Osterhaus v. Toth (Supreme Court)

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 97,847

JASON L. OSTERHAUS,
Appellant,

v.

JEAN BETTY TOTH, et al., and
JEFFREY S. SCHUNK & TOPPROS REAL ESTATE, INC.,
Appellees.


SYLLABUS BY THE COURT

1.
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. The trial 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 court applies the same rules, and where the court finds
that reasonable minds could differ as to the conclusions drawn from the evidence,
summary judgment must be denied.

2.
A defendant is entitled to summary judgment if the defendant can establish the
absence of evidence necessary to support an essential element of the plaintiff's case.


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3.
The legal effect of a written instrument is a question of law. It may be construed
and its legal effect determined by the appellate court regardless of the construction made
by the trial court.

4.
The primary rule for interpreting written contracts is to ascertain the parties' intent.
If the terms of the contract are clear, the intent of the parties is to be determined from the
language of the contract without applying rules of construction.

5.
A cardinal rule of contract construction requires the court to construe all
provisions together and in harmony rather than in isolation.

6.
Interpretation of a statute is a question of law; the appellate court standard of
review is unlimited. Accordingly, when determining a question of law, the appellate court
is not bound by the trial court's interpretation of a statute.

7.
When construing a statute, a court should give words in common usage their
natural and ordinary meaning.

8.
Points raised only incidentally in a party's brief but not argued in the brief are
deemed abandoned.



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9.
Under the facts of this case, where the buyer of a home had a professional
inspection performed before closing on the house but the inspection failed to disclose
latent defects in the house, the reasonableness of the buyer's inspection was a question of
fact that could not be decided on a motion for summary judgment.

10.
Under the facts of this case, the district court erred in granting summary judgment
to defendants on plaintiff's claims of deceptive and unconscionable acts under the Kansas
Consumer Protection Act, K.S.A. 50-623 et seq., fraud, fraud by silence, negligent
misrepresentation, and breach of contract.

Review of the judgment of the Court of Appeals in 39 Kan. App. 2d 999, 187 P.3d 126 (2008).
Appeal from Johnson district court; KEVIN P. MORIARTY, judge. Opinion filed March 11, 2011. Judgment
of the Court of Appeals reversing the district court on the issues subject to our review is affirmed.
Judgment of the district court is reversed and remanded.

James E. Kiley, Jr., of The Kiley Law Firm, LLC, of Overland Park, argued the cause and was on
the briefs for appellant.

Thomas S. Busch, of Holman, Hansen and Colville, P.C., of Overland Park, argued the cause and
was on the briefs for appellees Jean Betty Toth and Toth Trust.

John W. Nitcher, of Riling, Burkhead and Nitcher, Chtd., of Lawrence, argued the cause and was
on the briefs for appellees Jeffrey S. Schunk and TopPros Real Estate, Inc.

Robert S. Caldwell, of Caldwell & Moll, L.C., of Overland Park, was on the brief for amicus
curiae Reece & Nichols Realtors, Inc.

The opinion of the court was delivered by

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NUSS, J.: This case arises out of the sale of a home which was later discovered to
have structural flaws. Jason Osterhaus, a first-time home buyer, brought an action against
the seller (Jean Betty Toth), Toth's real estate agent (Jeffrey Schunk), and Schunk's
company (TopPros Real Estate, Inc.). Osterhaus alleged deceptive and unconscionable
acts under the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq., fraud,
fraud by silence, negligent misrepresentation, and breach of contract. The district court
granted summary judgment to defendants on all claims. The Court of Appeals majority
reversed. Toth's and Schunk's separate petitions for review were granted by this court;
our jurisdiction is under K.S.A. 20-3018(b).

The parties' issues on appeal, and our accompanying holdings, are as follows:

1. Did the district court err in granting summary judgment for defendants
based upon McLellan v. Raines, 36 Kan. App. 2d 1, 140 P.3d 1034 (2006), and
Osterhaus' signature on the buyer acknowledgment and agreement? Yes.

2. Did the "as is" and release provisions in the form amendment bar
Osterhaus' claim for breach of contract? Remand for factual findings.

3. Were Osterhaus' claims for fraud and negligent misrepresentation barred by
the 2-year limitations period in K.S.A. 60-513(a)(3)? Remand for factual findings.

4. Were Osterhaus' claims against Toth for violation of the KCPA barred
because Toth was not a "supplier" under the provisions of the Act? Remand for
factual findings.

5. Did the district court err in granting summary judgment on the fraudulent
misrepresentation claim under the Brokerage Relationships in Real Estate
Transactions Act? Remand for factual findings.
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6. Did the district court err in failing to rule on Osterhaus' motion for leave to
amend his petition? Remand for factual findings.

7. Were Osterhaus' claims based on fraud barred because they are identical to
those he made for breach of contract? Remand for factual findings.

8. Did the Court of Appeals err in failing to sustain the district court's grant of
summary judgment to TopPros because it did not exist until 20 months after the
contract between Osterhaus and Toth closed? Abandoned.

9. Did the Court of Appeals err in failing to dismiss the breach of contract
claim against Schunk on the grounds that he was not a party to the contract?
Abandoned.

Accordingly, we affirm the Court of Appeals panel and remand to the district court
for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Mark and Cathy Ross sold their Overland Park home to Jean Toth in the spring of
2001. Prior to the sale, the Rosses completed a "Seller's Disclosure" statement which
indicated they had experienced cracks in the foundation, wall movement, and water in the
basement. In March 2001, Mark showed the house to Toth. He discussed with her cracks
in the basement walls, movement of the foundation walls, and repairs the Rosses made.
Toth was "very concerned" about water leakage and said she would have the property
inspected.

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A few days later Toth had the home inspected. The inspection revealed hairline
cracks in the foundation walls. But Toth proceeded with the purchase, and the sale closed
in May 2001. After Toth's purchase, she called the Rosses on several occasions to ask
questions about the property or to seek their assistance. In September 2001, after a heavy
rain, Toth called the Rosses and complained of water in her basement. She told Mark that
she had hired a foundation inspector who determined that the "sheetrock on the interior
wall near the west foundation wall of the house had buckled because the west foundation
had shifted inward." Toth showed Mark the buckled sheetrock wall and asked him how to
fix the water problem. At Mark's suggestion, Toth purchased fill dirt which Mark placed
around the foundation exterior.

Toth put the house on the market the following spring. That July, she signed an
exclusive listing contract with "TopPros Real Estate—Broker Jeff Schunk." Schunk had
Toth complete a form captioned "Seller's Disclosure-Statement of Condition" (disclosure
statement). It stated in paragraph 2, under "Seller's Instructions":

"SELLER agrees to disclose to BUYER all material defects, conditions and facts known
to SELLER which may materially affect the value of the property. This disclosure
statement is designed to assist SELLER in making these disclosures. The listing broker,
the selling broker and their respective agents will rely on this information when they
evaluate, market and present the Seller's property to prospective Buyers." (Emphasis
added.)

Despite Toth's experience during the past year with the house's foundation walls,
cracks and movement, and basement water, and her knowledge of the Rosses' similar
experience before that, in paragraph 8 Toth answered "No" to the following questions
regarding the "Structural, Basement and Crawl Space Items":

"Are you aware of:

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"(a) Any movement, shifting, deterioration, or other problems with walls, foundations,
crawl space or slab?

"(b) Any cracks or flaws in the walls, ceilings, foundations, concrete slab, crawl space,
basement floor or garage?

"(c) Any water leakage or dampness in the house crawl space or basement?

. . . .

"(h) Any repairs or other attempts to control the cause or effect of any problem described
above?" (Emphasis added.)

The disclosure statement then provided that "[i]f any of the answers in this
section are 'Yes', explain in detail. When describing repairs or control efforts,
describe the location, extent, date, and name of the person who did the repair or
control effort and attach any inspection reports, estimates or receipts." Despite
Mark's fill dirt control efforts, they were not described. Nor was a copy attached of
a report of Toth's foundation inspector regarding the sheetrock buckling or
movement of the foundation's west wall. A handwritten notation did provide,
however, that "north garage wall moved 1", it has been repaired."

In response to paragraph 15 of the disclosure statement, captioned "Other
Matters," Toth denied awareness of things such as fire damage and
landfill/underground problems. She then answered "no" to the question asking,
"Are you aware of any other conditions that may materially and adversely affect
the value or desirability of the property?" (Emphasis added.)

