog “is a great source of 

comfort to her” and that “[h]er health benefits from the companionship of the family dog.” However, the court referred to 

N.G.’s testimony that she was originally diagnosed in approximately 2015 and that at the time of trial, she no longer received 

treatment or medication for her major depressive and anxiety disorders.

The court found that, under the circumstances, Guenther 

failed to show that N.G. suffered from a physical or mental 

impairment which substantially limits one or more of her 

major life activities and that therefore, Guenther failed to 

show that N.G. is a handicapped person as defined under 

the FHA. In addition, the court found that Guenther failed 

to prove that her requested accommodation is necessary to 

afford N.G. an equal opportunity to use and enjoy the home. 

The court noted N.G.’s testimony that she primarily lived in 

Lincoln and that when she is at Guenther’s home, “she is 

able to interact with the . . . dogs” and “is able to take them 

for walks . . . outside.” Notably, Guenther testified that her 

next-door neighbor, Carol Bolton, permits the animals to be 

kept in a fenced-in yard. Bolton testified and confirmed that 

she offered the use of her fenced-in yard and that Guenther 

had kept the dogs in Bolton’s yard for about 2 years. The 

2 See, 42 U.S.C. § 3602(h); § 20-313.

3 See, 42 U.S.C. § 3604(f )(3); § 20-319(2).
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court found that Guenther “offered no evidence that having the dogs outdoors, in a fenced-in backyard, would be 

required to afford [N.G.] an equal opportunity to use and 

enjoy [Guenther’s home].”

Guenther filed an appeal. We moved the case to our docket 

on our own motion.

ASSIGNMENTS OF ERROR

Guenther assigns, summarized and restated, that the district court erred in (1) finding insufficient proof that N.G. is 

a handicapped person, (2) finding insufficient proof that the 

requested accommodation was necessary to afford N.G. an 

equal opportunity to use and enjoy Guenther’s home, (3) failing to apply the proper burden-shifting analysis for a claim 

under the FHA, (4) failing to find that Walnut Grove did not 

meet its burden of proving that Guenther’s requested accommodation was unreasonable, and (5) failing to award Guenther 

attorney fees and costs.

STANDARD OF REVIEW

[1-3] An action for declaratory judgment is sui generis; 

whether such action is to be treated as one at law or one in 

equity is to be determined by the nature of the dispute. 4 An 

action for injunctive relief is equitable in nature. 5 In reviewing 

an equity action for a declaratory judgment, an appellate court 

tries factual issues de novo on the record and reaches a conclusion independent of the findings of the trial court, subject to 

the rule that where credible evidence is in conflict on material issues of fact, the reviewing court may consider and give 

weight to the fact that the trial court observed the witnesses 

and accepted one version of the facts over another. 6

4 Wilkison v. City of Arapahoe, 302 Neb. 968, 926 N.W.2d 441 (2019).

5 See id.

6 Id.
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ANALYSIS

We first discuss Guenther’s second assignment of error, 

because resolution of that issue is dispositive. Guenther argues 

that the district court erred in finding that she failed to prove 

that the requested accommodation was necessary to afford 

N.G. an equal opportunity to use and enjoy Guenther’s home. 

Guenther argues that “the fence would enhance [N.G.’s] 

quality of life by ameliorating the effects of her disability.” 7

She argues that N.G.’s emotional support dogs help N.G. with 

her anxiety and depression and that N.G. worries about the 

dogs being attacked. Walnut Grove argues the court correctly 

found that construction of a fence in a common area, in violation of the HOA bylaws and covenants, was not necessary to 

achieve equal housing opportunities for N.G.

In this court’s recent decision of Wilkison v. City of 

Arapahoe,

 8 we resolved an appeal involving a therapy animal 

and a reasonable accommodation claim under the FHA. In that 

case, we set forth the legal standards governing reasonable 

accommodation claims and the applicable burden of proof. As 

such, our analysis from Wilkison contains everything necessary 

to decide this case. Pursuant to Wilkison, we conclude that the 

district court correctly determined that Guenther failed to prove 

that the requested accommodation was necessary.

