Case & Associates Properties, Inc. v. Bribiesca

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NOT DESIGNATED FOR PUBLICATION

No. 116,998

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CASE & ASSOCIATES PROPERTIES INC.
d/b/a ASPEN PARK APARTMENTS,
Appellee,

v.

JODIE L. BRIBIESCA,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFF DEWEY, judge. Opinion filed August 3, 2018. Affirmed
in part and remanded in part with directions.

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.

PER CURIAM: 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
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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.

FACTS AND PROCEDURAL BACKGROUND

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
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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."
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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
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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
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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 progress within 14
days of the notice—a procedure outlined in K.S.A. 58-2559.

Bribiesca timely filed her notice of appeal on November 21, 2016. On November
28, 2016, the district court held a hearing on Bribiesca's motion for a hearing on a stay of
writ of restitution. At the time of the hearing, Bribiesca had already been evicted from her
apartment. The district court set a supersedeas bond of $3,352 along with $1,036 in rent
and water cost. Upon payment of those amounts Bribiesca would be restored to the
property pending this appeal. The record does not clearly show whether Bribiesca posted
the bond.

ANALYSIS

Bribiesca presents these issues: (1) the district court erred in ruling her only
remedy available for Case's violations of K.S.A. 58-2553 was the 30-day notice
procedure in K.S.A. 58-2559; (2) the district court disregarded evidence showing
maintenance failures and code violations; (3) the district court erred when it found no
retaliatory eviction; (4) the district court erred when it found no authority to return the
rent she had paid; (5) the district court erred when it did not award damages for the pet
deposit for which the court ordered an accounting.




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K.S.A. 58-2559 notice of termination as remedy

For her first issue, Bribiesca contends the district court "erred in ruling that the
only remedy available to the defendant for the landlord violating his duties of
maintenance . . . was to issue a 14/30-day notice per K.S.A. 58-2559." She argues her
options for relief were not limited to giving that notice and states she was concerned Case
might prefer termination of the lease so it could leave the maintenance issues unresolved
for the next tenant. She points out that K.S.A. 58-2559(b) presents an alternative for
damages and injunctive relief if a tenant proves noncompliance with the lease or K.S.A.
58-2553.

Bribiesca is correct that she could claim violation of K.S.A. 58-2553 without
giving a K.S.A. 58-2259(a) 30-day notice demanding Case begin remedial work in good
faith within 14 days. Love v. Monarch Apartments, 13 Kan. App. 2d 341, 345, 771 P.2d
79 (1989). K.S.A. 58-2559(b) also permits a tenant to recover damages and obtain
injunctive relief when a landlord fails to comply with K.S.A. 58-2553. If a trial court
finds a landlord has failed to comply with an obligation set by K.S.A. 58-2253, a tenant
may recover damages in the amount of "the difference between the fair rental value of
[the] apartment as it should have been and the fair rental value of the apartment as it
actually was, insofar as the difference resulted from [the landlord's] breach of its statutory
duties." 13 Kan. App. 2d at 345.

Here, the district court did not discuss Bribiesca's claims and evidence in light of
K.S.A. 58-2559(b), but neither did it find her relief was limited exclusively to the 30-day
notice process in K.S.A. 58-2559(a). The district judge did, as Bribiesca claims, observe
that the 30-day notice procedure was "really the primary avenue that the defendant had,"
and said that if Case then failed to make the repairs, she could "move to a place that's
more to her liking."

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Bribiesca concludes her discussion of this issue in her brief by declaring "[she]
was within her rights to pursue other remedies." We do not disagree with that statement
or question her reasons for not taking the 30-day notice path. Notably, however, she does
not contend she pursued either of the alternate remedies of K.S.A. 58-2559(b) in the
district court, by either presenting evidence on the diminished rental value of her
apartment as discussed in Love or seeking injunctive relief. This argument presents no
basis for relief.

