Opinion
112,155.
06-26-2015
Douglas CAFER and Sheri Cafer, Appellants, v. Douglas E. ASH d/b/a American Home Builders, Appellee.
James B. Biggs, of Cavanaugh, Smith & Lemon, P.A., of Topeka, for appellants. Mark B. Schaffer, of Frischer & Schaffer, Chtd., of Overland Park, for appellee.
James B. Biggs, of Cavanaugh, Smith & Lemon, P.A., of Topeka, for appellants.
Mark B. Schaffer, of Frischer & Schaffer, Chtd., of Overland Park, for appellee.
Before LEBEN, P.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
PIERRON, J.
In 2003, Douglas and Sheri Cafer hired Douglas Ash, d/b/a/ American Home Builders (Ash), to build their house in unincorporated Shawnee County. Douglas and Ash wrote the contract themselves. The contract was short and missing plans that were supposed to be attached. After a payment dispute arose in 2004, Ash quit. The Cafers moved into their unfinished house and sought new contractors to complete it. They immediately noticed water problems throughout the house and deck but could never find the source. After hiring an expert to inspect their house in 2009, the Cafers determined the water damage was due to Ash's failure to build their house according to the contract and with workmanlike performance.
In 2010, they filed a petition against Ash alleging breach of contract. The parties filed multiple motions. Ultimately, all of the Cafers' claims against Ash were dismissed in the orders addressing the three summary judgment motions.
The Cafers claim many errors in the underlying proceeding. The record reveals the district court properly dismissed most of the claims in summary judgment proceedings. However, the record also reveals the court failed to consider an important piece of evidence when determining whether there was a genuine issue of material fact as to the meaning of “building jurisdiction.” Because a review of the record indicates that piece of evidence does raise a genuine issue of material fact thus precluding summary judgment, summary judgment as to the meaning of the term must be reversed.
The facts are as follows. In 2003, the Cafers wanted to build a house on land in unincorporated Shawnee County. No area building codes were applicable to the construction of their house. They wanted a particular style of house—one built with structurally insulated panels (SIP). SIPs are “high performance building panels used in floors, walls, and roofs for residential ... buildings.” They are “typically made by sandwiching ... insulation between two structural skins of oriented strand board.” The panels are manufactured in a factory and are customizable. They are supposed to create an “extremely strong, energy efficient, and cost effective” house. SIP houses have specific construction requirements provided for by the panel manufacturer.
The Cafers attended a home show in February 2003 and met Ash. Ash indicated he had experience with SIP houses. The Cafers selected Ash to build their SIP house.
On September 10, 2003, the Cafers and Ash executed a building contract. Ash and Douglas Cafer drafted the contract themselves. The contract was very brief and included the following provisions relevant to this appeal:
“1. [The Cafers] ... authorize[ ][Ash] ... to construct and deliver to [the Cafers] a dwelling in accordance with the plans and specifications which are attached hereto and made part hereof....
“5. [Ash] shall commence construction of the house in accordance with the attached plans and specifications after the construction loan has closed....
11. This contract constitutes the sole and entire agreement between the parties hereto and no modifications of this contract shall be binding unless attached hereto and signed by all parties to the agreement. No representation, promise, or inducement to this agreement not included in this contract shall be binding on any party hereto.”
However, no plans or specifications were attached to the contract. Only some blueprints from the architect were in the room when they signed the contract. But it appears the intention of the parties was for Ash to select a SIP manufacturer sometime later and then attach the building plans from the SIP manufacturer to the contract.
Ash eventually selected Premier Building Systems (Premier) as the panel manufacturer. He provided the Cafers with the plans from Premier in January 2004.
Ash performed under the contract until November 2004. When a dispute about payments arose, Ash walked off the project. The Cafers moved into their incomplete house around the same time. By the spring of 2005, the Cafers realized Ash would not be returning to finish their house. The Cafers said they began noticing water leaks during the construction of the house. They could not identify the source.
On August 19, 2005, Ash filed for bankruptcy. He was discharged from bankruptcy on November 29, 2005.
The water problems in the Cafers' house continued. There were also problems with the deck. In the summer of 2009, they hired Mark Lewis, the owner of a construction company, to inspect and repair their house. Lewis tore off the exterior siding and stucco and noticed substantial wood rot throughout the exterior of the house. The Cafers and Lewis then contacted Michael Morley, an SIP expert and builder to assess the cause of the damage and the options for repairing it. Lewis and Morley determined the damage to the house was caused by the lack of a proper vapor barrier applied to the house. A vapor barrier should have been installed over the subpanels of the Cafers' house to prevent moisture from getting in through the porous stucco finish. Therefore, the Cafers concluded the damage was Ash's fault because he failed to apply a proper vapor barrier to their house, allegedly in breach of their contract.
There does not appear to be any expert testimony regarding the causation of the damage to the deck, though the Cafers contend it was Ash's failure to put endcaps on the deck as required by the deck manufacturer that caused the deck to rot.
Because Ash had filed bankruptcy, the Cafers first filed motions with the bankruptcy court in October 2009 requesting permission to proceed against Ash to the extent he had available insurance assets. At the same time they also sent a letter to Ash indicating their intent to pursue available remedies based on Ash's alleged breach of contract. On December 21, 2009, the bankruptcy court granted the request.
On February 3, 2010, the Cafers filed a petition against Ash based on the contract between the two parties for Ash to build the Cafers' house. The Cafers made the following claims against Ash:
“[Ash] failed to construct the dwelling in accordance with industry standards and pursuant to the plans and specifications causing damage to the Cafers' dwelling.
“[Ash] failed to construct the deck at the dwelling pursuant to construction industry standards and per the specifications and plans, resulting in the deck buckling and causing damage to the Cafers' dwelling.
....
“[Ash] breached his contract to [the Cafers] by failing to construct the dwelling pursuant to industry standards and per the specifications and plans provided to defendant.”
The Cafers attached the contract and other documents to the petition but did not attach any additional plans they later argued were intended to be a part of the contract. Ash answered on March 5, 2010. He acknowledged the basic facts that they had a contract and he performed until a financial dispute arose, but denied many of the allegations and indicated he did not have enough facts to respond to others.
In January 2011, the Cafers provided their designation of expert witnesses. They indicated both Morley and Lewis would be experts testifying about the cause of the damages and the extent of the damage to the house. Gregory Allen was also later designated as an expert for the Cafers.
Douglas and Sheri were deposed on January 27, 2011. Morley was deposed on November 20, 2013; Allen was deposed on December 6, 2013; and Lewis was deposed on December 20, 2013.