[4] The FHA makes it unlawful to “discriminate in the sale 

or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap.” 9 The FHA 

prohibits “discrimina[tion] against any person in the terms, 

conditions, or privileges of sale or rental of a dwelling, or in 

the provision of services or facilities in connection with such 

dwelling, because of a handicap.” 10 For purposes of the FHA, 

7 Brief for appellant at 16-17.

8 Wilkison, supra note 4.

9 42 U.S.C. § 3604(f )(1). Accord § 20-319(1)(a).

10 42 U.S.C. § 3604(f )(2). Accord § 20-319(1)(b).
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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.” 11 The FHA requires 

accommodation if such accommodation (1) is reasonable and 

(2) necessary (3) to afford a handicapped person the equal 

opportunity to use and enjoy a dwelling. 12 The movant bears 

the burden of proving each of these elements by a preponderance of the evidence. 13

[5] Guenther has argued that in considering her claim, this 

court should apply a burden-shifting analysis so that the movant must show that the requested accommodation is reasonable on its face and then the opponent must show the accommodation creates an undue hardship. However, the analysis 

proposed by Guenther applies only in the context of a defendant’s motion for summary judgment regarding a reasonable 

accommodation claim. 14 Here, we are reviewing a judgment 

following a bench trial. “The ultimate burden to prove both the 

reasonableness and the necessity of a requested accommodation remains always with the plaintiffs asserting a reasonable 

accommodation claim under the [FHA].” 15 Pursuant to our 

de novo review, we must determine whether Guenther carried 

her burden of proving her request to build a fence in Walnut 

Grove’s common area (1) is reasonable and (2) necessary (3) to 

afford a handicapped person the equal opportunity to use and 

enjoy a dwelling.

11 42 U.S.C. § 3604(f )(3)(B). Accord § 20-319(2)(b).

12 See, id.; Howard v. City of Beavercreek, 276 F.3d 802 (6th Cir. 2002); 

Oconomowoc Residential Prog. v. City of Milwaukee, 300 F.3d 775 (7th 

Cir. 2002).

13 Bryant Wood Inn, Inc. v. Howard County, Md., 124 F.3d 597 (4th Cir. 

1997).

14 See US Airways, Inc. v. Barnett, 535 U.S. 391, 122 S. Ct. 1516, 152 L. Ed. 

2d 589 (2002).

15 Wilkison, supra note 4, 302 Neb. at 977, 926 N.W.2d at 449.
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To determine whether an accommodation is reasonable, the 

inquiry is highly fact specific, requires balancing the needs 

of the parties, and involves assessing both financial and 

administrative costs and burdens. 16 An accommodation is reasonable if it is both efficacious and proportional to the costs 

to implement it, and an accommodation is unreasonable if it 

imposes undue financial or administrative burdens or requires 

a fundamental alteration in the nature of the program. 17 As 

stated, in this appeal, we need not engage in a reasonableness 

inquiry. Instead, the question we address is whether Guenther 

adduced sufficient evidence that construction of the fence 

is necessary.

[6] The FHA “‘links the term “necessary” to the goal of 

equal opportunity. . . . Plaintiffs must show that, but for the 

accommodation, they likely will be denied an equal opportunity to enjoy the housing of their choice.’” 18 “‘[T]he necessity 

element is, in other words, a causation inquiry that examines 

whether the requested accommodation or modification would 

redress injuries that otherwise would prevent a disabled resident from receiving the same enjoyment from the property as a 

non-disabled person would receive.’” 19 In order to demonstrate 

that the accommodation was necessary, a claimant is required 

to show that the accommodation was indispensable or essential 

to the claimant’s equal opportunity to use and enjoy his or 

her dwelling. 20

Upon our review of the record, although it is undisputed that 

N.G. suffers from major depressive and anxiety disorders and 

16 Id.

17 Id.

18 Id. at 979, 926 N.W.2d at 450, quoting Smith & Lee Associates v. City of 

Taylor, Mich., 102 F.3d 781 (6th Cir. 1996).

19 Id., quoting Hollis v. Chestnut Bend Homeowners Ass’n, 760 F.3d 531 (6th 

Cir. 2014).

20 See Wilkison, supra note 4.
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that the family dogs have a positive impact on her health, we 

conclude there is insufficient proof that the fence is necessary. 21

Guenther cites to an unpublished opinion, Oregon Bureau of 

Labor and Industries ex rel. Mayorga v. Housing Authority 

of Douglas County,

 22 to argue that a service animal, like any 

other assistance device, may require an additional accommodation to enable its effective use. However, this authority merely 

establishes that the fence qualifies as an accommodation; such 

does not establish that the fence is necessary. The undisputed 

evidence shows that, without the fence, N.G. freely enjoys the 

use of the animals while at Walnut Grove. As such, Guenther 

failed to prove that the fence is indispensable or essential to 

achieving equal housing opportunities for N.G.

