Cafer v. Ash

Citation353 P.3d 469 (Table)
Decision Date26 June 2015
Docket Number112,155.
PartiesDouglas CAFER and Sheri Cafer, Appellants, v. Douglas E. ASH d/b/a American Home Builders, Appellee.
CourtCourt of Appeals of Kansas

353 P.3d 469 (Table)

Douglas CAFER and Sheri Cafer, Appellants
Douglas E. ASH d/b/a American Home Builders, Appellee.


Court of Appeals of Kansas.

June 26, 2015.
Review Granted Feb. 19, 2016.

James B. Biggs, of Cavanaugh, Smith & Lemon, P.A., of Topeka, for appellants.

Mark B. Schaffer, of Frischer & Schaffer, Chtd., of Overland Park, for appellee.




In 2003, Douglas and Sheri Cafer hired Douglas Ash, d/b/a/ American Home Builders (Ash), to build their house in unincorporated Shawnee County. Douglas and Ash wrote the contract themselves. The contract was short and missing plans that were supposed to be attached. After a payment dispute arose in 2004, Ash quit. The Cafers moved into their unfinished house and sought new contractors to complete it. They immediately noticed water problems throughout the house and deck but could never find the source. After hiring an expert to inspect their house in 2009, the Cafers determined the water damage was due to Ash's failure to build their house according to the contract and with workmanlike performance.

In 2010, they filed a petition against Ash alleging breach of contract. The parties filed multiple motions. Ultimately, all of the Cafers' claims against Ash were dismissed in the orders addressing the three summary judgment motions.

The Cafers claim many errors in the underlying proceeding. The record reveals the district court properly dismissed most of the claims in summary judgment proceedings. However, the record also reveals the court failed to consider an important piece of evidence when determining whether there was a genuine issue of material fact as to the meaning of “building jurisdiction.” Because a review of the record indicates that piece of evidence does raise a genuine issue of material fact thus precluding summary judgment, summary judgment as to the meaning of the term must be reversed.

The facts are as follows. In 2003, the Cafers wanted to build a house on land in unincorporated Shawnee County. No area building codes were applicable to the construction of their house. They wanted a particular style of house—one built with structurally insulated panels (SIP). SIPs are “high performance building panels used in floors, walls, and roofs for residential ... buildings.” They are “typically made by sandwiching ... insulation between two structural skins of oriented strand board.” The panels are manufactured in a factory and are customizable. They are supposed to create an “extremely strong, energy efficient, and cost effective” house. SIP houses have specific construction requirements provided for by the panel manufacturer.

The Cafers attended a home show in February 2003 and met Ash. Ash indicated he had experience with SIP houses. The Cafers selected Ash to build their SIP house.

On September 10, 2003, the Cafers and Ash executed a building contract. Ash and Douglas Cafer drafted the contract themselves. The contract was very brief and included the following provisions relevant to this appeal:

“1. [The Cafers] ... authorize[ ][Ash] ... to construct and deliver to [the Cafers] a dwelling in accordance with the plans and specifications which are attached hereto and made part hereof....
“5. [Ash] shall commence construction of the house in accordance with the attached plans and specifications after the construction loan has closed....
11. This contract constitutes the sole and entire agreement between the parties hereto and no modifications of this contract shall be binding unless attached hereto and signed by all parties to the agreement. No representation, promise, or inducement to this agreement not included in this contract shall be binding on any party hereto.”

However, no plans or specifications were attached to the contract. Only some blueprints from the architect were in the room when they signed the contract. But it appears the intention of the parties was for Ash to select a SIP manufacturer sometime later and then attach the building plans from the SIP manufacturer to the contract.

Ash eventually selected Premier Building Systems (Premier) as the panel manufacturer. He provided the Cafers with the plans from Premier in January 2004.

Ash performed under the contract until November 2004. When a dispute about payments arose, Ash walked off the project. The Cafers moved into their incomplete house around the same time. By the spring of 2005, the Cafers realized Ash would not be returning to finish their house. The Cafers said they began noticing water leaks during the construction of the house. They could not identify the source.