Ash was deposed on February 11, 2011. He testified in part that he had installed house wrap or vapor barrier as instructed by a Mr. Vanscoy, a Premier representative.
Only the portions of the depositions the parties attached to motions in the underlying proceedings are included in the record on appeal.
On April 11, 2011, Ash filed his first motion for partial summary judgment and his memorandum in support (Motion 1). In Motion 1, Ash only challenged any claims made against him by the Cafers on the basis of “breach of unwritten contract, breach of implied warranty of workmanlike performance, or breach of any other implied or unwritten warranty, liability or obligation.” On June 27, 2012, the district court issued its order regarding Motion 1, finding the 3–year statute of limitations applied and had expired when the Cafers initiated their suit against Ash.
All claims for breach of contract based on unwritten or implied claims therefore had been adjudicated and all that remained was the Cafers' claim against Ash for breach of contract of the written terms.
On August 22, 2012, Ash filed a motion for summary judgment as to the remaining breach of contract claim and memorandum in support (Motion 2). Ash clarified the claims against him based on the information he learned in discovery: The Cafers alleged he failed to properly flash or caulk the windows and doors, failed to properly apply a house wrap or vapor barrier, and failed to put end caps on the back deck. Ash framed the issues as twofold: He was entitled to judgment as a matter of law because the contract did not include any industry standards or particular construction methods to be followed; and although no plans or specifications were attached to the contract, the blueprints that were in the room when they executed the contract did not provide for any specific building materials or methods.
The Cafers responded that the contract was incomplete and the Premier plans were intended to be a part of the contract.
On June 18, 2013, the district court issued its order on Motion 2. The court granted Ash's motion as to the Cafers' claim of breach of contract based on industry standards, finding the Cafers had failed to carry their burden of establishing there was a contract term requiring Ash to build their house according to industry standards. The court denied Ash's motion as to the Cafers' claim of breach of contract based on Ash's alleged failure to build their house according to plans, finding there was a genuine issue of material fact regarding the parties' intent to use plans to supplement the contract.
On July 16, 2013, the Cafers filed a motion to alter or amend and an amended motion to alter or amend the district court's order from June 18, 2013. They argued the plans, specifically the GeoDeck Installation instructions, were also intended to be part of the contract and provided for “good construction practices.”
On September 10, 2013, the district court denied the motion to alter, stating it would not consider the deck instructions because, with reasonable diligence, the Cafers could have raised the argument sooner.
The order on Motion 2 and the motion to alter dismissed any claim for breach of contract for failing to build the house according to industry standards. The single remaining claim was that Ash breached the contract by failing to build the house according to the plans.
On January 9, 2014, Ash filed his third motion for summary judgment and memorandum in support (Motion 3). Ash argued there was no genuine issue of material fact regarding which plans were supposed to be part of the contract or that he had violated any such plans.
The Cafers' response to Motion 3 argued there was a genuine issue of material fact regarding which plans were supposed to be attached. The Cafers relied on three affidavits—two from retained experts Allen and Morley and one from Douglas—in support of their arguments.
Ash then filed a motion to strike the two expert affidavits and a motion to strike Douglas' affidavit.
On June 9, 2014, the district court issued its order. The court granted Motion 3 and the motion to strike expert affidavits. As to the Cafer affidavit, the court held it would not consider the admissibility of the GeoDeck instruction since it had previously granted summary judgment of those in its denial of the Cafers' motion to alter or amend. Therefore, it denied the motion to strike the Cafer affidavit. The court's order did not address the substance of paragraph 5 of the Cafer affidavit, which provided Douglas' opinion of the meaning of building jurisdiction. The court's order disposed of all of the Cafers' remaining claims.
The Cafers' filed a notice of appeal expressing their intent to appeal the following orders: granting Motion 1 filed June 27, 2012; granting in part and denying in part Motion 2 filed June 18, 2013; denying the motion to alter filed September 13, 2013; and disposing of the Cafers' remaining claims by granting Motion 3 and the motion to strike the expert affidavits, but denying the motion to strike Douglas' affidavit filed June 4, 2014.
Additional facts will be included below.
The Cafers first claim of error challenges the district court's order granting Motion 1. They claim the court applied the incorrect statute of limitations to their claim for breach of the implied warranty of workmanlike performance and therefore incorrectly determined Ash was entitled to judgment as a matter of law.
In Motion 1, Ash only challenged the claims for breach of unwritten terms or implied warranties. In relevant part, Ash argued he was entitled to judgment as a matter of law on these claims because the applicable statute of limitations–3–years under K.S.A. 60–512 –expired long before the Cafers filed their petition. Ash argued the statute of limitations had expired before the Cafers filed their petition in February 2010 regardless of which uncontroverted date triggered the start of the statute of limitations—the date they signed the contract in October 2003, the last date Ash worked on the house, the date the Cafers moved into the uncompleted house in November 2004; the date the Cafers realized Ash would no longer be returning to the job site in spring 2005, the date Ash was discharged from bankruptcy in November 2005, or the date when the Cafers received notice of the discharge in early 2006. Therefore, Ash argued he was entitled to judgment as a matter of law as to the unwritten or implied terms.
The Cafers filed a response and argued the time the statute of limitations began to run was in dispute because it was unclear when they discovered the nature of the damage. They also claimed the 5–year statute of limitations under K.S.A. 60–511 applied because their claims, even the unwritten ones, arose out of their written agreement. The Cafers contended Smith v. Amoco Production Co., 272 Kan. 58, 31 P.3d 255 (2001) controlled. In Smith, the Kansas Supreme Court applied the 5–year statute of limitations of K.S.A. 60–511 to implied covenants in oil and gas leases. The Supreme Court determined the implied covenants associated with oil and gas leases were implied in fact, or ‘ “inferred from the facts and circumstances of the case’ “ but “ ‘not formally or explicitly stated in words.’ [Citation omitted.]” 272 Kan. at 70. The Smith court distinguished covenants implied in fact from those implied by law. 272 Kan. at 70. Covenants implied by law are a “legal fiction created by the courts to ensure justice or to prevent unjust enrichment.” 272 Kan. at 70. The Smith court determined covenants implied by fact, which become “an integral part of the written lease,” arise out of the written agreement, and therefore the 5–year statute of limitations applied to implied covenants in oil and gas leases. 272 Kan. at 69. The Cafers also cited to a string of additional oil and gas cases to support their position that K.S.A. 60–511 applied to all of their claims, including the unwritten ones.
