276 P.3d 773 (Kan.App. 2012), 103,952, Golden v. Den-Mat Corp.

Docket Nº103,952.
Citation276 P.3d 773, 47 Kan.App.2d 450
Opinion JudgeATCHESON, J.
Party NameBrenda GOLDEN, Appellant, v. DEN-MAT CORPORATION, a Foreign Corporation, Cerinate Corp., a Foreign Corporation, Den-Mat Holdings, LLC, a Foreign Corporation, and Dr. Carissa M. Gill, Appellees.
AttorneyClifford L. Bertholf, of Wichita, for appellant. David R. Buchanan and Grant D. Henderson, of Brown & James, P.C., of Kansas City, Missouri, for appellees Den-Mat Corporation, Cerinate Corp., and Den-Mat Holdings, LLC. Patrick J. Murphy and James L. (Jay) MowBray, of Wallace, Saunders, Austin, Br...
Judge PanelBefore ATCHESON, P.J., MALONE and McANANY, JJ.
Case DateMay 04, 2012
CourtCourt of Appeals of Kansas

Page 773

276 P.3d 773 (Kan.App. 2012)

47 Kan.App.2d 450

Brenda GOLDEN, Appellant,

v.

DEN-MAT CORPORATION, a Foreign Corporation, Cerinate Corp., a Foreign Corporation, Den-Mat Holdings, LLC, a Foreign Corporation, and Dr. Carissa M. Gill, Appellees.

No. 103,952.

Court of Appeals of Kansas.

May 4, 2012

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Syllabus by the Court

1. A party seeking summary judgment has the obligation to show, based on appropriate evidentiary materials, there are no disputed issues of material fact and judgment may, therefore, be entered in its favor as a matter of law. In essence, the movant argues there is nothing for a jury or a trial judge sitting as factfinder to decide that would make any difference. In addressing a request for summary judgment, the trial court must view the evidence most favorably to the party opposing the motion and give that party the benefit of every reasonable inference that might be drawn from the evidentiary record. An appellate court applies the same standards in reviewing the entry of summary judgment. Because entry of summary judgment amounts to a question of law— it entails the application of legal principles

Page 779

to uncontroverted facts— an appellate court owes no deference to the decision to grant the motion.

2. A plaintiff may advance multiple theories of liability based either on a unitary course of conduct by a defendant or on a single legal injury. A plaintiff may assert some available theories but not others. The plaintiff may pick and choose at his or her discretion so long as the defendant has been fairly apprised of the circumstances.

3. A plaintiff's requested monetary damages do not define the cause of action; rather, the stated cause of action defines the appropriate monetary remedies. A district court should conform the monetary damages to the claims, not the other way around.

4. Under the Uniform Commercial Code (UCC), the 4-year statute of limitations period in K.S.A. 84-2-725(1) for a breach of warranty for the sale of goods typically begins running when the goods are delivered or installed.

5. If a buyer of goods covered [47 Kan.App.2d 451] under the UCC discovers or should have discovered a breach of the contract after accepting the goods, the buyer must notify the seller within a reasonable time, as provided in K.S.A. 84-2-607(3)(a). What constitutes a reasonable time typically presents a question for the trier of fact, taking into account the circumstances of the transaction. The notice requirement should be applied less stringently if the buyer is a consumer rather than a commercial entity and when any delay in giving notice has not prejudiced the seller in remedying the breach or in preparing to defend against a suit for breach.

6. The Kansas Consumer Protection Act (KCPA) aims to protect consumers from unscrupulous business practices and, as remedial legislation, should be read liberally to further that objective. The KCPA's 3-year statute of limitations under K.S.A. 60-512(2) is considered and applied.

7. Article 2 of the UCC applies to contracts for the sale of goods. When a contract includes both goods and services, it is a mixed or hybrid contract for UCC purposes. Kansas uses the predominant purpose test for classifying mixed contracts. The test attempts to discern the principal nature of the transaction: Is the buyer seeking services to which the goods are incidental or is the buyer acquiring goods to which the services are auxiliary? The UCC applies to a contract if the goods predominate over the services.

8. The predominant purpose test for mixed contracts under the UCC looks at and depends upon the factual circumstances of the particular transaction. Given the case-specific inquiry and the factually driven nature of the determination, the issue of predominance of goods or services in a mixed contract is fundamentally one of fact. As such, it typically should be left for the trier of fact rather than resolved on summary judgment.

