Opinion
2023-CA-0888-MR
09-20-2024
THOMAS J. YOUNG APPELLANT v. D.E.P.E., L.L.C., D/B/A PELLA WINDOWS AND DOORS; PELLA CORPORATION; BEN ROBERTSON, A/K/A ROBERTSON INSTALLATION SPECIALTIES; AND RYAN ROBERTS APPELLEES
BRIEFS FOR APPELLANT: John N. Billings Richard J. Dieffenbach Zachary G. Cato Lexington, Kentucky ORAL ARGUMENT FOR APPELLANT: Richard J. Dieffenbach Lexington, Kentucky BRIEF FOR APPELLEE D.E.P.E., LLC, A/K/A/ PELLA WINDOWS AND DOORS AND RYAN ROBERTS: Bradley E. Moore Diane R. Conley Lexington, Kentucky ORAL ARGUMENT FOR APPELLEE D.E.P.E., LLC, D/B/A/ PELLA WINDOWS AND DOORS AND RYAN ROBERTS: Bradley E. Moore Lexington, Kentucky BRIEF FOR APPELLEE PELLA CORPORATION: John F. Floyd, Jr. John F. Floyd, Sr. Nashville, Tennessee ORAL ARGUMENT FOR APPELLEE PELLA CORPORATION: John F. Floyd, Jr. Nashville, Tennessee BRIEF AND ORAL ARGUMENT FOR APPELLEE BEN ROBERTSON A/K/A ROBERTSON INSTALLATION SPECIALITIES: Barry A. Rudell, II Lexington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE KIMBERLY N. BUNNELL, JUDGE ACTION NO. 19-CI-03803
BRIEFS FOR APPELLANT: John N. Billings Richard J. Dieffenbach Zachary G. Cato Lexington, Kentucky
ORAL ARGUMENT FOR APPELLANT: Richard J. Dieffenbach Lexington, Kentucky
BRIEF FOR APPELLEE D.E.P.E., LLC, A/K/A/ PELLA WINDOWS AND DOORS AND RYAN ROBERTS: Bradley E. Moore Diane R. Conley Lexington, Kentucky
ORAL ARGUMENT FOR APPELLEE D.E.P.E., LLC, D/B/A/ PELLA WINDOWS AND DOORS AND RYAN ROBERTS: Bradley E. Moore Lexington, Kentucky
BRIEF FOR APPELLEE PELLA CORPORATION: John F. Floyd, Jr. John F. Floyd, Sr. Nashville, Tennessee
ORAL ARGUMENT FOR APPELLEE PELLA CORPORATION: John F. Floyd, Jr. Nashville, Tennessee
BRIEF AND ORAL ARGUMENT FOR APPELLEE BEN ROBERTSON A/K/A ROBERTSON INSTALLATION SPECIALITIES: Barry A. Rudell, II Lexington, Kentucky
BEFORE: CALDWELL, McNEILL, AND TAYLOR, JUDGES.
OPINION
TAYLOR, JUDGE
Thomas J. Young brings this appeal from a July 14, 2023, Opinion and Order of the Fayette Circuit Court granting summary judgment in favor or D.E.P.E., L.L.C., d/b/a Pella Windows and Doors (DEPE), Pella Corporation (Pella), Ben Robertson, a/k/a Robertson Installation Specialties (Robertson) and Ryan Roberts (Roberts). We affirm in part, vacate in part, and remand.
BACKGROUND
In 2001, Thomas Young purchased at auction a horse farm located in Scott County, Kentucky. The previous owner of the farm began constructing a house upon the farm in 1999. During the initial phase of construction, DEPE sold Pella windows and doors which were installed in the house in 1999. Construction of the house was incomplete when Young purchased the property in 2001.