District court's consideration of Bribiesca's evidence

Bribiesca next contends the district court found only that her apartment was "not
to her liking," disregarding her evidence that Case failed in its maintenance duties and
that city inspectors issued citations for violations. When a verdict or trial court decision is
challenged for insufficiency of evidence or as being contrary to the evidence, an appellate
court does not reweigh the evidence or pass on the credibility of the witnesses. If the
evidence, when considered in the light most favorable to the prevailing party, supports
the verdict, the verdict will not be disturbed on appeal. Gannon v. State, 298 Kan. 1107,
1175-76, 319 P.3d 1196 (2014). Especially applicable to this issue, finding that a party
did not meet its burden of proof is a negative factual finding. In reviewing a negative
factual finding, the appellate court must consider whether the district court arbitrarily
disregarded undisputed evidence or relied upon some extrinsic consideration such as bias,
passion, or prejudice to reach its decision. Owen Lumber Co. v. Chartrand, 283 Kan. 911,
928, 157 P.3d 1109 (2007).

Bribiesca bore the burden of proving the assertions in her counterclaims to be
more likely true than not. After reviewing the evidence, however, the district court denied
all of her counterclaims, with one exception—the court generally ordered a security
deposit accounting, with Case to issue any refund owed. The district court's judgment
against Bribiesca on her counterclaims necessarily included its finding that she failed to
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prove the claims that Case violated K.S.A. 58-2553. This was a negative factual finding
for which the standard of review is difficult to overcome. Bribiesca must show the district
court arbitrarily disregarded undisputed evidence or relied on some extrinsic
consideration such as bias, passion, or prejudice to reach its decision. Chartrand, 283
Kan. at 928.

Through her testimony and exhibits, Bribiesca presented evidence on the
conditions in her apartment that she contended were violations of K.S.A. 58-2553(a)(1)
and (3). Case argues it responded to Bribiesca's complaints with needed maintenance or
repairs.

The venting in the apartment for the clothes dryer was one of Bribiesca's major
issues. In response to Bribiesca's claim that the dryer did not vent to the exterior of the
building, Case initially resolved this issue by running a new vent to reroute the dryer
exhaust. The second of two city inspectors who responded to Bribiesca's complaints came
on October 27, 2016. That inspector found the replacement dryer vent did not meet code
requirements and also found code violations for two bathroom ventilation fans that did
not vent to the outside. Case felt it could not complete the work with Bribiesca in the
apartment, but began the process of obtaining permits to complete the work after she
moved out. The problems identified by the first city inspector were corrected to the City's
satisfaction while Bribiesca was still living in the apartment.

Through its exhibits, Case tried to show that every time Bribiesca had a
maintenance issue, Case worked to resolve it. And, with the exception of the photos
showing what Bribiesca considered to be the insufficiently cleaned air conditioning coils
and insufficiently remedied ductwork, there are no photos in the record documenting the
condition of the problems after Case was given an opportunity to resolve them.

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The district court's decision, therefore, came down to evaluation of evidence, some
conflicting and some not, to determine whether Bribiesca had met her burden of proof for
each of her counterclaims. As we stated above, it is not our role to repeat the trial process,
substituting our once-removed assessment of the evidence for that of the trial judge who
was present with the parties. We see nothing to support any claim that the district court
arbitrarily disregarded undisputed evidence or relied upon some extrinsic consideration
such as bias, passion, or prejudice to reach its decision. Chartrand, 283 Kan. at 928. We
do find evidence in the record which, viewed in the light most favorable to Case as the
prevailing party, supports the district court's judgment. Accordingly, there is no basis to
overturn the district court's denial of Bribiesca's counterclaim for damages arising from a
failure by Case to fulfill its maintenance obligation.

Retaliation for complaints to Case and the City of Wichita

Bribiesca next raises two related arguments based on the district court's rejection
of the claims that Case raised her rent and retaliated against her because of her
maintenance complaints. Case denies any attempt to evict Bribiesca through a rent
increase. The district court found the rent increases proposed in Case's renewal offer
"were fairly modest" and saw no proof the increases were proposed in bad faith.
Bribiesca raised retaliatory eviction claim as an affirmative defense. "The party raising an
affirmative defense also bears the burden of proving the defense." Munck v. KPERS, 35
Kan. App. 2d 311, 322, 130 P.3d 117 (2006).

