Davis v. Lafayette C. Greischar Living Trust, 109,110.

CourtCourt of Appeals of Kansas
Writing for the CourtPER CURIAM.
Citation308 P.3d 31
PartiesClint G. DAVIS, Appellant, v. LAFAYETTE C. GREISCHAR LIVING TRUST, Eileen M. Greischar Living Trust, and LAfayette C. Greischar, Individually and in His Capacity as Trustee, Defendants, and Stanley Stevens d/b/a City Exterminating Company, Appellee.
Docket NumberNo. 109,110.,109,110.
Decision Date13 September 2013

308 P.3d 31

Clint G. DAVIS, Appellant,
LAFAYETTE C. GREISCHAR LIVING TRUST, Eileen M. Greischar Living Trust, and LAfayette C. Greischar, Individually and in His Capacity as Trustee, Defendants,
Stanley Stevens d/b/a City Exterminating Company, Appellee.

No. 109,110.

Court of Appeals of Kansas.

Sept. 13, 2013.

Appeal from Lyon District Court; W. Lee Fowler, judge.
Monte L. Miller, of Miller & Heinman, Chtd, of Emporia, for appellant.

Anthony L. Gosserand, of Van Osdol & Magruder, PC, of Kansas City, Missouri, for appellee.

Before GREEN, P.J., PIERRON, J., and BUKATY, S.J.



Clint Davis sued Stanley Stevens and others for professional negligence in connection with Stevens' termite inspection of a house owned by Davis. Stevens filed a motion for summary judgment on grounds that Davis failed to produce independent expert testimony to establish the relevant professional standard of care. The district court granted the motion, and Davis brings this appeal. He also appeals the district court's refusal to allow him to pursue a breach of contract/warranty cause of action that he listed in his pretrial questionnaire but never formally pled.

We conclude that Davis' claim required the testimony of an expert to establish the proper standard of care for a termite inspector and the district court did not err in granting summary judgment. Nor did the district court abuse its discretion in refusing to allow Davis to pursue his action for breach of contract/warranty. We affirm.


Davis entered into an agreement with the Lafayette C. Greischar Living Trust, the Eileen M. Greischar Living Trust, and Lafayette C. Greischar, individually and as trustee, to purchase property located in Emporia, Kansas. Stevens, doing business as City Exterminating Company, a licensed termite inspector, performed an inspection of the property on March 22, 2010, and produced a written report of that inspection.

Stevens utilized the generally accepted “NPMA–33” form in use for termite inspections in Kansas to make this report. The report indicated that visible evidence of wood destroying insects, i.e., “old damage” and “minor old damage,” was observed in several locations of the property. However, the box for “live insects” on the report was not marked. The report further indicated that there was visible evidence of possible previous treatment. It also provided that the conditions reported on were those that existed on the date of the inspection and the report was “not to be construed as a guarantee or warranty against latent, concealed, or future infestations or defects.” It also noted in bold, italicized, and underlined font that it was not a structural damage report, and that if the box for visible evidence of wood destroying insects was checked, “it should be understood that some degree of damage, including hidden damage, may be present.” It went on to explain that “[i]f any questions arise regarding damage indicated by this report, it is recommended that the buyer or any interested parties contact a qualified structural professional to determine the extent of damage and the need for repairs.”

At the closing on the purchase of the property, Maurice Schmidt with Ek Real Estate turned the inspection report toward Davis and reviewed it with him. He then signed that report and finalized the closing. Davis did not hire or retain the services of a structural inspector prior to closing.

After Davis began remodeling the property, he discovered live termites and structural damage when he tore out the kitchen floor sometime between August 9 and August 13, 2010. Davis called in Jack Koppa of Rainbow Pest Supply, who confirmed that the insects crawling around in the area below the torn-out kitchen floor were termites. Davis testified he also had a building contractor visit the property, who gave him a verbal estimate that the cost to repair the termite damage would exceed the value of the house. Stevens himself came back to Davis' property and, according to Davis' testimony, repeatedly stated, “I can't believe I missed that,” as he walked around looking at the termite damage exposed by the remodeling. Davis said Stevens also told him that it was only the second mistake he had made in 30 years because when he goes into a building he can “feel the presence of termites.” In an affidavit, Schmidt asserted that, in response to his query as to whether Stevens saw boards covering the termite-damaged center beam in Davis' basement, Stevens told him, “ ‘I did see them, I have seen that a thousand times, and I know what it meant, I screwed up.’ “ Schmidt said Stevens further admitted he did not check the exposed bottom side of that beam.

