Adam v. Andmark White Lakes Apartments, LLC

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GARRY ADAM, Plaintiff, v. ANDMARK WHITE LAKES APARTMENTS, LLC, et al., Defendants.

No. 23-4023-JWB

United States District Court, D. Kansas

February 28, 2024

MEMORANDUM AND ORDER

JOHN W. BROOMES, UNITED STATES DISTRICT JUDGE

This matter is before the court on Defendants Alexander Forrest Investments, LLC (“AFI”) and Andmark White Lakes Apartments, LLC's (“Andmark”) joint motion for judgment on the pleadings (Doc. 58) and Defendant AFI's partial motion to dismiss (Doc. 33). The motions are fully briefed and ripe for decision. (Docs. 34, 49, 50 54, 59, 84, 85, 96.) The motions are GRANTED IN PART and DENIED IN PART for the reasons stated herein.

I. Facts and Procedural History

Plaintiff Garry Adam was a prior resident of the White Lakes Plaza Apartments (“the property”) in Topeka, Kansas. Until June 29, 2022, Defendant Andmark White Lakes Apartments, LLC, (“Andmark”) was the legal owner of the property. Defendant Alexander Forrest Investments, LLC (“AFI”) served as the property management group for the property from December 2020 until June 2022. (Doc 112 ¶ 4.)^[1] Plaintiff suffers from Autosomal Recessive Bestrophinopathy which causes rare retinal dystrophy that is characterized by central vision loss. Plaintiff's vision loss substantially limits his life activities. In November 2016, Plaintiff entered into a rental agreement for an apartment at the property, specifically Apartment #107 (the “unit”). (Id. ¶ 11.) On or about December 9, 2020, Plaintiff observed water leaking out of the ceiling over the bathtub. Between that day and February 25, 2021, Plaintiff submitted several requests and complaints to AFI requested that the leak and the related water damages be repaired. After his requests were ignored, Plaintiff filed a complaint with the United States Department of Housing and Urban Development. (“HUD”) (Id. ¶ 15.) On or about March 31, 2021, Plaintiff, AFI, and Andmark entered into a conciliation agreement (the “agreement”) as a result of Plaintiff's HUD complaint. The agreement required AFI and Andmark to grant Plaintiff's requests for reasonable accommodation as follows: provide correspondence to Plaintiff in 18-point font; exempt Plaintiff from being required to pay rent and submit maintenance requests in the online portal; and provide Plaintiff with a paper copy of his annual lease. (Id. ¶ 17; Doc. 59-1.)^[2] The agreement also required AFI and Andmark to complete the outstanding maintenance repairs, renew Plaintiff's lease set to expire on April 30, 2021, and waive certain late fees. (Id. ¶ 17.)

On or about April 9, 2021, Plaintiff submitted maintenance requests to AFI for the following issues: 1) water damage dating back to December 9, 2020; 2) mold due to December 9, 2020 water damage; 3) maintenance and repair to central air ducts; 4) repair of malfunctioning garbage disposal; 5) repair of hall closet shelving; 6) repair of malfunctioning kitchen cabinet doors; 7) repair and maintenance of leaking and malfunctioning water heater and air conditioning unit; 8) mold in common areas; 9) repair of malfunctioning dishwasher. (Doc. 112 ¶ 18.) AFI agents visited Plaintiff's unit twice as of June 12; however, Plaintiff's requested maintenance issues were not properly addressed by AFI or Andmark. On June 12, the unit's bathroom and kitchen were again severely flooded. On that same day, Plaintiff submitted an emergency maintenance request. (Id. ¶ 21.) Two hours later, an AFI representative visited the unit for approximately ten minutes and informed Plaintiff that a third party company would be there later that evening. On June 13, a third party plumbing company visited the unit.^[3] AFI informed Plaintiff that the company would schedule a carpet cleaning and address the standing water in the unit. (Id. ¶ 25.) AFI never had a company come to clean the unit nor did they take any action with respect to the standing water.

On July 12, 2021, Plaintiff complained to AFI that the unit had no hot water. AFI did not address this maintenance issue until September 8, 2021. AFI requested that Plaintiff sign a document stating that the issue was rectified; however, the document was back dated to July 2021 and Plaintiff refused to sign it. (Id. ¶ 28.)

