Stechschulte v. Jennings, No. 100,648.

CourtUnited States State Supreme Court of Kansas
Writing for the CourtThe opinion of the court was delivered by BEIER
Citation298 P.3d 1083,297 Kan. 2
PartiesDaniel J. STECHSCHULTE, Jr., Satu S.A. Stechschulte, and The Daniel J. Stechschulte, Jr., Revocable Trust, Appellants, v. A. Drue JENNINGS, A. Drue Jennings Revocable Trust Dated October 31, 2002, Emily A. (Golson) Jennings, and PHB Realty Company, L.L.C., Appellees.
Decision Date12 April 2013
Docket NumberNo. 100,648.

297 Kan. 2
298 P.3d 1083

Daniel J. STECHSCHULTE, Jr., Satu S.A. Stechschulte, and The Daniel J. Stechschulte, Jr., Revocable Trust, Appellants,
v.
A. Drue JENNINGS, A. Drue Jennings Revocable Trust Dated October 31, 2002, Emily A. (Golson) Jennings, and PHB Realty Company, L.L.C., Appellees.

No. 100,648.

Supreme Court of Kansas.

April 12, 2013.


[298 P.3d 1086]



[297 Kan. 2]Syllabus by the Court

1. A district court judge may not decide disputed issues of material fact on summary judgment, even if the claims sound in equity rather than law.

2. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences that may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the court applies the same rules. When the appellate court finds that reasonable minds could differ

[298 P.3d 1087]

as to the conclusions drawn from the evidence, summary judgment must be denied.

3. The Buyer Acknowledgment in the residential real estate seller's disclosure form at issue in this case merely protects the seller and his or her broker from the buyer's later argument that the seller made oral representations upon which the buyer relied. It does not protect a seller or broker from the buyer's lawsuit based on representations and failure to disclose in the form itself or relieve a seller of the obligation to make accurate and complete disclosures, and both contract and reliance-based tort and Kansas Consumer Protection Act claims are not subject to summary judgment.

4. A buyer of residential real estate may qualify as an “aggrieved consumer” under the Kansas Consumer Protection Act. K.S.A. 50–634.

5. The reasonableness of a home inspection, as true of the existence of fraud generally, poses a question of fact for trial.

[297 Kan. 3]6. New opinions of the Kansas Supreme Court generally are binding on all other future cases and all cases still pending on appeal when the new opinions are filed. An exception may be made when (1) the new opinion establishes a new rule of law; (2) retroactive application would not further the principle on which the new opinion is based; and (3) retroactive application would cause substantial hardship or injustice. Neither the decision in Osterhaus v. Toth, 291 Kan. 759, 249 P.3d 888 (2011), nor the defendant seller in this case qualify for application of the exception.

7. In this case, genuine issues of material fact exist on the plaintiff buyers' fraudulent inducement, fraud by silence, negligent misrepresentation, and breach of contract claims against the defendant seller and against the defendant trust.

8. The Brokerage Relationships in Real Estate Transactions Act (BRRETA), K.S.A. 58–30,101 et seq., does not eliminate the possibility of a common-law cause of action against a real estate agent or broker for negligent misrepresentation. It merely requires evidence of the agent's or broker's actual knowledge of an otherwise undisclosed adverse material fact about the subject property; that knowledge need not have been acquired through personal observation or experience, as one also has actual knowledge sufficient to meet the statutory requirement when the knowledge is acquired from another person or document. The agent or broker is not charged with responsibility for acquiring adverse information independently, only with competently passing on what is known. In this way, BRRETA does protect agents and brokers from common-law liability arising out of negligent acquisition of information but not negligent communication or failure to communicate information. In this case, the common-law duty under Restatement (Second) of Torts § 552 (1976) and Mahler v. Keenan Real Estate, Inc., 255 Kan. 593, 876 P.2d 609 (1994), was reinforced by the duty undertaken by the defendant real estate agent in her agency agreement with seller, in which the agent promised to inform potential buyers of material defects in the home of which she had actual knowledge. Genuine issues of material fact exist on the plaintiff buyers' negligent misrepresentation claim against the agent and the respondeat superior liability of her defendant broker.

