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Joiner v. Tran & P Properties, LLC

Court of Appeals of Kentucky

July 21, 2017



          BRIEFS FOR APPELLANTS: Theodore W. Walton Louisville, Kentucky

          BRIEF FOR APPELLEE, BAILEY PROPERTY MANAGEMENT LLC: David A. Shearer, Jr. Jason E. Abeln Fort Mitchell, Kentucky

          BRIEF FOR APPELLEE, TRAN & P PROPERTIES LLC Dennis J. Stilger Louisville, Kentucky



          LAMBERT, J., JUDGE.

         Christopher Joiner (Joiner), Charity Joiner, and Logan Joiner (the Joiners) have appealed from the Jefferson Circuit Court's order granting partial summary judgment, made final and appealable by a subsequent agreed order of partial dismissal. They seek review of the circuit court's dismissal of their action seeking damages for personal injury, landlord-tenant law violations, and violation of the consumer protection act. Finding no error, we affirm.

         Joiner is the natural parent of Charity and Logan, who are both minors. On July 16, 2012, Joiner signed a one-year lease agreement to rent property at 1109 Reutlinger Avenue in Louisville, Kentucky. Tran & P Properties LLC owned the property and was responsible for maintaining the property in a safe and habitable condition, and Bailey Property Management LLC was the rental agent for the property and was responsible for renting and maintaining the property. The lease term began on August 1, 2012, and ended July 31, 2013. The Joiners had housing benefits through Louisville Metro Shelter Plus Care (Shelter Plus). The terms of the lease provided that the amended amount of monthly rent was $885.00; Joiner was to pay $34.00 and Shelter Plus was to pay the remaining balance. However, Tran & P Properties and Bailey Property required Joiner to pay $149.00 per month to make up for the difference between the original rental price of $1, 000.00 and the amount Shelter Plus agreed to pay. After moving into the property, the Joiners began to suffer from respiratory conditions. After they discovered mold and leaking water in the property, Joiner notified Tran & P Properties and Bailey Property of the need for repair and remediation. In October 2016, a contractor reported a black mold issue which needed to be addressed through remediation and replacement of materials in those areas affected by the mold. The Joiners alleged that Tran & P Properties and Bailey Property failed to remediate the mold despite requests to do so, and the Joiners continued to have health problems. Environmental testing in March 2013 identified the presence of black mold. Due to their financial situation, the Joiners could not find another place to live, and in late Spring 2013, Joiner was notified by Shelter Plus that he was losing his housing assistance because he had been paying the landlord an amount in excess of the lease amount.

         As a result of these allegations, the Joiners filed a verified complaint with the Jefferson Circuit Court on September 24, 2013, seeking damages related to mold exposure and the rent amount charged. They alleged causes of action for violations of the Uniform Residential Landlord and Tenant Act (URLTA), Kentucky Revised Statutes (KRS) 383.505 et seq.; negligence; intentional infliction of emotional distress (IIED) and outrage; breach of contract; fraud and misrepresentation; and a violation of the Kentucky Consumer Protection Act (KCPA), KRS 367.170 et seq. The Joiners sought compensatory and punitive damages as well as a trial by jury.

         Bailey Property filed an answer in which it asserted that the complaint failed to state a claim upon which relief could be granted and that it was barred by waiver, laches, estoppel, contributory negligence, and comparative negligence. After the Joiners filed a motion for a default judgment against it, Tran & P Properties moved for and received permission to file a late answer including the same defenses. The court referred the case to the Master Commissioner for review and recommendation in November 2013, which was not successful. Discovery proceeded, and the court set the matter for a jury trial in late 2015.

         Prior to the trial, the defendants filed motions for summary judgment.[1] They explained that the original Shelter Plus lease signed in July 2012 required Joiner to sign a separate lease with Bailey Property and established that the rent for the property was $1, 000.00 per month. One month later, Shelter Plus attempted to modify the terms of the lease to reduce the total rent to $885.00 per month and to require the Joiners to pay $34.00 of that amount. Neither Joiner nor Bailey Property signed the modified Shelter Plus lease. Pursuant to the terms of the lease Joiner had entered into with Bailey Property on August 1, 2012, which was to run through July 31, 2013, Shelter Plus was to pay $885.00 and Joiner was to pay $115.00 per month. Joiner received notification of the change in the rental amount from Shelter Plus after he had moved his family into the residence, and Joiner told Bailey Property he would continue to pay his $115.00 portion. When Joiner informed his caseworker that he had been overpaying his portion of the rent, he was told he had breached the Shelter Plus lease and would be dismissed from the rental program. Both Shelter Plus and Bailey stopped paying rent, and the Joiners were evicted on August 13, 2013, two weeks after the term of the lease had expired.