In early 2014, with construction of the house still incomplete, Young contacted DEPE because water was coming in and/or around the French doors. At Young's request, Ryan Roberts, a sales representative for DEPE, visited the house. Roberts advised Young that multiple sets of the original French doors needed to be replaced. Roberts prepared a document entitled "Proposal - Detailed," which he refers to as a purchase order, for the replacement of the French doors at a total cost of $70,784.63. It is undisputed that Young did not sign the purchase order, but he did pay DEPE the total cost of $70,784.63. Roberts referred Young to a local installer, Ben Robertson, for installation of the doors. Young subsequently hired Robertson to install the doors. The doors were delivered to the house on May 29, 2014, and were installed by Robertson in October of 2014. By invoice dated November 2, 2014, Robertson billed Young $8,250 for installation of the doors, and Young paid Robertson the invoiced amount.
D.E.P.E., L.L.C., d/b/a Pella Windows and Doors (DEPE) was the exclusive dealer of Pella brand windows and doors in the Lexington, Kentucky, market.
The following spring, on March 9, 2015, Young notified Robertson that water was coming in and around the new French doors that Robertson had installed. It is not clear from the record whether Robertson inspected the doors at that time. Then, some three years later, on May 11, 2018, Young again notified Robertson about the water problem with the doors. Robertson and a technician from DEPE went to the house and inspected the doors. Thereafter, a claims representative with DEPE also inspected the doors and opined that the water issue with the doors was due to improper caulking of the seals and screw holes. Robertson, on the other hand, believed that water was leaking from underneath the doors due to improper factory installation of the under-door sweeps by Pella.
DEPE informed Young that it would replace the under-door sweeps at a cost of $4,000 to Young. The door sweeps were replaced; however, water continued to leak in and around the doors. The DEPE claims representative then opined that the water issue was not caused by the doors; rather, he asserted that the stucco-like finish on the exterior of the house was causing the water problem. DEPE then requested that it be permitted to conduct a water test on the doors; Young agreed. Following the water test, DEPE acknowledged that part of the water issue could be attributed to the doors not being the proper doors for this application. For example, as the doors were westward facing, the proper application would be out-swing doors rather than in-swing doors. DEPE refused to replace the French doors with in-swing-hinged doors despite Young having purchased the doors recommended by Roberts in 2014.
In 2018, while attempting to resolve the water issue with the doors, Young also informed Roberts that there were problems with the original Pella windows installed in the house in 1999. Several windows had glass panes that had become cloudy. It is undisputed that the Pella windows had a twenty-year warranty. DEPE opines that the cloudy glass was due to a gas seal failure and offered to replace the glass at no charge. However, DEPE informed Young that the warranty did not cover the cost of labor and that he would be charged $870 to replace the glass panes. Negotiations between Young and DEPE eventually broke down, and the glass panes were not replaced.
Young subsequently retained counsel and filed a Complaint on October 23, 2019. Shortly thereafter, a First Amended Complaint was filed on December 16, 2019. Then, on September 16, 2020, Young filed a Second Amended Complaint. In the Second Amended Complaint, Young asserted claims against DEPE, Pella, Roberts, and Robertson. Therein, Young asserted the following claims: negligent misrepresentation against DEPE, Roberts and Pella; breach of contract and breach of warranty against DEPE; restitution/unjust enrichment against DEPE and Pella; violations of the Kentucky Consumer Protection Act against DEPE, Roberts, and Pella; negligence against Pella; breach of contract and breach of warranty against Robertson; and negligent construction, negligent supervision, and negligent misrepresentation against Robertson.
The original complaint was only filed against DEPE and Pella Corporation (Pella).
The First Amended Complaint added Ryan Roberts (Roberts) as a party defendant.
In early 2023, motions for summary judgment were filed by DEPE, Pella, Roberts, and Robertson. By Opinion and Order entered July 14, 2023, the circuit court granted the motions for summary judgment and dismissed all of Young's claims against DEPE, Pella, Roberts, and Robertson. This appeal follows.