Also on that disclosure statement, in response to paragraph 16 Toth represented
that the house had an attic fan, a central vac and attachments, and a convection oven.
None of these were, or ever had been, present in the home. At the end of the seller's
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section of the disclosure statement, Toth represented that her information was not only
accurate and complete but also that she would notify the listing agent if any information
stated there changed prior to closing:

"The undersigned Seller represents that the information set forth in the foregoing
Disclosure Statement is accurate and complete. Seller does not intend this Disclosure
Statement to be a warranty or guarantee of any kind. Seller hereby authorizes their agent
to provide this information to prospective Buyers of the property and to real estate
brokers and salespeople. Seller will promptly notify listing agent, in writing, if any
information set forth in this disclosure changes prior to closing." (Emphasis added.)

The document concluded by stating: "THIS DISCLOSURE STATEMENT IS AN
INTEGRAL PART OF THE AGREEMENT BETWEEN SELLER AND BUYER. IF
NOT UNDERSTOOD CONSULT AN ATTORNEY BEFORE SIGNING."

Toth then signed and dated it on July 12, 2002.

Toth's agent, Schunk, walked through the house but did not perform an in-depth
inspection. He testified in his deposition that he did not go over the disclosure statement
with Toth and did not ask her any questions regarding the truth of her representations.

David Tomlinson made an offer to buy Toth's house 6 days later on July 18, 2002.
Shortly thereafter he had the property inspected. While the inspector and Tomlinson were
in the basement, Tomlinson noticed a large crack in the back of a piece of sheetrock. He
stated that they were able to see the back of the sheetrock in the adjoining room because
they were in an unfinished room. The inspector explained to Tomlinson that the sheetrock
crack was caused by movement of a foundation wall. Because of structural problems,
Tomlinson canceled the contract 6 days after his offer to purchase. Two days later
Schunk met with his seller, Toth, and she signed the cancellation release agreement.

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After Schunk received the notice of the contract cancellation and a copy of
Tomlinson's inspection report, he went to Toth's home to look at the basement's west
wall. He then recommended that Toth contact Glenn Marsee & Son Foundation Repair,
Inc. (Marsee) to repair the crack in the foundation. On July 31, 2002, Marsee put epoxy
in "eighteen feet of cracks" in the west foundation wall.

Two days after Tomlinson canceled his contract and 5 days before Marsee's
repairs, Osterhaus' real estate agent, Ronda Lenci, expressed interest in Toth's house.
Schunk testified in his deposition that he provided Lenci with a copy of Tomlinson's
inspection report and explained that the contract had been terminated due to issues with
the foundation, which were going to be repaired. Lenci testified in her deposition,
however, that she did not recall Schunk ever telling her about Tomlinson's inspection
report, Tomlinson's contract cancellation, or the foundation problems in the basement.

Osterhaus made an offer to purchase and on July 26, 2002, shortly before Marsee's
epoxy repairs, he signed the "Buyer Acknowledgment and Agreement" section of Toth's
seller's disclosure statement. That buyer's acknowledgment appears at the bottom of page
3 and states in its entirety:

"1. I understand and agree that the information in this form is limited to information
of which SELLER has actual knowledge and that SELLER need only make an earnest
effort at fully revealing the information requested.

"2. This property is being sold to me without warranties or guaranties of any kind by
SELLER or BROKER(S) or agents concerning the condition or value of the Property.

"3. I agree to verify any of the above information, and any other important
information provided by SELLER or BROKER (including any information obtained
through the multiple listing service) by an independent investigation of my own. I have
been specifically advised to have the property examined by professional inspectors.

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"4. I acknowledge that neither SELLER nor BROKER is an expert at detecting or
repairing physical defects in the property." (Emphasis added.)

Of most importance to the analysis of the instant case is paragraph 5, which
states:

"5. I specifically represent that there are no important representations concerning the
condition or value of the property made by SELLER or BROKER on which I am relying
except as may be fully set forth in writing and signed by them."

Toth counteroffered on July 27. She also corrected her earlier representation to
now indicate that there was no attic fan, central vac and attachments, or convection oven
on the property. However, again, despite Toth's experience with the house the past year,
and her knowledge of the Rosses' experience before that, she did not amend her
disclosure statement to inform Osterhaus that she had experienced cracks in the
basement, movement in a foundation wall, and water in her basement.

Osterhaus hired an inspector, Brian Rawlings, and attended part of the inspection.
Osterhaus testified in his deposition that Rawlings was in the house for approximately 3
or 4 hours. He also testified that on his previous tours of the home, he did not notice any
cracks in the basement walls because shelves and appliances were in front of the cracked
sheetrock. However, at the time of the inspection on August 3, 2002, while Osterhaus did
not see any open cracks, he did notice "a continuous line of epoxy filling covering what
appeared to be a prior crack in the west wall." Rawlings' inspection report reflects these
observations, noting: "Basement is partially finished, viewing was restricted by wall,
ceiling and floor coverings in area, Basement is only partially accessible due to storage in
areas." And the comment section in Rawlings' report concerning the basement walls
provides: "Poured concrete, Major cracking is noted. Repairs have been made. Appears
serviceable." Osterhaus received this inspection report before proceeding to close on the
property.
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After negotiations which included both an Addendum and Counteroffer
Addendum, on August 10 and 14, 2002, Osterhaus and Toth signed a final Amendment
(Resolution of Unacceptable Conditions) to the contract. Per these documents, Toth
agreed to pay $900 in closing costs in lieu of correcting the listed unacceptable
conditions: fix the specified wiring issue, have the chimney professionally cleaned, and
blow additional fiberglass or cellulose insulation to the specified rating. In August 2002,
Osterhaus took possession.

In spring 2004, Osterhaus noticed some water seeping into the carpet in a finished
portion of the basement. He eventually discovered that water was coming down the
foundation wall behind the sheetrock. By that summer, he experienced water leakage
when it rained, which resulted in "substantial amounts of mold" behind the walls.
Osterhaus estimated that it would cost more than $80,000 to fully repair his home.

Later that summer, Osterhaus sued Toth, Schunk, and TopPros. Count I alleged
deceptive and unconscionable acts in violation of the KCPA. Count II alleged fraud, i.e.,
intentional misrepresentation, claiming that Toth and Schunk intended to defraud
Osterhaus by concealing the water problems in the basement. Count III alleged fraud by
silence, claiming Toth and Schunk knew or should have known there was wall
movement, problems with the foundation walls, and water problems in the basement.
Count IV claimed negligent misrepresentation against Schunk and his agency, TopPros,
which was separate from the intentional misrepresentation claim (Count II), because they
"failed to exercise reasonable care or competence to obtain or communicate true
information" as required by the Brokerage Relationships in Real Estate Transactions Act
(BRRETA), K.S.A. 58-30,101 et seq. Finally, Count V alleged breach of contract,
claiming that Toth, Schunk, and TopPros all failed "to provide truthful, accurate, and
complete information to Osterhaus in Toth's Seller's Disclosure."

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All three defendants filed summary judgment motions and argued Osterhaus'
claims were resolved by McLellan v. Raines, 36 Kan. App. 2d 1, 140 P.3d 1034 (2006).
McLellan essentially held that by signing and agreeing to the buyers' section of the
seller's disclosure statement, the buyer waives the right to rely upon the seller's
representations in the disclosure statement and the accompanying right to later complain
of house defects.

After hearing arguments, the district court concluded that McLellan controlled and
granted summary judgment to defendants on all claims. The district court also noted that
Osterhaus had an independent inspection performed, which revealed "major cracking" in
the basement wall. Osterhaus appealed, maintaining that McLellan should be overturned
because it destroyed the intended purpose of the seller's disclosure statement.

A panel of the Court of Appeals reversed and remanded in Osterhaus v. Toth, 39
Kan. App. 2d 999, 187 P.3d 126 (2008). The panel departed from the holding and
rationale of McLellan and two very similar cases that followed: Katzenmeier v.
Oppenlander, 39 Kan. App. 2d 259, 178 P.3d 66 (2008), and Brennan v. Kunzle, 37 Kan.
App. 2d 365, 154 P.3d 1094, rev. denied, 284 Kan. 945 (2007). Judge Leben dissented in
part from the majority opinion, explaining that while he believed McLellan, Katzenmeier,
and Brennan were all wrongly decided, he would reserve changing the law for this court.
39 Kan. App. 2d at 1015-16 (Leben, J., dissenting in part).

More facts will be added as necessary to the analysis.


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ANALYSIS

Standard of Review

This court's standard for reviewing a district court's grant of summary judgment is
well-known:

"'"'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. The trial 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, we apply the same rules and where we find that reasonable
minds could differ as to the conclusions drawn from the evidence, summary judgment
must be denied.'"'" (Emphasis added.) Warner v. Stover, 283 Kan. 453, 455-56, 153 P.3d
1245 (2007).

