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No. 100,648 IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DANIEL J. STECHSCHULTE, JR., SATU S.A. STECHSCHULTE, and THE DANIEL J. STECHSCHULTE, JR. REVOCABLE TRUST, Appellants,

v.

A. DRUE JENNINGS, A. DRUE JENNINGS REVOCABLE TRUST DATED OCTOBER 31, 2002, EMILY A. (GOLSON) JENNINGS, and PHB REALTY COMPANY, L.L.C., Appellees.

SYLLABUS BY THE COURT

1. The written acknowledgment signed by the buyers of residential real estate which represents that neither the seller nor the agent has made any important representations concerning the condition or value of the property on which the buyers relies, "except as may be fully set forth in writing and signed by them," precludes the buyers' reliance on any material representations made by either the seller or the agent, unless those representations are reduced to writing and signed by the maker of the representations.

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2. Where a seller's representations within a disclosure statement are reduced to writing and signed by the seller, the buyers do not waive reliance on those disclosures by signing an acknowledgment representing that neither the seller nor the agent has made any important representations concerning the condition or value of the property on which the buyers relied, "except as may be fully set forth in writing and signed by them."

3. A written acknowledgment signed by the buyers of residential real estate which represents that neither the seller nor the agent has made any important representations concerning the condition or value of the property on which the buyers relied, "except as may be fully set forth in writing and signed by them," precludes the buyers' reliance on any representations made by agent when the buyers failed to identify any written representations signed by agent.

4. Under the facts of this case, the district court erroneously interpreted the buyers' fraud count solely as a claim of fraud by silence when the petition contained multiple allegations of affirmative fraud, including that the seller made material misrepresentations in the disclosure statement which induced the buyers to purchase the home.

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5. When a seller of residential real estate represents in the disclosure statement that seller will disclose to buyer all material defects, conditions, and facts of which seller is aware which may materially affect the value of the property and seller then fails to disclose information regarding material defects, conditions, or facts of which seller is aware which might materially affect the value of the home, the disclosure statement contains affirmative misrepresentations.

Appeal from Johnson District Court; JAMES CHARLES DROEGE, judge. Opinion filed January 8, 2010. Affirmed in part, reversed in part, and remanded.

Dana P. Niceswanger, Brian J. Niceswanger, and Greg T. Spies, of McDowell, Rice, Smith & Buchanan, P.C., of Overland Park, for appellants.

Heber O. Gonzalez, of Kansas City, Missouri, Andrew M. DeMarea, of Overland Park, and R. Dan Boulware, of St. Joseph, Missouri, all of Polsinelli Shughart, P.C., for appellees, A. Drue Jennings and the A. Drue Jennings Revocable Trust.

Alan E. Streit, of Larson & Blumreich, Chartered, of Topeka, for appellees Emily A. Jennings and PHB Realty Company, L.L.C.

Before BUSER, P.J., MARQUARDT and CAPLINGER, JJ. 3

CAPLINGER, J.: In this appeal, Daniel J. Stechschulte, Jr., Satu S.A. Stechschulte, and the Daniel J. Stechschulte, Jr. Revocable Trust (collectively the Stechschultes) challenge the district court's grant of summary judgment in favor of A. Drue Jennings and the A. Drue Jennings Revocable Trust dated October 31, 2002 (collectively, Jennings), on the Stechschultes' claims of fraud, negligent misrepresentation, and breach of contract relating to the sale of Jennings' residence to the Stechschultes.

The Stechschultes also appeal the district court's grant of summary judgment in favor of Jennings' agent in the sale of his home, Emily A. (Golson) Jennings, and PHB Realty Company, L.L.C. (PHB Realty), on the Stechschultes' claims of negligent misrepresentations and violations of the Kansas Consumer Protection Act, (KCPA), K.S.A. 50-623 et seq. Finally, the Stechschultes appeal the district court's denial of their motion to amend to add punitive damages claims against Jennings and Golson.

