Bowman v. KCAP RE Fund II LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DANA BOWMAN, 	§
§
Plaintiff, 	§
§
VS. 	§
§
KCAP RE FUND II, LLC, et al., 	§
§ 	Civil Action No. 3:24-CV-2472-D
Defendants, 	§
and 	§
§
SILVER LEAF BTR, LLC a/k/a 	§
SILVER LEAF JOSHUA LLC, and 	§
SILVER LEAF COMMUNITIES, LLC, 	§
§
Defendants-Third-Party Plaintiffs, 	§
§
VS. 	§
§
TRIUNE ARCHITECTURE PLLC, 	§
and WESLEY W. GUSTIN, 	§
§
Third-Party Defendants. 	§
MEMORANDUM OPINION
AND ORDER
In this action alleging violations of the Fair Housing Amendments Act of 1988
(“FHA”), 42 U.S.C. §§ 3601-3619, defendants-third-party plaintiffs Silver Leaf BTR, LLC,
a/k/a Silver Leaf Joshua LLC (“Silver Leaf Joshua”) and Silver Leaf Communities, LLC
(“Silver Leaf Communities”) move for partial summary judgment against third-party
defendants Triune Architecture PLLC (“Triune”) and Wesley W. Gustin (“Gustin”). For the
reasons that follow, the court grants the motion.
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I
The Residence at Joshua Landing Apartments (the “Property”) is a two-story
apartment complex that contains approximately 100 units spread over 25 structures with
approximately 50 covered ground floor units.1 Each of the 25 structures contains four
apartment units (two upstairs and two downstairs) that share a common roof. The structures
sit on two separately platted pieces of property and are divided in half by a firewall.
Plaintiff Dana Bowman (“Bowman”), a handicapped veteran, filed the instant lawsuit
against Silver Leaf Communities and Silver Leaf Joshua2 (collectively, “Silver Leaf,” unless
the context indicates otherwise), among others,3 alleging that the Property violates the
accessibility requirements for multi-family dwellings described in 42 U.S.C. § 3604(f)(3)(C).
Silver Leaf, in turn, filed a third-party complaint against Triune and Gustin (collectively,
“Triune,” unless the context indicates otherwise), asserting claims for fraud, breach of
1In recounting the factual background, the court summarizes the evidence in the light
most favorable to Triune and Gustin as the summary judgment nonmovants and draws all
reasonable inferences in their favor. See Owens v. Mercedes-Benz USA, LLC, 541 F.Supp.2d
869, 870 n.1 (N.D. Tex. 2008) (Fitzwater, C.J.).
2Silver Leaf Communities is a construction company that participated in construction
of the Property, and Silver Leaf Joshua was the contractor of record for the Property.
3Plaintiff also sues KCAP RE Fund II, LLC (the former owner of the Property);
KCAP RE Fund II Joshua, LLC, Abdeen Joshua Holdings, LLC, Alemer Joshua Holdings,
LLC, Hatcher Joshua Holdings, LLC, Horany Joshua Holdings, LLC, Jensen Joshua
Holdings, LLC, Lingampalli Joshua Holdings, LLC, Nobles Joshua Holdings, LLC,
Schroeder Joshua Holdings, LLC, Skaugstad Joshua Holdings, LLC, and Vista Grande Dairy
Joshua Holdings, LLC (the current co-owners of the Property); KeyCity Capital, LLC (the
developer of the Property); and KeyCity Fund Management, LLC (the manager for the
current co-owners of the Property).
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contract, and contribution, and alleging, inter alia, that Triune was responsible for the design
of the Property and that its design was defective because the Property, as designed, does not
meet the requirements of § 3604(f)(3)(C).
Silver Leaf now moves for partial summary judgment, requesting that the court
conclude, as a matter of law, “that each of the twenty-five structures is one building and thus
each ground floor apartment unit is a ‘covered multifamily dwelling’ as that term is used in
42 U.S.C. § 3604(f)(7).” Silver Leaf Br. (ECF No. 37) at 3. Bowman joins the motion, and
Triune opposes the motion, which the court is deciding on the briefs, without oral argument.
