Opinion
No. 108,518.
2013-07-12
Greg and Lori MEISTER, Appellants, v. DOUGLAS FRY ROOFING, INC., Appellee.
Appeal from Sedgwick District Court; Mark A. Vining, Judge. Carolyn Sue Edwards, of Snow and Edwards, of Wichita, for appellants. Amy Fellows Cline, of Triplett Woolf & Garretson, LLC, of Wichita, for appellee.
Appeal from Sedgwick District Court; Mark A. Vining, Judge.
Carolyn Sue Edwards, of Snow and Edwards, of Wichita, for appellants. Amy Fellows Cline, of Triplett Woolf & Garretson, LLC, of Wichita, for appellee.
Before MALONE, C.J., LEBEN and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Greg and Lori Meister appeal the district court's grant of summary judgment in favor of Douglas Fry Roofing, Inc. (Fry) on their claims against Fry for breach of contract and breach of warranty related to Fry's installation of roofing on their home. They argue that the district court erred in dismissing their express contract and express warranty claims because they presented evidence from which a reasonable person could find that Fry had expressly and in writing contracted or warranted the roofing materials to be free of defects and that Fry had breached the contract or warranty by installing shingles that later proved to be defective. They also argue that the district court erred in dismissing their implied contract and implied warranty claims as being time barred. Finally, they contend that summary judgment was precluded because the undisputed evidence showed that the parties made a subsequent contract for Fry to replace the defective roofing and that Fry breached the new contract by refusing to perform. We conclude the district court did not err in granting summary judgment in favor of Fry.
On January 29, 2007, Fry submitted a written bid of $22,320 to supply materials and labor to roof the Meisters' new home. The bid indicated that Fry would use specified materials, including GAF–Elk Prestique shingles that the Meisters selected themselves. The bid stated that “[a]ll material is guaranteed to be as specified,” that “[a]ll work [would] be completed in a ... workmanlike manner according to specifications submitted, per standard practices,” and that there was a “5 year warranty on workmanship.”
On February 12, 2007, Greg Meister submitted a written list of his expectations with respect to the roof installation. Fry agreed that the list contained items he was bound to perform or that were matters of good workmanship and that there was nothing unreasonable about Meister's expectations.
On February 20, 2007, Fry submitted a bill for $12,300 for materials and supplies. The bill was handwritten on a pre-printed form with a pre-printed heading, which identified the roofing company and stated: “ALL WORK GUARANTEED.” The remaining unpaid balance of $10,020 was for labor and was not included on the bill. Fry installed the roof on the Meisters' home during February or March 2007. The Meisters made the final payment to Fry in December 2007.
In late 2008 or early 2009, the shingles on the roof developed blisters. Fry was asked to submit a bid to replace those shingles. Fry viewed the roof and agreed it would be imprudent to place a new roof on top of those shingles. On February 12, 2009, Fry submitted a bid for $38,769. The bid included $9,200 for labor to tear off the original roof and $29,569 for materials and labor to install a new roof using identical materials as the original roof.
Meanwhile, the Meisters submitted a warranty claim to the shingle manufacturer. The manufacturer offered a cash settlement of $9,384 and a material settlement of 92 squares of shingles. In May 2009, the Meisters contacted Fry and informed him that they expected him to tear off the original roof, install the new roof, and cover all costs not covered by the manufacturer's settlement since Fry had “contracted to supply ... both material and labor” for the original roof.
The parties engaged in negotiations about the replacement roofing, and Fry eventually stated he would tear off the original roof for free and install the new roof for the labor costs that the manufacturer had offered, apparently with the understanding that the original type of shingles would be used. But the Meisters selected a different type of shingles, which Fry declined to install unless the Meisters paid an additional $3,680 in labor costs. The Meisters ultimately hired another roofing company to perform the replacement work.
On February 10, 2011, the Meisters filed a lawsuit against Fry on theories of breach of express and/or implied contract, breach of express and/or implied warranty, breach of warranty of fitness for a particular purpose, negligence, and unjust enrichment. The petition alleged that Fry had contracted or warranted the roofing materials to be free of defects and that Fry had breached the contract or warranty because the shingles were defective, and Fry refused to perform the replacement work for the amount offered by the shingle manufacturer. The Meisters sought damages for their additional expenses related to hiring another roofing company to perform the replacement work.
After discovery was completed, Fry filed a motion for summary judgment. After hearing arguments of counsel, the district court granted the motion. The district court found that the Meisters had failed to submit any evidence to support a finding that Fry had contracted or warranted the roofing materials to be free of defects. The district court found that while the evidence showed Fry had warranted his workmanship in the installation of the roof, the Meisters had not made any allegations or presented any evidence that the shingle defects were caused by Fry's faulty installation of the roof or that Fry had otherwise breached his warranty of workmanship. The district court further rejected the Meisters' contention that Fry's warranty of workmanship included a duty to install a roof free of defective shingles, noting that “[w]orkmanship calls for performance of the work using skill of a certain nature” and “[t]o confuse workmanship and warranty of materials is quite contrary to the normal course of contracting between parties.”
