Hewitt v. Kirk's Remodeling

• Decision Date: 11 October 2013
• Docket Number: No. 108,159.,108,159.
• Citation: 49 Kan.App. 506,310 P.3d 436
• Parties: George HEWITT, et al., Appellants, v. KIRK'S REMODELING AND CUSTOM HOMES, INC., Appellee.
• Court: Kansas Court of Appeals

49 Kan.App. 506

310 P.3d 436

George HEWITT, et al., Appellants,

v.KIRK'S REMODELING AND CUSTOM HOMES, INC., Appellee.

No. 108,159.

Court of Appeals of Kansas.

Oct. 11, 2013.

Syllabus by the Court

1. An action upon any agreement, contract, or promise in writing shall be brought within 5 years. K.S.A. 60–511(1).

2. As a general rule, a cause of action accrues as soon as the right to maintain a legal action arises. For purposes of the statute of limitations, the test to determine when an action accrues is that point at which a plaintiff could have first filed and prosecuted an action to a successful conclusion.

3. A party seeking damages for a breach of warranty must prove the warranty, the breach thereof, and the loss that resulted from the breach.

4. For purposes of K.S.A. 60–511(1), a cause of action based upon a builder's express warranty to repair or replace construction defects in a newly built house must be brought within 5 years of the date the builder breached the warranty by refusing or failing to repair or replace the defects.

Mark D. Murphy, of The Murphy Law Firm, LLC, of Overland Park, for appellants.

Leonard K. Frischer and Kenneth J. Morton, of Frischer & Schaffer, Chartered, of Overland Park, for appellee.

Before BRUNS, P.J., GREEN and BUSER, JJ.

BUSER, J.

This appeal involves a contractual dispute between a home builder, Kirk's Remodeling and Custom Homes, Inc. (Kirk's), and the homeowners, George and Vicki Hewitt (the Hewitts). The Hewitts purchased their newly built home from Kirk's. Upon completion of the construction, Kirk's gave the Hewitts an express warranty that promised to provide a house free from defects in materials or workmanship; Kirk's also promised that if defects arose during the 1–year warranty period, Kirk's would repair or replace the defects. Immediately prior to the expiration of the warranty period, in keeping with the contract, the Hewitts gave Kirk's written notice of construction defects. Kirk's failed to repair or replace the defects.

More than 5 years after Kirk's provided the Hewitts with the express warranty, but less than 5 years after the Hewitts gave Kirk's written notice of the construction defects, the Hewitts sued Kirk's for breach of contract. Kirk's filed a motion for summary judgment contending the Hewitts had commenced their lawsuit beyond the 5–year statute of limitations for breach of contract actions. The district court agreed with Kirk's and granted summary judgment.

As discussed below, we believe the district court erred in finding the Hewitts did not commence their lawsuit within the statute of limitations. We hold, for purposes of K.S.A. 60–511(1), that a cause of action based upon a builder's express warranty to repair or replace construction defects in a newly built house must be brought within 5 years of the date the builder breached the warranty by refusing or failing to repair or replace the defects. Accordingly, we reverse the district court's summary judgment in favor of Kirk's and remand for further proceedings.

Factual and Procedural Background

Donnie Kirk, the president of Kirk's, provided an affidavit in support of summary judgment. He alleged that on January 21, 2003, Kirk's entered into a contract with the Hewitts to build a house in Miami County. The contract, showing signatures and that date, was attached to Kirk's motion for summary judgment. The contract provided for a “walk-thru inspection ... prior to final settlement.” It also provided that “[a] construction warranty will be given to the [Hewitts] at signing of contract and will be signed when final walk through is made.”

Kirk's alleged as an uncontroverted fact that it “contracted with” Brick Doctor and Brant Jones Masonry “as agents of the Hewitts, and/or for intended benefit of the Hewitts.” Kirk's alleged that “Brick Doctor and [Brant] Jones Masonry both worked on the bricks and masonry on the house, and failed to perform their work in a workmanlike manner.” The Hewitts only asserted that Brick Doctor and Brant Jones Masonry were each “Kirk's subcontractor.”

Regardless, Donnie's affidavit averred that “[o]n or about December 12, 2003, [the Hewitts] and Kirk's ... entered into the warranty for the ... home.” Kirk's also attached to its summary judgment motion the construction warranty along with a “Home Enrollment” form signed by the parties, which described it as an “Express Limited Warranty.” The warranty had an “Effective Date” of December 12, 2003.

The warranty provided in relevant part:

“Kirk's ... is the warrantor under this limited warranty and agrees to the following terms and condition[s]....

