Enlow v. Sears, Roebuck and Co., 66029

Decision Date06 December 1991
Docket NumberNo. 66029,66029
Citation249 Kan. 732,822 P.2d 617
PartiesBernice A. ENLOW, Appellant, v. SEARS, ROEBUCK AND CO., A Corporation, Third-Party Plaintiff/Appellee, v. Vernon T. WHITE, et al., Third-Party Defendants.
CourtKansas Supreme Court

Syllabus by the Court

1. The trial court, when ruling on a motion for a directed verdict pursuant to K.S.A.1990 Supp. 60-250, is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury.

2. An appellate court, when reviewing a trial court's decision regarding a motion for a directed verdict pursuant to K.S.A.1990 Supp. 60-250, must apply the same rule as the trial court. If evidence is such that reasonable minds could reach different conclusions, the verdict should be reversed.

3. An issue not raised before the trial court may not be raised for the first time on appeal.

4. Breach of contract damages are limited to those damages which may fairly be considered as arising in the usual course of things, from the breach itself, or as may reasonably be assumed to have been within the contemplation of both parties as the probable result of the breach.

5. Kansas law does not recognize an intentional tort of refusing to restore a house to a habitable condition.

6. The plaintiff has the burden of presenting evidence that supports a claim of punitive damages.

7. A verdict for actual damages is a prerequisite to the award of punitive damages.

8. The issue of damages should not be submitted to the jury if no evidence has been presented to support an award of damages.

9. Rulings on admissibility of evidence fall within the sound discretion of the trial court. Thus, one attacking evidentiary rulings must show abuse of discretion. An abuse of discretion exists only when no reasonable person would take the view adopted by the trial court.

10. Pursuant to K.S.A. 60-405, a verdict will not be set aside nor a judgment reversed by reason of the erroneous exclusion of evidence unless it appears the complaining party proffered the excluded evidence.

11. Rebuttal evidence can be introduced only after the parties have closed their case in chief and is limited to issues placed in conflict by the adverse party. It is clearly within the discretion of the trial court to determine whether rebuttal evidence is admissable, and the ruling of the court will not be grounds for reversal unless it appears the discretion has been abused to the prejudice of the complaining party.

12. Kansas Supreme Court Rule 6.02(e) (1990 Kan.Ct.R.Annot. 25) requires that an appellant's brief include the arguments and authorities relied upon.

13. So long as the verdict manifests the intention and findings of the jury upon the issues submitted to it, the verdict will not be overturned merely because of defects in form.

Rodney C. Olsen of Morrison, Frost & Olsen, Manhattan, argued the cause and was on the brief for appellant.

Mark L. Bennett, Jr. of Bennett & Dillon, Topeka, argued the cause and was on the brief for plaintiff/appellee.

HERD, Justice:

Bernice A. Enlow brings this action for breach of contract, breach of warranties, negligence, and violation of the Kansas Consumer Protection Act against Sears, Roebuck and Company (Sears), based upon an agreement between the parties that Sears would replace the roof of Enlow's house. Following a trial to a jury resulting in a verdict for Sears, Enlow appeals.

FACTS

On July 21, 1987, Enlow entered into a contract with Sears for certain roof repairs to Enlow's house in Manhattan. The contract also provided that Sears was not responsible for delays in delivery or installation due to weather, fire, strikes, war, governmental regulations, or any causes beyond its control.

At the time the contract was executed, Sears had an independent qualified roof installer available to perform roofing repair and installation services for Sears. Subsequent to the execution of the contract, the roofer advised Sears he would not accept the Enlow roofing repair job because of the steepness of her roof. Sears then located another qualified roofing contractor, Vernon "Ted" White, to repair Enlow's roof.

White commenced working on Enlow's roof on or about October 18, 1987. He initially worked for two days, completing the roof on the porch of Enlow's house. White then left Enlow's job to complete another job. White returned to Enlow's residence on October 30, 1987. On that day, White and his crew removed a portion of the roof of Enlow's house. At nightfall they covered the opening in the roof with plywood, felt paper, and visquine. The crew left, intending to continue the next day. That night, a heavy rainstorm accompanied by strong winds occurred in Manhattan. The felt paper and visquine were torn off the roof allowing water to enter the interior of Enlow's house. As a result water damaged the paint and wallpaper on the ceilings and walls and damaged the kitchen floor.