STANDARD OF REVIEW
Our standard of review upon appeal of a summary judgment is "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citing Kentucky Rules of Civil Procedure (CR) 56.03). Upon a motion for summary judgment, all facts and inferences in the record are viewed in a light most favorable to the nonmoving party and "all doubts are to be resolved in his favor." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citation omitted). A summary judgment looks only to questions of law, and we review a trial court's decision to grant summary judgment de novo. Brown v. Griffin, 505 S.W.3d 777, 781 (Ky. App. 2016); see also Blackstone Mining Co. v. Travelers Ins. Co., 351 S.W.3d 193, 198 (Ky. 2011).
BREACH OF CONTRACT AND BREACH OF WARRANTY AGAINST DEPE - DOORS
Young asserts that the circuit court erred by granting summary judgment dismissing his claims against DEPE for breach of contract and breach of warranty related to the sale of the new French doors in 2014. Young contends the court erroneously concluded that such claims were time-barred by the four-year statute of limitations found in Kentucky Revised Statutes (KRS) 355.2-725(1) of the Uniform Commercial Code (UCC). Young particularly asserts that application of the "discovery rule" tolled the running of the statute of limitations.
Thomas J. Young (Young) relies upon Fluke Corp. v. LeMaster, 306 S.W.3d 55 (Ky. 2010) for application of the discovery rule. However, Fluke does not address the statute of limitations relevant herein, KRS 355.2-725, and it has no application to the case sub judice.
By Opinion and Order entered July 14, 2023, the circuit court dismissed Young's claims against DEPE for breach of contract, breach of the implied warranty of merchantability, and breach of the implied warranty of fitness for a particular purpose. The circuit court determined there was an oral contract for the purchase of the new French doors between DEPE and Young. The court further determined that the only warranties associated with the new French doors were the implied warranties of merchantability and fitness for a particular purpose. The court ultimately concluded that the four-year statute of limitations found in KRS 355.2-725 applied to the oral contract and to the implied warranties. The court stated that the statute of limitations began to run on March 9, 2015, when Young notified Robertson that water was coming in and/or around the doors. As Young filed the complaint on October 23, 2019, the court concluded the claims were time-barred by the four-year statute of limitations under KRS 355.2-725.
Resolution of the statute of limitations issue presented is dependent upon application of the statute of limitations found in KRS 355.2-725, which states, in relevant part:
(1) An action for breach of any contract for sale must be commenced within four (4) years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one (1) year but may not extend it.
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.
The law in Kentucky clearly provides that the statute of limitations upon an action for breach of any contract for the sale of goods is four years after the cause of action has accrued. KRS 355.2-725(1). And, the cause of action is said to accrue "when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach." KRS 355.2-725(2). Pursuant to subsection (2) of KRS 355.2-725, a cause of action for breach of warranty generally accrues when "tender of delivery is made." KRS 355.2-725(2). The only exception is "where a warranty explicitly extends to future performance of the goods[.]" Id. This is known as the future-performance exception. 2 Matt Crockett, Law of Production Warranties § 11.14 (2024). If the future-performance exception applies, "discovery of the breach must await the time of such performance[.]" KRS 355.2-725(2). The future-performance exception of KRS 355.2-725(2) requires that the warranty contain an explicit forward-looking guarantee. In other words, there must be explicit language in the warranty that extends the performance of the goods into the future. 1 White, Summers, and Hillman, Uniform Commercial Code § 12:18 (6th ed. 2023); see also Corder v. Ethicon, Inc., 473 F.Supp.3d 749, 766 (E.D. Ky. 2020) (applying Kentucky law).
Simply stated, the law is clear that the future-performance exception to the statute of limitations under KRS 355.2-725 only applies when the warranty "explicitly" extends to future performance. In the absence of an explicit warranty to trigger the future-performance exception of KRS 355.2-725, the limitations period begins to run "when tender of delivery" is made. Id. And, of particular import in this case, an implied warranty, by its very nature, cannot explicitly extend to future performance; thus, an implied warranty accrues when tender of delivery is made. 1 White, Summers, & Hillman, Uniform Commercial Code § 12:18 (6th ed. 2023).