“I. WHAT IS COVERED

“A. During this one year Warranty Term, which commences ... as indicated on the Home Enrollment form, [ Kirk's ] (the builder) warrants that this housing unit will be free from:

1. Defects in materials or workmanship as defined in the Construction Quality Standards....

2. Defects in the electrical, plumbing and mechanical systems as defined in the Construction Quality Standards.

....

“II. WHAT KIRK'S ... WILL DO

“ If a defect occurs on an item during the applicable Warranty Term which is covered by this warranty, Kirk's ... will repair, replace or pay [ the Hewitts ] the reasonable cost of repairing or replacing the defective item. Kirk's ... total liability under this warranty is limited to the final sales price of the home as indicated on the applicable forms. The choice to repair, replace, or pay any combination thereof is solely that of Kirk's.... Any repair or replacement shall not extend the Warranty Term.

“III. WHAT [THE HEWITTS] MUST DO

“If [the Hewitts] should have a complaint on any item covered by this warranty during the applicable Warranty Term, [the Hewitts] must send to Kirk's ... a clear and specific written complaint. The written notice must be received by Kirk's ... no later than seven days after the expiration of the Warranty Term. With the exception of an emergency problem, [the Hewitts] should wait an initial 30 days after the Warranty Term begins to report any defects as defined in the Construction Quality Standards. This is to allow time ... to become familiar with the housing unit.” (Emphasis added.)

The construction quality standards were set forth in a separate section of the warranty. A preface to the section stated: “The following Construction Quality Standards are expressed in terms of required standards that the Builder's construction must meet. Non-compliance with these construction standards calls for corrective action by Kirk's.”

It is uncontroverted that nearly 1 year after the warranty's effective date of December 12, 2003—December 11, 2004—the Hewitts sent Kirk's a letter regarding “Outstanding Warranty Items.” In relevant part, the letter stated: “In accordance with our Warranty of December 12, 2003, we are providing a punch list of outstanding warranty items which require attention.” The Hewitts acknowledged that “[s]ome of the items on the attached punch list have been somewhat corrected.” The Hewitts, therefore, specified the items Kirk's had corrected and those it had not, and they asked Kirk's to “[p]lease get with us as soon as possible on these matters.”

Included in the written notice was reference to construction defects in the home's brickwork:

“1. Unsightly and Problematic Brickwork. The leaks in the basement have been repaired on the North and South side of our home by removing brick; and flashing and sealing around the support beam pockets. This was a matter of neglect by your first Subcontractor, The Brick Doctor. We still need the brick problem taken care of near the front door causing leaks in the basement. When removing a small section of the brick on the North and South side of our home, your second brick Subcontractor, Brant Jones, mentioned that he saw brick ties and felt paper. However as Mr. Jones indicated in the conclusion of his letter of November 15, 2003, removing all of the brick and relaying new bricks correctly would be the only totally reliable solution to this problem job. Since Mr. Jones discovered that no felt or other waterproofing material was used above the garage door when removing a 50 to 60 foot section of brick, we are still not certain that felt or waterproofing was used completely around our home.”

Kirk's did not repair or replace the defective brickwork or pay the Hewitts to repair or replace it. On June 26, 2008, the Hewitts filed a lawsuit against Kirk's and other entities. Kirk's was served on January 31, 2009, and it eventually moved for summary judgment.

In its motion for summary judgment, Kirk's contended the Hewitts had commenced their contract claim beyond the 5–year statute of limitations provided in K.S.A. 60–511(1). Arguing that “[a] breach of warranty occurs on the date of sale and delivery,” Kirk's cited several cases in support including Voth v. Chrysler Motor Corporation, 218 Kan. 644, 545 P.2d 371 (1976), and Freeto Construction Co. v. American Hoist & Derrick Co., 203 Kan. 741, 457 P.2d 1 (1969).

The Hewitts responded to Kirk's motion:

“The statute of limitations could only begin running when the Hewitts notified Kirk's of the defective brickwork. An express warranty like the one provided by Kirk's ..., by its very terms, contemplates that the contractor would have an opportunity to repair or replace any defective items. If the contractor does so, then the express warranty is not breached.”

In support of their argument, the Hewitts cited Feinour v. Ricker Co., 255 Ga.App. 651, 566 S.E.2d 396 (2002).

The district court granted Kirk's motion for summary judgment. In its decision, the district court cited Freeto Construction Co. and reasoned:

“[The Hewitts'] argument that the agreement promises replacement is correct, as this clause directs what [Kirk's] will do if the warranty is breached. What [the Hewitts] fail to acknowledge in their argument is that before [Kirk's] is obligated to repair, replace or pay, he [ sic ] must have delivered a defective...