IN THE Court of Appeals of Indiana FILED Gerald A. Sanders, Aug 30 2024, 9:15 am Appellant-Defendant, CLERK Indiana Supreme Court Court of Appeals and Tax Court v. AHEPA 78 VI Apartments, Inc., Appellee-Plaintiff.

August 30, 2024 Court of Appeals Case No. 23A-EV-1502 Appeal from the Lake Superior Court The Honorable Nicholas J. Schiralli, Judge The Honorable Catheron A. Paras, Magistrate

Court of Appeals of Indiana | Opinion on Rehearing 23A-EV-1502| August 30, 2024 Page 1 of 5 Trial Court Cause No. 45D07-2304-EV-1153

Opinion by Senior Judge Robb Judges Riley and Brown concur.

Robb, Senior Judge. [1] Gerald Sanders petitions for rehearing of our decision in Sanders v. AHEPA 78 VI Apartments, Inc., 237 N.E.3d 1126 (Ind. Ct. App. 2024). In that opinion, we affirmed the trial court’s order of eviction. Here, we grant Sanders’ petition for rehearing to clarify our reasoning, strike mistaken references to the Rehabilitation Act, strike Footnote 1, and reaffirm the opinion in all other respects. [2] On rehearing, Sanders argues that we misunderstood and incorrectly applied the federal statutes that define disability. Appellant’s Reh’g Pet’n pp. 6-9. In support of his contention, he cites the Americans with Disabilities Act (ADA) and its definition of a disability as a physical or mental impairment that substantially limits one or more major life activity, which can include the operation of a major bodily function such as bladder function. See 42 U.S.C. § 12102(1)(A), (2)(B). However, Sanders brought a claim solely under the Fair Housing Amendments Act (FHAA) and not under the ADA or the Rehabilitation Act. See Ex. Vol., p. 25 (Defendant’s Ex. 1 - Email from In our original opinion, we mistakenly stated that Sanders had brought a claim under the Rehabilitation Act and referred to such in our opinion; however, it is clear that he brought a claim only under the FHAA. While it does

Court of Appeals of Indiana | Opinion on Rehearing 23A-EV-1502| August 30, 2024 Page 2 of 5 Sanders’ counsel); see also Appellant’s Br. p. 13. Thus, we evaluated Sanders’ claim using the required elements set forth in the FHAA, which Sanders also acknowledged and set out in his initial brief to this Court. See Appellant’s Br. p. 14. [3] Sanders additionally asserts that we erred by concluding he had not fulfilled his burden of proving he is disabled. Specifically, he argues we should not have made a determination on the existence of a disability because that question was not litigated in the trial court. He claims that AHEPA “agreed that Sanders was disabled, and the trial court did not question his disability.” Appellant’s Reh’g Pet’n p. 6. [4] The burden of proving a disability lies with Sanders. See Furbee v. Wilson, 144 N.E.3d 801, 806 (Ind. Ct. App. 2020) (to prevail on FHAA claim, plaintiff must first establish he is disabled within meaning of FHAA); see also 42 U.S.C. § 3604(f)(3)(B). Our review did not reveal any agreement by AHEPA on this element of Sanders’ claim. While AHEPA acknowledged Sanders had an issue, it did not agree the issue constituted a disability as that term is defined in the FHAA. Sanders failed to show that he is disabled and thereby protected under the FHAA. [5] Finally, Sanders requests that we strike Footnote 1 from our original opinion “because it incorrectly states what HUD requires . . . .” Appellant’s Reh’g Pet’n p. 9. While Howard v. HMK Holdings, LLC, 988 F.3d 1185 (9th Cir. 2021),

not affect our decision, to be accurate we strike all references to Sanders bringing a claim under the Rehabilitation Act from the original opinion.

Court of Appeals of Indiana | Opinion on Rehearing 23A-EV-1502| August 30, 2024 Page 3 of 5 the case cited in the footnote, is a correct statement of the law, we acknowledge it is not a case dealing with federally subsidized housing as is the instant case.

We recognize that distinction and the fact that the HUD guidelines do not require but rather merely contemplate that parties will engage in an interactive process to discuss the need for accommodation. Astralis Condo. Ass’n v. Sec’y, U.S. Dep’t of Hous. & Urb. Dev., 620 F.3d 62, 68 n.3 (1st Cir. 2010) (citing Joint Statement of Dep’t of Hous. & Urban Dev. & Dep’t of Justice, Reasonable Accommodations Under the Fair Housing Act 7 (May 17, 2004)). As neither the footnote nor its removal has any bearing on our decision, we strike Footnote 1 from our original opinion. [6] Thus, we grant rehearing, modify our opinion by striking references and discussion of any claim under the Rehabilitation Act and striking Footnote 1, and reaffirm our original decision in all other respects.

Riley, J., and Brown, J., concur.

ATTORNEYS FOR APPELLANT Cristin L. Just Indiana Legal Services, Inc. Merrillville, Indiana Andrew T. Thomas Indiana Legal Services, Inc. Fort Wayne, Indiana Rachel E. Hogenkamp Indiana Legal Services, Inc. Indianapolis, Indiana

Court of Appeals of Indiana | Opinion on Rehearing 23A-EV-1502| August 30, 2024 Page 4 of 5 ATTORNEY FOR APPELLEE Kevin E. Werner Crown Point, Indiana

Court of Appeals of Indiana | Opinion on Rehearing 23A-EV-1502| August 30, 2024 Page 5 of 5