In the case sub judice, Young had an oral contract for the purchase of the doors and there were also implied warranties of merchantability and of fitness for a particular purpose. As the contract for the purchase of the doors was an oral contract, there could be no explicit language to trigger the future-performance exception of the statute of limitations contained in KRS 355.2-725(2). Likewise, neither of the implied warranties could explicitly extend to future performance. Thus, any breach of the oral contract and of the implied warranties occurred when tender of delivery was made.
In this case, the tendered delivery of the doors occurred on May 29, 2014, when DEPE delivered the doors to Young's house. As the statute of limitations under KRS 355.2-725 was triggered by tendered delivery of the doors, the four-year statute of limitations of KRS 355.2-725 had expired by the time Young filed his complaint on October 23, 2019. As such, Young's complaint was clearly time-barred by KRS 355.2-725, and the circuit court properly rendered summary judgment dismissing Young's claims against DEPE for breach of contract, breach of the implied warranty of merchantability, and breach of the implied warranty of fitness for a particular purpose.
Young also contends that the circuit court erred by not addressing his argument that the equitable estoppel doctrine tolled the four-year limitations period of KRS 355.2-725. In his brief, Young does not properly identify where he argued the equitable estoppel argument below. Young cites to Trial Record, p. 2055 where equitable estoppel is briefly discussed in regard to Young's allegations regarding violations of the Kentucky Consumer Protection Act. This argument is not related to the breach of contract and warranty claims. He also cites to Trial Record, p. 2131 for this argument; however, there is no equitable estoppel argument on this page of the Trial Record.
This Court notes that upon entry of summary judgment by the circuit court, Young did not file a Kentucky Rules of Civil Procedure 59 motion to alter, amend, or vacate, regarding the circuit court's failure to address this issue.
It is well established that issues not presented to or ruled upon by the circuit court are not preserved for appellate review. Regional Jail Auth. v. Tackett, 770 S.W.2d 225 (Ky. 1989). Young has failed to identify where this allegation of error was preserved below. See also Kentucky Rules of Appellate Procedure (RAP) 32(A)(4), which requires reference to the record in an appellant's brief showing how the issue was properly preserved. It is also well settled that this Court will not sift through a voluminous record to determine if an issue has been properly preserved. Parker v. Commonwealth, 291 S.W.3d 647, 676 (Ky. 2009). In the absence thereof, we believe this contention of error is not preserved for our review. See Tackett, 770 S.W.2d 225.
VIOLATION OF THE KENTUCKY CONSUMER PROTECTION ACT AGAINST DEPE, PELLA, AND ROBERTS - DOORS
Young contends that the circuit court erred by dismissing his claims brought pursuant to the Kentucky Consumer Protection Act (KCPA) against DEPE, Pella, and Roberts as time-barred by the two-year statute of limitations found KRS 367.220(5). More particularly, Young asserts that the circuit court erred by determining that the statute of limitations began to run upon the sale of the doors in 2014. Rather, Young asserts that DEPE and Roberts committed a series of separate false, misleading, or deceptive acts that continued until 2018. Young refers to these acts as "separate claims." Young's Brief at 26. From our review of the record, it does not appear that Young asserted the above allegation of error regarding the "separate claims" issue before the circuit court or that the court ever ruled upon same. As such, Young does not identify where the issue was preserved for appellate review nor does he identify the issue in his prehearing statement before this Court. RAP 32(A)(4) and RAP 22(C)(2). Notwithstanding, we agree with the circuit court that any alleged violations of the KCPA were not timely filed as provided for in KRS 367.220(5).
NEGLIGENT MISREPRESENTATION AGAINST ROBERTS, DEPE, AND PELLA - DOORS
Young asserts that the circuit court erroneously granted summary judgment dismissing his claims for negligent misrepresentation against Roberts, DEPE, and Pella. As to Roberts, Young asserts there exist genuine issues of material fact regarding whether Roberts made negligent misrepresentations to Young related to his purchase of the new French doors.
