Tamarac Development Co., Inc. v. Delamater, Freund & Associates, P.A.

• Decision Date: 13 January 1984
• Docket Number: No. 54741,54741
• Citation: 675 P.2d 361,234 Kan. 618
• Parties: TAMARAC DEVELOPMENT COMPANY, INC., Appellant, v. DELAMATER, FREUND & ASSOCIATES, P.A., Appellee.
• Court: Kansas Supreme Court

Page 361

675 P.2d 361

234 Kan. 618

TAMARAC DEVELOPMENT COMPANY, INC., Appellant, v. DELAMATER, FREUND & ASSOCIATES, P.A., Appellee.

No. 54741.

Supreme Court of Kansas.

Jan. 13, 1984.

Syllabus by the Court

1. The difference between a tort and contract action is that a breach of contract is a failure of performance of a duty arising or imposed by agreement; whereas, a tort is a violation of a duty imposed by law. Haysville U.S.D. No. 261 v. GAF Corp., 233 Kan. 635, Syl. p 5, 666 P.2d 192 (1983).

2. A professional may contract to perform a specific result. The failure to produce the specific result forms the basis of a breach of contract action.

3. The work of an architect and an engineer is an exact science. When one contracts with such professionals for a building of a certain size and elevation, an exact result is therefore expected. An injured party may choose a remedy from express contract (if applicable), implied warranty or negligence.

James L. Burgess of Fleeson, Gooing, Coulson & Kitch, Wichita, argued the cause and Thomas D. Kitch, Wichita, of the same firm, was with him on brief for appellant.

Jeff A. Roth of Hershberger, Patterson, Jones & Roth, Wichita, argued the cause and was on brief for appellee.

HERD, Justice:

The appellant, Tamarac Development Co., appealed from an order granting summary judgment in favor of the appellee, Delamater, Freund & Associates. The trial court determined as a matter of law that Tamarac's cause of action was one in tort rather than contract and thus barred by the two-year statute of limitations. The Court of Appeals in a per curiam decision, 668 P.2d 207, affirmed the trial court. We granted review.

Appellant is a developer of residential subdivisions. Appellee is an engineering and architectural firm. In 1976 and 1977, the parties entered into various contracts whereby appellee was to provide engineering and architectural services for the development of a mobile home park. There is no allegation that any of the written contracts were breached. Appellant alleges appellee breached an oral contract to supervise the grading construction and to check the grades on completion to insure their accuracy. After payment to the grading contractor, it was discovered too much dirt had been removed, creating drainage problems. Appellant was forced to expend a considerable sum of money to bring the park to grade as a result.

Appellant originally alleged negligence, but later amended its petition alleging breach of contract. There is no dispute that if the action is one for negligence it is barred by the two-year statute of limitations of K.S.A. 60-513. Conversely, if the action is one for breach of contract, it is not barred by the three-year limitation of K.S.A. 60-512.

The only point on appeal is whether the district court erred in holding appellants did not have a cause of action in contract. The issue of whether a cause of action sounds in contract or tort, or both, has been before this court numerous times. These cases, however, when applied to the instant case are inconsistent. The inconsistencies in this area of law have been confirmed by Professor Prosser when he stated:

"Frequently, where either tort or contract will lie and inconsistent rules of law apply to the two actions, the question arises whether the plaintiff may elect freely which he will bring, or whether the court must itself decide that on the facts pleaded and proved the 'gist' or 'gravamen' of his cause of action is one or the other. As to this the decisions are in considerable confusion, and it is difficult to generalize.

"Where the particular point at issue is one of adjective law only, affecting the suit or its procedure, but not the merits of the cause of action, the courts have tended to be quite liberal in giving the plaintiff his freedom of choice, and have upheld his action of tort or contract as he has seen fit to bring it. Likewise where the point is one affecting substantive rights, but the claim is one for damages to property or to pecuniary interests only, the tendency has been, with some occasional dissent, to allow the election. But when the claim is one for personal injury, the decision usually has been that the gravamen of the action is the misconduct and the damage, and that it is essentially one of tort, which the plaintiff cannot alter by his pleading. This had the odd result that the negligence of an attorney will survive the death of his client, while that of a physician is oft interred with his patient's bones. Actually the courts appear to have preserved a great deal of flexibility, and to have been influenced in their decisions by their attitude toward the rule of law in question." Prosser, The Law of Torts § 92, pp. 621-22 (4th ed. 1971).

We have consistently held: "The difference between a tort and contract action is that a breach of contract is a failure of performance of a duty arising or imposed by agreement; whereas, a tort is a violation of a duty imposed by law." Haysville U.S.D. No. 261 v. GAF Corp., 233 Kan. 635, Syl. p 5, 666 P.2d 192 (1983). See also Guarantee Abstract & Title Co. v. Interstate Fire & Cas. Co., 232 Kan. 76, 79, 652 P.2d 665 (1982).

The problem with this test, however, is in some cases, such as this, both standards apply. The appellant argues there was an oral agreement between the parties that appellees would insure the grading to be accurate. This promise could be construed to be either a contract for a specific result--accurate grading--or an implied warranty to inspect and supervise in a workmanlike manner. Both are contract actions. The appellee argues the inspection called for was merely performed negligently, which is a violation of a duty to use reasonable care imposed in common law upon professionals. Appellee's argument, therefore, is that this is an architect malpractice action and malpractice actions lie only in tort.

Case law in Kansas supports both arguments. Appellee argues the cases which hold a breach of a legal duty by a professional is a tort action are controlling. See Brueck v. Krings, 230 Kan. 466, 638 P.2d 904 (1982); Malone v. University of Kansas Medical Center, 220 Kan. 371, 552 P.2d 885 (1976); and Chavez, Executrix v. Saums, 1 Kan.App.2d 564, 571 P.2d 62, rev. denied 223 Kan. clxxi (1977).

Appellee's citations are distinguishable, however. In each of the cases, the court cited an actual legal duty owed by the professional to the client. In Malone, a case dealing with a doctor's negligent treatment of a patient, the court held: "Certain duties and obligations are imposed upon physicians and hospitals by law. Breach of such duty by a physician is malpractice, and an action for damages for malpractice is one in tort, even though there was a contract, express or implied, for employment." 220 Kan. at 274-75, 552 P.2d 885. See also PIK Civ.2d 15.01 (1977). Brueck involved an accounting firm which had performed an audit. In holding the action was in tort this court stated:

"In the case now before us, plaintiffs do not claim that Peat, Marwick failed to perform its contract; the audits for the years 1971, 1972 and 1973 were performed, completed and delivered. The wrongs alleged by the plaintiffs were that Peat, Marwick failed to perform those audits in accordance with the duties imposed on it, not by the specific terms of the contracts, but by the Kansas savings and loan code, the Kansas securities law, and the professional standards of the accounting profession." 230 Kan. at 469-70, 638 P.2d 904.

In the instant case, while an architect's license may be taken away for "gross...