Osterhaus v. Schunk
249 P.3d 888
| Kan. | 2011Background
- Rosses sold Overland Park home to Toth in 2001; disclosure stated defects but omitted known basement/wall movement and water, despite Toth’s prior awareness.
- Exclusive listing with Schunk; Seller’s Disclosure included a Buyer Acknowledgment limiting reliance on seller representations; Toth did not amend to disclose known defects.
- Osterhaus, a first-time buyer, signed the Buyer Acknowledgment and later hired an inspector who flagged major cracking; contract was amended to resolve unacceptable conditions with a $900 closing-cost credit.
- Tomlinson’s July 2002 offer revealed undisclosed foundation issues; Marsee repaired cracks after contract cancellation; Osterhaus signed final amendments August 2002 and took possession.
- Osterhaus sued for KCPA violations, fraud, fraud by silence, negligent misrepresentation, and breach of contract; district court granted summary judgment based on McLellan v. Raines; Court of Appeals panel reversed; Supreme Court granted review.
- Court remands for factual findings on several issues (as to discovery of defects, BRRETA, and related claims) while affirming remand-based relief for contract and reliance questions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did district court err in applying McLellan to bar reliance? | Osterhaus argues McLellan wrongly eroded buyer reliance. | Toth/Schunk/TopPros contend McLellan correctly limited reliance. | Yes; McLellan rejected; reversal on reliance question. |
| Do 'as is' and release provisions bar breach claim? | Amendment limits 'as is' to listed conditions; foundation issues remain. | Amendment bars all post-inspection liability. | Remand for factual findings; not precluded by as-is clause. |
| Are fraud/negligent misrepresentation claims time-barred? | Claims relate to post-closing injuries; discovery rule applies. | 2-year statute accrues at discovery or injury; time barred. | Remand; factual question on ascertainable injury. |
| Is Toth a 'supplier' under KCPA? | Multiple real estate transactions show ordinary-course supplier status. | Status depends on intent and business course; fact question. | Remand; fact question whether she is a supplier. |
| Did BRRETA preclude negligent misrepresentation claim? | Schunk had knowledge contradicting disclosures; BRRETA duty exists. | Duty contested; inspector reports and knowledge disputed. | Remand; genuine issues of material fact. |
Key Cases Cited
- Alires v. McGehee, 277 Kan. 398 (2004) (seller disclosure integration; reliance and waiver analysis in real estate disclosures)
- McLellan v. Raines, 36 Kan.App.2d 1 (2006) (disclosure-language paragraph 5; reliance waiver interpretation rejected by majority of the court in Osterhaus)
- Brennan v. Kunzle, 37 Kan.App.2d 365 (2007) (reasonableness of inspections; issues for trier of fact; discoverability of defects)
- Katzenmeier v. Oppenlander, 39 Kan.App.2d 259 (2008) (reliance on disclosures; issues of discoverability and reliance in disclosures)
- Boegel v. Colorado Nat'l Bank of Denver, 18 Kan.App.2d 546 (1993) (contractual limits on liability; whether waiver bars fraudulent concealment)