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The district court agreed and granted summary judgment to the defendants. The Court of Appeals of New York concluded the statute of limitations started to run from the date on which the builder refused to make repairs and not the day the buyer knew or should have known of the defects. Bulova Watch v. Celotex Corp., 46 N.Y.2d 606, 415 N.Y.S.2d 817, 389 N.E.2d 130 .
In the present case, if we take the Repair or Replace Warranty language at face value, Kirk's could not have breached its promise until it had been given written notice by the Hewitts and either refused or failed to repair or replace the defects. These were duties Kirk's had taken upon itself, and we assume it did so for good reasons. If nothing else, we can assume Kirk's contractual duties under the Repair and Replace Warranty provided some welcome assurance to the Hewitts as they considered whether to enter into a contract to build the house. Turning to our Supreme Court decision in Freeto, I note that Freeto filed suit to recover damages from the breakdown of a truck crane sold to Freeto by American Hoist. Our Supreme Court specifically addressed when a cause of action accrues in a breach of contract claim.
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Accordingly, we reverse the district court's summary judgment in favor of Kirk's and remand for further proceedings. More than 5 years after Kirk's provided the Hewitts with the express warranty, but less than 5 years after the Hewitts gave Kirk's written notice of the construction defects, the Hewitts sued Kirk's for breach of contract. Kirk's filed a motion for summary judgment contending the Hewitts had commenced their lawsuit beyond the 5–year statute of limitations for breach of contract actions. The district court agreed with Kirk's and granted summary judgment. The parties agreed the December 12, 2003, express warranty was part of the construction contract.
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There was no dispute regarding the plain language of the express warranty. The parties agreed that, almost 1 year later, on December 11, 2004, the Hewitts sent Kirk's a letter giving timely notice that the brickwork were allegedly defective and had not been repaired or replaced. On June 26, 2008, the Hewitts filed the lawsuit at issue in this appeal, which was served on Kirk's on January 31, 2009. Finally, Kirk's candidly conceded it did not repair or replace the brickwork. In short, there are no material facts in dispute and, as a result, we are presented with an issue of law which we review de novo. Of note, we review the warranty language and its legal effect without deference to the district court's interpretation of the warranty.
Upon completion of the construction, Kirk's gave the Hewitts an express warranty that promised to provide a house free from defects in materials or workmanship; Kirk's also promised that if defects arose during the 1–year warranty period, Kirk's would repair or replace the defects. Immediately prior to the expiration of the warranty period, in keeping with the contract, the Hewitts gave Kirk's written notice of construction defects. Having surveyed analogous Kansas real property law and the relevant laws of foreign jurisdictions, we hold, for purposes of K.S .A. 60–511, a cause of action based upon a builder's express warranty to repair or replace construction defects in a newly built house must be brought within 5 years of the date the builder breached the warranty by refusing or failing to repair or replace the defects. Second, the plaintiffs in Freeto Construction Co. and Voth were claiming a breach of warranty based on a broken promise to provide vehicles at the time of purchase that were not defective in design, material, and workmanship. In contrast, the Hewitts did not predicate their lawsuit on the Kirk's breach of the express warranty to deliver the house free of construction defects.
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Because the material facts necessary to resolve this issue were clearly controverted and the district court did not grant summary judgment to Kirk's on this basis, we decline to review it on appeal. Moreover, in their brief, the Hewitts point out the district court's ruling, if upheld on appeal, would establish precedent that would hamper a party's ability to negotiate certain warranties. For example, a buyer of real estate might want a longer warranty to repair or replace, but a statute of limitations period running from delivery of the warranty would essentially limit all such warranties to 5 years. These considerations bolster our reading of Kansas law that the statute of limitations clock should start upon breach of the Repair or Replace Warranty. In the present case, the parties mutually entered into a contract mitigating the risks borne by each other. The Hewitts' risk that the house had construction defects was mitigated by Kirk's promise to repair or replace the defects provided the Hewitts gave written notice.
When the roof began to leak again, the seller refused to make the repairs even though the roof was still covered by the warranty. The seller contended the statute of limitations began running when the buyer first discovered the leaks, shortly after the beginning of the 1–year warranty. Alternatively, the seller contended the statute began running when the buyer's attorney made a written demand for the cost of the roof repairs. “We do not interpret the Repair Clause as simply a warranty of the condition of a unit or of the common elements as of the time of closing with a Unit Owner.
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The district court found the Hewitts' cause of action could have commenced on December 12, 2003, the effective date of the express warranty and the date it was delivered to the Hewitts. Under this interpretation, the Hewitts' lawsuit was impermissibly commenced beyond the 5–year statute of limitations. On the other hand, the Hewitts contend the earliest date their cause of action could have commenced was when the Repair or Replace Warranty was breached.
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Nevertheless, as stated earlier, the Law court held that whether the contract is executed or executory does not make a difference in determining the date when a statute of limitations begins to accrue. A similar analysis was used in Hersh Companies v. Highline Village Assoc., 30 P.3d 221, 222 (Colo.2001), where a painting contractor provided an express warranty to owners of two apartment complexes to repaint the exteriors of the buildings. The contractor warranted that its work would be free from defects and that any defects would be repaired or replaced. Problems arose, some of which the contractor repaired, but eventually the contractor refused to make further repairs, claiming the problems were not attributable to its work. The Colorado Supreme Court held the breach of express warranty occurred when the painter first refused to repair, and the statute of limitations began to run only upon that refusal.
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 reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.’ [Citations omitted.]” O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 330, 277 P.3d 1062 .
[Citation omitted.] It is not the function of courts to make contracts, but to enforce them as made , nor is it within the province of the court to reform an instrument by rejecting words of clear and definite meaning and substituting others therefor. [Citations omitted.]” Tri–State Hotel Co., Inc. v. Sphinx Investment Co., Inc., 212 Kan. 234, 246, 510 P.2d 1223 . When you are planning a remodeling project, or the building of a custom home, the selection of the team of specialists who will turn your dream into reality is an important one. They must share your vision and be meticulous in carrying it out and, most importantly, be obsessively committed to the quality of the finished product. The success of a job well done is measured in the last 10% of a project where attention to detail and concern for quality are paramount.
As the 1–year period approached expiration, the buyer notified the builder of water leakage. The builder attempted repair, but “the workman only temporarily or cosmetically corrected the underlying problem, which apparently arose out of the general improper installation of the synthetic stucco.” 255 Ga.App. The Feinour court along with many of the cases cited by the majority treats a breach of an express warranty to repair and replace as an executory contract.
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