9. Under the UCC, the creation and breach of express and implied warranties in transactions for goods present questions of fact.

10. An express warranty in a sale of goods under the UCC entails an affirmation of fact or promise a seller makes to a buyer related to the goods that becomes part of the basis of the bargain. The seller need not label the representations as guarantees, warranties, or the like or even intend to create such an affirmation. A seller's oral representation may constitute [47 Kan.App.2d 452] an express warranty. Statements in advertising brochures or other promotional materials may create express warranties. To be warranties, the statements must be of a factual nature about the characteristics or utility of the goods. Mere opinions or general, though unquantifiable, expressions of quality or superiority cannot form the basis of an express warranty.

11. An express warranty once created generally cannot then be limited because, by definition, it has become part of the agreed-upon contract or bargain.

12. Under the UCC, an implied warranty of merchantability essentially requires that goods sold by a merchant satisfy basic standards of quality or acceptability. The seller's obligation under an implied warranty of merchantability depends upon the circumstances of the transaction. Courts consider the reasonable expectations of the ordinary user or purchaser, something based on general consumer expectations regarding the

Page 780

goods rather than the subjective beliefs of the particular buyer. To establish a breach, the buyer must show the ordinary purpose for goods of the type involved in the transaction and the lack of fitness of the goods actually purchased for that purpose.

13. A warranty of merchantability entails some expectation of durability, depending on the circumstances of the transaction and the goods involved. Under the facts of this case, given the nature of veneers as permanent dental appliances intended to improve the cosmetic appearance of the user's teeth, a jury could rationally conclude a buyer would reasonably expect the veneers to remain in place and hold their appearance for some period of time after the sale.

14. Warranties of merchantability apply to the fundamental functions or core attributes of the goods rather than matters of aesthetics or appearance. But under the facts of this case, dental veneers are, by their very purpose, cosmetic. If certain veneers fail of that purpose in a manner atypical of that product generally, they likely would not meet standards of merchantability under the UCC.

15. When a seller has reason to know of any particular purpose for which the goods are required and should understand that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, the transaction includes an implied warranty under the UCC that the goods will be fit for that purpose. Unlike an implied warranty [47 Kan.App.2d 453] of merchantability, an implied warranty of fitness for a particular purpose depends upon communication between buyer and seller regarding a specific transaction. A warranty for a particular purpose is narrower, based on a tailored use of the specific goods known to the seller rather than on an ordinary characteristic or suitability common to goods of that general type.

16. A buyer need not emphasize or bring home to a seller the particular purpose intended for the goods or the buyer's reliance on the seller's skill in choosing among goods to meet that purpose to create an implied warranty of fitness for a particular purpose under the UCC so long as the seller reasonably should understand the buyer's special use and reliance.

17. K.S.A. 50-639 creates a free-standing KCPA violation when a supplier attempts to limit either a UCC warranty of merchantability or a UCC warranty of fitness for a particular purpose and then breaches the warranty in connection with a consumer transaction involving property. Because claims arising under K.S.A. 50-639 are expressly excluded from K.S.A. 50-627, prohibiting unconscionable acts and practices, the limitation of implied UCC warranties does not amount to an unconscionable act or practice.

18. A limitation in an express warranty excluding any other express or implied warranties in a consumer transaction for goods is void under K.S.A. 50-639.

19. The scope of coverage under the Kansas Product Liability Act (KPLA), K.S.A. 60-3301 et seq. , is discussed. Under the facts of this case as developed on summary judgment, the KPLA appears to be inapplicable.

20. A defendant moving for summary judgment on an issue on which it would bear the burden of proof at trial, such as an affirmative defense or an avoidance, must establish those facts necessary for a jury to find in the defendant's favor.

Clifford L. Bertholf, of Wichita, for appellant.

David R. Buchanan and Grant D. Henderson, of Brown & James, P.C., of Kansas City, Missouri, for appellees Den-Mat Corporation, Cerinate Corp., and Den-Mat Holdings, LLC.

Patrick J. Murphy and James L. (Jay) MowBray, of Wallace, Saunders, Austin, Brown & Enochs, Chtd., of Wichita, for appellee Dr. Carissa M. Gill.

Before ATCHESON, P.J., MALONE and McANANY, JJ.

ATCHESON, J.