In its July 14, 2023, Opinion and Order, the circuit court determined that there was no evidence of any affirmative statement by Roberts that amounted to negligent misrepresentation. Rather, the court determined that Roberts "indicated that doors would be ordered that addressed [Young's] concerns." July 14, 2023, Opinion and Order at 7.
In this case, the record reveals that when water began coming in and/or around the original French doors, Young contacted Roberts. Roberts was employed by DEPE as a salesperson. Young sought the advice of Roberts regarding replacement of the French doors and relied upon Roberts to recommend the type of doors that were needed to resolve the water issue. Roberts visited the house and then told Young that the French doors needed to be replaced. Thereafter, Roberts sent a text to Young and said "I will send you what we need to order now and what needs to be ordered to fix [it] the right way." Trial Record at 1560. Young claims he then followed Roberts' advice and ordered the French doors that Roberts recommended. Young paid $70,784.63 to DEPE for the new French doors. Roberts, on the other hand, asserts that he merely identified the doors most similar to the original doors that were being replaced. After water came in and/or around the new doors, DEPE eventually acknowledged that the doors Roberts recommended to Young were not proper for the house. As the doors were westward facing, the doors should have been in-swing hinged doors and not out-swing hinged doors, and a higher performance rated door was needed. However, at all times during Robert's dealings with Young, he was acting within the scope of his employment with DEPE and nothing more. The circuit court thus concluded that all negligent misrepresentation claims against Roberts and DEPE were "subsumed by the economic loss rule." July 14, 2023, Opinion and Order at 7. We agree.
It is well established that the economic loss rule recognizes that if economic loss occurs, it essentially "deprive[s] the purchaser of the benefit of his bargain and that such losses are best addressed by the parties' contract and relevant provisions of Article 2 of the Uniform Commercial Code. See [KRS] 355.2-101 et seq." Giddings & Lewis, Inc. v. Indus. Risk Insures, 348 S.W.3d 729, 738 (Ky. 2011). This is in contrast to injuries to persons, from defective products, which would still permit actions in tort to recover for personal injuries. Id. Therefore, under the economic loss rule, the cost of repair or replacement of the product, lost profits or other similar economic losses "cannot be recovered pursuant to negligence or strict liability theories but are recoverable only under the parties' contract, including any express or implied warranties." Id. at 738. Similarly, any claim for punitive damages is also barred. Nami Res. Co., L.L.C. v. Asher Land and Min., Ltd., 554 S.W.3d 323, 336 (Ky. 2018).
In the case sub judice, it is undisputed that Young had an oral contract with DEPE for the purchase of the French doors. The complaint, as amended, seeks the recovery of damages from the defective doors, not damages for injuries to persons or other property caused by the doors. As such, the economic loss rule precludes recovery against DEPE and Roberts as its employee, for a negligence claim and instead limits recovery to the terms of the parties' contract. Nami Res. Co, L.L.C., 554 S.W.3d at 336 . Thus, we believe that the circuit court properly granted summary judgment in favor of Roberts and DEPE as to Young's claim for negligent misrepresentation.
Young also contends that the circuit court erroneously granted summary judgment in favor of Pella as to Young's claim of negligent misrepresentation. More particularly, Young asserts that the court erred by determining Roberts was not an actual or apparent agent of Pella and therefore Pella was entitled to summary judgment.
Again, a thorough review of the record below reveals that Roberts was an employee of DEPE and was not an actual or apparent agent of Pella. We have been cited to no evidence in the record that would establish Roberts was an agent of Pella, apparent or otherwise. Young relies upon CSX Transportation, Inc. v. First National Bank of Grayson, 14 S.W.3d 563, 566 (Ky. App. 1999), for the proposition that Roberts' relationship with Pella looked to disputed issues of fact. However, under CSX, if there are no disputed facts, then the relationship is a question of law for the court. Here, Roberts was an employee of DEPE and there is no substantial evidence in the record below to establish an agency relationship with Pella. Additionally, the damages asserted look to economic losses which can only be recovered against Pella under contract law, not tort litigation. See Giddings, 348 S.W.3d at 738. As such, we believe the circuit court properly granted summary judgment in favor of Pella as to Young's claim of negligent misrepresentation.