Ash filed a reply to the Cafers' response. He claimed the statute of limitations for an implied warranty begins to run when the contract is breached, regardless of knowledge of the breach. Ash also argued Zenda Grain & Supply Co. v. Farmland Industries, Inc., 20 Kan.App.2d 728, 894 P.2d 881 (1995) controlled instead of Smith. In Zenda, this court applied the 3–year statute of limitations to a claim for breach of implied warranty of workmanlike performance in a management agreement. 20 Kan.App.2d at 736. The Zenda court determined the 3–year statute of limitations of K.S.A. 60–512 applied to the claim because “there was no express agreement between these parties dealing with the obligation to perform work ... in a workmanlike manner.” 20 Kan.App.2d at 742. The court determined it was “basically irrelevant” whether the parties had a written contract because the existence of the implied warranty is “purely [a] legal fiction” and cases based on implied warranties are “not based on any express provision of the written agreement.” 20 Kan.App.2d at 743.
Ash also argued the cases the Cafers relied on in support of the 5–year statute of limitations were inapplicable because they were limited to oil and gas cases. Ash's interpretation of this limitation is based on the Supreme Court's explicit statement in Smith: “We identify the unique character of oil and gas jurisprudence as the cardinal thread in our analysis of the statute of limitations question.” 272 Kan. at 69. Ash also noted the Supreme Court recognized in Smith that the 3–year statute of limitations was appropriate for many implied warranties, including the implied warranty of workmanlike performance, citing Ware v. Christenberry, 7 Kan.App.2d 1, 4, 637 P.2d 452 (1981) (“[a]n action sounding in contract for breach of an implied warranty is governed by K.S.A. 60–512 ”).
On June 27, 2012, the district court issued its order and determined Zenda controlled and therefore applied the 3–year statute of limitations of K.S.A. 60–512. The court held that the statute began to run in the spring of 2005 when the Cafers realized Ash would be doing no more work on the house. The court then determined the Cafers' claim of breach of implied warranty of workmanlike performance was barred by the statute of limitations because their petition was fded more than 3 years after the breach and granted Motion 1.
On appeal, the Cafers challenge the district court's decision to apply the 3–year statute of limitations and K.S.A. 60–512. They argue, as they did below, that the implied warranty of workmanlike performance arises out of the written contract and has the effect of a written term. They also make public policy arguments about the fairness of allowing Ash to escape liability on well documented and severe water damage to their house because the damage was latent until after the statute of limitations had run.
“The interpretation and application of a statute of limitations is a question of law over which an appellate court exercises unlimited review.” Schoenholz v. Hinzman, 295 Kan. 786, 791, 289 P.3d 1155 (2012).
“American courts have traditionally taken the view that competent parties may make contracts on their own terms, provided such contracts are neither illegal nor contrary to public policy, and in the absence of fraud, mistake, or duress a party who has entered into such a contract is bound thereby. [Citation omitted.]” Nat'l Bank of Andover v. Kansas Bankers Sur. Co., 290 Kan. 247, 257, 225 P.3d 707 (2010). “ ‘[T]he paramount public policy is that freedom to contract is not to be interfered with lightly.’ [Citations omitted.]” Idbeis v. Wichita Surgical Specialists, P.A., 279 Kan. 755, 770, 112 P.3d 81 (2005) ; Heartland Surgical Specialty Hospital v. Reed, 48 Kan.App.2d 237, 244, 287 P.3d 933 (2012).
The two statutes of limitations at issue here are: K.S.A. 60–511(1) –actions limited to 5 years—“(1) An action upon any agreement, contract or promise in writing”; and K.S.A. 60–512(1) —actions limited to 3 years—“(1) All actions upon contracts, obligations or liabilities expressed or implied but not in writing.”
On appeal, the Cafers contend the district court interpreted Smith too narrowly. They argue their claim for breach of the implied warranty of workmanlike performance should fall under the 5–year statute of limitations in K.S.A. 60–511 because their claims, even the implied ones, were based on and arose out of a written agreement. They cite to other jurisdictions that do treat implied warranties arising from a written contract the same as express terms.
Ash responds that precedent clearly indicates implied warranty claims are governed by the 3–year statute of limitations in K.S.A. 60–512 outside the context of oil and gas cases and Smith is inapplicable to this non-oil and gas case.
Although we review the application of a statute of limitations without deference to the district court, a review of the facts and applicable case law indicates the district court, in its well reasoned opinion, applied the proper statute of limitations. Zenda controls, not Smith, and therefore K.S.A. 60–512 applies to the Cafers' claims for breach of implied warranty of workmanlike performance.
The Cafers repeatedly argue that the implied warranty for workmanlike performance arises out of the written contract and is therefore implied by fact, like the implied covenants in Smith. Case law and reasoned thought seem to suggest the converse is true. Zenda, 20 Kan.App.2d at 744. This implied warranty would still apply to Ash's building of the Cafers' house regardless of their written contract. Because Smith limits itself to oil and gas cases, Zenda clearly applies.
Kansas appellate courts have consistently applied the 3–year statute of limitations to implied warranties outside of oil and gas leases. See Belger Cartage Serv., Inc. v. Holland Const. Co., 224 Kan. 320, 332, 582 P.2d 1111 (1978) (implied warranty of fitness for intended purpose); Newman Mem'l Hosp. v. Walton Const. Co., 37 Kan.App.2d 46, 74, 149 P.3d 525 (2007) (implied warranty of workmanlike performance of an architect's work); Four Seasons Apartments, Ltd. v. AAA Glass Serv., Inc., 37 Kan.App.2d 248, 253, 152 P.3d 101 (2007) (implied warranty of fitness for a particular purpose); Ware, 7 Kan.App.2d at 4 (implied warranty of workmanlike performance); Meister v. Douglas Fry Roofing, Inc., No. 108,518, 2013 WL 3491295 (Kan.App.2013) (unpublished opinion) (implied warranties associated with roof installation). The district court applied the correct statute of limitations.