         The memorandum went on to describe the mold issues in the house due to a leak in the roof, which were all corrected by March 2013. After reporting the mold, Bailey Property offered to let Joiner break the lease, but Joiner did not make any efforts to find a different residence.

         The defendants argued that the Shelter Plus lease was unenforceable because there was no meeting of the minds related to the rental amount and the existence of a unilateral mistake of fact regarding that amount, and that the Bailey Property lease was also unenforceable due to a mutual mistake of fact as to the rent amount. They went on to argue that the Joiners failed to produce any evidence of injury or damages due to mold; that it had not violated the URLTA or committed any negligence by failing to maintain the premises, noting that the remedy for breach of a landlord's duty was the cost of the repair, which Bailey Property paid for; that the Joiners did not specify any grounds giving rise to their IIED and outrage claims; did not commit fraud or misrepresentation because the leases reflected the amount of $1, 000.00 as rent; and that they did not violate the KCPA in relation to either the mold or the rent amount. In a supplement, Bailey Property argued that the KCPA did not provide the Joiners with a cause of action because that Act does not apply to single real estate transactions.

         Attached to the memorandum were several items, including the lease agreements at issue. The Shelter Plus leases, signed on July 16, 2012, by Jessica Cowles as the agent of Bailey Property and Joiner, showed a lease term running from August 1, 2012, through July 31, 2013. The contract rent amount of $1, 000.00 was marked out and $885.00 was substituted. The lease provided that Shelter Plus would pay $851.00 and that Joiner would pay $34.00 each month as rent. It also required Joiner to sign a lease with Bailey Property. Joiner and Cowles signed a Housing Assistance Payment Contract the same day. Again, the amount of $1, 000.00 was crossed out and $885.00 was substituted. The Bailey Property lease was dated August 1, 2012, and signed by Cowles and Joiner on August 6, 2012. The rent amount was listed as $1, 000.00, with Shelter Plus paying $885.00 and Joiner paying $115.00 per month.

         Portions of depositions taken during the course of discovery were also attached to the memorandum. Joiner admitted to signing the leases and contract. Before they moved in, Cowles told Joiner that the monthly rental amount was $1, 000.00 and what portion he would have to pay, including the extra $115.00 per month. He did not discover that his portion of the rent was supposed to be $34.00 until later. He informed his caseworker that he had been paying a different amount to see if he could get a refund. His caseworker told him that he had broken the contract by paying more than $34.00 per month, and the Joiners lost their Shelter Plus funding.

         Joiner also testified about the leak in the closet of one of the children's bedrooms. He said he first noticed the moisture on October 16, 2012, and he called Cowles, who told him she would tell maintenance. When no one came to fix the problem, he called back. Three days after his first call, he saw a repairman on the roof who told him he had taken care of the problem. But the roof continued to leak. The leak was finally corrected in March 2013. Joiner testified that Bailey Property told him he could move out at any time, but he did not have anywhere else to go. Bailey Property did not offer to help him move into another property. The Joiners were eventually evicted from the property in August 2013. He and Shelter Plus had stopped paying rent right before the Joiners were evicted.

         Joiner admitted that he had not suffered any health problems due to the mold exposure, although he later stated that he had. He was not diagnosed with any type of mold-related condition. He also believed his children had some respiratory problems, but they had not treated with any physicians or in the hospital. His daughter had to take antibiotics for two bronchial infections. The physician told Joiner to move out of the house due to the mold.

         Jessica Cowles testified by deposition about the property. She worked for Bailey Property, and the property the Joiners rented was owned by Anthony Tran of Tran & P Properties. She discussed the amount of rent set for the property, which she said was $1, 000.00 per month. The paperwork she completed and turned in to Shelter Plus included that amount. She said "at the last minute" Shelter Plus said the rent could not be over a certain amount and it would not pay more than a certain dollar figure. Because Joiner was desperate for a place to live, Cowles said he offered to pay the difference between what Shelter Plus would pay and the lease amount. The amount of rent Shelter Plus would pay was changed after Cowles and Joiner had signed the lease documents. Cowles went on to testify that the property had been inspected twice before the Joiners moved in, and it was also tested for lead-based paint by Shelter Plus. Cowles did not remember if Joiner had made any complaints about water or mold after March 2013. She said the Joiners were evicted ...

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