Opinion
No. 109,110.
2013-09-13
Clint G. DAVIS, Appellant, v. LAFAYETTE C. GREISCHAR LIVING TRUST, Eileen M. Greischar Living Trust, and LAfayette C. Greischar, Individually and in His Capacity as Trustee, Defendants, and Stanley Stevens d/b/a City Exterminating Company, Appellee.
Appeal from Lyon District Court; W. Lee Fowler, judge. Monte L. Miller, of Miller & Heinman, Chtd, of Emporia, for appellant. Anthony L. Gosserand, of Van Osdol & Magruder, PC, of Kansas City, Missouri, for appellee.
Appeal from Lyon District Court; W. Lee Fowler, judge.
Monte L. Miller, of Miller & Heinman, Chtd, of Emporia, for appellant. Anthony L. Gosserand, of Van Osdol & Magruder, PC, of Kansas City, Missouri, for appellee.
Before GREEN, P.J., PIERRON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Clint Davis sued Stanley Stevens and others for professional negligence in connection with Stevens' termite inspection of a house owned by Davis. Stevens filed a motion for summary judgment on grounds that Davis failed to produce independent expert testimony to establish the relevant professional standard of care. The district court granted the motion, and Davis brings this appeal. He also appeals the district court's refusal to allow him to pursue a breach of contract/warranty cause of action that he listed in his pretrial questionnaire but never formally pled.
We conclude that Davis' claim required the testimony of an expert to establish the proper standard of care for a termite inspector and the district court did not err in granting summary judgment. Nor did the district court abuse its discretion in refusing to allow Davis to pursue his action for breach of contract/warranty. We affirm.
Facts
Davis entered into an agreement with the Lafayette C. Greischar Living Trust, the Eileen M. Greischar Living Trust, and Lafayette C. Greischar, individually and as trustee, to purchase property located in Emporia, Kansas. Stevens, doing business as City Exterminating Company, a licensed termite inspector, performed an inspection of the property on March 22, 2010, and produced a written report of that inspection.
Stevens utilized the generally accepted “NPMA–33” form in use for termite inspections in Kansas to make this report. The report indicated that visible evidence of wood destroying insects, i.e., “old damage” and “minor old damage,” was observed in several locations of the property. However, the box for “live insects” on the report was not marked. The report further indicated that there was visible evidence of possible previous treatment. It also provided that the conditions reported on were those that existed on the date of the inspection and the report was “not to be construed as a guarantee or warranty against latent, concealed, or future infestations or defects.” It also noted in bold, italicized, and underlined font that it was not a structural damage report, and that if the box for visible evidence of wood destroying insects was checked, “it should be understood that some degree of damage, including hidden damage, may be present.” It went on to explain that “[i]f any questions arise regarding damage indicated by this report, it is recommended that the buyer or any interested parties contact a qualified structural professional to determine the extent of damage and the need for repairs.”
At the closing on the purchase of the property, Maurice Schmidt with Ek Real Estate turned the inspection report toward Davis and reviewed it with him. He then signed that report and finalized the closing. Davis did not hire or retain the services of a structural inspector prior to closing.
After Davis began remodeling the property, he discovered live termites and structural damage when he tore out the kitchen floor sometime between August 9 and August 13, 2010. Davis called in Jack Koppa of Rainbow Pest Supply, who confirmed that the insects crawling around in the area below the torn-out kitchen floor were termites. Davis testified he also had a building contractor visit the property, who gave him a verbal estimate that the cost to repair the termite damage would exceed the value of the house. Stevens himself came back to Davis' property and, according to Davis' testimony, repeatedly stated, “I can't believe I missed that,” as he walked around looking at the termite damage exposed by the remodeling. Davis said Stevens also told him that it was only the second mistake he had made in 30 years because when he goes into a building he can “feel the presence of termites.” In an affidavit, Schmidt asserted that, in response to his query as to whether Stevens saw boards covering the termite-damaged center beam in Davis' basement, Stevens told him, “ ‘I did see them, I have seen that a thousand times, and I know what it meant, I screwed up.’ “ Schmidt said Stevens further admitted he did not check the exposed bottom side of that beam.
On January 14, 2011, Davis filed a petition alleging he was entitled to rescind his contract due to the misrepresentation and fraudulent concealment of the condition of the property by the sellers the Lafayette C. Greischar Living Trust, the Eileen M. Greischar Living Trust, and the trustee Lafayette Greischar. He also asserted he was entitled to damages from Ek Real Estate for negligent misrepresentation and concealment of the condition of the property and from Stevens for negligent inspection of the property.
