Case & Assocs. Props. Inc. v. Bribiesca
| Citation | 427 P.3d 987 |
| Decision Date | 03 August 2018 |
| Docket Number | No. 116,998,116,998 |
| Parties | CASE & ASSOCIATES PROPERTIES INC. d/b/a Aspen Park Apartments, Appellee, v. Jodie L. BRIBIESCA, Appellant. |
| Court | Court of Appeals of Kansas |
Jodie L. Bribiesca, appellant pro se.
Patrick Turner, of Shultz Law Office, P.A., of Wichita, for appellee.
Before Schroeder, P.J., Malone, J., and Stutzman, S.J.
Jodie Bribiesca lived in two apartments in the same complex in Wichita, Kansas, owned by Case & Associates (Case). She entered into a lease for the second apartment, sight unseen, for a term from January 9, 2016, to September 30, 2016. When she moved in she found numerous problems in the new apartment. Case's maintenance staff worked on the cleaning and repair requests she submitted, but in several instances failed to remedy the concerns to her satisfaction. Eventually, not long before the end of her lease, Bribiesca reported her concerns about the apartment to code inspectors at the City of Wichita. About a month before the term expired, Case offered to renew the lease, but before Bribiesca accepted that offer, Case delivered to her a 30-day notice to move out on October 31, 2016.
Case filed a petition for possession of the apartment. Bribiesca responded with an affirmative defense to Case's petition, claiming retaliation by Case for her complaints to the City of Wichita, and counterclaims for rent, utility payments and other relief. The parties appeared before the district court for trial, and the court granted Case's petition for possession of the apartment and denied relief on Bribiesca's counterclaims except for an order that Case make an accounting for the security deposits.
Bribiesca timely appeals. We find no error by the district court and affirm in all but one respect. We remand for further action by the district court to resolve remaining questions concerning the security deposit accounting.
Bribiesca first moved to Aspen Park Apartments (Aspen) on June 10, 2015. The apartments are located in Wichita and are owned by Case. On January 8, 2016, Bribiesca moved from her first apartment, unit 1812, to another, 1908, in the same complex. Bribiesca testified she was not offered an opportunity to see 1908 before moving in, and it is not clear whether she asked to view the apartment before the move. The lease term for 1908 was from January 9 to September 30, 2016. Except for some drip pans, there were no damage issues for 1812 when Bribiesca moved out.
Bribiesca had problems with 1908 from the start. She described the apartment's smell when she walked in as "musty, moldy, [and] dirty" and testified "[t]he apartment was still very dirty." At the trial, the property manager viewed photos Bribiesca took when she moved in and commented "[t]here would've been work to be done if I would see an apartment in this shape." Bribiesca testified to water stains at various places in the apartment, missing drywall in a utility closet, mold in a corner of the master bathroom tub, the washer and dryer hookup that had not been cleaned, and several other deficiencies. She acknowledged some of her initial complaints were addressed after she had moved in.
Shortly after she moved in, Bribiesca noticed mold around the HVAC system, detached ductwork, and a dirty evaporative coil. Maintenance resolved the detached ductwork with foil tape and cleaned the evaporative coil, but Bribiesca testified the duct still leaked air and she cleaned the evaporative coil further to meet her standards. After several months, Bribiesca began to notice "black chunks coming out of [the] vents" in her apartment. She cleaned and inspected the duct and knew it to be clean. After complaining, maintenance staff offered to clean the ducts, but she told them she had already done that. Bribiesca then decided to "remove the lid" on the HVAC unit, where she said she found mold on the inside of the door and on the blower wheel. The maintenance staff replaced the blower wheel but, according to Bribiesca, refused to clean the mold from other parts of the air conditioning unit. Bribiesca testified she felt "absolutely horrible every day" after moving into the apartment and her daughter's asthma
had "been in overdrive."
Bribiesca claimed her air conditioning could not keep up and was constantly running. Maintenance looked into this issue at least three times, claiming the air conditioner was functioning as it should. Bribiesca also discovered her dryer was not venting to the outside, but into the air space between apartments. As a result, she believed air from the dryer and from outside was being pulled into the air conditioning system through the holes in her utility closet. Additionally, Bribiesca thought the bathroom ventilation fans were similarly venting into the ceiling, since no outside vents opened when the fans turned on. In an attempt to deal with her dryer getting hot on the outside, Aspen's maintenance staff ran a new dryer vent to outside of the building using a flex pipe which, through her experience in remodeling, was "was not to code."