BREACH OF CONTRACT AGAINTS ROBERTSON - DOORS
Young contends the circuit court erred by dismissing his claim for breach of contract against Robertson for installation of the doors as time-barred by application of the five-year statute of limitations for oral contracts set forth in KRS 413.120(1). Rather, Young believes the ten-year statute of limitations for an action upon a written contract, KRS 413.160, is controlling based upon the written invoice Robertson prepared for installation of the doors. Young did not sign the invoice but did pay Robertson the invoiced amount.
By its Opinion and Order entered July 14, 2023, the circuit court determined that the November 2, 2014, invoice Robertson sent to Young was not a written contract as it was drafted after the doors had been installed on October 14, 2014. Thus, the circuit court concluded that the ten-year statute of limitations (KRS 413.160) was inapplicable. Rather, the court determined that Young and Robertson had an oral contract for installation of the doors, and thus the five-year statute of limitations found in KRS 413.120(1) was applicable. The circuit court then concluded that the breach of contract claim against Robertson was time-barred by application of the five-year statute of limitations (KRS 413.120(1)). Resolution of this issue is dependent upon whether the contract for the installation of the doors between Young and Robertson was an oral contract, a written contract, or partly oral and partly written.
We note that the alleged contract between Ben Robertson, a/k/a Robertson Installation Specialties (Robertson) and Young was for services - installation of the doors - and not the sale of goods. Thus, the Uniform Commercial Code is not applicable to this agreement.
In Mills v. McGaffee, 254 S.W.2d 716 (Ky. 1953), the Kentucky Supreme Court was presented with whether the five-year statute of limitations of KRS 413.120(1) for a nonwritten (oral) contract applied or if the fifteen-year statute of limitations of KRS 413.090(2) for a written contract applied. In deciding the issue, the Supreme Court made a distinction between a nonwritten (oral) contract and a written contract:
As the contract at issue was executed after July 15, 2014, the applicable statute of limitations for a written contract is governed by KRS 413.160, which provides:
An action upon a written contract executed after July 15, 2014, unless otherwise provided by statute, and an action for relief not provided for by statute can only be commenced within ten (10) years after the cause of action accrued.
KRS 413.090(2) provides:
An action upon a recognizance, bond, or written contract, except that actions upon written contracts executed after July 15, 2014, shall be governed by KRS 413.160[.]
[I]f the contract be partly oral and partly in writing or if a written agreement is so indefinite as to necessitate a resort to parol testimony to make it complete, the 5-year statute of limitations concerning 'contracts not in writing' would be applicable just as though the contract had rested entirely in parol. 53 C.J.S., Limitations of Actions, § 68, p. 1030.
A written contract is one which is all in writing, so that all its terms and provisions can be ascertained from the instrument itself. 45 Words & Phrases, p. 605; 53 C.J.S., Limitations of Actions, § 60, p. 1017. The cases generally hold that a written instrument which sets forth the undertaking of the persons executing it or discloses terms from which such an undertaking can be imported, and which shows the consideration for the undertaking, and which identifies the parties thereto, will be considered a contract in writing. See Annotation to 3 A.L.R. 2d, Sec. 2, p. 812, et seq.Mills, 254 S.W.2d at 717; see also Cornett v. Student Loan Solutions, LLC, 672 S.W.3d 852, 858 (Ky. App. 2023).