During discovery, in response to Stevens' interrogatories asking for a list of expert witnesses expected to be called at trial, Davis responded that he had two witnesses: (1) Jack Koppa, who was designated to testify that “there was and had been for an extended period of time active termite infestation” and (2) Rick Mitchell of Mitchell Markowitz Construction, who was designated to testify that “the structure of the house has so much termite damage that it is not economically feasible to repair.” However, at his deposition, Koppa stated he had not been asked by Davis to provide any opinion testimony of any kind and he was not providing testimony as an expert regarding the contents of Stevens' report or whether Stevens was negligent. He noted he had not seen the report and knew nothing about how Stevens conducted his inspection, so he was not able to provide an opinion about whether the report met the standard of care required of a termite inspector. Koppa further testified he was not retained to give any opinion about how or when the termites got into the property and did not have an opinion about whether termites were present at the time of Stevens' inspection.
Koppa testified at his deposition as to the qualifications and licensure process required in order to become a termite inspector in Kansas, including passing a test to become a certified applicator, training seminars for at least 7 hours every 3 years, and attendance at one seminar each year. He further testified the purpose of the NPMA–33 form is to tell the buyer that if old termite damage is noted on the form, the buyer should look further. He said by filling out such a form, a termite inspector is not guaranteeing or warranting that termites are not in the property because it is possible there can be termites hidden behind obstructions. Koppa also stated in his deposition that as a termite inspector, he does not remove boards, look behind boards, or remove sheeting during his inspection. As such, he said that if the floor in the kitchen had not been torn out, he would not have seen the termites. Finally, he testified it was possible termites were not present on the property during Stevens' inspection in March 2010 but subsequently were present during his own inspection in August 2010.
By the time of the pretrial conference, Ek Real Estate had been dismissed by stipulation of the parties. Davis had never pled breach of contract and implied warranties, but he listed both in his pretrial questionnaire along with negligent inspection as alternative causes of action against Stevens. At the pretrial conference and in its pretrial order, the district court required Davis to elect the negligence theory as the only cause of action he could pursue at trial. The district court did so “based upon the state of the petition here,” noting Davis' amended petition only included a claim for negligent inspection and not breach of contract/warranty.
Later, Stevens moved for summary judgment on grounds that Davis was required to establish the standard of care and breach thereof by the testimony of an expert to establish professional negligence and he had failed to do so. Davis responded that expert testimony was unnecessary because Stevens already admitted he had made a mistake. Davis also claimed the photographic evidence he presented showing the termite damage that was not in Stevens' inspection report blatantly demonstrated a lack of reasonable care, thereby qualifying for the common knowledge exception to the requirement of having an expert to establish the professional standard of care and breach. However, Davis acknowledged in his deposition testimony that four of these five photographs depicted areas that were either covered up at the time of Stevens' inspection or were specifically noted in Stevens' inspection report. The district court found that under Kansas law expert testimony was required to establish Stevens' professional standard of care and Stevens' admissions did not establish that standard. In granting Stevens summary judgment, the court concluded that because Davis had not designated any expert to establish the standard of care, Stevens was entitled to judgment in his favor as a matter of law.
On December 21, 2012, by stipulation of the parties, the district court dismissed Davis' claims against Lafayette C. Greischar individually and as trustee.
Propriety of Summary Judgment
First, Davis argues the district court erred in granting Stevens' motion for summary judgment on the grounds that Davis could not establish a duty of care because (1) the district court itself acknowledged that differing conclusions could result from Stevens' admission of his mistake and (2) the common-knowledge exception applied so that no expert witness was required to establish the professional standard of care.
The rules regarding summary judgment have been stated many times. When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact and 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. O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 330, 277 P.3d 1062 (2012). The burden is on the moving party to demonstrate that no genuine issue of material fact exists when the record is viewed in a light most favorable to the nonmoving party. Crooks v.. Greene, 12 Kan.App.2d 62, 64, 736 P.2d 78 (1987). 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, 294 Kan. 330.
