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The manufacturer provided a 12 month express warranty “ ‘against defects in material and workmanship in normal use․’ “ 218 Kan. at 647. The manufacturer also promised that “ny part of this vehicle found defective under the conditions of this warranty will be repaired or replaced.” 218 Kan. at 647. The Court of Appeals disagreed and found the prospective warranty doctrine not dispositive, noting that the supplier “did not merely guarantee the condition or performance of the goods, but agreed to perform a service—to repair the roof.” 46 N.Y.2d at 612.
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BuildZoom combines license information on 3.5 million contractors with 270 million building permits, and over 135,000 reviews from property owners. When it comes to major construction work or even minor alterations to your home, hiring the wrong contractor could result in incomplete or defective work.You may even find yourself dealing with huge liability claims. BuildZoom does the homework for you and helps you hire the right contractor. Because “from seller's perspective, the costs of sale are now indeterminate, uncertain and uncontrollable,” sellers will “seek to limit their liability” rather than leave it open-ended. Kirk's responded that the Hewitts' motion was “a rehash of issues” already argued. The district court denied the Hewitts' motion to alter or amend, stating they had presented “no new theory or legal authority.” The Hewitts then dismissed the remaining defendants with prejudice and filed this appeal.
An executory contract is a contract whose conditions or promises have not been fully performed; that is, one party or both have something yet to perform. Here, the contract seemed to be executed as to the Hewitts but partially executory as to Kirk's. Kirk's still had an obligation to perform under the written warranty.
Kirks Remodeling & Custom Homes
On June 27, 1974, Voth filed a petition alleging, in relevant part, a breach of Chrysler's express warranty that the vehicle was “ ‘safe for use.’ “ 218 Kan. at 645. Voth sought damages for inhaling “ ‘large amounts of gasoline fumes' “ caused by the defective vehicle. Voth alleged the defect was “ ‘a plugged gasoline tank vent tube which caused raw gasoline to be spewed upon various parts of the undercarriage ․, the vapors of which were subsequently gathered by the air conditioning system ․ and dispersed throughout the automobile.’ “ 218 Kan. at 646. As a result of this defect, Voth alleged he contracted lead poisoning which caused him great bodily harm, past and future medical expenses, and loss of past and future income. “ ‘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.
Had simply guaranteed the condition of the property as of the date of closing with a Unit Owner, any breach of that guarantee would necessarily occur at closing and, absent a special statute, the cause of action would accrue for limitations purposes when the breach was discovered. [Citation omitted.] Here, however, additionally promised to repair if notified timely. The breach of that covenant to repair does not occur at closing or necessarily when notice is given. Our Supreme Court rejected the construction company's argument, noting that “there are no facts in the record suggesting a warranty as to the condition or capability of the crane on a date more than five years after its sale and delivery.” 203 Kan. at 747. Finally, the Supreme Court added that while the newly enacted Uniform Commercial Code (U.C.C.) did not apply to this transaction, “we believe the provisions of K.S.A. 84–2–725 to be substantially in accordance with the decisions of this court.” 203 Kan. at 748. First, Voth is a U.C.C. case involving the sale of goods, and its predecessor, Freeto Construction Co., could have been, given its facts.
A DESIGN BUILD REMODELING COMPANY
Also interior and exterior painting, major fire and water restorations, flooring and tile installation as well as general contracting by licensed professionals. In summary, defects existed in the quality of the workmanship in assembling the brick work on the Hewitts' home. Moreover, the defects in the brick work were observable when the Hewitts' took possession of the house and received the written warranty from Kirk's on December 12, 2003. In the warranty, Kirk's warranted that the home was free of defects. Because the Hewitts' knew that Kirk's written assertion was untrue, their cause of action would have accrued when they received the warranty or accepted possession of the house on December 12, 2003.
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 .
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There was no dispute regarding the plain language of the express warranty. The parties agreed that, almost 1 year later, on December 11, 2004, the Hewitts sent Kirk's a letter giving timely notice that the brickwork were allegedly defective and had not been repaired or replaced. On June 26, 2008, the Hewitts filed the lawsuit at issue in this appeal, which was served on Kirk's on January 31, 2009. Finally, Kirk's candidly conceded it did not repair or replace the brickwork. In short, there are no material facts in dispute and, as a result, we are presented with an issue of law which we review de novo. Of note, we review the warranty language and its legal effect without deference to the district court's interpretation of the warranty.
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.
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Under the Hewitts' interpretation, their cause of action could have begun—at the earliest—on December 11, 2004, which was the date they sent written notice to Kirk's requesting repair or replacement of the construction defects. If the Hewitts' understanding is correct, their lawsuit was properly filed within the applicable 5–year statute of limitations and the district court erred in granting summary judgment to Kirk's. The Hewitts appeal the district court's ruling granting summary judgment for Kirk's because their cause of action for breach of warranty was filed beyond the statute of limitations for contract actions. As discussed below, we believe the district court erred in finding the Hewitts did not commence their lawsuit within the statute of limitations.
Since the Hewitts' action did not begin until Kirk's was served on January 31, 2009, their petition was filed outside the applicable 5–year statute of limitations. As a result, the trial court properly granted summary judgment in favor of Kirk's. The Supreme Court of Utah made a similar holding in Lipscomb v. Chilton, 793 P.2d 379 . There, the seller constructed a roof for the buyer and provided a 1–year warranty. Shortly after the roof was constructed, the buyer noticed leaks, and the seller made repairs pursuant to the warranty.
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