251 P.3d 666
Kan. Ct. App.2011Background
- Liberty Asset Management purchased the redemption rights to 222 South Greenwood in Wichita and later rehabilitated the property.
- Daniel Drake, Liberty’s managing member, hired Darren Boldea to market the property; Boldea prepared the MLS listing that stated the roof was new.
- Drake did not discuss MLS contents with Boldea and did not see the MLS statement; Schneider’s agent noticed it and Schneider became interested by price and features listed as new.
- Schneider signed an offer April 16, 2007; an inspection on April 24, 2007 showed roof information in the report but Schneider did not request roof repairs.
- The purchase contract contained broad waivers and disclaimers, including that buyers rely on their own judgment and that the contract constitutes the entire agreement; Schneider did not waive KCPA rights in writing.
- The roof leaked months after purchase; communications in July 2007 between Schneider and related agents questioned the roof’s status and whether it was truly new.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of KCPA claims through contract | Schneider did not validly waive KCPA rights. | Contract language could foreclose KCPA claims if construed as a waiver. | Waiver not proven; contract did not explicitly waive KCPA rights. |
| Whether MLS listing stating 'new roof' was a deceptive act under KCPA | Listing labeling roof as new when not new constitutes deception under KCPA. | No willful deception required for KCPA violation; must show misleading representation. | There was substantial evidence of a deceptive act under KCPA §50-626(b)(1)(C). |
| Whether Schneider is an aggrieved party under KCPA | Schneider was aggrieved due to misrepresentation affecting her purchase. | Schneider cannot prove harm causally linked to the misrepresentation; she relied on inspection and other factors. | Schneider was not an aggrieved party; judgment reversed insofar as it awarded damages. |
Key Cases Cited
- Conner v. Occidental Fire & Casualty Co., 281 Kan. 875 (2006) (court reviews legal effect of contract terms de novo)
- Crandall v. Grbic, 36 Kan. App. 2d 179 (2006) (no KCPA violation where seller did not misrepresent roof condition)
- Stechschulte v. Jennings, 43 Kan. App. 2d 47 (2010) (realtor liability under KCPA requires willful or wanton failure to disclose material facts)
- Finstad v. Washburn University, 252 Kan. 465 (1993) (aggrieved party requirement and causation considerations under KCPA)
- Alexander v. Certified Master Builders Corp., 268 Kan. 812 (2000) (aggrieved party analysis; damages not strictly pecuniary)
- Cornerstone Homes v. Skinner, 44 Kan. App. 2d 88 (2010) (KCPA deception elements and written representations considerations)