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No. 103,952 IN THE COURT OF APPEALS OF THE STATE OF KANSAS BRENDA GOLDEN, Appellant, v. DEN-MAT CORPORATION, A Foreign Corporation, CERINATE CORP, A Foreign Corporation, DEN-MAT HOLDINGS, LLC, A Foreign Corporation, and DR. CARISSA M. GILL, Appellees.

SYLLABUS BY THE COURT 1. A party seeking summary judgment has the obligation to show, based on appropriate evidentiary materials, there are no disputed issues of material fact and judgment may, therefore, be entered in its favor as a matter of law. In essence, the movant argues there is nothing for a jury or a trial judge sitting as factfinder to decide that would make any difference. In addressing a request for summary judgment, the trial court must view the evidence most favorably to the party opposing the motion and give that party the benefit of every reasonable inference that might be drawn from the evidentiary record. An appellate court applies the same standards in reviewing the entry of summary judgment. Because entry of summary judgment amounts to a question of law--it entails the application of legal principles to uncontroverted facts--an appellate court owes no deference to the decision to grant the motion.

2. A plaintiff may advance multiple theories of liability based either on a unitary course of conduct by a defendant or on a single legal injury. A plaintiff may assert some

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available theories but not others. The plaintiff may pick and choose at his or her discretion so long as the defendant has been fairly apprised of the circumstances.

3. A plaintiff's requested monetary damages do not define the cause of action; rather, the stated cause of action defines the appropriate monetary remedies. A district court should conform the monetary damages to the claims, not the other way around.

4. Under the Uniform Commercial Code (UCC), the 4-year statute of limitations period in K.S.A. 84-2-725(1) for a breach of warranty for the sale of goods typically begins running when the goods are delivered or installed.

5. If a buyer of goods covered under the UCC discovers or should have discovered a breach of the contract after accepting the goods, the buyer must notify the seller within a reasonable time, as provided in K.S.A. 84-2-607(3)(a). What constitutes a reasonable time typically presents a question for the trier of fact, taking into account the circumstances of the transaction. The notice requirement should be applied less stringently if the buyer is a consumer rather than a commercial entity and when any delay in giving notice has not prejudiced the seller in remedying the breach or in preparing to defend against a suit for breach.

6. The Kansas Consumer Protection Act (KCPA) aims to protect consumers from unscrupulous business practices and, as remedial legislation, should be read liberally to further that objective. The KCPA's 3-year statute of limitations under K.S.A. 60-512(2) is considered and applied.

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7. Article 2 of the UCC applies to contracts for the sale of goods. When a contract includes both goods and services, it is a mixed or hybrid contract for UCC purposes. Kansas uses the predominant purpose test for classifying mixed contracts. The test attempts to discern the principal nature of the transaction: Is the buyer seeking services to which the goods are incidental or is the buyer acquiring goods to which the services are auxiliary? The UCC applies to a contract if the goods predominate over the services.

8. The predominant purpose test for mixed contracts under the UCC looks at and depends upon the factual circumstances of the particular transaction. Given the casespecific inquiry and the factually driven nature of the determination, the issue of predominance of goods or services in a mixed contract is fundamentally one of fact. As such, it typically should be left for the trier of fact rather than resolved on summary judgment.

9. Under the UCC, the creation and breach of express and implied warranties in transactions for goods present questions of fact.

10. An express warranty in a sale of goods under the UCC entails an affirmation of fact or promise a seller makes to a buyer related to the goods that becomes part of the basis of the bargain. The seller need not label the representations as guarantees, warranties, or the like or even intend to create such an affirmation. A seller's oral representation may constitute an express warranty. Statements in advertising brochures or other promotional materials may create express warranties. To be warranties, the statements must be of a factual nature about the characteristics or utility of the goods.

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Mere opinions or general, though unquantifiable, expressions of quality or superiority cannot form the basis of an express warranty.

11. An express warranty once created generally cannot then be limited because, by definition, it has become part of the agreed-upon contract or bargain.

12. Under the UCC, an implied warranty of merchantability essentially requires that goods sold by a merchant satisfy basic standards of quality or acceptability. The seller's obligation under an implied warranty of merchantability depends upon the circumstances of the transaction. Courts consider the reasonable expectations of the ordinary user or purchaser, something based on general consumer expectations regarding the goods rather than the subjective beliefs of the particular buyer. To establish a breach, the buyer must show the ordinary purpose for goods of the type involved in the transaction and the lack of fitness of the goods actually purchased for that purpose.