Summary judgment should be granted with caution in negligence actions. However, summary judgment is proper in a negligence action if the defendant shows there is no evidence indicating negligence. Edwards v. Anderson Engineering, Inc., 284 Kan. 892, 904, 166 P .3d 1047 (2007). After adequate time for discovery and upon motion, summary judgment is appropriate against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party bears the burden of proof at trial. In that situation there can be no genuine issue as to any material fact because “ ‘a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.’ “ Crooks, 12 Kan.App.2d at 64–65 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 [1986] ). A. The Requirement of Expert Testimony
Davis argues the district court should have denied summary judgment because Stevens' admissions that he “screwed up” and “made a mistake” established his breach of the standard of care. Davis claims that because the district court acknowledged he could establish the standard of care using Stevens' testimony, it should have resolved the facts and inferences that may be reasonably drawn from the evidence in his favor.
For a negligence action, the plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. Legleiter v. Gottschalk, 32 Kan.App.2d 910, 913, 91 P.3d 1246,rev. denied 278 Kan. 846 (2004). The duty of a professional in a negligence action is described in the pattern jury instruction: “In performing professional services, (a)(an) ____ has a duty to use that degree of care and skill which would be used by a reasonably competent ____ providing similar services (in the same community or similar communities) and acting in similar circumstances.” PIK Civ. 4th 123.70. Accordingly, to maintain a claim of negligence, a plaintiff must establish the existence of a duty, otherwise known as the standard of care.
Generally, when plaintiffs are attempting to establish negligence based upon a departure from the reasonable standard of care in a particular profession, expert testimony is required to establish such a departure. Moore v. Associated Material & Supply Co., 263 Kan. 226, 234–35, 948 P.2d 652 (1997); see, e.g., Bowman v. Doherty, 235 Kan. 870, 879, 686 P.2d 112 (1984) (finding “[e]xpert testimony is generally required and may be used to prove the standard of care by which the professional actions of the attorney are measured and whether the attorney deviated from the appropriate standard”).
Here, Davis admits he did not designate an expert to testify as to the standard of care required of a termite inspector in the community where his house was located. However, he claims he did not need an expert to establish the standard and Stevens' breach of that standard because Stevens admitted he had made a mistake. Schmidt's affidavit states that Stevens told him, “ ‘I did see [the boards covering the termite damage], I have seen that a thousand times, and I know what it meant, I screwed up.’ “ Davis himself also testified in his deposition that as Stevens looked at the termite damage in the property exposed by the remodeling, he repeatedly stated, “I can't believe I missed that,” and it was his second mistake in 30 years.
Although, as a rule of evidence, admissions of a party are binding and conclusive on that party when uncontradicted and unexplained, the fact that a party may have made some admissions does not alone constitute negligence. See Brooks v. Dietz, 218 Kan. 698, Syl. ¶ 7, 545 P.2d 1104 (1976); Meyer v. Stone, 6 Kan.App.2d 254, 258, 627 P.2d 1155 (“The fact that plaintiff may have made some admissions which defendant claims establish contributory negligence does not alone constitute contributory negligence by the defendant”), rev. denied 230 Kan. 818 (1981). Our Supreme Court has said that when an admission is relied upon to establish negligence as a matter of law, “the facts revealed thereby and inferences to be drawn there from must be viewed in the light most favorable to the party making the admissions.” Brooks, 218 Kan. 698, Syl. ¶ 7. Thus, a party's admission of wrongdoing does not automatically prove what the standard of care is or that the party breached that standard. Instead, the district court must interpret whether the facts established by the admission constitute negligence under the applicable standard of care. As the district court below correctly noted, “screwing up and admitting to a professional liability [is] two different things.”
Here, the record contains no evidence of what the professional standard of care for a termite inspection is. Therefore, the district court had no way of finding that Stevens' admission established he had breached his duty as a termite inspector. Furthermore, although not testifying as an expert as to the standard of care for a termite inspector, Koppa's deposition testimony alluded to a standard under which the termite inspector is not required to investigate behind boards or to remove sheeting during an inspection. If this, in fact, is the proper standard, Stevens' admission he made a mistake by not recognizing that boards were covering damage and that he did not “feel the termites” as he normally does would not establish a breach of his duty as a termite inspector. However, we do not know the particulars of the pertinent standard, and Davis, as the plaintiff has not provided it.