9. K.S.A. 50–625(a) provides that a consumer cannot waive or forego rights under the Kansas Consumer Protection Act.

[297 Kan. 4]10. In this case, genuine issues of material fact exist on the plaintiff buyers' Kansas Consumer Protection Act claims against the defendant real estate agent for seller and against the defendant brokerage company.

11. Standing is a component of subject matter jurisdiction that may be raised for the first time on appeal. An inadequate record on appeal to support challenges to plaintiffs' standing may be developed on remand to the district court and the challenges renewed by one or more defendants or sua sponte by the judge.


Brian J. Niceswanger, of McDowell, Rice, Smith & Buchanan, P.C., of Overland Park, argued the cause, and Dana P. Niceswanger and Greg T. Spies, of the same firm, were with him on the briefs for appellants.

[298 P.3d 1088]

Alan E. Streit, of Larson & Blumreich, Chtd., of Topeka, argued the cause and was on the briefs for appellees Emily A. Jennings and PHB Realty Company, L.L.C.


Andrew M. DeMarea, of Polsinelli Shughart PC, of Overland Park, R. Dan Boulware, of St. Joseph, Missouri, and Herber O. Gonzalez, of Kansas City, Missouri, were on the briefs for appellees A. Drue Jennings and A. Drue Jennings Revocable Trust Dated October 31, 2002.

Vernon L. Jarboe, of Sloan, Eisenbarth, Glassman, McEntire & Jarboe, L.L.C., of Topeka, was on the brief for amicus curiae Kansas Association of Realtors.

The opinion of the court was delivered by BEIER, J.:

The core issue of this appeal is the legal effect of a “Buyer Acknowledgment” in a residential real estate seller's disclosure form. Does it limit or destroy the buyer's ability to pursue the seller, the seller's agent, and the agent's brokerage firm for breach of contract, fraudulent inducement and fraud by silence, negligent misrepresentation, and/or violations of the Kansas Consumer Protection Act (KCPA)? As we detail below, our resolution of this question picks up where we left off in Osterhaus v. Toth, 291 Kan. 759, 249 P.3d 888 (2011), and we hold that the district [297 Kan. 5]court judge's summary judgment in favor of all defendants on all claims must be reversed and the entire case remanded for further proceedings.

Evidence in Record

The record before us contains evidence to support the following:

In May 1998, defendant A. Drue Jennings purchased a new home in Leawood. He began residing in the house in October 1998.

Four years later, in August 2002, Jennings contacted the builder of the home, William Brimacombe, about water leaks. Jennings told Brimacombe about a leak in the living room ceiling, and Brimacombe contacted Gentry Roofing to inspect the roof. Brimacombe also visited the house and observed water stains on the ceiling. The roofing inspection did not reveal a source of the leaks, and Brimacombe advised Jennings to have the windows of the home inspected.

By late October 2002, defendant A. Drue Jennings Revocable Trust took title to the home. Jennings served as trustee.

In January 2003, Jennings contacted Brimacombe again about another water leak, and Brimacombe came out to the home to inspect it, along with representatives of Gentry Roofing. The Gentry representatives observed water stains on the window sills in an upstairs loft. Brimacombe told Jennings again to have the home's windows inspected.

Jennings contacted the window subcontractor, Morgan–Wightman Supply Company, who in turn hired Excel Window & Door, Inc., to inspect the windows. Excel made eight visits to the home between August 2002 and September 2004 to evaluate leaks and/or repair windows in the home.

In August 2002, Jennings told Chris Whorton from Excel that he had noticed leaking all over the home and pointed out three areas he believed had experienced the worst leaks. Whorton observed water and dirt stains from the water leakage. During another visit, Jennings showed Whorton water stains under a section of carpet that extended approximately 2 feet from a window, along with another stain several feet from the window. Whorton told [297 Kan. 6]Jennings he could either caulk all the windows or remove the trim from the home to find the source of the water problems. Jennings elected to caulk all the windows. Whorton informed Jennings that caulking the windows was a temporary “Band Aid” solution.

Excel performed two water tests on the home, one in August 2002 and another in September 2003. Jennings was present during both tests. The August 2002 test showed one window leaked between the casing and trim. The September 2003 test showed that window frame corners were leaking.

