Ware v. Christenberry

• Decision Date: 10 December 1981
• Docket Number: No. 52351,52351
• Citation: 7 Kan.App.2d 1,637 P.2d 452
• Parties: Harry and Mary WARE, Appellants, v. Mel CHRISTENBERRY and Herrman's Excavating, Inc., Appellees.
• Court: Kansas Court of Appeals

Page 452

637 P.2d 452

7 Kan.App.2d 1

Harry and Mary WARE, Appellants, v. Mel CHRISTENBERRY and Herrman's Excavating, Inc., Appellees.

No. 52351.

Court of Appeals of Kansas.

Dec. 10, 1981.

Syllabus by the Court

1. An action sounding in contract for breach of an implied warranty is governed by K.S.A. 60-512 and the time, for purposes of the application of the statute of limitations, begins to run with the breach of the contract, regardless of whether the injured party is aware of the breach.

2. An action sounding in tort for negligence in the breach of an implied warranty is governed by K.S.A. 60-513 and the time does not begin to run against the cause of action until substantial damage has first occurred or the fact of injury becomes reasonably ascertainable to the injured party.

3. Where there is conflicting evidence as to when a cause of action is deemed to have accrued, the matter is an issue for determination by the trier of the facts.

4. Breach of an implied warranty has traditionally created a cause of action in either tort or contract depending upon the nature of the interests protected.

5. Under K.S.A. 60-208(e)(2) a party may state as many separate claims or defenses as he has regardless of consistency and whether based on legal or on equitable grounds, or both. Following Beams v. Werth, 200 Kan. 532, Syl. P 9, 438 P.2d 957 (1968).

6. Pursuant to K.S.A. 60-208(a), the plaintiff's petition must contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which the pleader deems himself or herself entitled. Relief in the alternative or of several different types may be demanded. The pleader may allege or make contradictory or alternative statements until he finds out which theory, if any, the facts support, and is permitted to shift the theory as the facts develop. Following Thompson v. Phillips Pipe Line Co., 200 Kan. 669, 672, 438 P.2d 146 (1968).

7. In an action for breach of implied warranty a party may plead and proceed upon the theories of both contract and tort until the facts have been developed and the case is ready to be submitted to the trier of the facts. One seeking to recover for breach of an implied warranty must eventually elect a definite theory before final submission to the trier of the facts.

8. A proceeding for breach of an implied warranty based upon tort (negligence) rather than contract is subject to the principles of comparative fault under K.S.A. 60-258a.

Donna Dill, Allan A. Hazlett and Eric K. Johnson, Schroeder, Heeney, Groff & Hiebert, Topeka, for appellants.

Frank M. Rice of Jones, Schroer, Rice, Bryan & Lykins, Chartered, Topeka, for appellee Mel Christenberry.

William T. Nichols of Marshall, Hawks, Hendrix, Schenk & Nichols, Topeka, for appellee Herrman's Excavating, Inc.

Before HOLMES, Justice Presiding, MEYER, J., and HARRY G. MILLER, District Judge Retired, Assigned.

HOLMES, Justice:

Harry and Mary Ware, husband and wife, plaintiffs below, appeal from an order entered by the district court granting the defendants' motion for summary judgment.

In March of 1968, appellants contracted with appellee, Mel Christenberry, a general building contractor, for the construction of a house. During the summer of 1968 excavation was done, the foundation laid and the house built at 2226 DeSousa Court, Topeka, Kansas. The filling and excavation work was performed by a subcontractor, appellee Herrman's Excavating, Inc. Upon completion of the house and for over six years thereafter all went well. In the late summer of 1974 a crack developed in the living room wall and ceiling, however, the crack did not immediately alarm the Wares as they assumed it was attributable to normal settling of the house.

The Wares, in the late summer of 1974, hired a professional mudjacker, Roy V. Uhl and Company, Inc., to raise the footings of the house in an attempt to remedy the settling. The initial mudjacking failed to alleviate the problem and cracks continued to develop damaging more walls and ceilings, the brick sidewalk and steps, as well as the front entry tile.

