The buyers were forced to litigate these claims and incurred expenses. In 1961, the buyers brought an action against the grantor for damages. We believe the district court's and Kirk's reliance on Freeto Construction Co. and Voth is misplaced. Both cases are distinguishable from the present case and, as a result, these cases do not provide helpful precedent in resolving the question on appeal.
Nevertheless, as stated earlier, the Law court held that whether the contract is executed or executory does not make a difference in determining the date when a statute of limitations begins to accrue. A similar analysis was used in Hersh Companies v. Highline Village Assoc., 30 P.3d 221, 222 (Colo.2001), where a painting contractor provided an express warranty to owners of two apartment complexes to repaint the exteriors of the buildings. The contractor warranted that its work would be free from defects and that any defects would be repaired or replaced. Problems arose, some of which the contractor repaired, but eventually the contractor refused to make further repairs, claiming the problems were not attributable to its work. The Colorado Supreme Court held the breach of express warranty occurred when the painter first refused to repair, and the statute of limitations began to run only upon that refusal.
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We are not persuaded by the argument that the Hewitts had actual notice of the defects when Kirk's presented the express warranty on December 12, 2003. The Hewitts may have had such notice, but nothing in this record proves the Hewitts also knew Kirk's would refuse to repair or replace those defects as promised. We will not limit the enforceability of the Repair or Replace Warranty, thereby increasing the Hewitts' risk by starting the statute of limitations clock before Kirk's could have breached that particular warranty.
Kirks Remodeling & Custom Homes Inc?
Nevertheless, the Feinour court affirmed the trial court's holding that the applicable 6–year statute of limitations barred Feinour's claims for breach of the construction contract and breach of the implied warranty. As a result, except for the statute of limitations start date for a breach of an express warranty, Georgia's statute of limitations start date for a breach of contract or breach of an implied warranty is similar to Kansas caselaw. For example, in Feinour, the record showed that the certificate of occupancy on Feinour's house was issued on September 23, 1993. Before BRUNS, P.J., GREEN and BUSER, JJ. 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. 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 .
BBB asks third parties who publish complaints, reviews and/or responses on this website to affirm that the information provided is accurate. However, BBB does not verify the accuracy of information provided by third parties, and does not guarantee the accuracy of any information in Business Profiles. Obviously, the home was defective when the construction was completed and the warranty delivered on December 12, 2003. “My bid was some $8000 for the work that I performed, and I could have easily doubled the bid to tear out more work that did not appear to be professionally done. It appeared to me that both the contractor and the homeowner were trying to be as reasonable as possible in the repair of items that seemed major. This was the first time the buyers learned of adverse claims on the title.
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Accordingly, we reverse the district court's summary judgment in favor of Kirk's and remand for further proceedings. 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. The parties agreed the December 12, 2003, express warranty was part of the construction contract.
Antigua Condominium is factually similar to the present case, and its reasoning is consonant with Feinour and Hersh Companies. Kirk's argues this precedent is “not helpful” because, unlike Kansas (see K.S.A. 60–511 ), Maryland has a discovery rule similar to the Colorado discovery rule in Hersh Companies. But the different discovery provisions have no applicability to the resolution of the issue on appeal. The relevant issue in these cases was not when the defect was discovered but whether the statute of limitations period on a Repair or Replace Warranty begins to run from the breach of the warranty to repair or replace. In Feinour, Hersh Companies, and Antigua Condominium, the respective courts decided, as we do, that the statute of limitations period runs from the breach of the Repair or Replace Warranty.
In Bulova Watch, a roofing material supplier failed to honor its express promise to “ ‘at its own expense make any repairs ․ that may be necessary to maintain said Roof ․ in a water-tight condition.’ “ 46 N.Y.2d at 609. The supplier argued, under the prospective warranty doctrine, that a cause of action—and hence the running of the statute of limitations—for breach of warranty accrues when the breach is or should have been discovered. 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. Arguing that “ 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 , and Freeto Construction Co. v. American Hoist & Derrick Co., 203 Kan. 741, 457 P.2d 1 . More recently, in Law v. Law Company Building Assocs., 295 Kan. 551, 289 P.3d 1066 , our Supreme Court again considered when a cause of action accrues in a breach of contract claim. In Law, our Supreme Court interpreted K.S.A. 60–511 and determined that the Kansas Legislature had not provided a discovery exception in K.S.A. 60–511; therefore, contract actions accrue on breach, not when the breach is discovered.
Finally, the district court did not make a finding on when Kirk's may have breached the specific Repair or Replace Warranty. But neither party suggests it could have been before the Hewitts sent their written notice to Kirk's on December 11, 2004. Given the undisputed fact that the Hewitts commenced their lawsuit on January 31, 2009, we hold their cause of action was not barred by K.S.A. 60–511.
“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 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. Trusted, licensed warm and friendly same day services in Olathe which means emergency roof repairs and installations as well as bathroom and kitchen remodeling.
The district court found the Hewitts' cause of action could have commenced on December 12, 2003, the effective date of the express warranty and the date it was delivered to the Hewitts. Under this interpretation, the Hewitts' lawsuit was impermissibly commenced beyond the 5–year statute of limitations. On the other hand, the Hewitts contend the earliest date their cause of action could have commenced was when the Repair or Replace Warranty was breached.
On the other hand, Kirk's risk of liability was mitigated by the prescribed remedies, time period, other conditions precedent, and by the total dollar limitation. The petition was filed about 4 years and 10 months after Voth purchased the vehicle, but 5 days short of 4 years after Voth discovered the defect. Voth contended the vehicle's defect “ ‘was the type of occurrence which was explicitly extended to the future performance of the automobile pursuant to Kansas Statutes Annotated 84–2–725.’ “ 218 Kan. at 646. The defendants filed a motion for summary judgment claiming, among other defenses, that Voth's claim was barred by the 4–year statute of limitations for actions involving contracts for sale of goods.
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