In September 2002, Jennings paid Excel $2,650 to caulk all of the windows and doors in the home, to caulk between the cedar and stucco exterior, and to caulk between the cedar and the doors and windows. Whorton testified that Jennings paid for the caulking because it was “a maintenance issue.”

[298 P.3d 1089]

In May 2003, Jennings hired and paid a painter to paint the area on the living room ceiling and trim where water had leaked the prior year.

Whorton again visited the home in September 2003, and Jennings told him that all of the windows were defective and needed to be replaced. Whorton told Jennings that he would pass the information along to Morgan–Wightman, but that it was not...

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159 practice notes
  • Hill v. State, No. 114,403
    • United States
    • United States State Supreme Court of Kansas
    • September 6, 2019
    ...Civil Service Act arguments implicate subject matter jurisdiction, which we have an independent duty to examine. Stechschulte v. Jennings , 297 Kan. 2, 29, 298 P.3d 1083 (2013). Accordingly, we address this despite the defendants' silence on review. Subject matter jurisdiction is a question......
  • Gannon v. State, No. 109,335.
    • United States
    • United States State Supreme Court of Kansas
    • March 7, 2014
    ...i.e., justiciability, it is also a component of subject matter jurisdiction that may be raised at any time. Stechschulte v. Jennings, 297 Kan. 2, 29, 298 P.3d 1083 (2013). The question of standing is one of law over which this court's scope of review is unlimited. Cochran, 291 Kan. at 903, ......
  • Simpson v. City of Topeka, No. 114,484
    • United States
    • Court of Appeals of Kansas
    • October 14, 2016
    ...merit, their negligent misrepresentation claim cannot survive given that no damages can be established. See Stechschulte v. Jennings , 297 Kan. 2, 22, 298 P.3d 1083 (2013) (elements of negligent misrepresentation claim include damages). The same is true for their KWPA claims. Even if severa......
  • Hernandez v. Pistotnik, 121,593
    • United States
    • Court of Appeals of Kansas
    • July 23, 2021
    ...the invocation of jurisdiction and justify exercise of the court's remedial powers on his or her behalf.’ " Stechschulte v. Jennings, 297 Kan. 2, 29, 298 P.3d 1083 (2013) (quoting Varney Business Services, Inc. v. Pottroff , 275 Kan. 20, 30, 59 P.3d 1003 [(2002)] ). To establish standing, a......
  • Request a trial to view additional results
159 cases
  • Hill v. State, No. 114,403
    • United States
    • United States State Supreme Court of Kansas
    • September 6, 2019
    ...Civil Service Act arguments implicate subject matter jurisdiction, which we have an independent duty to examine. Stechschulte v. Jennings , 297 Kan. 2, 29, 298 P.3d 1083 (2013). Accordingly, we address this despite the defendants' silence on review. Subject matter jurisdiction is a question......
  • Gannon v. State, No. 109,335.
    • United States
    • United States State Supreme Court of Kansas
    • March 7, 2014
    ...i.e., justiciability, it is also a component of subject matter jurisdiction that may be raised at any time. Stechschulte v. Jennings, 297 Kan. 2, 29, 298 P.3d 1083 (2013). The question of standing is one of law over which this court's scope of review is unlimited. Cochran, 291 Kan. at 903, ......
  • Simpson v. City of Topeka, No. 114,484
    • United States
    • Court of Appeals of Kansas
    • October 14, 2016
    ...merit, their negligent misrepresentation claim cannot survive given that no damages can be established. See Stechschulte v. Jennings , 297 Kan. 2, 22, 298 P.3d 1083 (2013) (elements of negligent misrepresentation claim include damages). The same is true for their KWPA claims. Even if severa......
  • Hernandez v. Pistotnik, 121,593
    • United States
    • Court of Appeals of Kansas
    • July 23, 2021
    ...the invocation of jurisdiction and justify exercise of the court's remedial powers on his or her behalf.’ " Stechschulte v. Jennings, 297 Kan. 2, 29, 298 P.3d 1083 (2013) (quoting Varney Business Services, Inc. v. Pottroff , 275 Kan. 20, 30, 59 P.3d 1003 [(2002)] ). To establish standing, a......
  • Request a trial to view additional results

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