II
When, as here, the summary judgment movant will have the burden of proof on a
claim, the movant “must establish ‘beyond peradventure all of the essential elements of the
claim[.]’” Bank One, Tex., N.A. v. Prudential Ins. Co. of Am., 878 F. Supp. 943, 962 (N.D.
Tex. 1995) (Fitzwater, J.) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.
1986)). This means that the movant must demonstrate that there are no genuine and material
fact disputes and that the movant is entitled to judgment as a matter of law. See Martin v.
Alamo Cmty. Coll. Dist., 353 F.3d 409, 412 (5th Cir. 2003). “The court has noted that the
‘beyond peradventure’ standard is ‘heavy.’” Carolina Cas. Ins. Co. v. Sowell, 603 F.Supp.2d
914, 923-24 (N.D. Tex. 2009) (Fitzwater, C.J.) (quoting Cont’l Cas. Co. v. St. Paul Fire &
Marine Ins. Co., 2007 WL 2403656, at *10 (N.D. Tex. Aug. 23, 2007) (Fitzwater, J.)).
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III
A
The FHA prohibits discrimination in housing “because of a handicap.” 	42 U.S.C.
§ 3604(f)(1), (2). Under § 3604(f)(3)(C), discrimination includes, “in connection with the
design and construction of covered multifamily dwellings . . . a failure to design and
construct those dwellings” in the manner specified in the statute.4 “Covered multifamily
dwellings” are defined as follows:
[a]s used in this subsection, the term “covered multifamily
dwellings” means—
(A) buildings consisting of 4 or more units if such
buildings have one or more elevators; and
(B) ground floor units in other buildings consisting of 4
or more units.
Id. § 3604(f)(7).
4 Under § 3604(f)(3)(C), covered multifamily dwellings must be designed and
constructed in such a manner that:
(i) the public use and common use portions of such dwellings
are readily accessible to and usable by handicapped persons;
(ii) all the doors designed to allow passage into and within all
premises within such dwellings are sufficiently wide to allow
passage by handicapped persons in wheelchairs; and
(iii) all premises within such dwellings contain the following
features of adaptive design:
(I) an accessible route into and through the dwelling;
(II) light switches, electrical outlets, thermostats, and
other environmental controls in accessible locations;
(III) reinforcements in bathroom walls to allow later
installation of grab bars; and
(IV) 	usable 	kitchens 	and 	bathrooms 	such 	that 	an
individual in a wheelchair can maneuver about the space.
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B
Silver Leaf contends that, although each structure on the Property is divided in half
by a firewall and sits on two separately platted pieces of property, the ground floor units
constitute “covered multifamily dwellings,” as that term is used in § 3604(f)(7), because each
structure is a single “building” consisting of four units. In support, Silver Leaf maintains
that, at the time § 3604(f) was enacted, the Uniform Building Code defined “building” to
include “[a]ny structure used or intended for supporting or sheltering any use or occupancy,”
Silver Leaf Br. (ECF No. 37) at 4; that the term “building” is therefore synonymous with the
term “structure,” and “refers to everything under one roof,” id.; that the Fair Housing
Accessibility Guidelines (“Guidelines”)5 state that “[d]welling units within a single structure
separated by firewalls do not constitute separate buildings,” id. at 5 (emphasis omitted)
(quoting Final Fair Housing Accessibility Guidelines, 56 Fed. Reg. 9500 (Mar. 6, 1991)), and
confirm that a “building” is a “single structure covered by one roof without regard to internal
divisions,” id.; and that the platting of the property can have no relevance to whether a
building is a “covered multifamily dwelling” because neither the FHA nor the regulations
refer to plats, surveys, or the location of property lines.
5The Guidelines were promulgated by the U.S. Department of Housing and Urban
Development, which is the federal agency primarily charged with administering the FHA.