Additionally, Davis seems to claim that because the district court stated Davis could establish the standard of care through Stevens' testimony and therefore essentially found that differing conclusions could be drawn from the evidence, it should have drawn inferences from this finding in his favor. The claim inaccurately interprets the court's statement. In making its ruling on the summary judgment motion, the district judge stated:
“The real question comes down to, is it required that they have an independent expert witness to testify about what the standard of care is? And quite frankly, probably not, but I should say that with a big ‘but’ there because I suppose the defendant, Mr. Stevens, could establish the standard of care if he's done that. “ (Emphasis added.)
Contrary to Davis' interpretation, it appears the district court was simply speculating that Stevens, as a termite inspector, could hypothetically have testified as to the standard of care. Nowhere in this speculation does the district court state that Stevens' statements actually did establish the standard of care or that his testimony as a witness could establish the standard of care. In fact, the district court ultimately concluded that Stevens could not establish the standard of care, holding that “Mr. Stevens has not done it by his admissions or his other testimony that was presented.” B. The Common Knowledge–Exception
In the alternative, Davis claims the common-knowledge exception applies in this case so expert testimony is not required to establish Stevens' departure from the standard of care.
The scope of the common knowledge exception involves a question of law over which this court possesses unlimited review. Perkins v. Susan B. Allen Memorial Hospital, 36 Kan.App.2d 885, 888, 146 P.3d 1102 (2006), rev. denied 283 Kan. 931 (2007).
An exception to the rule that requires expert testimony to establish a departure from a professional standard of care exists where the lack of reasonable care or the existence of proximate cause is apparent based on common knowledge or experience. Expert conclusions or opinions are not necessary where the normal experience and qualifications of jurors permit them to draw proper conclusions from given facts and circumstances. Sterba v. Jay, 249 Kan. 270, 283, 816 P.2d 379 (1991). Whether expert testimony is necessary to prove negligence is dependent on whether, under the facts of a particular case, the trier of fact would be able to understand, absent expert testimony, the nature of the standard of care required of defendant and the alleged deviation from the standard. Gaumer v. Rossville Truck and Tractor Co. Inc., 41 Kan.App.2d 405, 408, 202 P.3d 81 (2009), aff'd 292 Kan. 749, 257 P.3d 292 (2011). The common-knowledge exception does not apply in a professional negligence claim when the matter is technically complicated. Bi–State Dev. Co. v. Shafer, Kline & Warren, Inc., 26 Kan.App.2d 515, 518, 990 P.2d 159 (1999).
Davis claims that because Stevens was to conduct a visual inspection for termite damage, his ability to see and report was not a highly technical matter requiring expert testimony and his failure to take note of severely damaged areas that were visible to inspection was patently bad. He asserts this case is less technical than several Kansas cases where the common knowledge exception has been applied to very technical professions such as x-ray technician or attorney. See Bowman, 235 Kan. at 879 (applying exception where attorney hired to represent client in criminal case failed to arrange for continuance resulting in client's failure to appear and subsequent arrest); McKnight v. St. Francis Hosp. & School of Nursing, 224 Kan. 632, 634–35, 585 P.2d 984 (1978) (applying exception when weakened patient fell onto the floor during an X-ray examination when the table was tilted vertically). Based on these points, Davis argues that he has presented sufficient evidence to establish a prima facie case of negligence to a lay jury, so summary judgment should have been denied.
We disagree. We view the standard of care required of a termite inspector in Kansas as technical and outside the ordinary experience and common knowledge of a jury. Koppa testified an inspector in this state must be licensed and pass a test to become a certified applicator, attend training seminars for at least 7 hours every 3 years, and attend one seminar each year. This level of training and licensure indicates that termite inspectors have knowledge that the common juror does not. Furthermore, the normal experience and qualifications of jurors would more likely permit them to draw improper conclusions from the given facts here in the absence of an expert opinion on a termite inspector's standard of care. Koppa stated in his deposition that as a termite inspector he does not look behind boards during his inspection. Is this in accord with the pertinent standard of care or not? Not only would this fact probably be outside the common knowledge of the jury, the average juror would likely assume a termite inspector's job is to find an active termite infestation even if it is hidden from view, since that it is what the average home buyer wants in a termite inspection.