On January 14, 2022, AFI sent Plaintiff a text message, in violation of the HUD agreement, falsely stating that he had unpaid charges. On January 19 and 20, an AFI representative visited the unit and Plaintiff again complained of the numerous issues including mold, water damages, a malfunctioning heating unit, and other issues. On January 24, an AFI representative painted the unit's bathroom but did not address the outstanding maintenance issues. (Id. ¶ 33.) On May 29, 2022, the unit flooded again, causing a hole in the bathroom ceiling. Plaintiff submitted a maintenance request on May 31. On June 1, the unit flooded again, causing the hole in the bathroom ceiling to further deteriorate. (Id. ¶ 37.) On June 8, an AFI representative visited the unit and said he would be back the next day. On June 9, Plaintiff submitted a complaint to the City of Topeka's Code Enforcement Agency regarding the lack of running water, bathroom ceiling, malfunctioning dishwasher, flooding, malfunctioning HVAC, and malfunctioning toilet. On that same date, an AFI representative entered the unit and patched the bathroom ceiling but made no further repairs. (Id. ¶ 40.) On June 14, one of the two malfunctioning toilets was replaced. On that same date, Plaintiff was informed that his lease would not be renewed. On June 22, an AFI representative spent fifteen minutes performing repairs before declaring that he was “done” and left the unit which flooded again that evening. (Id. ¶ 43.) The unit flooded again on June 28. On June 30, Plaintiff observed that the bathroom ceiling again had a hole and the patchwork was hanging down into the bathtub.

Plaintiff further alleges that he received multiple electronic messages in violation of the agreement. He also received several communications that were not in 18 point font in violation of the agreement. (Id. ¶¶ 50-63.)

In July, Defendant OPG Ventures, LLC (“OPG”) became the property manager for the property. There were several issues regarding the unit that continued. OPG made some repairs but told Plaintiff that they could not make all of the repairs while he was in the unit. On August 23, a representative of OPG asked Plaintiff if he was going to move out or if he would like to be moved to another unit. Plaintiff requested that correspondence related to the move be put in writing, which was agreed to, but then Plaintiff was never provided any such correspondence. (Id. ¶ 73.) On September 8 and 9, Plaintiff moved out of the unit due to OPG and Defendant 37North White Lakes, LLC's (“37North”) refusal to repair the unit. 37North was the owner of the property as of June 2022. (Id. ¶ 81.)

Plaintiff filed this amended complaint against AFI, Andmark, OPG, and 37North alleging claims under the Kansas Landlord Tenant Act (“KLTA”), K.S.A. § 58-2543, the Fair Housing Act (“FHA”), the Rehabilitation Act, and Kansas state law. Plaintiff alleges that Defendants violated the FHA by discriminating against him due to his status as a handicapped person with respect to the terms and conditions of the rental and the provision of services for the rental by refusing to permit reasonable modifications, refusing to make reasonable modifications to policies, and interfering with his exercise of his rights under the FHA (retaliation). Plaintiff further alleges that Defendants misrepresented that a unit was not available. (Doc. 112 ¶ 95.) Plaintiff alleges similar claims with respect to the Rehabilitation Act. Defendants AFI and Andmark both move for judgment on the pleadings on the basis that the agreement precludes Plaintiff's claims. Further, AFI moves to dismiss Plaintiff's complaint in part on the basis that it fails to state a claim.

II. Standard

Motions for judgment on the pleadings utilize the same standard as a motion to dismiss. Ward v. Utah, 321 F.3d 1263, 1266 (10th Cir. 2003). In order to withstand a motion to dismiss for failure to state a claim under Rule 12(b)(6), a complaint must contain enough allegations of fact to state a claim to relief that is plausible on its face. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). All well-pleaded facts and the reasonable inferences derived from those facts are viewed in the light most favorable to Plaintiff. Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008). Conclusory allegations, however, have no bearing upon the court's consideration. Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007).

III. Analysis

I. FHA

Defendants argue that the FHA precludes this action due to the execution of the conciliation agreement. Under the FHA, an individual may bring an action “whether or not a complaint has been filed under section 3610(a) of this title and without regard to the status of any such complaint, but if the Secretary or a State or local agency has obtained a conciliation agreement with the consent of an aggrieved person, no action may be filed under this subsection by such aggrieved person with respect to the alleged discriminatory housing practice which forms the basis for such complaint except for the purpose of enforcing the terms of such an agreement.” 42 U.S.C. § 3613(a)(2). Defendant argues that Plaintiff's claims are precluded because he entered into the agreement and, as a result, may only bring an action to enforce the agreement.

This statute is similar to language in the conciliation agreement in that it precludes an action that was the basis of a prior HUD complaint if the parties entered into a conciliation agreement....