Appeal from Miami District Court; Steve C. Montgomery, Judge. Mark D. Murphy and Jeffrey M. Cook, of The Murphy Law Firm, L.L.C ., of Overland Park, for appellants/cross-appellees. Mark V. Bodine, of Bennett, Bodine & Waters, P.A., of Shawnee, for appellee/cross-appellant Louisburg Building & Development Company, L.L.C.
Appeal from Miami District Court; Steve C. Montgomery, Judge.
Mark D. Murphy and Jeffrey M. Cook, of The Murphy Law Firm, L.L.C ., of Overland Park, for appellants/cross-appellees. Mark V. Bodine, of Bennett, Bodine & Waters, P.A., of Shawnee, for appellee/cross-appellant Louisburg Building & Development Company, L.L.C.
Gary A. Schafersman, James L. MowBray, and Michael L. Brown of Wallace, Saunders, Austin, Brown & Enochs, Chtd., of Overland Park, for appellees Carson Group, Inc., and Damon Williams.
Before GREENE, C.J., MALONE and LEBEN, JJ.
This case is back on remand from the Kansas Supreme Court. Based on its direction, we must modify one part of our earlier decision.
After this court's ruling, Louisburg Building & Development Co., L.L.C. v. Albright, 45 Kan.App.2d 618, 252 P.3d 597 (2011), the Albrights sought further review by our Supreme Court. That court granted review only regarding one issue, the third one raised, which was stated by the Albrights as “whether the economic loss doctrine and statute of limitations barred [their] fraud in the inducement claims against Louisburg and Williams.” Our Supreme Court's order granting review specifically said that review was granted “with respect to issue 3 only, regarding the application of the economic loss doctrine.” In the same order, the Supreme Court affirmed our decision in part, reversed it in part, and remanded with directions to consider the economic-loss-doctrine issue in light of David v. Hett, 293 Kan. 679, 270 P.3d 1102 (2011).
In David, which came out 8 months after the Albright decision, our Supreme Court reviewed all of the published Kansas appellate cases involving the economic-loss doctrine except for Albright. The Supreme Court concluded that “[t]he economic loss doctrine should not bar claims by homeowners seeking to recover economic damages resulting from negligently performed residential construction services.” David, 293 Kan. 679, Syl. ¶ 2. The court specifically disapproved our court's earlier decision in Prendiville v. Contemporary Homes, Inc., 32 Kan.App.2d 435, 83 P.3d 1257,rev. denied 278 Kan. 847 (2004).
We invited the parties to file briefs regarding the issues we must address on remand. Defendants Damon Williams and Carson Group, Inc. filed a brief arguing that the Supreme Court's ruling and remand order should have no effect on those defendants. The Albrights, who filed their additional brief after the brief filed by these defendants, didn't dispute the claim made by Williams and the Carson Group.
We agree that the Supreme Court's remand order has no effect on the claims against Williams and the Carson Group. The Supreme Court didn't grant review on any issue regarding the Carson Group—the Albrights had sought review of rulings in favor of the Carson Group in their second proposed issue for review, which wasn't granted. And although the Albrights' third issue did seek review regarding the ruling that their claims against Williams were barred by the statute of limitations, the Supreme Court's grant of review related only to the application of the economic-loss doctrine.
In our earlier ruling, we affirmed the district court's summary-judgment ruling in favor of Williams based on the statute of limitations. We had also approved summary judgment in his favor based on the economic-loss doctrine. But the statute of limitations was a separate and independent basis for judgment in Williams' favor, so summary judgment in his favor remains appropriate even if the ruling based on the economic-loss doctrine was in error.
That leaves for further consideration only our decision affirming the district court's grant of judgment on the pleadings in favor of Louisburg Building & Development Company, L.L.C. (“Louisburg Building”) based on the economic-loss doctrine. As set out in more detail in our earlier opinion, the Albrights hired Louisburg Building to construct a new home. This court affirmed the district court based in part on our court's earlier decision in Prendiville and in part based upon our additional analysis of the caselaw in Kansas, the caselaw from other states, and policy considerations.
But our Supreme Court has set out a clear ruling in David that the economic-loss doctrine “should not bar claims by homeowners seeking to recover economic damages resulting from negligently performed residential construction services.” 293 Kan. 679, Syl. ¶ 2. Our case fits squarely within that rule. Louisburg Building has not suggested otherwise in this remand proceeding; it did not file a brief despite our directive that each party do so.
Based on David, we conclude that the district court erred in granting judgment on the pleadings to Louisburg Building on the Albrights' fraud-in-the-inducement claim. We therefore reverse the district court's judgment in favor of Louisburg Building. We remand the case for further proceedings consistent with our earlier decision as modified in this opinion.