The Cafers do make a compelling argument that this court should follow Smith. However, the Kansas Supreme Court expressly limited their holding to oil and gas leases: “K.S.A. 60–511, a 5–year statute of limitations for an action upon any agreement, contract, or promise in writing applies to the implied covenants in issue here. ” 272 Kan. 58, Syl. And the persuasive authority they cite from other jurisdiction also all involved oil and gas leases, so is not helpful here. See Sundheim v. Reef Oil Corp., 247 Mont. 244, 806 P.2d 503 (1991) ; U.V. Indus., Inc. v. Danielson, 184 Mont. 203, 602 P.2d 571 (1979)holding modified by Sundheim v. Reef Oil Corp., 247 Mont. 244, 806 P.2d 503 (1991) ; Indian Territory Illuminating Oil Co. v. Rosamond, 190 Okla. 46, 120 P.2d 349 (1941) ; Danciger Oil & Ref. Co. of Texas v. Powell, 137 Tex. 484, 154 S.W.2d 632 (1941) ; Texas Pac. Coal & Oil Co. v. Stuard, 7 S.W.2d 878 (Tex.Civ.App.1928). This court is bound by precedent of the Kansas Supreme Court in the absence of an indication that the court intends to depart from its precedent. State v. Simmons, No. 95,722, 2007 WL 1747873, at *1 (Kan.App.2007) (citing State v. Singleton, 33 Kan.App.2d 478, 488, 104 P.3d 424 [2005] ). The district court correctly noted: “Perhaps the Supreme Court of Kansas would find this particular case to be more like Smith than Zenda if it specifically considered [the Cafers'] complaint, but as it is, Smith is clearly narrow enough to be inapplicable to the instant case.”
The paramount public policy is that courts not interfere with the rights of individuals to contract. Idbeis, 279 Kan. at 770. Though the Cafers make many arguments about the fairness of the outcome of applying the 3–year statute of limitations based on damages, they were free to include any express provisions about the quality of work they expected from Ash in their contract with him. See Nat'l Bank of Andover, 290 Kan. at 257.
K.S.A. 60–512 is the appropriate statute of limitations for the Cafers' claim that Ash breached the implied warranty of workmanlike performance based on his construction of their house. “[F]or purposes of the application of the statute of limitations, [time] begins to run with the breach of the contract, regardless of whether the injured party is aware of the breach.” Zenda, 20 Kan.App.2d at 743 (citing Ware, 7 Kan.App.2d 1, Syl. ¶ 1 ). Because the record indicates more than 3 years had passed since the Cafers realized in the spring of 2005 that Ash would not be returning to their house, Ash was entitled to judgment as a matter of law as to the claim for breach of the implied warranty or workmanlike performance.
The district court applied the correct statute of limitations and therefore properly granted summary judgment as to Motion 1. The Cafers are prisoners of Zenda.
When Ash filed Motion 2, he presented the remaining claims as twofold: (1) Ash failed to build according to industry standards, and (2) Ash failed to build according to the plans. When arguing he was entitled to judgment as a matter of law on the remaining breach of contract claims, he relied on an integration clause to keep any additional documents from consideration.
The Cafers filed a response contending the contract was incomplete as it said that plans and specifications were supposed to be attached, but none were. They argued the Premier plans were supposed to be attached to the contract and there were industrial standards and good practices to be followed that are part of those plans. The Cafers attached the Premier plans to their motion. The Premier plans do not include the language “good practices” or “industry standards.” As to a vapor barrier, the Premier plans require an “approved vapor barrier and ventilation system required per your building jurisdiction.” In hindsight, it appears the Cafers were arguing that certain plans and specifications were supposed to be attached to the contract, and those plans and specifications included the requirement that Ash follow industry standards and good practices. However, this is not clear from their response to Motion 2.
Ash filed a reply again heavily relying on the integration clause to argue the Premier plans should not be considered. He also argued any claims regarding building codes or constructions standards had already been disposed of in the granting of Motion 1 because those terms were implied or unwritten.
On June 18, 2013, the district court issued its order for Motion 2. The court determined there was no genuine issue of material fact as to whether Ash followed industry standards because the term was not included in the contract of Premier plans. Therefore, it granted summary judgment as to industry standards. The court determined there was a genuine issue of material fact regarding the parties' intentions to supplement the contract with plans. In its order, it determined parol evidence of the parties' intent would be admissible to help resolve the incompleteness of the contract. The court denied Motion 2 as to the plans.
The Cafers fded the motion to alter and amend requesting the district court reconsider its opinion from June 18, 2013. The Cafers made multiple arguments including that the plans and specifications did call for specific materials to be used contrary to the district court's order and that international building codes applied and therefore the court's finding that no building codes were applicable was incorrect. Relevant to this appeal, the Cafers argued industry standards did apply, so granting summary judgment on that issue was improper. In support of this argument, the Cafers mentioned the deck instructions and—for the first time—attached them to their motion, arguing they too were supposed to be attached to the contract.
In response, Ash argued the deck instructions were not part of Motion 2 briefing and there was no evidence the deck instructions were intended to be part of the contract. There was no evidence international building codes were applicable, and ultimately there was no error to be corrected. Ash also challenged the Cafers' failure to mention the deck instructions at any point prior to the motion to alter.
The district court denied the motion to alter. It found the Cafers could have presented their argument and deck instructions from their motion to alter prior to the court's June 18, 2013, order with reasonable diligence; and they had failed to present any evidence in support of their arguments. The court also held there was no evidence supporting the applicability of the international building code. The court also held it would “not consider the [deck instructions.]” Because the deck instructions were excluded, there was no evidence of an applicable industry standard and the court's order granting summary judgment on that issue stood.
On appeal, the Cafers challenge the district court's decision to exclude the deck instructions. In its order denying the Cafers' motion to alter, the court held it would not consider the deck instructions because the Cafers “could have, with reasonable diligence” presented their argument to the court that the deck instructions were intended to supplement prior to their motion to alter. The Cafers argue on appeal that the district court essentially prevented them from proving what plans were supposed to be attached to the contract by excluding the deck instructions even though in its order granting Motion 2 in part, the court stated it would consider parol evidence to determine what plans were supposed to be attached to the contract. Because the court determined it would not consider the deck instructions in its order denying the motion to alter, we will consider the propriety of that decision.
The standard of review of the denial of a motion to alter or amend the judgment is an abuse of discretion. Exploration Place, Inc. v. Midwest Drywall Co., Inc., 277 Kan. 898, 900, 89 P.3d 536 (2004). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. Northern Natural Gas Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013). In other words, a district court exceeds its discretion if no reasonable judicial officer would rule as the district court did under the circumstances, if it ignores controlling facts or relies on unproven factual representations, or if it acts outside the applicable legal framework. Schoenholz, No. 110,388, 2014 WL 4627584, at *4 (Kan.App.2014) (unpublished opinion) (citing Ward, 292 Kan. 541, Syl. 3).
Here, the Cafers cannot establish that the district court abused its discretion by refusing to consider the deck instructions. In Motion 2, Ash framed the claims against him as (1) failure to follow industry standards, and (2) failure to follow plans. The Cafers argue on appeal that the court impermissibly treated their single claim—that Ash failed to build their house according to industry standards based on the plans—as two separate claims.