Also, Koppa's testimony indicates that Stevens' performance was not patently bad. For one thing, Koppa testified that the purpose of the NPMA–33 form is to tell the buyer that if old termite damage is noted on the form, the buyer should look further. He said the form states that by filling out such a form a termite inspector is not guaranteeing or warranting that termites are not in the house because it is possible that there can be termites hidden behind obstructions. Moreover, Koppa testified that it was possible termites were not present on the property during Stevens' inspection in March 2010 but subsequently were present during his own inspection in August 2010. Finally, except for one photo of termite damage to the outside corner of the property, Davis himself testified that all the other damage was covered up or accurately listed in Stevens' inspection report. Thus, Stevens correctly used the NMPA–33 form to note visible damage in order to alert Davis to possible further damage or termite infestation. His failure to dismantle Davis' property to discover a termite infestation that may not have even been there at the time was not so pronounced or obvious as to be apparent to anyone as patently bad. See Goheen v.. Graver, 181 Kan. 107, 112–13, 309 P.2d 636 (1957); Perkins, 36 Kan.App.2d at 889.
Because the common-knowledge exception does not apply here and Davis did not provide an expert to establish the applicable standard of care, Davis failed to make a showing sufficient to establish the existence of elements essential to his negligence claim—the reasonable professional standard of care in his negligence action and Stevens' departure from it. The pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue as to any material fact because the complete failure of proof on the essential element of duty rendered all the other facts immaterial. See O'Brien, 294 Kan. at 330;Crooks, 12 Kan.App.2d at 64–65. The district court correctly concluded that Stevens was entitled to judgment as a matter of law.
Before proceeding to the next issue, we note that Davis also argues on appeal that the existence of a breach in this case could be inferred under the doctrine of res ipsa loquitur. However, he did not raise the issue to the trial court. Such issues cannot then be raised on appeal. In re Care & Treatment of Miller, 289 Kan. 218, 224–25, 210 P.3d 625 (2009). We will not address the argument.
Refusal of the District Court to Allow Davis to Pursue Breach of Contract/Warranty Claim
Last, Davis claims the district court abused its discretion by refusing to allow him to pursue a breach of contract or warranty action which he first mentioned in his pretrial questionnaire.
We review a district court's allowance or denial of a request to amend a petition under an abuse of discretion standard. See e.g., Brown v. United Methodist Homes for the Aged, 249 Kan. 124, 141–42, 815 P.2d 72 (1991) (noting district court is given wide latitude and discretion in permitting or refusing amendments of pleadings in interests of justice; in absence of clear abuse of discretion order of trial court should be approved) Slaymaker v. Westgate State Bank, 241 Kan. 525, 536–37, 739 P.2d 444 (1987) (finding no abuse of discretion in district court's refusal to grant motion to amend petition to add claim); In re Marriage of Sigg, No. 100,522, 2010 WL 3636268, at * 12 (Kan.App.2010) (unpublished opinion) (finding no abuse of discretion in trial court's decision to allow party to amend petition to frame pleadings consistent with parties' allegations), rev. denied 292 Kan. 965 (2011); accord Adamson v. Bicknell, 295 Kan. 879, 887, 287 P.3d 274 (2012) (stating district court's ruling on whether to permit amendment for punitive damages under K.S.A. 60–3703 is reviewed under abuse of discretion standard). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. Critchfield Physical Therapy v. The Taranto Group, Inc., 293 Kan. 285, 292, 263 P.3d 767(2011).
Previous to the submission of the pretrial questionnaire, Davis had amended his original petition once. In both the original and the amendment, he alleged negligent inspection as the only cause of action against Stevens. However, in his later pretrial questionnaire, he listed both (1) breach of contract and implied warranties and (2) negligent inspection as alternative causes of action against Stevens. At the pretrial conference, Stevens' counsel objected to Davis making a claim for breach of contract/warranty at that time because he had not pled it before and counsel had only prepared for a negligence inspection claim up to that point. The district court ordered that Davis could only pursue the negligence claim at trial. It did so “based upon the state of the petition here,” which included only the claim for negligent inspection and not breach of contract/warranty.
It is certainly true that the Kansas Supreme Court has consistently held that where a person contracts to perform work or to render a service, without express warranty, the law will imply an undertaking or contract on his part to do the job in a workmanlike manner and to exercise reasonable care in doing the work. Gilley v. Farmer, 207 Kan. 536, 542, 485 P.2d 1284 (1971). Consequently, negligence on the part of the contractor also results in a breach of the implied warranties, so the injured party may proceed against the contractor upon a contract or tort theory, or both. Tamarac Dev. Co. v. Delamater, Freund & Assoc., 234 Kan. 618, 621–22, 675 P.2d 361 (1984); Gilley, 207 Kan. at 542. Also, it goes without saying that if the parties specifically agreed that the work would be done a certain way and meet certain standards, a failure of the contractor or service provider to live up to these conditions could constitute a breach of contract/warraty.