The requirement that an accommodation be necessary is 

expressly linked to the goal of affording equal opportunity to 

use and enjoy a dwelling. 23 Thus, a necessary accommodation 

is one that alleviates the effects of a disability. 24 The only evidence in the record that construction of a fence in the common 

area is necessary is N.G.’s testimony that knowing the dogs 

were safe in the yard “would give [her] much more peace of 

mind.” However, this aspect of Guenther’s theory depends on 

the assertion that without the fence, the animals will be at risk 

of being attacked by other dogs. There is no evidence to support this assertion. Guenther thought that the first emotional 

support dog was attacked by a larger dog owned by one of her 

neighbors. However, Guenther admitted that she did not know 

if the dog was attacked by another dog or hit by a car. The 

21 See Landmark Props. v. Olivo, 5 Misc. 3d 18, 783 N.Y.S.2d 745 (2004).

22 Oregon Bureau of Labor and Industries ex rel. Mayorga v. Housing 

Authority of Douglas County, No. 6:13-cv-01205-MC, 2014 WL 5285609 

(D. Or. Oct. 15, 2014).

23 Cinnamon Hills Youth Crisis v. St. George City, 685 F.3d 917 (10th Cir. 

2012). 24 Bhogaita v. Altamonte Heights Condominium Ass’n, 765 F.3d 1277 (11th 

Cir. 2014).
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neighbor testified that Guenther told her at the time of the incident that the dog was hit by a car. Furthermore, Bolton, another 

neighbor, allows the emotional support animals to be kept in 

her fenced-in yard, next to Guenther’s condominium.

[7] Even if there were factual support for Guenther’s stated 

need for a fence, Guenther failed to adequately address Walnut 

Grove’s proposed alternatives. In order to gauge the necessity 

of an accommodation, courts are required to consider whether 

another alternative satisfies the FHA’s goal to provide equal 

housing opportunities. 25 Walnut Grove proposed the alternatives of using underground invisible fencing, using a privacy 

fence around Guenther’s patio, or tethering the animals while 

outside. There is no evidence that any of these alternatives 

would not have been effective. Additionally, there is evidence 

that using Bolton’s yard is an effective alternative. Guenther 

argues that she and N.G. are in the best position to make a specific request for an accommodation. But the facts simply do not 

support Guenther’s request, and Guenther has no right to her 

preferred means of accommodation. 26 Therefore, we conclude 

that the district court correctly found that Guenther “offered no 

evidence that having the dogs outdoors, in a fenced-in backyard, would be required to afford [N.G.] an equal opportunity 

to use and enjoy [Guenther’s home].”

[8] Because Guenther failed to meet her burden to prove that 

construction of the fence is necessary, her claim for refusal of 

a reasonable accommodation under the FHA fails, and we need 

not consider her other assignments of error. An appellate court 

is not obligated to engage in an analysis that is not necessary 

to adjudicate the case and controversy before it. 27

25 See Wilkison, supra note 4. See, also, Vorchheimer v. Philadelphian 

Owners Association, 903 F.3d 100, 108 (3d Cir. 2018) (“food is necessary 

to survive. But if soup and salad are on offer, a sandwich is not necessary”).

26 See id. See, also, Loren v. Sasser, 309 F.3d 1296 (11th Cir. 2002); Temple 

v. Hudson View Owners Corp., 222 F. Supp. 3d 318 (S.D.N.Y. 2016).

27 In re Adoption of Yasmin S., 308 Neb. 771, 956 N.W.2d 704 (2021).
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Lastly, Walnut Grove argues that it is entitled to attorney 

fees as the prevailing party. However, Walnut Grove’s request 

for attorney fees is premature. 28

CONCLUSION

The district court did not err in dismissing Guenther’s claim 

for refusal of a reasonable accommodation under the FHA.

Affirmed.

Miller-Lerman, J., not participating.

28 See Neb. Ct. R. App. P. § 2-109(F) (rev. 2021).