A lawsuit is a serious thing. Schumacher v. Morris, No. 100,447, 2009 WL 4639516, at *19 (Kan.App.2009) (unpublished opinion) (Leben, concurring opinion). In this case, the Cafers filed the initial petition. The parties then took discovery, which provided the Cafers a full opportunity to refine their claims and provide the documents necessary to establish the contract and terms Ash allegedly breached. Central to this claim that Ash failed to build their house and deck according to industry standard are the deck instructions which include the requirement that Ash follow “good construction practices.” It appears the Cafers informed Ash of their belief that Ash violated the deck instructions in their answers to Ash's second interrogatories. However, the Cafers did not attach the deck instructions to their petition, they did not mention the deck instructions in response to Motion 2, nor did they request leave to amend their petition to clarify the issues in Motion 2 pursuant to K.S.A. 60–215, which requires a court to freely give leave to amend when justice requires. K.S.A. 60–215(a). It appears that the first time the Cafers explicitly made either the argument that the deck instructions were supposed to be attached to the contract or that industry standards came in through the attached plans, namely, the deck instructions, was in their motion to alter.
A motion to alter or amend allows a district court the opportunity to correct prior errors. K.S.A. 60–259(f). Motions to alter or amend judgment may be properly denied when the moving party could have, with reasonable diligence, presented the argument prior to the judgment. Wenrich v. Employers Mutual Ins. Companies, 35 Kan.App.2d 582, 590, 132 P.3d 970 (2006). Here, the Cafers' motion to alter was filed roughly 3 years after this suit was initiated and 10 years after they signed the contract. If the Cafers wanted the court to know that “plans and specifications” and “industry standards” were not separate issues, but instead that industry standards were a part of the contract based on the plans, they could have, with reasonable diligence, done so prior to the granting of Motion 2. The Cafers' argument that the district court contradicted itself or was contravening public policy by excluding this document fails to address the Cafers' own failure to present this argument in the 3 years the lawsuit had been active when Ash filed Motion 2.
If the Cafers intended the deck instructions to be a part of the contract, they could have, with reasonable diligence, also mentioned this specifically prior to the granting of Motion 2. It was not unreasonable for the district court to deny their motion to alter and refuse to consider the deck instructions. The district court properly denied the motion to alter.
At this point in the underlying proceedings, the only remaining claim was that Ash breached the contract by failing to build their house according to the plans.
The term “building jurisdiction” is not a term of art and it does not have a common meaning. The term is not defined in Black's Law Dictionary (10th ed.), is not found in 5 Corbin on Contracts §§ 24.1–24.31 (rev. ed.1998), is not found in the Kansas Construction Law Handbook (2d ed.2006), and when entered as a search term for all state and federal jurisdictions on Westlaw, revealed a single case and a few regulations that had used the term, none of which were helpful at discerning a meaning of the term.
We have unlimited review for contract interpretation. Prairie Land Elec. Co-op v. Kansas Elec. Power Co-op, 299 Kan. 360, 366, 323 P.3d 1270 (2014). Appellate courts can deem a contract term ambiguous regardless of how the lower court interpreted the contract. See Waste Connections of Kansas, Inc. v. Ritchie Corp., 296 Kan. 943, 964, 298 P.3d 250 (2013). Summary judgment is usually not appropriate when there is an ambiguity in a written contract. Mobile Acres, Inc. v. Kurata, 211 Kan. 833, 840, 508 P.2d 889 (1973). When a contract term is determined to be ambiguous, extrinsic evidence can be admitted to establish the parties' intent as to the meaning of the term at the time they signed the contract . Because Douglas did not have the Premiere plans and this term when he signed the contract, and testified he had not read it until 2010, he had no extrinsic evidence to admit as to his understanding of the meaning of the word at the time he signed the contract.
On January 9, 2014, Ash filed his third motion for summary judgment and memorandum in support (Motion 3). Ash argued there was no genuine issue of material fact regarding which plans were intended to be part of the contract or that he breached the term. Ash assumed the Premiere plans were attached to the contract for purposes of Motion 3. In relevant part, the Premiere plans required a builder to include an “approved vapor barrier and ventilation system required per your building jurisdiction.” Ash argued it was impossible for him to have violated the Premiere plans when he applied the vapor barrier “per building jurisdiction” because no building codes applied to the Cafers' house. Ash interpreted “building jurisdiction” to be synonymous with “building code.” He also claimed to have applied a vapor barrier as instructed by a Premier representative.
Ash also argued the deck instructions could not create an issue of fact because they were inadmissible. Ash further argued even if they were admissible, they could not create a genuine issue of material fact because the Cafers made no attempt to introduce the deck instructions or argue they were supposed to be attached to the contract until the district court had already ruled on Motion 2.
On February 6, 2014, the Cafers filed their response to Motion 3. The Cafers challenged Ash's interpretation of building jurisdiction. The Cafers argued building jurisdiction had a broader meaning that took into account factors such as geographical area and climate. The Cafers also argued the deck instructions did create a genuine issue of material fact regarding whether Ash complied with the plans in the contract. They attached multiple exhibits to their motion in support of their arguments, including an affidavit from Morley, an affidavit from Allen, (collectively “expert affidavits”), and an affidavit from Douglas (Cafer affidavit). The expert affidavits addressed only the term “building jurisdiction.” However, the Cafer affidavit presented Douglas' belief that the deck instructions were supposed to be part of the contract and his interpretation of the term Douglas stated: “When referring to the Premier Specifications and Plans paragraph 14 ‘required per your building jurisdiction,’ it is my understanding that referred to the geographical location and climate of the construction site.” Therefore, the Cafers argued, summary judgment was not proper because they offered evidence that created a disputed fact.
In response, Ash filed his motion to strike the expert affidavits and motion to strike the Cafer affidavit. In his motion to strike expert affidavits, Ash argued none of the expert reports indicated that either expert would discuss contract interpretation or the meaning of the term building jurisdiction. Ash argued that because neither expert disclosed his interpretation of the term during deposition, the affidavits violated K.S.A. 60–226, the general provisions governing discovery, and Kansas District Court Rule 3.211, which governs expert witnesses. Ash argued the new expert opinions therefore constituted unfair surprise. Finally, Ash argued the expert evidence should not be considered, relying on Mays v. Ciba–Geigy Corp., 233 Kan. 38, 42, 661 P.2d 348 (1983), Bacon v. Mercy Hospital of Fort Scott, 243 Kan. 303, 314, 756 P.2d 416 (1988), and other similar cases. Both Mays and Bacon affirmed district court decisions striking affidavits that were inconsistent with or contrary to the affiant's previous testimony. Here, at the close of both experts' deposition, each testified he had discussed all of his expert opinions about the case. But they attempted to raise a new opinion about the meaning of building jurisdiction in their affidavits, which Ash claims is contradictory. For these reasons, Ash argued the district court should have struck the expert affidavits.