Bribiesca received a lease renewal offer on August 31, 2016, that expired "30 days
at end of business of the date this notice was given" [sic]. The offer proposed varying
rents—lower for the longest, one-year extension, than for either a six-month or month-to-
month lease. A one-year renewal would have increased the base monthly rent $14 over
the amount Bribiesca was paying; a 14-month renewal would have increased the base
rent by $6 per month. We note as well that Bribiesca received the renewal offer with the
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"retaliatory" rent increase on August 31, 2016, before she complained to the City of
Wichita on September 2. To find retaliation, therefore, we would be required to accept
the incongruous idea that retaliation can occur prior to the event that allegedly triggers it.

On September 28, 2016, prior to acceptance of the renewal offer which had been
set to expire at the end of business on September 30, 2016, Bribiesca received from Case
a 30-day notice of termination of tenancy and notice to vacate. Since Bribiesca had not
accepted the renewal offer prior to receiving the notice to terminate, the district court
correctly found the 30-day notice acted to rescind the renewal offer.

Bribiesca argues the district court incorrectly stated the lease renewal offer
contained "no time frame" for it to be accepted. That error, however, is of no
consequence since Bribiesca did not accept the lease renewal offer before its stated
expiration and the termination of her lease on September 30, 2016. Moreover, Bribiesca's
October rent, which became month-to-month after the lease expired without renewal, was
the same amount as in the original lease, $747 ($707 per month plus $40 per month for
pets). Since Bribiesca's rent was not increased, deciding whether the proposed rent
increase in the lease renewal offer was made in retaliation has no bearing on this appeal.

Bribiesca also had the burden to prove the other part of her affirmative defense
that asserted Case generally took action to evict her in retaliation for her complaints both
to Case and the City about conditions in her apartment. Bribiesca maintains this violates
K.S.A. 58-2572, which constituted her affirmative defense against Case's action for
possession of the apartment. Bribiesca proposes a "but for" test as decided in an Oregon
case, i.e. "but for" the tenant's conduct, the landlord would not have evicted the tenant.
Elk Creek Management Co. v. Gilbert, 353 Or. 565, 584, 303 P.3d 929 (2013). Under this
test, Bribiesca argues her eviction would not have occurred "but for" her reports to the
City and complaints of violations under K.S.A. 58-2553. Importantly, however, she does
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not support her argument with any reference to adoption of that test by our appellate
courts.

In response, Case argues that no provision of Kansas law requires a landlord to
enter into a renewal after a lease expires and its offer of renewal was rescinded when it
notified Bribiesca of its decision to terminate, rather than renew, her tenancy.

K.S.A. 58-2572(a) states: "a landlord may not retaliate by increasing rent or
decreasing services after: (1) the tenant has complained to a governmental agency . . . or
(2) the tenant has complained to the landlord of a violation under K.S.A. 58-2553." If a
landlord violates the statute, a "tenant is entitled to remedies provided in K.S.A. 58-2563
and has a defense in an action against such tenant for possession." K.S.A. 58-2572(b).
We have already addressed Bribiesca's argument concerning increased rent and she cites
no "services" that Case allegedly diminished because of her complaints. Her arguments
are that: (1) Case did not repair to her satisfaction all defects she claimed existed in the
apartment; and (2) Case decided to rescind its renewal offer and not enter into another
lease with her. We find no error in the district court's rejection of Bribiesca's affirmative
defense and its order granting possession of the property to Case.

Refund of all rent; moving costs; excess utility costs; punitive damages

Bribiesca next contends the district court erred when it found no authority to order
refund of all rent she had paid for her apartment throughout her tenancy, plus moving
costs, "excess" utility costs, and punitive damages. Case responds there was no basis for
any damages since the district court did not find it had materially failed to comply with
its duties under either the lease or K.S.A. 58-2553. Further, Bribiesca had made no
punitive damage claim before the district court.

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Case is correct that the issue of punitive damages was not asserted to the district
court using the procedure directed by K.S.A. 60-3703, or in any other form. Issues not
raised before the district court cannot be raised on appeal. Wolfe Electric, Inc. v.
Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011). As we stated above, the district
court rejected all of Bribiesca's claims and defenses except for the order for Case to
account for her security deposit. The district court had no findings upon which to award
damages.