Additionally, for this court to determine whether the district court erred, it must
interpret the sales contract. The legal effect of a written instrument is a question of law. It
may be construed and its legal effect determined by the appellate court regardless of the
construction made by the district court. Foundation Property Investments v. CTP, 286
Kan. 597, Syl. ¶ 2, 186 P.3d 766 (2008). The primary rule for interpreting written
contracts is to ascertain the parties' intent. If the terms of the contract are clear, the intent
of the parties is to be determined from the language of the contract without applying rules
of construction. Anderson v. Dillard's, Inc., 283 Kan. 432, 436, 153 P.3d 550 (2007); see
National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, Syl. ¶ 6, 225
P.3d 707 (2010).

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Issue 1: The district court erred in granting summary judgment for defendants based
upon McLellan v. Raines, and Osterhaus' signature on the buyer's acknowledgment and
agreement.

In granting defendants' motions for summary judgment, the district court ruled that
under McLellan, Osterhaus' signing and agreeing to the buyer's acknowledgment
effectively waived his right to rely upon Toth's representations in the seller's disclosure
statement:

"As set out above, [paragraph 5 of] the buyer's acknowledgment states: 'I
specifically represent that there are no important representations concerning the condition
or value of the property made by SELLER or BROKER on which I am relying except as
may be fully set forth in writing and signed by them.' Osterhaus did not list
representations upon which he was relying. In signing and agreeing to this particular
clause, Osterhaus waived his right to rely upon Toth's representations in the disclosure
statement. See McClellan v. Raines, 140 P.3d at 1038 ('The unambiguous language of
paragraph 5 clearly directs McLellan to either indicate which representations she was
relying on or agree to rely on none of them. She did not so indicate and thus waived her
right to rely on . . . the disclosure statement.')."

Without citation, the district court also held that "Osterhaus released Toth from
any obligation to disclose adverse information on the disclosure statement." (Emphasis
added.)

The court basically reasoned that due to Osterhaus' waiver of his right to rely upon
any representations, then obviously he could not prove reliance. Reliance was an essential
element of each of Osterhaus' claims—fraud, fraud by silence, negligent
misrepresentation, violation of the KCPA, and breach of contract (because Osterhaus
allegedly agreed not to rely upon the representations, "Toth's false statements did not
constitute a breach of the contract"). Consequently, summary judgment was granted. See
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U.S.D. No. 232 v. CWD Investments, 288 Kan. 536, 555, 205 P.3d 1245 (2009) (a
defendant is entitled to summary judgment if the defendant can establish the absence of
evidence necessary to support an essential element of the plaintiff's case); see Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23,106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

Osterhaus now argues that McLellan was wrongly decided as a matter of law, and
therefore the subsequent Court of Appeals opinions that paid homage to it were also
wrong. Accordingly, the buyers did not waive their right to rely upon seller
representations about their houses. Toth, Schunk, and TopPros respond that McLennan
was correctly decided. Before we can address the Court of Appeals analysis in McLellan,
however, we must review an earlier decision from this court.

Alires v. McGehee

In Alires v. McGehee, 277 Kan. 398, 85 P.3d 1191 (2004), the Alireses purchased
a home from the McGehees. After the basement leaked, they successfully sued for
fraudulent misrepresentation. The Alireses claimed the McGehees had fraudulently
misrepresented the condition of the house when they orally represented that the basement
did not leak. On the seller's disclosure statement, Mrs. McGehee answered "Yes," to the
question, "Has there ever been leaking or seepage in the basement or crawl space?" But
she wrote in the explanatory space, "Repaired broken pipe." 277 Kan. at 399-400. At
trial, Mrs. McGehee testified about two other instances of basement water leakage which
she had not disclosed in the statement, attributing the failure to faulty memory due to
recent brain tumor surgery.

The top of the Alires seller's property disclosure form read: "'THIS STATEMENT
. . . IS NOT A WARRANTY OF ANY KIND BY THE SELLER(S) OR ANY REAL
ESTATE LICENSEE IN THIS TRANSACTION, AND SHOULD NOT BE ACCEPTED
AS A SUBSTITUTE FOR ANY INSPECTIONS OR WARRANTIES THE BUYER
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MAY WISH TO OBTAIN.'" (Emphasis added.) 277 Kan. at 407. Similarly, Toth's
disclosure statement provides at paragraph 3: "This is . . . not a substitute for any
inspections or warranties that BUYER may wish to obtain. It is not a warranty of any
kind by SELLER or a warranty or representation by the BROKER(S) or their agents."
Likewise, Osterhaus' acknowledgment states in paragraph 2: "This property is being sold
to me without warranties or guarantees of any kind by SELLER or BROKER(S) or
agents concerning the condition or value of the Property."

Paragraph 3 in the Alires buyer's acknowledgment stated: "'I [buyer] agree to
verify any of the above information that is important to me by an independent
investigation of my own. I have been advised to have the property examined by
professional inspectors.'" 277 Kan. at 407. Similarly, Osterhaus acknowledged in
paragraph 3 that "I agree to verify any of the above information, and any other important
information provided by SELLER or BROKER (including any information obtained
through the multiple listing service) by an independent investigation of my own. I have
been specifically advised to have the property examined by professional inspectors."

Another Alires paragraph further advised about the use of buyer inspections. It
contained an express buyer waiver of all claims arising from any property condition that
would have been apparent from inspections had they been performed. It read in relevant
part:

"'Buyer and Seller agree that the real estate licensees involved in this transaction
are not experts regarding whether any environmental or health hazards, defects in the
mechanical equipment or systems, structural defects, or damage from wood destroying
insects exists in and on the property. Buyer and seller should seek expert advice and
obtain inspections to determine if hazards, defects or damage exist in and on the
property. If inspections are not performed regarding all or part of the property, Buyer is
bound by whatever information an inspection would have revealed, and waives any
claim, right or cause of action relating to or arising from any condition of the property
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that would have been apparent had inspections been performed. Unless otherwise
provided in paragraphs relating to specific inspections, Buyer accepts the property in its
current condition. This shall not be deemed a waiver or modification of any implied
warranties which may exist.'" (Emphasis added.) 277 Kan. at 407.

In a contract addendum, the Alireses expressly agreed to waive their contractual
right of inspection, which in turn waived their right to complain of property defects that
would have been apparent during such inspections. While Mr. Alires testified at trial that
he did not have the foundation inspected because he trusted Mrs. McGehee's
representation that the basement did not leak, he agreed that if an inspection had been
done, a determination about the condition of the basement could have been made before
closing. 277 Kan. at 401.

We initially examined the seller's argument—adopted by the Alires Court
of Appeals—that the Alireses were not justified as buyers in relying on the alleged
misrepresentations because the seller's disclosure statement contained a paragraph
specifically allowing the Alireses to note any important representations being
relied upon, and they wrote nothing there. That section of the buyer's
acknowledgment provided:

"'4. I acknowledge that neither Seller nor any real estate licensee involved in
this transaction is an expert at detecting or repairing physical defects in the property. I
state that no important representations concerning the condition of the property are being
relied upon by me except as disclosed above or as fully set forth as follows: ______.'"
(Emphasis added.) 277 Kan. at 406-07.

After noting that justifiable reliance is an element of fraud, we rejected the sellers'
argument that buyers' reliance was barred purely because of the language of the
acknowledgment. We observed that the sellers' disclosure statement was integrated into
the contract. We also observed that one of the alleged misrepresentations, i.e., that the
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basement had leaked only when broken pipes needed repairing, was "disclosed above" in
the disclosure form. Because the write-in section was for representations not mentioned
in the "above" section of the contract, we concluded: "There was no need for the Alireses
to write in the representation on which they were relying because Mrs. McGehee's
representation that the basement had leaked only when broken pipes needed repairing
was already listed." 277 Kan. at 404.

Having disposed of this contractual interpretation argument of sellers McGehees,
we then turned to whether the Alireses were actually justified in their reliance upon the
McGehees' statements. More specifically, we examined whether the Alireses' agreement
to buy the house "as is" and their written waiver of their contractual right of inspection
(which, per the contract, also would waive their right to claim property defects apparent
during such inspections) abrogated their claim of fraud. After first noting that whether
fraud exists is a question of fact, we affirmed the trial court's findings that Mrs. McGehee
indeed made untrue statements of fact and knew they were untrue. 277 Kan. at 403-06.

We next examined the specific contract paragraphs concerning inspections and
waivers. The McGehees argued the contractual limitations on their liability should be
applied to bar the Alireses' cause of action for fraudulent misrepresentation. The Alireses
responded that the court should ignore the contract's attempted limitations on the
McGehees' liability because the contract had been fraudulently induced.