In his motion to strike the Cafer affidavit, Ash argued Douglas also contradicted his prior deposition testimony. Specifically, in Douglas' deposition, when asked what plans he believed were supposed to be attached to the contract, he responded, “They would be the design of the home, and then also the original design by the SIP panel engineers.” However, in the Cafer affidavit, Douglas claimed the deck instructions were also supposed to be attached. Again relying on Mays, 233 Kan. at 42, Bacon, 243 Kan. 303, and other similar cases, Ash argued the Cafers cannot raise a genuine issue of material fact by simply submitting an affidavit if that affidavit contradicts prior testimony. Ash did not address the portion of the affidavit regarding Douglas' understanding of the term building jurisdiction in this motion.
On March 20, 2014, the Cafers filed their responses to both motions to strike. The Cafers argued the expert affidavits were properly before the district court because they were merely rebuttal to Ash's interpretation of the term building jurisdiction, which Ash raised for the first time in Motion 3. They claim neither expert contradicted his earlier testimony because neither realized the definition of the term was an issue, so neither had an opinion about it until Ash raised his interpretation in Motion 3. They contend this was not the sort of contradiction Mays or Bacon prohibited.
In response to the motion to strike the Cafer affidavit, the Cafers argued Douglas' affidavit did not contradict his deposition testimony because Douglas never said the plans for the design of the house and the design of the SIP panels were the only documents to be attached to the contract. The Cafers attempted to distinguish the facts of this case from the facts of the cases Ash cited. They also argued the district court's order in Motion 2 allowed for parol evidence to come in and therefore required the district court to consider the deck instructions under the parol evidence rule, regardless of his deposition.
On March 28, 2014, Ash filed a reply to the Cafers' response to his motion to strike the Cafer affidavit. Ash reiterated his argument that the Cafer affidavit clearly contradicted Douglas' prior deposition testimony. Further, Ash argued the district court had previously excluded the deck instructions in its order denying the Cafers' motion to alter or amend. Again, Ash did not address the portion of the Cafer affidavit concerning building jurisdiction in his reply motion.
On June 3, 2014, the district court heard oral arguments on the motions. The parties essentially reiterated the arguments from their motions. Of note, Ash's attorney argued:
“So if the court agrees with my position that the affidavits should be struck, ... all we have is a Premier plan that says ... put in ... an approved vapor barrier, and a jury that has no idea what that means and in the context of no local codes, no local building authority to enforce any codes, it seems moot.”
Ash seems to acknowledge this term lacks a common definition, despite his contention that “building jurisdiction” means “building code.” Ash's attorney also claimed Ash had applied the vapor barrier as instructed by the Premier representative.
The Cafers' attorney reiterated their argument as well. They continued to stress that all three affidavits were not contradictory, but instead were rebuttal. But, they did not address their failure to supplement the expert disclosure as required by governing discovery rules.
On June 4, 2014, the district court issued its order as to the motions to strike the expert affidavits and Motion 3. The court granted the motion to strike the expert affidavits. The court only addressed whether the expert affidavits were undisclosed expert testimony in violation of K.S.A. 60–226(b)(6) and local rule DCR 3.211. The court held that the Cafers had failed to supplement their expert disclosure once they learned the expert disclosures were incomplete. It also held the Cafers had “every opportunity to present these opinions during the discovery period, which ended on December 21, 2013.” The court relied on K.S.A. 60–237(c)(1) when it struck the expert affidavits as untimely.
As to the motion to strike the Cafer affidavit, the district court held:
“This Court has previously stated that the [deck instructions] will not be considered. [The Cafer affidavit] is an affidavit sworn by Douglas Cafer regarding his intent to include the [deck instructions] in the contract. Because the Court will not consider the [deck instructions] and the Court has already granted summary judgment regarding this issue, the Court will not consider the admissibility of [the Cafer affidavit]. [Ash's] Motion to strike [the Cafer affidavit] is moot and hereby denied.”
As to the Motion 3, the district court held:
“If [the expert affidavits] are allowed, [the Cafers] have created a genuine issue of material fact that prevents summary judgment....
“[The Cafers] solely rely on the [expert affidavits] to assert that ‘building jurisdiction’ has multiple meanings and creates a genuine issue of material fact. However, those opinions will not be considered. Because the [expert affidavits] are the sole basis for their interpretation of ‘building jurisdiction,’ [the Cafers] do not show there is a genuine issue of material fact regarding ‘building jurisdiction.’
The court granted Motion 3. So, the court excluded the expert affidavits, granted summary judgment, rendered the Cafer affidavit moot as to the deck instructions, and denied the motion to strike the Cafer affidavit.
The Cafers challenge the district court's decision to exclude the deck instructions. They argue it was error for the court to hold it would allow parol evidence in order to determine what plans were supposed to be attached to the contract but then to hold it would not consider the deck instructions as to Motion 3.
First, even if the district court had not rendered the Cafer affidavit moot, it still would not create a genuine issue of material fact regarding the documents intended to be a part of the contract. The Cafers continue to argue the Cafer affidavit supports their position that the deck instructions were intended to be a part of the contract. That may be so. K.S.A. 60–256(e) does permit a court the discretion to allow supplemental affidavits. However, “[a]s a general rule, a party may not defeat summary judgment by filing an affidavit that contradicts prior deposition testimony.” Dawson v. Prager, 276 Kan. 373, Syl. ¶ 4, 76 P.3d 1036 (2003) ; see also Bacon, 243 Kan. 303 ; Mays, 233 Kan. 38. In this case, Douglas testified at his deposition that two documents were supposed to be attached to the contract: “the design of the home, and then also the original design by the SIP panel engineers.” Later, in response to Motion 3, Douglas Cafer provided an affidavit in which he claimed he also believed the deck instructions were supposed to be attached. The Cafers claim that these two sworn statements were not contradictory because Douglas never said those two documents were the only attachments to the contract. However, this is a distinction without a difference. Ash's counsel was clearly attempting to elicit from Douglas every document he believed should have been attached to the contract and Douglas did not mention the deck instructions. The Cafer affidavit cannot create a genuine issue of material fact regarding the deck instructions.