On January 14, 2011, Davis filed a petition alleging he was entitled to rescind his contract due to the misrepresentation and fraudulent concealment of the condition of the property by the sellers the Lafayette C. Greischar Living Trust, the Eileen M. Greischar Living Trust, and the trustee Lafayette Greischar. He also asserted he was entitled to damages from Ek Real Estate for negligent misrepresentation and concealment of the condition of the property and from Stevens for negligent inspection of the property.

During discovery, in response to Stevens' interrogatories asking for a list of expert witnesses expected to be called at trial, Davis responded that he had two witnesses: (1) Jack Koppa, who was designated to testify that “there was and had been for an extended period of time active termite infestation” and (2) Rick Mitchell of Mitchell Markowitz Construction, who was designated to testify that “the structure of the house has so much termite damage that it is not economically feasible to repair.” However, at his deposition, Koppa stated he had not been asked by Davis to provide any opinion testimony of any kind and he was not providing testimony as an expert regarding the contents of Stevens' report or whether Stevens was negligent. He noted he had not seen the report and knew nothing about how Stevens conducted his inspection, so he was not able to provide an opinion about whether the report met the standard of care required of a termite inspector. Koppa further testified he was not retained to give any opinion about how or when the termites got into the property and did not have an opinion about whether termites were present at the time of Stevens' inspection.

Koppa testified at his deposition as to the qualifications and licensure process required in order to become a termite inspector in Kansas, including passing a test to become a certified applicator, training seminars for at least 7 hours every 3 years, and attendance at one seminar each year. He further testified the purpose of the NPMA–33 form is to tell the buyer that if old termite damage is noted on the form, the buyer should look further. He said by filling out such a form, a termite inspector is not guaranteeing or warranting that termites are not in the property because it is possible there can be termites hidden behind obstructions. Koppa also stated in his deposition that as a termite inspector, he does not remove boards, look behind boards, or remove sheeting during his inspection. As such, he said that if the floor in the kitchen had not been torn out, he would not have seen the termites. Finally, he testified it was possible termites were not present on the property during Stevens' inspection in March 2010 but subsequently were present during his own inspection in August 2010.

By the time of the pretrial conference, Ek Real Estate had been dismissed by stipulation of the parties. Davis had never pled breach of contract and implied warranties, but he listed both in his pretrial questionnaire along with negligent inspection as alternative causes of action against Stevens. At the pretrial conference and in its pretrial order, the district court required Davis to elect the negligence theory as the only cause of action he could pursue at trial. The district court did so “based upon the state of the petition here,” noting Davis' amended petition only included a claim for negligent inspection and not breach of contract/warranty.

Later, Stevens moved for summary judgment on grounds that Davis was required to establish the standard of care and breach thereof by the testimony of an expert to establish professional negligence and he had failed to do so. Davis responded that expert testimony was unnecessary because Stevens already admitted he had made a mistake. Davis also claimed the photographic evidence he presented showing the termite damage that was not in Stevens' inspection report blatantly demonstrated a lack of reasonable care, thereby qualifying for the common knowledge exception to the requirement of having an expert to establish the professional standard of care and breach. However, Davis acknowledged in his deposition testimony that four of these five photographs depicted areas that were either covered up at the time of Stevens' inspection or were specifically noted in Stevens' inspection report. The district court found that under Kansas law expert testimony was required to establish Stevens' professional standard of care and Stevens' admissions did not establish that standard. In granting Stevens summary judgment, the court concluded that because Davis had not designated any expert to establish the standard of care, Stevens was entitled to judgment in his favor as a matter of law.

On December 21, 2012, by stipulation of the parties, the district court dismissed Davis' claims against Lafayette C. Greischar individually and as trustee.

Propriety of Summary Judgment

First, Davis argues the district court erred in granting Stevens' motion for summary judgment on the grounds that Davis could not establish a duty of care because (1) the district court itself acknowledged that differing conclusions could result from Stevens' admission of his mistake and (2) the common-knowledge exception applied so that no expert witness...

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