We first discussed at length the McGehees' cited cases: Hamtil v. J.C. Nichols
Real Estate, 22 Kan. App. 2d 809, 923 P.2d 513 (1996), and Boegel v. Colorado Nat'l
Bank of Denver, 18 Kan. App. 2d 546, 857 P.2d 1362, rev. denied 253 Kan. 856 (1993).
Hamtil involved a buyer's written acknowledgment that was virtually identical to the one
in Alires. We distinguished Hamtil for several reasons, however, holding it was of little
support to the McGehees. Among other things, we noted the Hamtil claims were against
the realtors, not the sellers. But more critically, we also observed that the buyers in
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Hamtil simply alleged negligence and negligent misrepresentation, while the buyers in
Alires alleged fraud. The Hamtil court had held that contracts not illegal or contrary to
public policy will be upheld absent fraud, mistake, or duress. Alires, 277 Kan. at 409.

Boegel, however, was of support to the McGehees. There, the plaintiff buyer
argued that the defendant seller failed to disclose its knowledge about poorly performing
irrigation wells on the farm it sold to plaintiff. More particularly, the buyer contended the
seller knew that the buyer was mistaken and relying upon the seller's representations.
After the buyer appealed the jury verdict denying his claim for fraudulent concealment,
the Court of Appeals affirmed. It held that because of a written waiver provision stating
that the buyer was relying upon his own inspection and not upon any express or implied
warranty or representation made by the seller, and that the farm was being sold "as is
where is," the contract prevented the buyer from relying on the seller's representations. In
short, the buyer contractually assumed a duty to inspect the property, and he did not do
so. 277 Kan. at 409-10 (citing Boegel, 18 Kan. App. 2d at 552). The Boegel panel held
the seller had bargained for limited liability, noting the buyer's "claim of fraudulent
concealment seems to nullify the limited liability for which the Bank bargained." 227
Kan. at 410 (citing Boegel, 18 Kan. App. 2d at 554.)

Like the holding in Boegel, we held in Alires that the Alireses contractually
assumed the duty to inspect ("'I agree to verify any of the above information that is
important to me by an independent investigation of my own.'" 277 Kan. at 407.) and then
failed to conduct an inspection. In addition to Boegel's similar holdings, we also held the
Alireses contractually agreed that if they failed to have inspections performed, they
waived "'any claim, right or cause of action relating to or arising from any condition of
the property that would have been apparent had inspections been performed.'" 277 Kan.
at 410. As a result, in order to prove their case, the Alireses needed to provide evidence
that, even if an inspection had been performed, the defects in the foundation would not
have been apparent. This they failed to do. We also observed that Boegel included not
20

only a fraudulent concealment claim but also, like the Alireses' contention, an affirmative
misrepresentation.

Nevertheless, in an argument related to the one analyzed immediately above, the
Alireses finally argued that the contractual term providing for waiver of defect claims
because of their failure to inspect should not be enforced because it was induced by Mrs.
McGehee's fraudulent misrepresentations. This argument required our determination of
the reasonableness of the Alireses' reliance on those misrepresentations, as justifiable
reliance is an element of fraud. This led us to look at two cases: Munkres v. McCaskill, 64
Kan. 516, 68 P. 42 (1902), and Fox v. Wilson, 211 Kan. 563, Syl. ¶ 9, 507 P.2d 252
(1973).

We first examined the "similar factual situation" in Munkres. Alires, 277 Kan. at
411. There, the parties entered into an agreement to exchange land subject to a stipulation
that "the contract should not be binding until each party had investigated the property of
the other and each assumed the responsibility to make a full, fair, and complete
examination of the property to be satisfied as to the truth or falsity of the representations
made by the other." 277 Kan. at 411 (citing Munkres, 64 Kan. 516, Syl. ¶ 1). We held that
once a party made the examination, signified satisfaction, and closed the property trade
by exchanging title papers, that party could not rescind the contract on the ground that it
was induced to make the contract in reliance on the false representations by the other
unless the other party fraudulently prevented the making of a full, fair, and complete
examination of the property. Munkres, 64 Kan. 516, Syl. ¶ 1.

By contrast, when we examined Fox, we found no such agreement to investigate.
We had concluded in Fox that where a contract is induced by a false representation of
fact, it is not a defense that the buyer could have discovered the falsity of the
representation if due diligence had been exercised. Alires, 277 Kan. at 411 (citing Fox,
211 Kan. 563, Syl. ¶ 9). However, we held the critical difference between the two cases'
21

outcomes was the agreement in Munkres to undertake an investigation: "the fact there
was an undertaking to investigate relates to both the issues of whether the representation
was material and of whether the recipient of the information reasonably relied upon the
representation. See Restatement (Second) of Contract § 167, comment b; Restatement
(Second) of Contract § 172, comment b." (Emphasis added.) Alires, 277 Kan. at 411.

In Alires, we concluded our opinion by expressing our rationale and holding
against the buyer Alireses as follows:

"Under the facts of this case, the buyer of real estate could not reasonably rely
upon representations of the seller when the truth or falsity of the representation would
have been revealed by an inspection of the subject property and the misrepresentations
were made prior to or as part of the contract in which the buyer contracted for the right to
inspect, agreed that the statements of the seller were not warranties and should not
replace the right of inspection, declined inspection, and waived any claims arising from
defects which would have been revealed by an inspection. There is no showing in the
record that the subsequent contract addendum which contained the waiver of the right to
inspect was induced by any additional misrepresentations of the seller. Thus, . . . the
Alireses were not justified in their reliance upon the misrepresentations of Mrs.
McGehee." (Emphasis added.) 277 Kan. at 411-12.

In short, as a matter of law, a buyer may not reasonably rely on the admittedly
false representations of the seller when (1) the truth or falsity of a representation would
be revealed by an inspection and (2)(a) the misrepresentations were made prior to or as
part of a contract (b) in which the buyer contracted for the right to inspect the property,
(c) the buyer agreed that statements of the seller were not warranties and did not replace
the right of inspection, (d) the buyer declined to inspect the property, and (e) the buyer
contractually waived any claims arising from the defects which would have been revealed
in the inspection.

22

But a contractual waiver does not necessarily bar claims such as fraudulent
misrepresentation and breach of contract as a matter of law where a buyer's reasonable
inspection prior to purchase did not reveal a seller's false representation and later defects
are discovered.

McLellan v. Raines

Two years after Alires, the Court of Appeals issued its opinion, McLellan v.
Raines, 36 Kan. App. 2d 1, 140 P.3d 1034 (2006), which the district court in the present
case held concerned "uniquely similar facts." The McLellan sellers represented in a
disclosure statement that they were not aware of water leakage or dampness in the
basement, a representation the buyer, McLellan, alleged was "admittedly false." 36 Kan.
App. 2d at 14. McLellan relied upon the disclosure statement. She then had an inspection
done which found no evidence of damage to the unfinished basement or foundation walls
and no evidence of water entry or water damage to the property.

Shortly after moving in, McLellan experienced water leakage in the basement. She
brought an action against the sellers, claiming breach of contract, negligent
misrepresentation, fraud by omission, and claims under the KCPA. The McLellan panel
reviewed the contract's Buyer Acknowledgment and Agreement, paragraph 5, which is
identical to the one acknowledged by Osterhaus:

"I specifically represent that there are no important representations concerning the
condition or value of the property made by SELLER or BROKER on which I am relying
except as may be fully set forth in writing and signed by them." 36 Kan. App. 2d at 4.

The panel upheld the district court's grant of summary judgment to the sellers on all of
buyer's claims. Its rejection of all of buyer's theories was primarily based upon its reading
of paragraph 5, which it interpreted as requiring a writing—separate from the sellers'
23

disclosure statement—that set forth the sellers' representations upon which McLellan
relied. It declared: "The unambiguous language of paragraph 5 clearly directs McLellan
to either indicate which representations she is relying on or agree to rely on none of them.
She did not so indicate and thus waived her right to rely on the Raines' representations in
the disclosure statement." (Emphasis added.) 36 Kan. App. 2d at 8.

We disagree with the panel's holding requiring a separate document containing the
sellers' representations relied upon by the buyer because a "writing . . . signed by them"
in paragraph 5 does not specify a separate writing by the parties. Rather, it simply
indicates that the one who made the representation must have signed the writing. As
Judge Leben pointed out when discussing the same form language in his concurring
opinion in Katzenmeier v. Oppenlander, 39 Kan. App. 2d 259, 270, 178 P.3d 66 (2008):

"[T]he seller has already satisfied both parts of the phrase actually used because the seller
has [1] set forth in writing and [2] signed the disclosures, all contained in the very same
document. To suggest that yet another document was needed for the buyer to be able to
rely upon what the seller has already put in writing and signed renders the disclosure
statement without any legal effect."