Bribiesca also claims Case violated the implied warranty of habitability, which
justified an order from the district court for the damages she wanted. The record supports
her contention that she "stated numerous times there were major maintenance issues
affecting her health and safety and the warranty of habitability." The record also shows,
however, that the district court denied Bribiesca's affirmative defense of retaliation and
all of her counterclaims that were based on her argument that Case failed to perform
cleaning or maintenance and make necessary repairs in response to her complaints.

Although Bribiesca reasserts her position that the district court should have
ordered Case to refund all of the rent she paid during her tenancy, she did not present
evidence that the apartment was absolutely valueless. As the district judge commented,
she had the benefit of occupancy for most of a year and asked to stay longer. Her
evidence was at odds with the relief she sought. Bribiesca now contends the court could
have ordered her excess utility costs paid as a consequence of violation of the lease and
K.S.A. 58-2553, and could have ordered her moving costs paid "due to [her] being forced
to vacate the apartment due to the retaliatory action and eviction." Those arguments
ignore the fact that the district court found she had presented no evidence to justify a
finding her utility costs were actually excessive, and the court also rejected her
affirmative defense based on retaliation.

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The district court evaluated Bribiesca's numerous claims and the evidence she
presented and rejected them. We have found the record contains substantial competent
evidence to support the district court's decisions, and we decline Bribiesca's invitation to
substitute our evaluation of the evidence for the district court's.

Security deposit; pet deposit

Bribiesca's final issue is her contention that the district court erred in failing to
award the damages she argues were required because Case failed to return her pet deposit
after she left her first apartment. She contends since no pet damage was listed on the
move-out sheet from that apartment, she was entitled to the $292 pet deposit, plus one
and one-half times the amount of the pet deposit for damages per K.S.A. 58-2550(c).

Case first points out the district court did not specifically order refund of a deposit,
but instead ordered an accounting for the deposit. Case then invokes a lease provision
stating that a pet deposit made for two pets is not refundable—and asserts Bribiesca had
two pets.

The district court addressed the security deposit question in some detail but still
left questions unanswered. At the outset, however, the court did compare the leases for
Bribiesca's two apartments and found both used the same lease form. The district judge
also recalled from the testimony that the "regular part" of the deposit for the first
apartment had been returned, less a charge for some drip pans. Then the court
commented:

"[I]t appears as though, in addition to the regular deposit, there was an additional animal
deposit paid. And I'm not altogether sure, then, whether there was an additional deposit. I
know that the [apartment] 1812 regular deposit was refunded. There may have been an
additional deposit paid for [apartment] 1908."

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The court then referred to a lease paragraph that required the landlord to account for the
deposit and refund amounts found due to the tenant and ordered Case to do that. From the
district court's order, however, it is not clear whether the ordered accounting refers to unit
1812 or 1908, or both. The court said:

"In other words, there needs to be an accounting of all funds that [Case has] received for
deposit, including the original [$]292 pet deposit. And then, if there are offsets, those can
be deducted, and the balance should be refunded to [Bribiesca]. And by 'offsets,' I mean
pet damage or extraordinary damage."

The district court finally ordered Bribiesca to pay rent until she relinquished possession
of her apartment, prorated as necessary for any partial month.

Based on its argument, Case appears to assume it was ordered to account for
Bribiesca's second apartment, while Bribiesca's argument centers on the claim she is
entitled to damages related to a failure to refund the pet deposit for the first apartment.
The "Animal Addendum" to the lease agreement for the second residence, unit 1908,
does have a typed addition that states having two pets makes the renter ineligible for
refund of a "pet deposit." But in an earlier paragraph of that same addendum a selection
was specifically made to consider the "animal deposit" as part of "the general security
deposit for all purposes," potentially removing it from any pet-specific provisions. Also,
the district court made no findings with respect to the number of pets Bribiesca had in the
first apartment or any provision in that earlier lease limiting a pet deposit refund to one-
pet situations.

These questions involving the two leases require facts not contained in the record.
Those facts and how they relate to the lease provisions determines whether Bribiesca's
claim for damages under K.S.A. 58-2550(c) has merit. As a result, the case must be
remanded to the district court to resolve those deposit questions.
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Affirmed in part and remanded in part with directions.