On August 19, 2005, Ash filed for bankruptcy. He was discharged from bankruptcy on November 29, 2005.

The water problems in the Cafers' house continued. There were also problems with the deck. In the summer of 2009, they hired Mark Lewis, the owner of a construction company, to inspect and repair their house. Lewis tore off the exterior siding and stucco and noticed substantial wood rot throughout the exterior of the house. The Cafers and Lewis then contacted Michael Morley, an SIP expert and builder to assess the cause of the damage and the options for repairing it. Lewis and Morley determined the damage to the house was caused by the lack of a proper vapor barrier applied to the house. A vapor barrier should have been installed over the subpanels of the Cafers' house to prevent moisture from getting in through the porous stucco finish. Therefore, the Cafers concluded the damage was Ash's fault because he failed to apply a proper vapor barrier to their house, allegedly in breach of their contract.

There does not appear to be any expert testimony regarding the causation of the damage to the deck, though the Cafers contend it was Ash's failure to put endcaps on the deck as required by the deck manufacturer that caused the deck to rot.

Because Ash had filed bankruptcy, the Cafers first filed motions with the bankruptcy court in October 2009 requesting permission to proceed against Ash to the extent he had available insurance assets. At the same time they also sent a letter to Ash indicating their intent to pursue available remedies based on Ash's alleged breach of contract. On December 21, 2009, the bankruptcy court granted the request.

On February 3, 2010, the Cafers filed a petition against Ash based on the contract between the two parties for Ash to build the Cafers' house. The Cafers made the following claims against Ash:

“[Ash] failed to construct the dwelling in accordance with industry standards and pursuant to the plans and specifications causing damage to the Cafers' dwelling.
“[Ash] failed to construct the deck at the dwelling pursuant to construction industry standards and per the specifications and plans, resulting in the deck buckling and causing damage to the Cafers' dwelling.
“[Ash] breached his contract to [the Cafers] by failing to construct the dwelling pursuant to industry standards and per the specifications and plans provided to defendant.”

The Cafers attached the contract and other documents to the petition but did not attach any additional plans they later argued were intended to be a part of the contract. Ash answered on March 5, 2010. He acknowledged the basic facts that they had a contract and he performed until a financial dispute arose, but denied many of the allegations and indicated he did not have enough facts to respond to others.

In January 2011, the Cafers provided their designation of expert witnesses. They indicated both Morley and Lewis would be experts testifying about the cause of the damages and the extent of the damage to the house. Gregory Allen was also later designated as an expert for the Cafers.

Douglas and Sheri were deposed on January 27, 2011. Morley was deposed on November 20, 2013; Allen was deposed on December 6, 2013; and Lewis was deposed on December 20, 2013.

Ash was deposed on February 11, 2011. He testified in part that he had installed house wrap or vapor barrier as instructed by a Mr. Vanscoy, a Premier representative.

Only the portions of the depositions the parties attached to motions in the underlying proceedings are included in the record on appeal.

On April 11, 2011, Ash filed his first motion for partial summary judgment and his memorandum in support (Motion 1). In Motion 1, Ash only challenged any claims made against him by the Cafers on the basis of “breach of unwritten contract, breach of implied warranty of workmanlike performance, or breach of any other implied or unwritten warranty, liability or obligation.” On June 27, 2012, the district court issued its order regarding Motion 1, finding the 3–year statute of limitations applied and had expired when the Cafers initiated their suit against Ash.

All claims for breach of contract based on unwritten or implied claims therefore had been adjudicated and all that remained was the Cafers' claim against Ash for breach of contract of the written terms.

On August 22, 2012, Ash filed a motion for summary judgment as to the remaining breach of contract...

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1 cases
  • Coshocton Grain Co. v. Caldwell-Baker Co.
    • United States
    • U.S. District Court — District of Kansas
    • August 22, 2017
    ...can be admitted to establish the parties' intent as to the meaning of the term at the time they signed the contract." Cafer v. Ash, 353 P.3d 469, 2015 WL 4366541, at *11 (Kan. Ct. App. June 26, 2015), review granted (Kan. Feb. 19, 2016). At trial, CBC elicited copious testimony about what t......

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