Cf. Johnson County Bank v. Ross, 28 Kan. App. 2d 8, 10-11, 13 P.3d 351 (2000)
(The law favors reasonable interpretations of contracts, and results which vitiate
the purpose of the terms of the agreement to an absurdity should be avoided.).

The McLellan panel's interpretation of paragraph 5 drove its analysis of each of
McLellan's claims. For example, the panel concluded that McLellan could not prove a
breach of contract because she waived her right to rely on any representation by failing to
set them out in a writing separate from the disclosure statement. It additionally concluded
that McLellan's waiver also covered information the sellers had not even placed in the
disclosure statement:

24

"Because McLellan released the Raines from any obligation to disclose adverse
information on the disclosure statement and agreed not to rely on their statements therein,
any false statement did not constitute a breach of contract." (Emphasis added.) 36 Kan.
App. 2d at 8.

Because the panel concluded there had been no breach of contract, it reasoned that any
damages McLellan suffered could not have been the proximate result of contract breach.

The McLellan panel's interpretation of paragraph 5 of the buyer's
acknowledgement not only "renders the disclosure statement without any legal effect,"
but it is also at odds with key provisions in that statement. For example, paragraph 2
provides: "SELLER agrees to disclose to BUYER all material defects, conditions and
facts known to SELLER which may materially affect the value of the property. This
disclosure statement is designed to assist SELLER in making these disclosures."
Moreover, paragraph 15(b) asks the seller, "Are you aware of any other conditions that
may materially and adversely affect the value or desirability of the property?"
Additionally, the unnumbered paragraph immediately above the seller's signature line
states: "The undersigned Seller represents that the information set forth in the foregoing
Disclosure Statement is accurate and complete. . . . Seller hereby authorizes their agent to
provide this information to prospective Buyers of the property . . . . Seller will promptly
notify listing agent, in writing, if any information set forth in this disclosure changes prior
to closing." (Emphasis added.)

In turn, the buyer acknowledges in paragraph 1 of the Acknowledgment : "I
understand and agree that the information in this form is limited to information of which
SELLER has actual knowledge and that SELLER need only make an earnest effort at
fully revealing the information requested." (Emphasis added.) And, as mentioned, the
disclosure statement expressly states that it "IS AN INTEGRAL PART OF THE
AGREEMENT BETWEEN SELLER AND BUYER." A cardinal rule of contract
construction requires the court to construe all these provisions together and in harmony
25

rather than in isolation. Decatur County Feed Yard, Inc. v. Fahey, 266 Kan. 999, 1005,
974 P.2d 569 (1999).

The McLellan panel's interpretation of paragraph 5 of the buyer's acknowledgment
as requiring a separate writing setting forth the seller's representations upon which buyer
relied also appears inconsistent with several provisions of the Residential Sales Contract
between seller and buyer. For example, its paragraph 5, Condition of Property, provides
in relevant part: "THIS CONTRACT SHALL NOT BE EFFECTIVE UNTIL SELLER
COMPLETES AND BUYER SIGNS A SELLER'S DISCLOSURE-STATEMENT OF
CONDITION FOR THE PROPERTY." On a similar note, Paragraph 6 expressly states,
"The following Addenda . . . are attached hereto and are a part of this Contract: . . .
seller's disclosure."

Under the McClellan panel's interpretation, in the absence of a separate writing the
buyer's signed acknowledgment essentially metamorphoses into a terminator of any seller
obligation to provide the complete truth about the property. In other words, the seller can
both intentionally make misrepresentations in the information it actually discloses and
can intentionally fail to disclose adverse information altogether in the document
ironically captioned "Seller's Disclosure-Statement of Condition." For all of these
reasons, we hold this interpretation to be erroneous. Accordingly, we hold that paragraph
5 of the buyer's acknowledgment does not relieve a seller of the obligation to make
accurate and complete disclosures and does not bar Osterhaus' contract claims as a matter
of law.

As for the panel's incorrect interpretation also driving its analysis of McLellan's
other claims, the panel ultimately concluded that "McLellan's fraud claim against Fate
[McLellan's agent], Bockelman [sellers' agent] and RNR [realtor of both agents] fails
because she agreed not to rely on their representations and thus could not prove a
required element of the claim." 36 Kan. App. 2d at 17. The panel also concluded that no
26

violation of the Kansas Consumer Protection Act (KCPA) could occur as McLellan "had
no legal right to enforce at law because she waived her right to rely on the realtors'
representations when she signed the buyers' acknowledgment." 36 Kan. App. 2d at 18.
Because McLellan had no legal right to enforce, she could not constitute an "aggrieved
consumer" under the Act. 36 Kan. App. 2d at 18. The panel concluded that her agreement
not to rely upon the realtors' representations prevented a causal connection between the
representations and her claimed damage. 36 Kan. App. 2d at 18. The panel appeared to
similarly dispose of the negligent misrepresentation claim. 36 Kan. App. 2d 1, Syl. ¶ 7
("the district court was correct in granting summary judgment to buyer's agent and the
sellers for lack of proof of a duty to disclose"). Consequently, we also hold that paragraph
5 does not bar Osterhaus' reliance-based claims as a matter of law.

As noted by the district court here, the McLellan panel also held that the failure to
indicate what representations buyer was relying upon in a separate writing resulted in a
"waiver" of buyer's right to rely upon seller's representations in the disclosure statement.
Because we have held both courts erred in requiring a separate writing, we need not
determine whether the lack of a separate writing necessarily created a waiver. Compare
Alires, 277 Kan. at 410 (waiver expressly stated in contract) with McLellan, 36 Kan.
App. 2d at 13 (no express waiver language in contract).

In conclusion, rather than a terminator of a seller's obligation to provide complete
truth about its property in the disclosure statement, we believe Paragraph 5 more likely
attempts to serve as an integrator. An integration clause protects both the seller and the
broker from the buyer's argument that the seller made oral representations upon which the
buyer relied. Cf. ARY Jewelers v. Krigel, 277 Kan. 464, 476-77, 85 P.3d 1151 (2004)
(integration clause provides that the written contract constitutes the entire agreement
between the parties).

27

Court of Appeals decisions following McLellan

Two panels of the Court of Appeals adopted the reasoning of the McLellan court.
In Brennan v. Kunzle, 37 Kan. App. 2d 365, 154 P.3d 1094, rev. denied 284 Kan. 945
(2007), the buyers began experiencing water leakage problems and sued the sellers.
Relying upon McLellan, the Brennan panel held as a matter of law that the language of
the real estate form documents (identical to the ones in this case) required an
identification of the sellers' representations upon which the buyers relied. Absent specific
identification, the buyers could not show reliance upon the sellers' representations in the
disclosure statement and those made before it was signed. Accordingly, they could not
prevail on claims of fraudulent and negligent misrepresentation. 37 Kan. App. 2d at 387-
88.

Perhaps because a fraud by silence claim does not concern actual representations,
unlike the torts of fraudulent and negligent misrepresentation, the Brennan panel applied
a different rationale there. More specifically, it did not review the contract language but
examined whether the sellers' failure to disclose material facts that were related to the
house, e.g., water leaks, were discoverable with a reasonable buyers' inspection. It held
that the question of the reasonableness of the buyers' inspection, which had not
discovered the defects causing leaks, was a question of fact that precluded summary
judgment. The panel noted that the buyers produced evidence that they had not been
provided with enough information to warrant further inspection of the water leak issue.

Most recently, in Katzenmeier, 39 Kan. App. 2d 259, the house buyers sued the
seller after experiencing water leakage problems. Citing McLellan, the panel held as a
matter of law that the language of the real estate form documents, also identical to the
ones in the instant case, required an identification of the seller's representations upon
which the buyers relied. Absent any specific identification, the buyers could not show
reliance on the seller's representations in the disclosure statement and those made before
28

it was signed. Consequently, the buyers could not prevail on claims of fraudulent and
negligent misrepresentation. "[B]ecause the Katzenmeiers did not declare which
representations they were relying on, it would seem that they had agreed not to rely on
any of them." 39 Kan. App. 2d at 263.

As an apparent alternative ground for holding for the seller, the Katzenmeier panel
also held that the buyers factually could not show their justifiable reliance—a required
element of both intentional and negligent misrepresentation—upon the disclosure
statement:

"They hired two professional inspectors to check the property. The inspections turned up
evidence of water leakage and possible drainage problems. Although the inspections did
not reveal the full extent of the previous water leaks, the inspections put the
Katzenmeiers on notice of water leaks or drainage problems. This case, however, is
unlike Brennan where it was alleged that careful inspections had not revealed the defect."
39 Kan. App. 2d at 264-65.