We must also review the district court's exclusion of the deck instructions from an evidentiary standpoint. Multiple inquiries are involved when the admission or exclusion of evidence is challenged on appeal. We must “(1) determine the evidence's relevance; (2) determine which rules of evidence or other principles apply; (3) apply those rules and principles; and (4) weigh the probative value of the evidence against any prejudicial effect.” In re Eminent Domain, 299 Kan. 37, 44, 320 P.3d 955 (2014). K.S.A. 60–401(b) defines relevant evidence as “evidence having any tendency in reason to prove any material fact.” Evidence is material when the fact it supports is in dispute or in issue in the case. In re Eminent Domain, 299 Kan. at 44. Appellate courts review for materiality without deference to the district court. State v. Bowen, 299 Kan. 339, 348, 323 P.3d 853 (2014).
Even if evidence is relevant, a district court has discretion to exclude it when the court finds its probative value is outweighed by its potential for producing undue prejudice. See K.S.A. 60–445. An appellate court reviews the district court's assessment of the probative value of evidence under an abuse of discretion standard. State v. Huddleston, 298 Kan. 941, 960, 318 P.3d 140 (2014.) An appellate court reviews a challenge to the adequacy of the legal basis of a district judge's decision on admission or exclusion of evidence without deference to the district court. Bowen, 299 Kan. at 349.
The deck instructions clearly seem to be relevant. Since no building codes apply to the house, the Cafers rely upon the attached plans to provide for the standards Ash was required to follow. The deck instructions indicate the builder was to follow “good construction practices.”
In this case, the district court did not directly find that the probative value of the deck instructions was outweighed by the prejudicial effect, but it seems the court would not have excluded the deck instructions if it thought the probative value outweighed the prejudicial effect. K.S.A. 60–445 allows a district court judge to use “his or her discretion [to] exclude evidence if he or she finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered.”
The district court found the Cafers had failed to present the deck instructions to the court prior to the motion to alter. It would not have been unreasonable for the court to have held the deck instructions unfairly and harmfully surprised Ash because the Cafers failed to present the instructions and the argument prior to the court ruling on Motion 2. The contract was signed in 2003, the petition filed in 2010, and the motion to alter was filed in 2013. The Cafers had a full opportunity to present the deck instructions and the argument. Because they did not, it was not unreasonable for the court to exclude them.
We now turn to the key question of whether the district court properly determined there was no genuine issue of material fact as to the meaning of “building jurisdiction.”
The Cafers challenge the district court's finding that there was no genuine issue of material fact as to the definition of “building jurisdiction.” They make many arguments, including that Ash did not provide any evidence to support his definition. They did provide evidence to support their definition. They contend the court erred when it held that the Cafers relied “solely” on the expert affidavits to create a genuine issue of material fact as to the meaning of building jurisdiction and finally that the court failed to view the evidence in the light most favorable to them as the nonmovants.
When the pleadings, answers to interrogatories, and admission on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. The district court must 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, the adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. Stanley Bank v. Parish, 298 Kan. 755, 759, 317 P.3d 750 (2014).
In order to preclude summary judgment, the nonmovant must come forward with evidence to establish a dispute as to a material fact. Stanley Bank, 298 Kan. 759; K.S.A. 60–256(b). Therefore, in order to survive Motion 3, the Cafers needed to bring forth some amount of admissible evidence that the term central to their case existed. See U.S.D. No. 446 v. Sandoval, 295 Kan. 278, 282, 286 P.3d 542 (2012) (“In an action based on contract, the plaintiff bears the burden of proving the existence of the contract alleged in the petition.”). That is, in order to prevail on their claim that Ash failed to apply the vapor barrier as required by the building jurisdiction, they needed to establish what the building jurisdiction is that Ash allegedly breached. The Cafers attempted to do this when they attached three affidavits defining the term building jurisdiction to their response in order to preclude summary judgment.
However, the expert affidavits were stricken by the district court. The Cafers continue to allege that they submitted three affidavits in support of their interpretation of building jurisdiction, thus, precluding summary judgment. A brief review of that decision is helpful.
The expert opinions are not before us and therefore cannot preclude summary judgment. In Walder v. Board of Jackson County Comm'rs, 44 Kan.App.2d 284, 285, 236 P.3d 525 (2010) a panel of this court had the opportunity to address a similar scenario. In a well-reasoned opinion, the Walder court determined it is within the trial court's discretion to refuse to allow late disclosure of expert testimony, even before trial. In Walder, a party's original expert report failed to address causation in a negligence case. Though the expert in Walder later testified regarding causation, the party never supplemented its expert report. The district court struck the expert opinion as to causation as undisclosed expert testimony. 44 Kan.App.2d at 285.
“The district court has broad discretion in supervising a lawsuit, including the course of discovery. Accordingly, we reverse its orders only for an abuse of discretion, which occurs when no reasonable person would agree with its ruling. In re Tax Appeal of City of Wichita, 277 Kan. 487, 513, 86 P.3d 513 (2004) ; Foster v. Klaumann, 42 Kan.App.2d 634, 678–79, 216 P.3d 671 (2009).” Walder, 44 Kan.App.2d at 286.
The Walder court discussed the rules governing disclosure of expert opinions:
“An expert opinion central to a party's claim must be disclosed at least 90 days before trial in the expert disclosures required under K.S.A. 60–226(b)(6). Supplementation may occur later and is intended for changes due to newly discovered evidence or material inadvertently left out, not for the initial disclosure of an opinion on the central issue of the lawsuit. As one treatise on a similar federal rule notes, ‘A party may not use a supplemental report to disclose information that should have been disclosed in the initial expert report, thereby circumventing the requirement for a timely and complete expert witness report.’ 6 Moore's Federal Practice § 26.131[2] (3d ed.2010).
“As a federal appellate court noted in Macaulay v. Anas, 321 F.3d 45, 51 (1st Cir.2003), ‘trial judges must work a complicated equation, balancing fairness to the parties with the need to manage crowded dockets,’ and trial judges are generally in a better position to assess the situation. Thus, ‘the question on appeal is not whether we would have imposed the same sanction. Rather, the question is whether the district court's action was so wide of the mark as to constitute an abuse of discretion.’ 321 F.3d at 51.” 44 Kan.App. at 287–88.