13. A warranty of merchantability entails some expectation of durability, depending on the circumstances of the transaction and the goods involved. Under the facts of this case, given the nature of veneers as permanent dental appliances intended to improve the cosmetic appearance of the user's teeth, a jury could rationally conclude a buyer would reasonably expect the veneers to remain in place and hold their appearance for some period of time after the sale.

14. Warranties of merchantability apply to the fundamental functions or core attributes of the goods rather than matters of aesthetics or appearance. But under the facts of this case, dental veneers are, by their very purpose, cosmetic. If certain veneers fail of that 4

purpose in a manner atypical of that product generally, they likely would not meet standards of merchantability under the UCC.

15. When a seller has reason to know of any particular purpose for which the goods are required and should understand that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, the transaction includes an implied warranty under the UCC that the goods will be fit for that purpose. Unlike an implied warranty of merchantability, an implied warranty of fitness for a particular purpose depends upon communication between buyer and seller regarding a specific transaction. A warranty for a particular purpose is narrower, based on a tailored use of the specific goods known to the seller rather than on an ordinary characteristic or suitability common to goods of that general type.

16. A buyer need not emphasize or bring home to a seller the particular purpose intended for the goods or the buyer's reliance on the seller's skill in choosing among goods to meet that purpose to create an implied warranty of fitness for a particular purpose under the UCC so long as the seller reasonably should understand the buyer's special use and reliance.

17. K.S.A. 50-639 creates a free-standing KCPA violation when a supplier attempts to limit either a UCC warranty of merchantability or a UCC warranty of fitness for a particular purpose and then breaches the warranty in connection with a consumer transaction involving property. Because claims arising under K.S.A. 50-639 are expressly excluded from K.S.A. 50-627, prohibiting unconscionable acts and practices, the limitation of implied UCC warranties does not amount to an unconscionable act or practice. 5

18. A limitation in an express warranty excluding any other express or implied warranties in a consumer transaction for goods is void under K.S.A. 50-639.

19. The scope of coverage under the Kansas Product Liability Act (KPLA), K.S.A. 60-3301 et seq., is discussed. Under the facts of this case as developed on summary judgment, the KPLA appears to be inapplicable.

20. A defendant moving for summary judgment on an issue on which it would bear the burden of proof at trial, such as an affirmative defense or an avoidance, must establish those facts necessary for a jury to find in the defendant's favor.

Appeal from Sedgwick District Court; ERIC R. YOST; judge. Opinion filed May 4, 2012. Affirmed in part, reversed in part, and remanded with directions.

Clifford L. Bertholf, of Wichita, for appellant.

David R. Buchanan and Grant D. Henderson, of Brown & James, P.C., of Kansas City, Missouri, for appellees Den-Mat Corporation, Cerinate Corp., and Den-Mat Holdings, LLC.

Patrick J. Murphy and James L. (Jay) MowBray, of Wallace, Saunders, Austin, Brown & Enochs, Chtd., of Wichita, for appellee Dr. Carissa M. Gill.

Before ATCHESON, P.J., MALONE and MCANANY, JJ. ATCHESON, J.: Plaintiff Brenda Golden purchased dental veneers--porcelain overlays meant to improve the appearance of teeth--that Defendant Den-Mat 6

manufactured and marketed and Defendant Dr. Carissa M. Gill, a dentist, put in place. Golden contends the veneers became discolored and stained despite representations from Den-Mat and Dr. Gill that they would retain their appearance. So she sued them in Sedgwick County District Court on the grounds the veneers breached implied warranties applicable to goods sold under Article 2--Sales of the Uniform Commercial Code (UCC), K.S.A. 84-2-101 et seq., and the transaction entailed deceptive acts and practices and improper limitations of those warranties in violation of the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq. The district court granted summary judgment to Den-Mat and Dr. Gill. Golden has timely appealed. We reverse and remand the case for trial, except for one claim under the KCPA on which summary judgment was properly entered.

The district court relied primarily on arguments that Golden failed to file suit within the appropriate statutes of limitations. After setting out the factual history and procedural development of the case, we first address those bases for summary judgment. The district court improperly characterized Golden's claims as torts and, therefore, applied the incorrect limitations period. The evidence does not support summary judgment on the proper limitations for UCC and KCPA claims.

The district court also determined summary judgment to be proper on substantive grounds related to some of Golden's claims. Dr. Gill made additional arguments in the district court and again on appeal that she contends would warrant summary judgment. To a lesser extent, Den-Mat has asserted alternative arguments. We address those contentions as well.