Given our rejection today of the McLellan rationale based upon paragraph 5 of the
buyer's acknowledgment, those parts of Brennan and Katzenmeier relying upon
McLellan's rationale are likewise rejected. Similarly, the reliance by the district court
upon McLellan in our case, while certainly understandable, was nevertheless error.
Accordingly, the appellate arguments of Toth, Schunk, TopPros, and the amicus curiae
Reece & Nichols Realtors that embrace McLellan are rejected.

As a result, we reverse the district court's grant of summary judgment to
defendants on all of Osterhaus' claims which were based upon the rationale that the
reliance element could not be met as a matter of law due to his signature on, and
agreement to, paragraph 5 of the buyer's acknowledgment.

29

While the defendant's contract-based argument of "no reliance" is rejected as a
matter of law, another related issue must be addressed. Specifically, we must determine
whether Toth's misrepresentations (fraudulent and negligent), or her failure to disclose
defects, could have been reasonably relied upon by Osterhaus—or whether a reasonable
inspection nevertheless would have revealed the defects about which he complains.

We begin by observing that Osterhaus complains many items were not disclosed
by Toth, Schunk, or both. Examples include: concrete damage, e.g., cracks to the
foundation; the recency of the Marsee repairs; damage to the interior (sheetrock)
basement wall; the movement of the west basement wall; water in the basement; and the
Tomlinson inspection report or cancellation notice.

Osterhaus also complains not only of the defendants' failure to disclose but also of
concealment of defects. According to Osterhaus, between Tomlinson's inspection and the
viewing by Osterhaus and his inspector, Rawlings, Toth allegedly removed the damaged
sheetrock on the south side of the wall and sealed up evidence of damage on the wall's
north side by sheetrocking over it. He also complains that Toth repaired the interior
partition wall so evidence of the wall movement would not be detected. Osterhaus further
complains that Toth moved her personal property back to cover the west wall within 3
days of Marsee's repairs to prevent Rawlings from doing a reasonable and adequate
investigation and inspection.

Osterhaus concludes most, if not all, of these matters could not have been
discovered through reasonable inspection. See Brennan, 37 Kan. App. 2d at 379
(fraudulent nondisclosure, or fraud by silence, depends in large part on the buyer's
inability to discover a defect with a reasonable inspection). Cf. Alires, 277 Kan. at 411
(buyer could not reasonably rely upon representations of seller when truth or falsity of
representation would have been revealed by an inspection of the property, unless fraud
"prevented the making of a full, fair, and complete examination of the property").
30


Toth responds that Osterhaus noticed the ceiling-to-floor diagonal crack (and
epoxy) in the west basement wall on the day of inspection, August 3, 2002, and therefore
testified he was aware Toth had incorrectly filled out Section 8 of the disclosure
statement regarding cracks and leakage in the basement foundation walls. Toth also
argues that the comments by Osterhaus' inspector, Rawlings—"Major cracking is noted.
Repairs have been made. Appears serviceable"—put Osterhaus on sufficient notice of
recent cracking and movement of the west wall. Consequently, she contends his claims
are barred. Toth further argues that when Rawlings saw the cracks in the basement wall
(though epoxied), Rawlings should have suspected wall movement and "knew or should
have known" that Toth lied on her disclosure statement.

Both Toth and Schunk argue that experts opined that the damage and wall
movement could have been, or should have been, discovered via measurement by
Osterhaus' inspector, Rawlings. Osterhaus infers from Rawlings' affidavit language that
he should have been advised of the recency of the repairs to the west wall; otherwise, he
would not have written in his report "[wall] appears to be stable." Osterhaus suggests that
Rawlings' failure to include cracking as a major concern in his report was the result of
defendants' failure to disclose that the repairs were recent.

We resolve this issue—of whether a reasonable inspection would have revealed
the defects about which Osterhaus complains—by recalling that the district court granted
summary judgment. Its memorandum decision stated that the three types of fraud
claims—fraud, fraud by silence, and negligent misrepresentation—were rejected for
failure to show reliance because of the buyer's acknowledgment and agreement in
paragraph 5 not to rely upon the seller's disclosure statement. Admittedly the decision
then provides: "Moreover, Osterhaus obtained an independent inspection which identified
'major cracking' in the basement wall." Unfortunately, the memorandum decision does
31

not elaborate on this particular observation or attempt to explain how, if at all, it figures
in the rationale and holding.

Under these circumstances, we cannot conclude that summary judgment
was appropriate on this basis of identification of "major cracking." Or, if it turns
out that summary judgment was not granted by the district court on this basis, we
cannot independently now conclude that our deciding this issue as a matter of law
on this record is appropriate. Warner v. Stover, 283 Kan. 453, 455-56, 153 P.3d
1245 (2007) ("'[W]here we find that reasonable minds could differ as to the
conclusions drawn from the evidence, summary judgment must be denied.'").

Brennan is of guidance on whether house defects were discoverable after
inspection. There, the buyers discovered water and mold on a study carpet and water on a
closet floor in the basement before closing. After some seller action to repair these leaks
and after the transaction's closing, the buyers experienced water infiltration in an interior
wall. A process of destructive testing revealed significant infiltration through the exterior
of the house and through the walls, including where the deck joined the house. Roughly 1
month after closing, the sellers, for the first time, disclosed to the buyers a professional
engineer's report concerning four water leak areas in the house. The report noted that
destructive testing would have to be completed in order to pinpoint the exact location of
the leak. The sellers spent approximately $4,500 on repairs. By contrast, the buyers spent
more than $500,000 to resolve the water infiltration problems.

The buyers alleged fraud and negligent misrepresentations, claiming the seller
failed to disclose several material facts, including the professional engineer's report. In
relevant part, the Brennan panel stated:

"The Kunzles conducted a number of inspections, but they did not discover the defects
until after taking possession of the house. Moreover, the Kunzles presented evidence that
32

the defects were not discoverable through reasonable inspections. The reasonableness of
the Kunzles' inspections was a question of fact. '"It is only when it can be said that
reasonable persons could reach but one conclusion from the same evidence that an issue
may be decided as one of law."' [Citation omitted.] Because more than one conclusion
can be drawn from the same evidence, the trial court erred in determining as a matter of
law that the Kunzles failed to establish a genuine issue of material fact as to whether the
defects could have been discovered had the Kunzles hired 'professional inspectors to look
at the water related items.' The determination of whether the defects were discoverable
through a reasonable inspection was a function of the trier of fact. [Citation omitted.]"
(Emphasis added.) 37 Kan. App. 2d at 386.

Moreover, Toth allegedly sealed the evidence of the wall damage and moved her
personal items to cover the west wall. To the extent Osterhaus also is essentially arguing
that he therefore was fraudulently prevented from making "a full, fair, and complete
examination of the property," we note that the existence of fraud is also a question of
fact. Alires, 277 Kan. at 403, 411. On summary judgment, we generally do not resolve
factual questions. See Warner, 283 Kan. at 455 (trial court 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).

We reject the defendants' arguments that, as a matter of law, Osterhaus could not
have relied upon the representations. Summary judgment was incorrectly entered on their
behalf.

Issue 2. The "as is" and release provisions in the form Amendment do not bar Osterhaus'
claim for breach of contract.

Toth, Schunk, and TopPros next alternatively argue they are entitled to summary
judgment on Osterhaus' breach of contract claim because the form Amendment to the
sales contract captioned "Resolution of Unacceptable Conditions" contains an "as-is"
33

provision. More specifically, paragraph 2.c on the form Amendment provides in relevant
part that "[b]y closing the transaction, Buyer accepts the Property in its present "as is'
condition." Paragraph 2.d also states in relevant part that "Sellers and Realtors are
released from any further obligation or liability related to the condition of the Property."

Osterhaus responds that the "as-is" provision is limited to the unacceptable
conditions outlined by the buyer. He contends that this limiting provision does not make
the entire contract an "as-is" contract but rather is one of several options a buyer has
when dealing with unacceptable conditions discovered after an inspection. The district
court specifically declined to address this issue in its ruling on the summary judgment
motions.

The "as-is" clause must be read in context. Decatur County Feed Yard, Inc., 266
Kan. at 1005 (cardinal rule of contract construction requires court to construe all
provisions together and in harmony rather than in isolation); Cf. Southwestern Bell Tel.
Co. v. Beachner Constr. Co., 289 Kan. 1262, 1270, 221 P.3d 588 (2009) (provisions of an
act must be construed in pari materia in an effort to make all provisions consistent,
harmonious, and sensible). The form Amendment gives the buyer several options for
dealing with unacceptable conditions and memorializes the methods for resolving them.
The buyer may accept the property "as is," i.e., without seller action correcting the
unacceptable conditions (paragraph 1); agree to change the purchase price (paragraph
2.a); agree to accept payment or credit in lieu of correction of the unacceptable conditions
(paragraph 2.b); or agree with the seller that certain conditions will be corrected
(paragraph 2.c). In this case, Osterhaus agreed through paragraph 2.c that Toth would pay
$900 of Osterhaus' closing costs in lieu of making the corrections to the three identified
unacceptable conditions, none of which concerned the basement: electric, chimney, and
insulation.

