Stechschulte v. Jennings
| Decision Date | 08 January 2010 |
| Docket Number | No. 100,648.,100,648. |
| Citation | 222 P.3d 507 |
| Parties | 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. |
| Court | Kansas Court of Appeals |
Dana P. Niceswanger, Brian J. Niceswanger, and Greg T. Spies, of McDowell, Rice, Smith & Buchanan, P.C., of Overland Park, for appellants.
Heber O. Gonzalez, of Kansas City, Missouri, Andrew M. DeMarea, of Overland Park, and R. Dan Boulware, of St. Joseph, Missouri, all of Polsinelli Shughart, P.C., for appellees, A. Drue Jennings and the A. Drue Jennings Revocable Trust.
Alan E. Streit, of Larson & Blumreich, Chartered, of Topeka, for appellees Emily A. Jennings and PHB Realty Company, L.L.C.
Before BUSER, P.J., MARQUARDT and CAPLINGER, JJ.
In this appeal, Daniel J. Stechschulte, Jr., Satu S.A. Stechschulte, and the Daniel J. Stechschulte, Jr. Revocable Trust (collectively the Stechschultes) challenge the district court's grant of summary judgment in favor of A. Drue Jennings and the A. Drue Jennings Revocable Trust dated October 31, 2002 (collectively, Jennings), on the Stechschultes' claims of fraud, negligent misrepresentation, and breach of contract relating to the sale of Jennings' residence to the Stechschultes.
The Stechschultes also appeal the district court's grant of summary judgment in favor of Jennings' agent in the sale of his home, Emily A. (Golson) Jennings, and PHB Realty Company, L.L.C. (PHB Realty), on the Stechschultes' claims of negligent misrepresentations and violations of the Kansas Consumer Protection Act, (KCPA), K.S.A. 50-623 et seq. Finally, the Stechschultes appeal the district court's denial of their motion to amend to add punitive damages claims against Jennings and Golson.
For reasons fully detailed below, we reverse and remand the district court's grant of summary judgment to Jennings on the Stechschultes' claims of fraud, negligent misrepresentation, and breach of contract, but we affirm the grant of summary judgment to Golson and PHB Realty on all claims against them. Finally, we affirm the district court's denial of the Stechschultes' motion to amend to add a claim of punitive damages against Jennings, while we find the Stechschultes' appeal of the denial of their motion to amend to add a punitive damages claim against Golson to be moot.
Factual and procedural background
Because the district court granted summary judgment in favor of the defendants on all of the Stechschultes' substantive claims, the following factual statement views the evidence in the light most favorable to the Stechschultes, the parties opposing the motions.
In May 1998, Jennings purchased a residence (the home) under construction in Leawood. He began residing in the home in October 1998. Nearly 4 years later, in August 2002, and again in January 2003, Jennings contacted the builder of the home, William Brimacombe, regarding water leaks in the home. Brimacombe visited the home on both occasions and observed water stains in the home, including a stain on the living room ceiling in August 2002. Brimacombe, along with a roofer, inspected the roof and flashing for leaks but found no problems and advised Jennings to have the windows checked.
Jennings contacted the window subcontractor, Morgan-Wightman Supply company, who in turn hired Excel Window & Door, Inc. (Excel), to inspect the windows. Chris Whorton, Excel's owner and president, as well as other Excel employees, made eight visits to the home between August 2002 and September 2004 to evaluate leaks and/or repair windows in the home. During a visit by Whorton in August 2002, Jennings told Whorton that he had noticed water leaks all over the home and pointed out three areas he believed had experienced the worst leaks. During this visit, Whorton observed water stains at different locations in the home, as well as dirt stains where water had been carried into the home.
During another visit to the home by Whorton, Jennings pulled back a section of carpet and pointed out water stains extending approximately 2 feet from a window, as well as a separate stain several feet away from the window.
Excel performed two water tests on the home, one in August 2002 and another in September 2003. Jennings was present during both tests. Several of the water entry points were "undetermined" after water testing on the home.