For reasons fully detailed below, we reverse and remand the district court's grant of summary judgment to Jennings on the Stechschultes' claims of fraud, negligent misrepresentation, and breach of contract, but we affirm the grant of summary judgment to Golson and PHB Realty on all claims against them. Finally, we affirm the district court's denial of the Stechschultes' motion to amend to add a claim of punitive damages

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against Jennings, while we find the Stechschultes' appeal of the denial of their motion to amend to add a punitive damages claim against Golson to be moot.

Factual and procedural background

Because the district court granted summary judgment in favor of the defendants on all of the Stechschultes' substantive claims, the following factual statement views the evidence in the light most favorable to the Stechschultes, the parties opposing the motions.

In May 1998, Jennings purchased a residence (the home) under construction in Leawood. He began residing in the home in October 1998. Nearly 4 years later, in August 2002, and again in January 2003, Jennings contacted the builder of the home, William Brimacombe, regarding water leaks in the home. Brimacombe visited the home on both occasions and observed water stains in the home, including a stain on the living room ceiling in August 2002. Brimacombe, along with a roofer, inspected the roof and flashing for leaks but found no problems and advised Jennings to have the windows checked.

Jennings contacted the window subcontractor, Morgan-Wightman Supply company, who in turn hired Excel Window & Door, Inc. (Excel), to inspect the windows. Chris Whorton, Excel's owner and president, as well as other Excel employees, made 5

eight visits to the home between August 2002 and September 2004 to evaluate leaks and/or repair windows in the home. During a visit by Whorton in August 2002, Jennings told Whorton that he had noticed water leaks all over the home and pointed out three areas he believed had experienced the worst leaks. During this visit, Whorton observed water stains at different locations in the home, as well as dirt stains where water had been carried into the home.

During another visit to the home by Whorton, Jennings pulled back a section of carpet and pointed out water stains extending approximately 2 feet from a window, as well as a separate stain several feet away from the window.

Excel performed two water tests on the home, one in August 2002 and another in September 2003. Jennings was present during both tests. Several of the water entry points were "undetermined" after water testing on the home.

After the August 2002 testing, Whorton recommended to Jennings that some of the exterior trim be pulled off the home to attempt to find the sources of the water problems. Whorton also told Jennings he could have the windows caulked but it would be only a temporary, or "Band-Aid," solution. Jennings elected to have the windows caulked.

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In September 2002, Jennings paid Excel $2,650 to caulk all of the windows and doors in the home and to caulk between the cedar and stucco exterior and between the cedar and the doors and windows. The warranty on the home had expired in 1999, and the work performed was not performed under warranty.

In May 2003, Jennings hired and paid a painter to paint the area on the living room ceiling and trim where water had leaked the prior year.

In October 2003, Jennings discovered a leak in the loft window and again summoned Brimacombe. After Brimacombe and a roofer examined the roof and flashing over the loft and found no problems, Excel was again notified and conducted water testing.

When Whorton visited the home in September 2003, Jennings was adamant that all of the windows in the home were defective and needed to be replaced. Whorton advised Jennings that he would pass Jennings' wishes on to the window subcontractor, Morgan-Wightman, but that it was not up to Whorton whether the windows would be replaced. According to Whorton, neither he nor any Excel employee made any repairs to the windows in September 2003.

According to Jennings, after the September 2003 testing, the corners of the weather stripping in all of the windows were repaired or sealed at no cost to Jennings. 7

However, Jennings did not indicate who performed these repairs. Further, Jennings indicated that because he did not pay for the September 2003 repairs, he possessed no documents to verify those repairs.

Sometime in 2004, a vapor seal failed in a bathroom window in the home. According to Jennings, the window was eventually replaced by Excel and/or MorganWightman at no cost to Jennings.

The Sale of the Home

In February 2005, Jennings listed his residence in Leawood for sale. Jennings' fianc

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