34

The Amendment clearly deals with the issue of unacceptable conditions revealed
by a buyer's inspection. We observe that the Amendment expressly provides at the outset:
"THIS AGREEMENT IS FOR DOCUMENTING THE METHOD OF RESOLVING
ANY UNACCEPTABLE CONDITIONS REVEALED BY BUYER'S INSPECTION AND
WHICH WERE THE BASIS OF BUYER'S OFFER TO RENEGOTIATE. . . ."
(Emphasis added.) Accordingly, it provides in the next paragraph, "THE
AGREEMENT(S) SET FORTH IN THIS AMENDMENT CONSTITUTE THE ENTIRE
AGREEMENT BETWEEN THE BUYER AND SELLER WITH RESPECT TO
RESOLUTION OF THE UNACCEPTABLE CONDITIONS IDENTIFIED IN BUYER'S
OFFER TO RENEGOTIATE," and that had been revealed by the buyer's inspection.

In the same fashion, paragraph 1 provides in relevant part: "BUYER AGREES TO
ACCEPT PROPERTY 'AS IS.' Buyer conducted inspections, found unacceptable
conditions and notified Seller of Buyer's desire to renegotiate the Contract." (Emphasis
added.) Similarly, paragraph 2 provides: "RESOLUTION OF UNACCEPTABLE
CONDITIONS: Buyer conducted inspections, found unacceptable conditions and notified
Seller of Buyer's desire to renegotiate the Contract." (Emphasis added.)

Although the defendants are accurate in their references to the Amendment
language, the Amendment is clearly based upon the premise that defects have been
discovered during the buyer inspections and that, at least initially, they have been
identified to the seller for possible resolution. The language from subparagraphs c and d
of paragraph 2 follow that main paragraph's prefatory, captioned language:
"RESOLUTION OF UNACCEPTABLE CONDITIONS." The options in the
Amendment break down when, as here, for whatever reason, Osterhaus' inspection
apparently did not reveal the defects in the foundation in order for them to be identified
as unacceptable conditions. Accordingly, the "as-is" language does not extend to the
foundation problems and does not preclude Osterhaus' claim for breach of contract.

35

We remand to the district court to make factual findings as to whether a reasonable
inspection would have revealed the defects in the foundation such that they should have
been included as unacceptable conditions by Osterhaus in the form Amendment.

Issue 3: Whether Osterhaus' claims for fraud and negligent misrepresentation are barred
by the 2-year limitations period is a fact question.

Toth, Schunk, and TopPros argue an alternative basis for upholding their summary
judgment on Osterhaus' claims for fraud, fraud by silence, and negligent
misrepresentation. Specifically, they argue these claims are barred because they were not
filed within 2 years as required by K.S.A. 60-513(a)(3) and (a)(4). The district court
specifically declined to address this issue in its ruling on the summary judgment motions.

Under K.S.A. 60-513(a)(3), fraud causes of action "shall not be deemed to have
accrued until the fraud is discovered." Defendants contend that Osterhaus learned that
Toth's disclosure contained misrepresentations during his inspection with Rawlings on
August 3, 2002. Because Osterhaus' petition was not filed until August 11, 2004,
defendants contend that his claims are time-barred.

Osterhaus counters with the plain language of K.S.A. 60-513(b):

"Except as provided in subsections (c) and (d), the causes of actions listed in subsection (a) [e.g.,
fraud] shall not be deemed to have accrued until the act giving rise to the cause of action first
causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time
after the initial act, then the period of limitation shall not commence until the fact of injury
becomes reasonably ascertainable to the injured party." (Emphasis added.)

Osterhaus contends that he could not have suffered any damages until the
transaction was completed—the closing date was August 20, 2002—and a fact question
remains on when the injury was "reasonably ascertainable." He cites Gilger v. Lee
36

Constr., Inc., 249 Kan. 307, 322, 820 P.2d 390 (1991), to argue that the determination of
when the substantial injury became reasonably ascertainable is a question of fact for the
jury. There, a family sued after it allegedly became ill because of an improperly vented
furnace. This court held that summary judgment was improperly granted because a
genuine issue of material fact existed as to when the family reasonably ascertained it
suffered substantial injuries caused by the defendants' negligence.

Gilger discussed, and distinguished, several cases in which summary judgment
was sustained on the issue of reasonable ascertainability. See, e.g., Friends University v.
W.R. Grace & Co., 227 Kan. 559, 608 P.2d 936 (1989). For many of the same reasons we
explained in Issue 1, however, we agree with Osterhaus. For example, whether a
reasonable inspection would have revealed the defects about which he complains, and
whether those defects would cause the later basement leaking, are questions of fact. See,
e.g., Brennan, 37 Kan. App. 2d at 386 (determination of whether the defects were
discoverable through a reasonable inspection was a function of the trier of fact).

In short, this issue involves a question of fact that was not resolved by the district
court, and we are unable to resolve on appeal. Accordingly, we remand to the district
court for a determination of when the fact of injury was reasonably ascertainable by
Osterhaus.

Issue 4: Whether Toth was a "supplier" under the KCPA is a fact question.

Toth next argues that no claims could be brought against her under the KCPA
because she is not a "supplier," as required by the Act. K.S.A. 50-624(j) defines
"supplier" as "a manufacturer, distributor, dealer, seller, lessor, assignor, or other person
who, in the ordinary course of business, solicits, engages in or enforces consumer
transactions, whether or not dealing directly with the consumer." The district court,
however, had ruled Osterhaus could not be an aggrieved consumer because he had no
37

legal right to enforce at law due to his waiver of his right to rely on Toth's
representations.

Interpretation of the KCPA requires an additional set of review standards for us to
consider. "Interpretation of a statute is a question of law, . . . and our review is unlimited.
Accordingly, when determining a question of law, we are not bound" by the trial court's
interpretation of a statute. Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 819,
104 P.3d 378 (2005). "'"When construing a statute, a court should give words in common
usage their natural and ordinary meaning."'" 278 Kan. at 822.

Osterhaus alleges that Toth's numerous real estate transactions—seven—over a 2
1/2-year period qualify her as a "supplier" under the KCPA. He argues that under Heller
v. Martin, 14 Kan. App. 2d 48, 51, 782 P.2d 1241 (1989), Toth is a supplier because she
is "a person engaged in the buying and selling of real estate for her own account."
Osterhaus further contends this is a factual determination to be made by the district court.

Toth distinguishes herself from the seller of a home who was found to be a
supplier in Heller, pointing out that its seller was a real estate agent. Toth also corrects
Osterhaus' misstatement regarding the number of real estate transactions in which she had
engaged over a short period of time. She claims that she only bought and sold three
homes in 2 ½ years and that she lived in each home.

We agree with Osterhaus that whether Toth is a supplier is a factual question to be
decided in the district court. One element of this determination is Toth's intent behind the
sales of her real estate. Cf. Brown v. United Methodist Homes for the Aged, 249 Kan. 124,
134, 815 P.2d 72 (1991) (intent of contracting parties is normally a question of fact for
the jury). To be a supplier under the KCPA, Toth must be a seller who engages in
consumer transactions in the ordinary course of business. Under Heller, the district court
may determine if "[h]er ordinary business was solicitation of real estate sales." 14 Kan.
38

App. 2d at 51. As that court held, "It is also immaterial that the subject residence was
owned by her and that, as its owner, she was its seller." 14 Kan. App. 2d at 51.
Accordingly, we remand this issue to the district court.

Issue 5: The district court erred in granting summary judgment against Osterhaus on the
negligent misrepresentation claim under BRRETA.

Osterhaus has argued that agent Schunk had actual knowledge that contradicted
the omissions from, and the false statements contained in, Toth's disclosure statement and
which was also not disclosed in the inspection report by Osterhaus' inspector, Rawlings.
He has contended that under the Brokerage Relationships in Real Estate Transactions Act
(BRRETA), K.S.A. 58-30,101 et seq., Schunk also had a duty to disclose this actual
knowledge to Osterhaus personally or through his agent. Schunk's knowledge allegedly
included the deliberately concealed evidence of the severe damage, the recency of the
basement wall repairs, and especially the movement of the west foundation wall. The
latter was contained in the inspection report of the initial purchaser, Tomlinson, and
stated in relevant part: "Basement walls have cracks and west wall appears to have
moved 1-1/4 – 1-1/2inches."

