Hewitt v. Kirk's Remodeling & Custom Homes, Inc., 310 P.3d 436

The Hewitts bought a newly built house from Kirk’s; the parties signed an express limited warranty effective December 12, 2003, promising the house would be free of defects and that Kirk’s would repair, replace, or pay to fix covered defects during a one-year warranty term.
The warranty required the Hewitts to give clear, specific written notice of defects no later than seven days after the warranty term expired.
On December 11, 2004 (one day before the warranty anniversary), the Hewitts sent a written punch-list citing persistent brickwork defects and requested repairs; Kirk’s did not repair, replace, or pay to fix the brickwork.
The Hewitts filed suit on June 26, 2008; Kirk’s was served January 31, 2009. Kirk’s moved for summary judgment arguing the 5-year statute of limitations for written contracts (K.S.A. 60-511(1)) began on December 12, 2003 and therefore the suit was time-barred.
The district court granted summary judgment for Kirk’s. The Court of Appeals reversed, holding that a claim for breach of an express repair-or-replace warranty accrues when the builder refuses or fails to repair/replace (i.e., when that promise is breached), not necessarily on delivery. The case was remanded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
When does a cause of action for breach of an express builder "repair or replace" warranty accrue for purposes of K.S.A. 60-511(1)?	Accrual occurs when the builder refuses/fails to repair or replace after the buyer provides the required written notice (i.e., breach of the repair promise).	Accrual occurs on delivery/completion (the date of sale/warranty): presence of defects at delivery breaches the warranty, so limitations runs from that date.	For K.S.A. 60-511(1), a cause of action based on an express warranty to repair or replace construction defects accrues when the builder breaches that promise by refusing or failing to repair/replace (so limitations runs from that breach).
Whether summary judgment could be affirmed on alternative contractor/agent theory (that brickwork was performed by homeowners’ agents and thus not covered)	Hewitts disputed Kirk’s assertion and said brickwork was performed by Kirk’s subcontractors as referenced in the warranty.	Kirk’s argued the brickwork was performed by parties that were agents/for benefit of Hewitts and thus outside warranty coverage.	Court declined to resolve on appeal because material facts were controverted and district court did not grant summary judgment on that basis.

Freeto Constr. Co. v. Am. Hoist & Derrick Co., 203 Kan. 741 (1969) (warranty breach held to occur on delivery where defect existed at sale)
Voth v. Chrysler Motor Corp., 218 Kan. 644 (1976) (UCC warranty accrual analysis; warranty to repair does not convert a present warranty into one extending to future performance)
Wilder v. Wilhite, 190 Kan. 564 (1962) (warranty to "warrant and defend" title accrues upon eviction or constructive eviction)
Law v. Law Co. Bldg. Assocs., 295 Kan. 551 (2012) (contract claims accrue on breach, not discovery; executory/executed distinction not dispositive)
Feinour v. Ricker Co., 255 Ga. App. 651 (2002) (express repair warranty accrues when warrantor refuses or inadequately repairs)
Antigua Condominium v. Melba Investors, 307 Md. 700 (1986) (repair clause breach occurs on repudiation, unreasonable delay after notice, refusal, or abandonment; statute runs from that breach)
Bulova Watch Co. v. Celotex Corp., 46 N.Y.2d 606 (1979) (statute of limitations for repair obligation runs from each breach of the obligation to repair)
Hersh Cos. v. Highline Village Assoc., 30 P.3d 221 (Colo. 2001) (breach of express repair warranty occurred when contractor refused further repairs; accrual then began)