See 42 U.S.C. § 3608(a).
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Triune responds that the plat and civil drawings treat the Property as a collection of
duplexes and that
Silver Leaf’s plat of the property and the civil drawings it
provided, along with its plan to develop the project as duplexes,
suggests that Silver Leaf intended the plat to have significance
in the development of the property. 	The Court should deny
[Silver Leaf]’s Motion for Partial Summary Judgment to give
effect to Silver Leaf’s intent to develop the project as duplexes.
Triune Br. (ECF No. 40) at 2.
In his combined joinder and reply, Bowman responds inter alia that there is no
authority for Silver Leaf’s assertion that, because the units are built on separate lots, they
need not comply with the FHA; that separating the building by firewalls and lot lines does
not make the two bottom story units part of “duplexes” that are not covered dwelling units;
and that
[f]or Fair Housing purposes, if these were to be duplexes and
non-covered, then the units would need to have internal
staircases combining the two stacked units. This design would
have resulted in a single 2-story unit on the left side and a single
2-story unit on the right side of the building. This would truly
be a “duplex” under Fair Housing and dictionary definitions and
not considered a covered multifamily dwelling under the FHA
definition. The designed and constructed buildings have 4 units
per building and the bottom 2 units are covered Fair Housing
units.
P. Br. (ECF No. 41) at 6-7 (footnotes omitted).
C
For largely the reasons explained in Silverleaf’s motion and in Bowman’s joinder and
reply, the court holds that Silver Leaf has established beyond peradventure that the ground
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floor units on the Property are “covered multifamily dwellings” that are subject to the
accessibility requirements of § 3604(f)(3)(C). 	As stated above, a “covered multifamily
dwelling” includes “ground floor units in other buildings consisting of 4 or more units.” 42
U.S.C. § 3604(f)(7). 	Although Triune cites evidence that it entered into a contract with
Silver Leaf to design 25 “2x Duplex Flats,” Triune Br. (ECF No. 40) at 2, it does not dispute
that the Property was designed and built as multifamily apartments with four separate units
per building. 	Nor has it provided any authority in support of its position that a single
structure built on two separately platted pieces of property constitutes two “buildings,” for
purposes of the FHA.6
Courts have uniformly held that all ground floor units in buildings with four or more
units are subject to the FHA’s accessibility requirements. See, e.g., United States v. Shanrie
Co., 669 F.Supp.2d 932, 937 (S.D. Ill. 2009) (“It is undisputed that Rockwood consists of
covered multifamily dwellings as defined by the statute at both the Hartman Lane apartments
and Rockwood Court apartments. Rockwood does not contain any buildings with elevators,
but the buildings do consist of 4 or more units. Therefore, only the ground floor units are
subject to the accessibility requirements contained in the FHA.”); Fair Hous. Council, Inc.
v. Vill. of Olde St. Andrews, Inc., 250 F.Supp.2d 706, 718 (W.D. Ky. 2003) (“Defendants’
units are structurally connected by a single roof. While the dwellings may be separated by
a firewall, this fact does [not] prevent them for being considered as a single building. Each
6Triune appears to have abandoned its argument that each structure consists of two
“buildings” due to the presence of a firewall separating the two sides.
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cluster of 4 units must . . . be considered a single building for purposes of the design and
construction requirements of [the FHA]. Accordingly, all Defendants’ units are covered by
the Act with the exception of the multi-story units.” (citations omitted)).
Accordingly, the court grants Silver Leaf’s motion and holds, as a matter of law, that
each of the ground floor units in the 25 structures on the Property is a “covered multifamily
dwelling” subject to the accessibility requirements prescribed in § 3604(f)(3)(C).
* 	* 	*
For the reasons explained, the court grants Silver Leaf’s motion for partial summary
judgment.
SO ORDERED.
December 30, 2025.
_________________________________
SIDNEY A. FITZWATER
SENIOR JUDGE
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