Finally, in September of 1976, Mr. Uhl raised the entire foundation and did extensive excavation around the foundation to ascertain the cause of the problem. It was then discovered that appellees had poured the foundation over cavernous ground and that boulders had been backfilled against the footings during construction. This situation apparently could only be remedied by repeated mudjacking.

On March 23, 1977, appellants filed this action against Christenberry, the general contractor, and his subcontractor, Herrman's Excavating, Inc., alleging in Count I that the damage sustained to the property was the direct and proximate result of the failure of the appellees to perform their contractual responsibilities in a workmanlike manner and in Count II alleged that the negligence of each of the appellees was the proximate cause of the damage sustained to the appellants' property. Both counts were framed on the theory of breach of implied warranty. The Wares sought to recover the cost of the repeated mudjacking and repairs to the house necessitated by the extraordinary settling of the foundation and footings.

The appellees filed a motion for summary judgment averring that the contract action was barred by the statute of limitations; that appellants' petition failed to state a cause of action in tort; and that even if the appellants had a tort claim, it was also barred by the applicable statute of limitations. The district court ruled that appellants had no tort claim and that their contract claim was barred by K.S.A. 60-512. This appeal followed.

The first point on appeal is that the district court erred in holding appellants did not have a cause of action in tort and that the petition failed to state a claim based upon negligence. The issue of whether a cause of action based upon breach of an implied warranty sounds in contract or tort, or both, has been before the courts numerous times. The distinction may become important for several reasons including a determination of which statute of limitations applies, the measure of damages which may be recovered and whether the cause of action may be brought against the estate of a deceased person. The crucial point in the case now before the court is the application of the appropriate statute of limitations.

K.S.A. 60-512 provides, in part:

"The following actions shall be brought within three (3) years: (1) All actions upon contracts, obligations or liabilities expressed or implied but not in writing."

K.S.A. 60-513(a)(4) and (b) provide:

"(a) The following actions shall be brought within two (2) years:

....

(4) An action for injury to the rights of another, not arising on contract, and not herein enumerated.

....

(b) Except as provided in subsection (c) of this section, the cause of action in this action (section) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action."

An action sounding in contract for breach of an implied warranty is governed by K.S.A. 60-512 and the time begins to run with the breach of the contract regardless of whether the injured party is aware of the breach. Ruthrauff, Administratrix v. Kensinger, 214 Kan. 185, 192, 519 P.2d 661 (1974); Freeto Construction Co. v. American Hoist & Derrick Co., 203 Kan. 741, Syl. P 2, 457 P.2d 1 (1969); Crabb v. Swindler, Administratrix, 184 Kan. 501, 507, 337 P.2d 986 (1959). On the other hand, an action in tort for negligence in the breach of an implied warranty is governed by K.S.A. 60-513 and the time does not begin to run against the cause of action until substantial damage has first occurred, or the fact of injury becomes reasonably ascertainable to the injured party. Chavez, Executrix v. Saums, 1 Kan.App.2d 564, 571 P.2d 62, rev. denied 225 Kan. 843 (1977).

In holding that plaintiffs' petition stated only a cause of action in contract, the district court dealt with the negligence claim as follows:

"The petition goes on to allege negligence by Defendants. The tortious acts alleged by the Plaintiffs, however, are merely allegations of the manner in which Defendants breached the implied warranty of performance in a workmanlike manner. The duty breached, if at all, was that implied warranty duty, not an independent duty owed Plaintiff absent the contract. Therefore, because the petition does not state a cause of action in tort, this Court need not rule upon the running of the statute of limitation contained in K.S.A. 60-513."

Since implied warranty has traditionally created a cause of action in either tort or contract depending on the nature of the interests protected, the trial judge's statement that the petition does not state a cause of action in tort would appear to be in error. The dilemma created when it becomes necessary to determine whether a cause of action for breach of implied warranty sounds in contract or tort, or both, has been before the courts for years. The decision to favor one over the other has been adversely commented upon by ...