On appeal to this court, Schunk responds that he provided the Tomlinson report to
Osterhaus' agent, although the agent testified she did not recall his ever telling her about
the report, Tomlinson's contract cancellation, or the foundation problems in the basement.
In the alternative, Schunk contends he had no duty to disclose information from
Tomlinson's inspection because it was not omitted from or contradictory to any
information contained in Osterhaus' own inspection report. In support of this argument,
Schunk explains that Osterhaus' engineering expert, David Hobbs, testified that "seeing
the kind of cracks that were noted by The Inspection Company on the west wall of the
basement, would cause him as a home inspector to suspect wall movement and to make
measurements of the wall or otherwise investigate further to help verify such movement."
39


As a seller's agent, Schunk can be held liable for negligent misrepresentation
under BRRETA. The relevant provisions are K.S.A. 58-30,106(d)(3) and (4), which state:

"(3) Except as provided in subsection (d)(4), a seller's or landlord's agent is not
required to disclose to a client or customer information relating to the physical condition
of the property if a written report regarding the physical condition of the property has
been prepared by a qualified third party and provided to the client or customer.

"(4) A seller's or landlord's agent shall disclose to the client or customer any facts
actually known by the licensee that were omitted from or contradict any information
included in a written report described in subsection (d)(3)." (Emphasis added.)

Additionally, K.S.A. 58-30,111(c) provides:

"A statutory agent or transaction broker shall not be liable for an innocent or negligent
misrepresentation in information provided to the seller or landlord or to the buyer or tenant if the
licensee does not have personal knowledge of the error, inaccuracy or omission that is the basis
for the claim of misrepresentation." (Emphasis added.)

The district court held that, "Because The Inspection Co.'s report indicated both
'major cracking' in the basement wall and that repairs had been made, Schunk had no
duty to disclose this information. Therefore, Schunk and TopPros are entitled to summary
judgment on Osterhaus' negligent misrepresentation claim" brought under BRRETA.

As was suggested earlier with the court's similar language rejecting other
misrepresentation claims, e.g., fraud, unfortunately this ruling is incomplete. It indicates
that Schunk had no duty to disclose "this" information—major cracking in the basement
wall and that repairs had been made. But it fails to address the possible problems known
to Schunk beyond these two issues and whether Schunk failed to disclose them. For
example, the ruling is silent on whether Schunk knew of movement in the foundation
40

walls, although he admitted having a copy of the Tomlinson report which identified this
west basement wall movement of 1-1/4 to 1-1/2 inches. Unquestionably wall movement
was not disclosed in Osterhaus' report prepared by Rawlings of The Inspection Co. While
Schunk argues he gave the Tomlinson report to Osterhaus' agent, the agent's testimony
creates a genuine issue of material fact that prevents summary judgment. See Warner,
283 Kan. 453, Syl. ¶ 4 (2007).

Although Osterhaus' own engineering expert seems to suggest that Rawlings
should have discovered the wall movement during the inspection and included it in his
report to Osterhaus, the simple fact remains that it was not included. Moreover, the
reasonableness of Rawlings' inspection is for the trier of fact. See Brennan, 37 Kan. App.
2d at 386. Finally, an expert's opinion is not necessarily dispositive of the issue on a
motion for summary judgment. Cf. McGinley v. Bank of America, N.A., 279 Kan. 426,
441-42, 109 P.3d 1146 (2005) (expert witness' opinion on the legal validity of document's
exculpatory provision is not determinative of the issue).

In short, genuine issues of material fact remain concerning what information
Schunk knew and what he disclosed to Osterhaus or Osterhaus' agent that were omitted
from, or contradict any information included in, Rawlings' report to Osterhaus.
Accordingly, we remand this issue to the district court for determination.

Issues 6-9: Remaining issues raised by the parties.

Osterhaus' motion to amend the petition

On October 10, 2006, Osterhaus filed a motion for leave to amend his petition,
seeking to add a claim for punitive damages, clarify facts, and clarify his damages. He
also sought to substitute Cheryl Tsiguloff for Toth, due to Toth's incapacitation, and to
add a cause of action for rescission based on Toth's alleged dementia. The district court
41

did not directly rule on the motion. At the October 20, 2006, hearing on the motion for
summary judgment, counsel for Schunk asked about Osterhaus' pending motion to
amend. The court explained that it was granting summary judgment and encouraged the
parties not to waste time continuing discovery or other work on the case pending appeal.
As a result, it apparently found that the issue was moot.

Osterhaus argues that the district court abused its discretion in effectively denying
his motion to amend his petition. We acknowledge that appellate courts review a district
court's decision whether to amend a petition to claim punitive damages for abuse of
discretion. K.S.A. 60-209(g); K.S.A. 60-3703; Lindsey v. Miami County National Bank,
267 Kan. 685, 689, 984 P.2d 719 (1999); see also K.S.A. 60-215(a); Johnson v. Board of
Pratt County Commr's, 259 Kan. 305, 327, 913 P.2d 119 (1996) (district court given
broad discretionary power under 60-215 to permit amendment of pleadings but appellate
court will not find reversible error unless amendment allowed or denied is so material it
affects the substantial rights of the adverse party). But because the district court did not
directly address the issue, this court does not have any factual findings or legal
conclusions to review. See State v. Thomas, 288 Kan. 157, 161, 199 P.3d 1265 (2009)
(appellate courts do not make factual findings but review those made by district court).
Accordingly, we remand this issue to the district court for consideration.

Osterhaus' fraud and breach of contract claims

Toth argues that Osterhaus must show his claims for fraud caused damages
beyond those caused by the breach of contract in order to bring both causes of action. She
asserts that the claims and requested damages are the same for Osterhaus' fraud claims as
they are for his breach of contract claim.

In Osterhaus' motion, he sought leave to amend his petition to add claims for
punitive damages, substitute parties, and clarify some of his claims, including the factual
42

basis and the damages sought. Because we do not yet know whether the district court will
allow Osterhaus to amend his petition on remand, we cannot presently determine whether
Osterhaus' fraud claims are identical to those for breach of contract. As a result, we do
not reach Toth's argument on appeal.

Points not raised before the panel

Schunk argues that the Court of Appeals panel erred in failing to sustain summary
judgment to TopPros because TopPros did not formally exist until 20 months after the
transaction between Osterhaus and Toth closed. However, Schunk's brief simply had
stated: "Finally, some 20 months after Defendant Toth and The Plaintiff closed on the
purchase of the subject house, Defendant Top Pros Real Estate, Inc. was incorporated and
came into existence." Schunk did not otherwise brief the issue or raise it at argument.
Points raised only incidentally in a party's brief but not argued in the brief are deemed
abandoned. State v. Mattox, 280 Kan. 473, 492, 124 P.3d 6 (2005); Enlow v. Sears,
Roebuck & Co., 249 Kan. 732, 744, 822 P.2d 617 (1991). See also Rule 6.03(d) (2010
Kan. Ct. R. Annot. 43) (appellee's brief shall contain the arguments and authorities relied
upon).

Likewise, Schunk's argument that the panel erred in failing to dismiss Osterhaus'
breach of contract claim against Schunk because he was not a party to the contract is
deemed abandoned because it was not argued to the panel. See Telegram Publishing Co.,
Inc. v. Kansas Dept. of Transportation, 275 Kan. 779, 794, 69 P.3d 578 (2003) (citing
Hephner v. Traders Ins. Co., 254 Kan. 226, 236, 864 P.2d 674 [1993]). The same fate
holds true for other arguments not raised to the panel.

Finally, we have examined the other arguments raised in the 12 briefs submitted to
this court and conclude they have no merit.

43



Attorney fees

On January 19, 2011, Osterhaus filed a motion for leave to file out of time a
motion for attorney fees and costs pursuant to Supreme Court Rule 7.07(b) (2010 Kan.
Ct. R. Annot. 62). The rule provides that "[a]ppellate courts may award attorney fees for
services on appeal in any case in which the trial court had authority to award attorney
fees. . . . The motion shall be filed with the clerk of the appellate courts no later than
fifteen (15) days after oral argument." Applying the standard for extensions of time found
in Supreme Court Rule 5.02 (2010 Kan. Ct. R. Annot. 35) to motions under Rule 7.07,
we have stated that "[n]o extension will be granted except on stated grounds reasonably
indicating the necessity therefor." See Evenson Trucking Co. v. Aranda, 280 Kan. 821,
843-44, 127 P.3d 292 (2006) (denial of untimely motion for fees that was alleging
attorney inadvertence).

Osterhaus offers no explanation of the necessity for his delay in filing the motion
well after oral arguments to this court. His motion is therefore denied.

The decision of the Court of Appeals is affirmed. The decision of the district court
is reversed and remanded to the district court for further proceedings.