The morning following the storm Enlow called White and Sears' employees Ed Weston and Jerry Riggs about the damage to her house. White arrived at Enlow's house and, while attempting to repair the cover on the roof, slipped and fell off the roof, breaking his wrist. Within a few days White and Sears obtained another roofer, who then completed Enlow's roof repair. Weston assured Enlow that Sears would take care of the water damage to the interior of her house at Sears' expense. White also advised Enlow that he would see to it that the water damage to her house was taken care of at his expense. White and Weston then contacted an interior decorator, Jerry Haeffner, to prepare a proposal and get started on making repairs to Enlow's house. Haeffner's repair proposal was presented to Enlow, and Weston requested permission to instruct Haeffner to begin work. Enlow initially agreed to have Haeffner perform the work. Later, however, Enlow changed her mind and refused to permit the work to commence.

Because Enlow would not permit Sears to begin any repairs and believed her house was not habitable until repairs were made, Sears agreed to pay for Enlow, her daughter, and her sister to live at the Holidome in Manhattan, until such time as an agreement could be reached and the house repairs completed. Enlow, her daughter, and her sister resided at the Holidome from October 31, 1987, until January 15, 1988, at Sears' expense. Throughout that two and one-half month period, Enlow refused to authorize Sears to cause repairs to her house to commence. Eventually, Enlow selected a contractor of her own choosing to do the work, he began work in early January 1988.

Enlow believed the insulation in the attic and walls was water damaged. Enlow, therefore, hired Donald Rose to inspect the insulation and prepare a proposal for the insulation repair work.

Enlow also contended the electrical system in her house had been permanently damaged and communicated her concern to Weston of Sears. Enlow believed the water damage required the house to be completely rewired and, therefore, obtained a bid for the rewiring from an electrician, Ed Gifford. In July 1989, Gifford walked through Enlow's house and visually observed the outlets, fixtures, and switches in order to prepare his bid. Gifford did not inspect the wiring itself.

Immediately following the rainstorm and prior to Gifford's inspection, Sears had the electrical system inspected by Charlie Johnson, who determined there was no permanent damage to the wiring as a result of the water getting into the house. After Gifford's bid preparation, Sears had the electrical system in the house inspected by two electrical experts: Elmer Warren, the president of McElroy Electric, and Jerry Vineyard, a licensed electrical engineer. Both of these experts thoroughly examined the wiring itself, connections, various circuits, and the breaker box and fuse panel. Warren and Vineyard concluded there was no damage to Enlow's electrical system as a result of its being exposed to water.

During the trial, at the conclusion of Enlow's evidence, Sears moved to dismiss Enlow's claims for: (1) damage to the insulation; (2) damage to the electrical system; (3) violation of the Kansas Consumer Protection Act (KCPA); (4) punitive damages; (5) negligence in the actual installation of the roof; (6) breach of implied and express warranty; and (7) breach of contract. Following oral arguments, the trial court found Enlow's claims for punitive damages should be dismissed. In addition, the trial court ruled Enlow's breach of contract claim should be dismissed as a matter of law.

At the conclusion of all the evidence, Sears renewed its motions to dismiss Enlow's claims for (1) damage to the insulation; (2) damage to the electrical system; (3) violation of the KCPA; (4) negligence in the actual installation of the roof; (5) breach of implied and express warranty; and (6) intentional tort. The trial court granted Sears' motion to dismiss the claim for damages to the electrical system. The trial court also granted a portion of Sears' motion to dismiss the claims for violations of the KCPA. Specifically, the trial court dismissed that portion of the KCPA claim that contended a violation occurred at the time Sears entered into the contract with Enlow because Sears did not have qualified personnel immediately available to perform the work. Additionally, the trial court dismissed that portion of Enlow's KCPA claim which alleged Sears had intentionally delayed or failed to repair or restore the damaged premises to their original condition. Finally, the trial court granted Sears' motion to dismiss Enlow's intentional tort claim.

After the trial court read instructions to the jury, the case was submitted to the jury on the remaining claims. During deliberations, the jury requested to see the...

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