As to the Meisters' claim that the parties made a subsequent contract for Fry to perform the replacement work after the defective shingles were discovered and that Fry breached the new contract by refusing to perform, the district court found that the Meisters had failed to submit any evidence to support a finding that the parties ever came to a meeting of the minds about the replacement work and thus no contract was formed. Finally, the district court found that the statute of limitations barred any implied contract or implied warranty claims because the uncontroverted evidence showed that the Meisters were aware of any problems with Fry's workmanship by December 2007 at the latest. To the extent the Meisters characterized the negotiations for Fry to perform the replacement work as “settlement negotiations,” the district court found that the Meisters did not provide any evidence to support a finding that those negotiations tolled the statute of limitations. The Meisters timely appealed the district court's judgment.
Express Contract and Express Warranty Claims
On appeal, the Meisters contend that summary judgment was precluded because they presented evidence from which a reasonable person could find that Fry expressly and in writing contracted or warranted the roofing materials to be free of defects and that Fry breached the contract or warranty by installing shingles that later proved to be defective. They point specifically to Fry's written bid dated January 29, 2007, which stated that Fry would supply labor and materials to roof the Meisters' home, that “[a]ll material is guaranteed to be as specified,” that “[a]ll work [would] be completed in a ... workmanlike manner according to specifications submitted, per standard practices,” and that there was a “5 year warranty on workmanship.” They also emphasize that Fry submitted a bill solely for materials and supplies that nonetheless stated: “ALL WORK GUARANTEED.” Fry argues that this evidence shows only that he contracted or warranted to install the roof in a workmanlike manner. He contends that the evidence cannot support a finding that he contracted or warranted the roofing materials to be free of defects.
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, summary judgment is appropriate. The district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 330, 277 P.3d 1062 (2012).
As Fry contends, even when the evidence presented by the parties is viewed in a light most favorable to the Meisters, there is no reasonable way to construe that evidence to support the finding that Fry contracted or warranted the roofing materials to be free of defects. The only promise that Fry made with respect to the materials is that they would be “as specified”—meaning that he would use the materials listed in the bid. Fry satisfied this promise by using GAF–Elk Prestique shingles on the Meisters' roof. The language in the bid guaranteeing that the work would be completed in a workmanlike manner and stating that there was a 5–year guarantee on workmanship can only reasonably be construed to mean that the work would be completed skillfully and diligently, not that the materials themselves would be free of defects. Likewise, the preprinted language stating “ALL WORK GUARANTEED” contained on the bill for materials and supplies can only reasonably be construed as reinforcing Fry's warranty of workmanship.
The legal authority cited in the Meisters' brief does not undercut the district court's conclusions. For example, in Blackwood v. Tom Benson Chevrolet Co., Inc., 702 S.W.2d 732, 734 (Tex.App.1985), the Texas Court of Appeals found that deficient automobile repair work (failure to properly replace the timing chain in an engine) fell within a written express warranty that read “[a]ll work guaranteed for 90 days or 4,000 miles, whichever comes first.” The issue in Blackwood was the repair work, not the materials used in the work. The Texas Court of Appeals did not find that the express warranty on “work” extended to materials (automobile parts) as the Meisters are asking this court to find here. See 702 S.W.2d at 734.
Kansas law clearly treats warranties on materials and warranties on workmanship as distinct concepts. Cf. Hodges v. Johnson, 288 Kan. 56, 61–62, 199 P.3d 1251 (2009) (implied warranty of merchantability requires goods to be fit for the ordinary purposes for which such goods are used); Zenda Grain & Supply Co. v. Farmland Industries, Inc., 20 Kan.App.2d 728, 738–40, 894 P.2d 881 (implied warranty of workmanlike performance requires work to be performed skillfully, carefully, diligently, and in a workmanlike manner), rev. denied 257 Kan. 1096 (1995). Because the evidence presented by the parties cannot reasonably support a finding that Fry expressly contracted or warranted the materials to be free of defects, the district court correctly concluded that Fry could not be held liable for a breach of any such promise. Therefore, the district court did not err in granting summary judgment on the Meisters' breach of express contract and breach of express warranty claims.
Implied Contract and Implied Warranty Claims
The Meisters next argue that the district court erred in finding that their implied contract and implied warranty claims were time barred. They contend that the 3–year statute of limitations under K .S.A. 60–512 did not begin to run until the defects in the shingles became obvious in late 2008 and thus their February 2011 lawsuit was timely. They also contend that the statute of limitations was tolled during the purported settlement negotiations between the parties that occurred during the spring and summer of 2009. Fry contends that the Meisters have waived and abandoned their implied contract and implied warranty claims and thus their statute of limitations argument is moot.