[47 Kan.App.2d 454] Plaintiff Brenda Golden purchased dental veneers— porcelain overlays meant to improve the appearance of teeth— that Defendant Den-Mat manufactured and marketed and Defendant Dr. Carissa M. Gill, a dentist,

Page 781

put in place. Golden contends the veneers became discolored and stained despite representations from...

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77 practice notes
  • 294 P.3d 1211 (Kan.App. 2013), 108,029, Jones v. Tanks Plus, L.L.C.
    • United States
    • Kansas Court of Appeals of Kansas
    • February 22, 2013
    ...of operative facts" involved in the litigation' [citation omitted]." See Golden v. Den-Mat Corporation, 47 Kan.App. 450, 463, 276 P.3d 773 (2012). As a general rule, " ‘ parties to an action are bound by their pleadings and judicial declarations and are estopped to deny or co......
  • 310 P.3d 1078 (Kan.App. 2013), 109,327, Westfield Ins. Co. v. Harvest Const. Gen. Contracting, Inc.
    • United States
    • Kansas Court of Appeals of Kansas
    • October 4, 2013
    ...appeal). We perceive no factual disputes or evidentiary conflicts material to what we must decide. See Golden v. Den-Mat Corporation, 47 Kan.App.2d 450, 477, 276 P.3d 773 (2012) (In the absence of disputed facts, an appellate court may treat an issue as a question of law even if it otherwis......
  • 386 P.3d 529 (Kan.App. 2016), 114,833, Classico, LLC v. United Fire & Casualty Co.
    • United States
    • Kansas Court of Appeals of Kansas
    • December 16, 2016
    ...the matter independently, with no required deference to the district court's decision. Golden v. Den-Mat Corporation, 47 Kan.App.2d 450, 460, 276 P.3d 773 (2012). On appeal, Classico generally argues that the district court should have not granted summary judgment b......
  • 321 P.3d 780 (Kan.App. 2014), 109,026, Bouton v. Byers
    • United States
    • Kansas Court of Appeals of Kansas
    • March 14, 2014
    ...showing Bouton's claim to be untimely. He must do more than assert Bouton cannot prove otherwise. See Golden v. Den-Mat Corporation, 47 Kan.App.2d 450, Syl. ¶ 20, 276 P.3d 773 (2012) (" A defendant moving for summary judgment on an issue on which it would bear the burden of proof at tr......
  • Request a trial to view additional results
77 cases
  • 294 P.3d 1211 (Kan.App. 2013), 108,029, Jones v. Tanks Plus, L.L.C.
    • United States
    • Kansas Court of Appeals of Kansas
    • February 22, 2013
    ...of operative facts" involved in the litigation' [citation omitted]." See Golden v. Den-Mat Corporation, 47 Kan.App. 450, 463, 276 P.3d 773 (2012). As a general rule, " ‘ parties to an action are bound by their pleadings and judicial declarations and are estopped to deny or co......
  • 310 P.3d 1078 (Kan.App. 2013), 109,327, Westfield Ins. Co. v. Harvest Const. Gen. Contracting, Inc.
    • United States
    • Kansas Court of Appeals of Kansas
    • October 4, 2013
    ...appeal). We perceive no factual disputes or evidentiary conflicts material to what we must decide. See Golden v. Den-Mat Corporation, 47 Kan.App.2d 450, 477, 276 P.3d 773 (2012) (In the absence of disputed facts, an appellate court may treat an issue as a question of law even if it otherwis......
  • 386 P.3d 529 (Kan.App. 2016), 114,833, Classico, LLC v. United Fire & Casualty Co.
    • United States
    • Kansas Court of Appeals of Kansas
    • December 16, 2016
    ...the matter independently, with no required deference to the district court's decision. Golden v. Den-Mat Corporation, 47 Kan.App.2d 450, 460, 276 P.3d 773 (2012). On appeal, Classico generally argues that the district court should have not granted summary judgment b......
  • 321 P.3d 780 (Kan.App. 2014), 109,026, Bouton v. Byers
    • United States
    • Kansas Court of Appeals of Kansas
    • March 14, 2014
    ...showing Bouton's claim to be untimely. He must do more than assert Bouton cannot prove otherwise. See Golden v. Den-Mat Corporation, 47 Kan.App.2d 450, Syl. ¶ 20, 276 P.3d 773 (2012) (" A defendant moving for summary judgment on an issue on which it would bear the burden of proof at tr......
  • Request a trial to view additional results

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