Because of the breadth of the issues, this opinion delves into the law governing express and implied warranties under the UCC, deceptive and unconscionable acts and practices under the KCPA, and the interplay of those two statutory schemes as they apply to contracts for the sale of goods to consumers. The unusual nature of the goods 7

involved--dental veneers--has required an especially searching inquiry regarding the UCC. That search turned up no other directly analogous cases. Nonetheless, settled principles developed under the UCC and the KCPA undercut summary judgment based on the substantive grounds the district court actually cited and on the substantive grounds the defendants suggest as legal backstops.

We conclude that factual disputes remain as to: (1) the application of the UCC to the transaction; (2) the scope and breach of express warranties regarding the veneers; (3) the scope and breach of implied UCC warranties of merchantability and fitness of the veneers for a particular purpose; (4) whether Den-Mat or Dr. Gill engaged in deceptive acts or practices in violation of the KCPA; and (5) whether Den-Mat or Dr. Gill improperly attempted to limit those implied UCC warranties in violation of the KCPA. We conclude the district court properly granted summary judgment on Golden's claim that any attempt to limit the UCC warranties amounted to an unconscionable act or practice under K.S.A. 50-627 in violation of the KCPA. That's only because such an attempt specifically violates K.S.A. 50-639 and is outside the scope of K.S.A. 50-627.

FACTUAL AND PROCEDURAL HISTORY

Because the district court entered summary judgment against Plaintiff Golden, we review the facts in the light most favorable to her. So our narrative presents the events that way. Before turning to that recitation, we note that Defendants Den-Mat Corporation, Cerinate Corporation, and Den-Mat Holdings, LLC appear to be united in interest and are represented by the same counsel. Neither the facts, as we understand them, nor the legal issues on appeal require we distinguish among those defendants. We refer to them collectively as Den-Mat.

In late 2004, Golden wanted to replace the veneers on her teeth with new ones that would give her smile what she described as a "super white" appearance. Veneers are 8

synthetic panels cemented to the front of a person's teeth, thereby covering discoloration or other imperfections in the natural dentition. Golden saw a magazine advertisement for Cerinate veneers, a proprietary product Den-Mat manufactures. In response to her telephone call to the number in the advertisement, Den-Mat sent Golden a brochure describing the Cerinate veneers as "thin porcelain shields . . . bonded to the front of" the teeth "to create dramatic changes in your smile." The brochure touted "long-term clinical research" showing the Cerinate veneers would last up to 16 years "with no discoloration" and "100% retention." The brochure also explained that the porcelain veneers "are stronger and more durable" than comparable products made from plastic. According to the brochure, "[s]ometimes plastic composites stain and discolor with age, whereas, Cerinate Veneers maintain their beautiful luster and vitality." The brochure referred several times to the durability of the veneers and promoted the "strong, patented adhesive" used to attach them. The brochure, however, contained no unequivocal statement that the veneers would not come loose or crack.

Golden decided to get the Cerinate veneers and contacted Den-Mat for a dentist in the Wichita area. Den-Mat supplied Golden with Dr. Gill's name and contact information as the nearest professional authorized to apply Cerinate veneers. Dr. Gill worked in Wellington, some 35 miles south of Golden's home.

Golden first met with Dr. Gill on November 8, 2004, and they discussed Golden's desire for "really white" teeth. Golden wanted the whitest veneers Den-Mat produced. Golden showed Dr. Gill the Den-Mat brochure and specifically asked about the durability of the veneers and the potential for discoloration. (Dr. Gill contends she first saw the brochure in April 2007, when Golden complained about the veneers. But the conflict is of no moment on summary judgment because the evidence must be taken favorably to Golden as the party opposing the motions.) Apparently without referring specifically to the Cerinate veneers, Dr. Gill assured Golden that porcelain would not discolor. Dr. Gill recalled telling Golden that the whitest veneers might not be the best choice cosmetically 9

because they could look artificial rather than natural. But Golden was adamant she wanted the whitest shade.

Dr. Gill removed the old veneers, took impressions of Golden's teeth, and ordered the new veneers from Den-Mat. On January 10, 2005, Dr. Gill attached the Cerinate veneers to Golden's upper teeth. At the end of that visit, Dr. Gill gave Golden a written warranty for the veneers. The document is entitled "Five Year Limited Warranty" and states the Cerinate porcelain is "warranted against defects in workmanship and materials for a period of five (5) years from delivery date." The warranty covers the "repair or replacement" of the veneers but expressly excludes the costs for "removal or reinsertion," any cash refund, and consequential damages such as lost wages or pain and suffering. The warranty card states in small print that it "is in lieu of all other warranties, whether expressed or implied." The warranty card was filled in with Golden's name and address. Dr. Gill signed the card and a certification that the veneers had been applied using DenMat's bonding cement and appropriate preparation techniques.