The standard of review for summary judgment is set forth in the prior issue. If reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. O'Brien, 294 Kan. at 330. An appellate court has unlimited review over the interpretation and application of a statute of limitations. Four Seasons Apts. v. AAA Glass Service, Inc., 37 Kan.App.2d 248, 250, 152 P.3d 101 (2007).
Fry's argument that the Meisters have waived their implied contract and implied warranty claims is persuasive. The Meisters briefly suggest that this court could find that the printed words “ALL WORK GUARANTEED” created an implied contract or warranty. They raise this point incidentally and have failed to support it with pertinent authority and have thus waived or abandoned the issue. See Manhattan Ice & Cold Storage v. City of Manhattan, 294 Kan. 60, 71, 274 P.3d 609 (2012); State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010).
In any case, the district court properly found the Meisters' implied contract and implied warranty claims were time barred under K.S.A. 60–512, which provides a 3–year statute of limitations on unwritten obligations. The undisputed facts show that the installation of the original roof was completed at the latest in December 2007, when the Meisters submitted their final payment to Fry. As the Meisters acknowledge in their own brief, a cause of action for breach of implied warranty accrues when the breach occurs regardless of whether the injured party is aware of the breach. Four Seasons Apts., 37 Kan.App.2d at 253. Because the Meisters' implied contract and implied warranty claims are based on their contention that Fry installed defective shingles, any breach occurred in December 2007 at the latest. Thus, the breach of implied contract and implied warranty claims filed on February 10, 2011, were time barred.
Finally, even assuming that the parties' negotiations in the spring and summer of 2009 for Fry to do the replacement work were settlement negotiations with respect to the original roof and not negotiations for a new, separate contract, the Meisters have failed to cite any authority to support the proposition that the settlement negotiations toll a statute of limitations. Again, they have waived or abandoned the issue. See Berriozabal, 291 Kan. at 594. We conclude the district court did not err in granting summary judgment in favor of Fry on the breach of implied contract and implied warranty claims.
Breach of New Contract
Finally, the Meisters contend that summary judgment was precluded because the undisputed evidence showed that the parties made a subsequent contract for Fry to replace the defective roofing and that Fry breached the new contract by refusing to perform. They point to a single statement made by Fry in his deposition in which he stated that he had agreed to tear off the original roof and replace it for the labor costs offered by the shingle manufacturer. Fry contends that, when read in context, his statement was merely an unaccepted offer to reroof the Meisters' home with the same type of shingles originally used and thus no new contract was formed.
The standard of review for summary judgment has been previously set forth. If reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. O'Brien, 294 Kan. at 330.
“In order for parties to form a binding contract, there must be a meeting of the minds as to all essential terms thereof.” Dougan v. Rossville Drainage Dist., 270 Kan. 468, 488, 15 P.3d 338 (2000). “To constitute a meeting of the minds there must be a fair understanding between the parties which normally accompanies mutual consent and the evidence must show with reasonable definiteness that the minds of the parties met upon the same matter and agreed upon the terms of the contract.” Steele v. Harrison, 220 Kan. 422, Syl. ¶ 3, 552 P.2d 957 (1976). “Any expression of assent that changes the terms of the offer in any material respect may be operative as a counteroffer, but it is not an acceptance and constitutes no contract.” 220 Kan. 422, Syl. ¶ 4.
Here, the only evidence that the Meisters cite in support of their argument that the parties formed a new contract for Fry to perform the replacement work is Fry's deposition testimony wherein he stated:
“[T]he discussions had gotten down to whether I was going to do the roof for free or not and—or do the labor tearoff part free and do it for what [the shingle manufacturer] paid, and I finally told [the Meisters' agent] I would do that and then he said, well, they changed to this other shingle. He said let me know what that's—and then they added on these additional—the additional sunroom areas, and then they also at the time were trying to get the walls stuccoed in and he wanted to know what it would cost to go in and take out the old step shingles and put new step shingles in so they could go ahead and get the drivet done before they got the new roof done, so he wanted to know what that charge would be. So he wanted a bid for those three things.”
The only reasonable interpretation of this testimony is that Fry offered to do the replacement work for a certain price, with the understanding that the original type of shingles would be used, but that the Meisters rejected the offer because they wanted different shingles and also wanted a quote on additional work. This testimony cannot reasonably support a finding that the parties came to a meeting of the minds as to all the essential terms and formed a new contract for Fry to perform the replacement work. The district court correctly concluded that Fry could not be held liable for a breach of any such contract and therefore was entitled to summary judgment on that claim.
Affirmed.