In her trial testimony, Bribiesca said the apartment's management told her she had filed too many maintenance requests and she felt the issues were not being properly addressed, so she contacted the city inspection office on September 2, 2016. The first inspection occurred on September 15, 2016, and that inspector cited violations for the holes in the utility closet and attempts to fix missing drywall with foil tape. He told Bribiesca, however, a building inspector would have to come to look at the dryer and bathroom venting problems. In late September, Bribiesca noticed what had previously been a water stain in the coat closet had escalated to a water stain with mold. The building inspector came on October 27, 2016, and found violations in both bathrooms for the ventilation fans not venting to the outside and another for the new dryer vent not being installed to code.
Case contended it worked to resolve all of Bribiesca's maintenance requests to the best of its abilities and never decreased its services to her because of her complaints. The initial problems recognized by the first city inspector were corrected to the City's satisfaction while Bribiesca was still in the apartment. Because of the scope of the correction for the dryer ducting problem cited on the second city inspection, Case was obtaining permits and contracting with vendors to do the work, but it would only begin once the apartment was vacant. Case submitted 43 pages of records showing when and how it resolved each of Bribiesca's maintenance requests.
Bribiesca received a lease renewal offer on August 31, 2016. The lease renewal offer stated it would "expire 30 days at [the] end of business of the date this notice was given." Case then decided to withdraw the renewal offer and issue Bribiesca a 30-day notice to vacate, which Aspen prepared and posted on Bribiesca's door on September 28, 2016. The notice was dated September 30, 2016, and stated Bribiesca needed to vacate the apartment by October 31, 2016. In response, Bribiesca sent a letter to Aspen charging the 30-day notice to vacate was in retaliation for her complaints to the city inspectors, violating K.S.A. 58-2572. Bribiesca had not entered into a lease renewal before she received the notice to vacate, although she had expressed her intent to renew to a person from Aspen's office who had called her.
Case filed a petition for possession of the apartment on November 1, 2016. Also around the first of November, Aspen refused Bribiesca's offer to pay the November rent and water bill. Bribiesca answered the eviction petition on November 7, 2016, asserting violations of K.S.A. 58-2572 and K.S.A. 58-2553 as affirmative defenses. Additionally, Bribiesca counterclaimed for: (1) dismissal of the eviction; (2) return of all of her rent through violation of implied warranty of habitability; (3) correction of all K.S.A. 58-2553 violations in the apartment; (4) $280.91 for high utilities; (5) $292 remaining from her unit 1812 security deposit; (6) a new lease with fair market rental values; (7) moving costs, if forced to move; and (8) under the provisions of K.S.A. 58-2563, Case should pay "1 1/2 times the total of all the damages" from the counterclaims per K.S.A. 58-2563. The bench trial took place on November 15-16, 2016, and the district court announced its ruling from the bench on November 18, 2016.
After reviewing the evidence and law, the district court found there was a lease, an offer to renew, and a 30-day notice that rescinded the renewal offer without the lease being renewed. Bribiesca's written lease expired on September 30, 2016, so her status changed to month-to-month tenancy on October 1, 2016. The 30-day notice to vacate was delivered before October 1, 2016, and acted to terminate the month-to-month lease on October 31, 2016. The district court noted that Case had refused payment of Bribiesca's November rent in keeping with its intent to recover possession through the court case. Based on the evidence, the district court ordered possession restored to Case and directed Bribiesca pay prorated rent for November until she moved out.
In general terms, the district court granted Bribiesca's counterclaim regarding an accounting for all funds she paid for security deposits, including any pet deposit, and return of funds still held unless damage could be substantiated to support a deduction; the court found all other counterclaims should be denied. The court found Case did not raise Bribiesca's rent or evict her in retaliation for her actions and that it lacked authority or evidence to grant relief on the other counterclaims. The district court stated the primary remedy available to Bribiesca had been to give Aspen notice of material noncompliance with the lease or material health or safety issues, which then would have allowed her to terminate her lease within 30 days if a good-faith remedy was not in...
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