After the August 2002 testing, Whorton recommended to Jennings that some of the exterior trim be pulled off the home to attempt to find the sources of the water problems. Whorton also told Jennings he could have the windows caulked but it would be only a temporary, or "Band-Aid," solution. Jennings elected to have the windows caulked.
In September 2002, Jennings paid Excel $2,650 to caulk all of the windows and doors in the home and to caulk between the cedar and stucco exterior and between the cedar and the doors and windows. The warranty on the home had expired in 1999, and the work performed was not performed under warranty.
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.
In October 2003, Jennings discovered a leak in the loft window and again summoned Brimacombe. After Brimacombe and a roofer examined the roof and flashing over the loft and found no problems, Excel was again notified and conducted water testing.
When Whorton visited the home in September 2003, Jennings was adamant that all of the windows in the home were defective and needed to be replaced. Whorton advised Jennings that he would pass Jennings' wishes on to the window subcontractor, Morgan-Wightman, but that it was not up to Whorton whether the windows would be replaced. According to Whorton, neither he nor any Excel employee made any repairs to the windows in September 2003.
According to Jennings, after the September 2003 testing, the corners of the weather stripping in all of the windows were repaired or sealed at no cost to Jennings. However, Jennings did not indicate who performed these repairs. Further, Jennings indicated that because he did not pay for the September 2003 repairs, he possessed no documents to verify those repairs.
Sometime in 2004, a vapor seal failed in a bathroom window in the home. According to Jennings, the window was eventually replaced by Excel and/or Morgan-Wightman at no cost to Jennings.
In February 2005, Jennings listed his residence in Leawood for sale. Jennings' fiancée, Emily Golson, with PHB Realty Company, LLC, was the listing agent for the home. Jennings and Golson were married sometime in April 2005, and Golson changed her surname to Jennings.
In connection with the sale, Jennings completed and signed a form entitled "Seller's Disclosure and Condition of Property Addendum" (the disclosure). In Section 7 of the disclosure, entitled "STRUCTURAL, BASEMENT AND CRAWL SPACE ITEMS," Jennings represented in response to question 7(d) that there had been "No" water leakage or dampness in the house, crawl space, or basement. In response to question 7(i), Jennings represented that there had been "No" repairs or other attempts to control the cause or effect of any problem described in Section 7, including water leakage or dampness in the home.
Had Jennings responded affirmatively to any of the questions in Section 7, he would then have been required to respond in the space provided after the question at the end of Section 7
In Section 14, "OTHER MATTERS," Jennings represented that he was not "aware of any general stains or pet stains to the carpet, the flooring, or sub-flooring.
Again, if Jennings had responded "Yes," he would have been required to explain his response "in detail" at the end of Section 14.
Prior to Jennings' signature line, the disclosure statement required Jennings to:
In the space provided after this question, Jennings wrote: "Several windows leaked after construction; full warranty repairs were performed, and correction is complete."
Jennings signed and dated the disclosure February 28, 2005. Underneath Jennings' signature, the disclosure contained a section entitled "Buyer's Acknowledgment and Agreement" (the acknowledgment), which provided:
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Stechschulte v. Jennings
...summary judgment in favor of Jennings and affirmed his summary judgment in favor of Golson and PHB. Stechschulte v. Jennings, 43 Kan.App.2d 47, 65, 68, 71–72, 222 P.3d 507 (2010). The panel first concluded that Jennings' alternative bases for affirming summary judgment included in his brief......
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Schneider v. Liberty Asset Mgmt., 104,361.
...is very different factually from the instant case and is not applicable here. A KCPA claim was also made in Stechschulte v. Jennings, 43 Kan.App.2d 47, 71–72, 222 P.3d 507 (2010). Stechschulte purchased real property from Jennings and sued Jennings for fraud, negligent misrepresentation, an......
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NG v. Schaffter, 106,506.
...failure to disclose significant and material information prior to closing. See Osterhaus, 291 Kan. at 785–86;Stechschulte v. Jennings, 43 Kan.App.2d 47, 53–54, 222 P.3d 507 (2010). To support a claim of negligent misrepresentation, the plaintiff must show: (1) that the person supplying the ......