Davis then argues from this principle that the district court could not have required him to elect which theory he would rely upon at the pleading stage since that would “defeat the purpose of allowing inconsistent pleading.” We would agree that under K.S.A.2012 Supp. 60–208, aparty may include alternative claims for relief in its pleadings. However, the statute says nothing about whether a party should be allowed to file an alternative claim in the later stages of the litigation process.
A district court may give leave for a party to amend its pleading “when justice so requires” under K.S.A.2012 Supp. 60–215(a)(2). Similarly, K.S.A.2012 Supp. 60–216 allows the district court to amend the pleadings during the pretrial conference. See also Bob Eldridge Constr. Co. v. Pioneer Materials, Inc., 235 Kan. 599, 606, 684 P.2d 355 (1984) (noting trial court's pretrial order amends pleadings and no other document need be filed). The district court has broad discretionary power under these statutes to amend the pleadings if necessary. Brown, 249 Kan. at 141–42;Rowland v. Val–Agri, Inc., 13 Kan.App.2d 149, 154, 766 P.2d 819 (1988). Our Supreme Court has stated that the petition is not necessarily intended to govern the entire course of the lawsuit and that the “ ‘ultimate determination as to the legal issues and theories on which the action will be determined is the pretrial order.’ “ Halley v.. Barnabe, 271 Kan. 652, 656–57, 24 P.3d 140 (2001) (quoting Noel v. Pizza Hut, Inc., 15 Kan.App.2d 225, 232, 805 P.2d 1244,rev. denied 248 Kan. 996 [1991] ). Thus, “the trial court ‘is given wide latitude and discretion in permitting or refusing amendments of pleadings in the interests of justice. In the absence of a clear abuse of discretion the order of the trial court should be approved.’ “ Brown, 249 Kan. at 142 (quoting Hoover Equipment Co. v. Smith, 198 Kan. 127, 133, 422 P.2d 914 [1967] ). A district court's actions under K.S.A.2012 Supp. 60–215(a)(2) permitting the amendment of pleadings will not constitute reversible error unless it affirmatively appears that the amendment allowed or denied is so material it affects the substantial rights of the adverse party. Rowland, 13 Kan.App.2d at 154. Similarly, the district court's power under K.S.A.2012 Supp. 60–216 is abused only when “no reasonable person would take the view adopted by the trial court.” Brown, 249 Kan. at 141–42.
Of particular relevance here is the case of Slaymaker, 241 Kan. 525. The Slaymaker court found the plaintiff had failed to show how the district court's refusal to grant the motion to amend was a clear abuse of discretion where the plaintiff's oral motion to amend the petition to add a claim was made some 20 months after he last amended his petition. Even more important to the court was the fact that the plaintiff advanced no reason for the failure to include the claim previously. 241 Kan. at 537.
Here, Davis initially filed his petition in January 2011. He filed an amended petition in July 2011. He did not attempt to raise the issue of breach of contract/warranty until a year later in July 2012 in his pretrial questionnaire, following months of discovery. We note that at the pretrial conference, the district court set a trial date for November 26, 2012. Like the plaintiff in Slaymaker, Davis does not assert any reason for his failure to include the claim earlier in the litigation process.
Davis' arguments on this issue focus primarily on the fact that one who has a claim for negligence against one who renders a service in connection with construction also has a claim for breach of contract/warranty. While this may be true, he not only fails to state why he did not raise the breach claim sooner, but his brief does not otherwise specify why the district court abused its broad discretion in requiring he proceed only on the claim he had previously pled. For example, he does not address the impact the late amendment would or would not have on the future course of the litigation. Would past depositions or other discovery need to be repeated? Would new dispositions and additional discovery be required at additional expense to all parties that could have been avoided had Davis pled the cause of action for breach at an earlier date? Would additional witnesses have to be called? Would the trial have to be delayed? Would there be any prejudicial impact upon Stevens and his attorney if the court granted Davis' request? Or, of even more importance, would there be no prejudicial impact on Stevens at all if the court allowed the amendment?
Based upon the record before us, Davis has failed to convince us that no reasonable person would have taken the action the district court did in requiring him to proceed only on the claim pled in his petition at the time of the pretrial conference. We find no abuse of discretion on the part of the district court in doing so.
Affirmed.