In the case sub judice, it is uncontroverted that there was an oral contract between Young and Robertson for installation of the doors. And, both parties likewise acknowledge that Robertson sent Young an invoice after the doors had been installed and Young paid the invoice. Pursuant to Mills, relied upon by Young in his brief, a written contract is one that is all in writing, and thus all of the terms and provisions of the contract can be determined from the instrument. Young argues that like Mills, the written instrument at issue herein, the invoice, contains the following: (1) identifies the undertaking (installation of the doors) of those executing it (Young and Robertson); (2) identifies the consideration ($8,250) for such undertaking; and (3) identifies the parties to the agreement (Young and Robertson). However, as plainly stated in Mills, the written instrument must be executed by the parties to the agreement. The invoice produced by Robertson after the work was completed was only signed by Robertson, not Young. Young's payment upon receipt of the invoice was nothing more than payment of a debt for services rendered by Robertson. The parties clearly entered into an oral contract which Robertson performed and Young paid for upon receipt of the invoice. Accordingly, we agree with the circuit court that the five-year statute of limitations for oral contracts (KRS 413.120) controls and summary judgment was properly granted for Robertson.
BREACH OF WARRANTY AGAINST DEPE AND PELLA - WINDOWS
Young asserts that the circuit court erred by dismissing his breach of warranty claim against DEPE and Pella as to the windows installed in the house in 1999. Young again contends that the circuit court erred in its application of the four-year statute of limitations found in KRS 355.2-725.
By its Opinion and Order entered July 14, 2023, the circuit court concluded that pursuant to KRS 355.2-725, Young's cause of action for breach of the window warranty had to be brought within four years of when the breach was or should have been discovered. The court ultimately concluded that the breach was or should have been discovered on August 28, 2014, when Young's farm manager emailed Young about a problem with the windows. Young's complaint was not filed until more than five years later, on October 23, 2019, and thus ruled to be untimely filed.
It is undisputed that the original windows that were installed in 1999 came with the following twenty-year limited warranty. The warranty provided:
Nonlaminated Glass. Transferrable Twenty-Year (20) Limited Warranty
Pella warrants that nonlaminated glass in Covered Pella Products shall be free from premature failure or permanent material obstruction of vision due to a failure of the glass seal for twenty (20) years from the date of sale by Pella or its authorized dealer. If Pella is given notice of a glass defect occurring within twenty (20)
years of the date of sale by Pella or its authorized dealer, Pella shall, as its sole option: 1) repair or replace the defective glass (with cost of labor included only within two [2] years of the date of sale by Pella or its authorized dealer) or 2) refund the original purchase price.Trial Record at 1787.
Again, pivotal to disposition of the issue presented is application of KRS 355.2-725, which provides:
(1) An action for breach of any contract for sale must be commenced within four (4) years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one (1) year but may not extend it.
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.
As noted, the circuit court concluded that the breach of warranty occurred no later than August 28, 2014, based on an email from Young's farm manager to Young regarding a discussion she had with Roberts about the windows. Young countered that he personally brought the issue regarding the windows to the attention of a representative of DEPE's claims department, Tyler Gross, in May of 2018, and that the action was timely filed when DEPE and Pella failed to replace the windows as promised. The context and depth of communications between the parties regarding the extent of the problems with the windows is clearly in dispute and the record also clearly reflects that a representative of DEPE confirmed to Young that the windows were covered by the twenty-year warranty. The twenty-year warranty explicitly extends to future performance as provided in KRS 355.2-725(2). Accordingly, the cause of action accrued when the breach was or should have been discovered. That is a disputed fact that must be resolved by the finder of fact.
As such, we agree with Young that the circuit court erroneously granted summary judgment dismissing the breach of warranty claim against DEPE and Pella as time-barred by the statute of limitations found in KRS 355.2-725. Accordingly, we vacate the circuit court's summary judgment dismissing the breach of warranty claim against DEPE and Pella regarding the windows and remand for proceedings consistent herewith.
SUMMATION
To summarize, we vacate the circuit court's summary judgment as to the breach of warranty claim for the windows as concerns DEPE and Pella. We affirm the circuit court's summary judgment as follows: the claims of breach of contract and breach of warranty for the doors against DEPE and Robertson; the claims under the KCPA against DEPE, Pella, and Roberts; and the claims for negligent misrepresentation against DEPE, Roberts, and Pella.
For the foregoing reasons, we affirm in part, vacate in part, and remand for proceedings consistent with this Opinion.
ALL CONCUR.