K.S.A. 60–226(b)(6)(B) and (C) require that parties disclose each expert opinion “and a summary of the grounds for each opinion” at least 90 days before trial unless otherwise ordered. The statute also provides that a party must supplement a disclosure “if the party learns that in some material respect the information disclosed is incomplete or incorrect” with supplementation of any expert testimony to be made “at least 30 days before trial” unless otherwise ordered. K.S.A. 60–226(e)(l). See Walder, 44 Kan.App.2d at 285. K.S.A. 60–237(c)(l) allows a court as a sanction to exclude any information the admission of which violated K.S.A. 60–226(b)(6). These procedural rules are not just “fluff.” They serve a “necessary purpose.” McCullough v. Bethany Med. Center, 235 Kan. 732, 736, 683 P.2d 1258 (1984) (addressing Supreme Court Rule 141 ). Further,
“[m]any courts have refused to allow the late disclosure of an expert's opinion when the initial time for such disclosures had passed, even though the time limit for supplementation had not yet expired or the trial had not yet begun. E.g., Macaulay, 321 F.3d at 50–53 ; Schweizer v. DEKALB Swine Breeders, Inc., 954 F.Supp. 1495, 1509–11 (D.Kan.1997) ; McGuire v. Wesley Rehab. Hosp ., 2009 WL 454941, at *2–4 (Kan.App.) (unpublished opinion), rev. denied 289 Kan. 1279 (2009); see also 6 Moore's Federal Practice § 26.131 [2] (citing cases).” Walder, 44 Kan.App.2d 287–88.
Accordingly, the Cafers face a difficult task to convince us that no reasonable person would have agreed with the district court's decision to strike the opinion testimony of their expert that had not been timely disclosed. See 44 Kan.App.2d at 288. An examination of the record in this case reveals no abuse of discretion. Because the district court was within its discretion when it excluded the expert affidavits, they are not for our consideration in our review of the decision to grant Motion 3.
The Cafers also presented the Cafer affidavit in order to preclude summary judgment. The district court appears to have missed this portion of the Cafer affidavit providing Douglas' understanding of the term because the court only referred to the deck instruction discussion when it denied the motion to strike Cafer affidavit. Therefore, the court rendered the affidavit moot as to the deck instructions issue but denied the motion to strike the Cafer affidavit as to the rest. We are left with Douglas' personal opinion as to what building jurisdiction means.
First, any opinion Douglas has of the term was formed long after the contract was signed and the house was built. Douglas testified that the Premiere plans were not in the room when he and Ash executed the contract. Douglas testified he probably got the Premiere plans on January 21, 2004. But he also testified that he had not even seen the house wrap requirement until July 2010 at the earliest. So any opinion Douglas did form was formed after they signed the contract in 2003, after he received the Premiere plans in early 2004, and after the Cafers filed suit in February 2010. The question is whether this is enough to preclude summary judgment.
The meaning of this term is material. The definition adopted determines who should prevail. If Ash's definition is adopted, he prevails because there would be no way for the Cafers to enforce the provision of the contract since it is undisputed that there are no building codes applicable to the Cafers' house. However, if the Cafers' definition is adopted, their claim is still viable.
The Cafers argue the Cafer affidavit is admissible and precludes summary judgment because Douglas was competent to testify as to his understanding of the term because he helped draft it. See K.S.A. 60–256(e) (A supporting or opposing affidavit or declaration in a summary judgment proceeding must be made on personal knowledge, set out facts that would be admissible in evidence and show that the affiant or declarant is competent to testify on the matters stated.); see also Merrel v. Research & Data, Inc., 3 Kan.App.2d 48, 52, 589 P.2d 120 (1979) (non-movant must present some rebutting evidence, such as a statement under oath). Ash challenges the Cafer affidavit on multiple fronts—it is not based on personal knowledge required by K.S.A. 60–256(e), it is not admissible, and the Cafers are attempting to nuance the term to mean “industry standard” or “good workmanship,” claims which had previously been disposed of.
Ash argues the Cafers are merely trying to revive claims already adjudicated. But, because there is not an easily ascertainable definition of building jurisdiction, Ash's argument that the Cafers are just trying to put a “new spin” on their claim by defining the term is not persuasive. Because the true meaning of the term is so elusive, the same argument could easily be made about Ash's interpretation of the term as meaning “building code”—he is just putting a new spin on the term to defend himself.
Ash also argues the Cafer affidavit is inadmissible because Cafer lacked personal knowledge on the subject. K.S.A. 60–256(e) requires a party submitting an affidavit in support of or opposition to summary judgment to have personal knowledge of the facts, the facts to be admissible, and show that the affiant is competent to testify. In the Cafer affidavit, Douglas indicated it was his understanding that building jurisdiction meant “geographical location or climate of the construction site.” This statement seems to comply with the minimum threshold requirements of K.S.A. 60–256(e) —Douglas has personally read the term and as a party to the suit should be competent to testify about his understanding of the term. Ash never explains how Douglas' understanding of the term is not based on personal knowledge. Therefore, there are no shown deficiencies in the affidavit, and Ash's arguments on the issue are not persuasive. See Capital One Bank v. Hall, No. 104,056, 2011 WL 768006, at *5 (Kan.App.2011) (unpublished opinion).
So, we are left with Ash's Motion 3 in which he defines building jurisdiction as building code and the Cafer affidavit in which Douglas defines the term as something broader. Neither party has an expert supporting their opinion. When “ ‘considering a motion for summary judgment under K.S.A. 60–256, pleadings are to be liberally construed in favor of the party opposing the motion.’ [Citations omitted.]” ARY Jewelers, L.L.C. v. Krigel, 277 Kan. 27, 37, 82 P.3d 460 (2003). Summary judgment should be denied when reasonable minds could differ as to the conclusions drawn from the evidence. Stanley, 298 Kan. at 759. Because the Cafers are the nonmoving party, we must view the evidence in the light most favorable to them. The persuasiveness of the Cafer affidavit is questionable. But, it meets the minimum threshold requirement for precluding summary judgment. In this case, that means judgment as a matter of law for Ash was not proper as the Cafer affidavit did create a genuine issue of material fact as to the meaning of building jurisdiction.
The district court denied the motion to strike the Cafer affidavit without addressing the portion of the affidavit providing his understanding of the meaning of building jurisdiction. The court's holding that the Cafers relied solely on the expert affidavits to create a genuine issue of material fact as to the meaning of the term was an error; the Cafers were also relying on the Cafer affidavit. The district court acknowledged the expert affidavits would have created genuine issue of fact if it considered them.
Although it is unclear how these parties will go about proving their conflicting definitions of the term without those affidavits, that is not a concern of this court at this time. We can only consider whether a review of the evidence viewed in the light most favorable to the Cafers indicates Ash is entitled to judgment as a matter of law. Because the record shows there is a genuine issue of material fact of the meaning of building jurisdiction, Ash is not entitled to judgment as a matter of law.
We affirm the granting of Motions 1 and 2, the denial of the motion to alter or amend, and the district court's granting of the motion to strike expert affidavits. However, we reverse the granting of Motion 3 because the record reveals there is a genuine issue of material fact as to the meaning of building jurisdiction.
Affirmed in part and reversed in part.