Golden later testified in her deposition that she felt the veneers seemed darker or less white as soon as they had been affixed to her teeth. Nonetheless, Golden returned to Dr. Gill 3 weeks later and had the remaining veneers applied to her lower teeth. By then, one of the upper veneers had come loose and another appeared to have a crack in it. Dr. Gill ordered replacement veneers and later applied them; she did not charge Golden for that work.

Golden paid $9,875.25 for the Cerinate veneers. The payment was made to Dr. Gill. The record on appeal is unclear as to whether Golden made a single payment or paid a portion of the cost as a deposit. The record does not indicate when Golden tendered any payments. Neither a bill nor an invoice has been included among the evidentiary materials.

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Another veneer came off about 6 months later. Dr. Gill reapplied the veneer, again at no cost to Golden. In late March 2007, another veneer came off. Dr. Gill ordered a replacement veneer from Den-Mat. The replacement veneer was considerably whiter than the veneers Golden already had. On April 23, 2007, Dr. Gill spoke with a Den-Mat representative who said it was possible that Golden's veneers had become stained or had darkened over time. Dr. Gill recounted the conversation to Golden the same day.

Later on April 23, 2007, Golden wrote a letter to Dr. Gill expressing her dissatisfaction with the veneers and her belief they had developed "a gray cast" in the 15 months since they were placed on her teeth. Golden asked for Dr. Gill's help in obtaining a new set of veneers from Den-Mat at no cost. Dr. Gill's staff noted the letter in her office chart a week later. Den-Mat declined to replace Golden's veneers.

In the first part of 2008, Golden went to her regular dentist to have the Cerinate veneers removed from her upper teeth and replaced with a similar product from another manufacturer. The replacements cost about $4,500. In the summary judgment materials, Golden submitted a close-up photograph of her teeth after the upper veneers had been replaced. In the photograph, the lower teeth, with the Cerinate veneers, are noticeably duller than the replacement veneers and seem to have what could be stains.

On January 9, 2008, Golden filed a petition against the Den-Mat entities and Dr. Gill alleging breach of express warranties regarding the veneers and breach of implied warranties of merchantability and fitness for a particular purpose. She also alleged violations of the KCPA for a deceptive act or practice based on statements regarding the characteristics of the veneers and an unconscionable act or practice based on an attempt to limit the implied warranties in violation of K.S.A. 50-639. Golden alleged the veneers had become stained and discolored and some of them came off or cracked. Den-Mat and Dr. Gill duly filed separate answers denying liability. The parties conducted significant discovery. In the final pretrial order, Golden sought to recover the cost of the Cerinate 11

veneers; the cost of the replacement veneers she got in 2008; and $5,000 for lost time, inconvenience, and pain and suffering. Den-Mat and Dr. Gill filed separate motions for summary judgment with supporting memorandums and exhibits. Golden responded. The district court requested and received additional briefing on issues related to sales under the UCC.

The district court granted summary judgment to the defendants on all of Golden's claims. In a short letter ruling issued on August 17, 2009, without citing supporting statutes or caselaw, the district court found that warranty claims against Den-Mat were torts filed beyond the 2-year statute of limitations. The district court held that the 3-year statute of limitations on the KCPA claims against Den-Mart expired in September 2007. As to Dr. Gill, the district court found the claims to be for professional negligence and, thus, governed by a 2-year statute of limitations that expired before Golden filed suit. The district court ruled that if the claims were brought under the UCC, Golden failed to give timely notice as required under the UCC. The district court found the KCPA inapplicable to Dr. Gill because the transaction was one for professional services rather than goods. And the district court found that the warranty card Dr. Gill gave to Golden did not limit implied warranties of merchantability or fitness for a particular use and did not otherwise violate the KCPA.

Golden has timely appealed. In their briefing to this court, the parties address an array of issues. Both Den-Mat and Dr. Gill reiterate other grounds they advanced in their motions and contend those grounds support summary judgment on the notion the district court may have reached the proper legal result, although not necessarily for the right reasons. See Rose v. Via Christi Health System, Inc., 279 Kan. 523, 525, 113 P.3d 241 (2005) ("If a trial court reaches the right result, its decision will be upheld even though the trial court relied upon the wrong ground or assigned erroneous reasons for its decision.").

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LEGAL ISSUES

Standards of Review

We have alluded to the standards of review on an appeal from summary judgment. They are well settled, and the parties are familiar with them so we outline them only briefly. A party seeking summary judgment has the obligation to show, based on appropriate evidentiary materials, there are no disputed issues of material fact and judgment may, therefore, be entered in its favor as a matter of law. Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009); Korytkowski v. City of Ottawa, 283 Kan. 122, Syl.

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