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Our free bidding system will get you quotes from Kirks Remodeling & Custom Homes Inc and 2 other top contractors. “It is readily apparent ․ this action is founded upon the covenant that the grantor will warrant and defend the title against the lawful claims and demands of all persons whomsoever. There is nothing to indicate the action is founded upon the covenant that the premises are free and clear of all encumbrances.” 190 Kan. at 565. BBB Accredited businesses follow the BBB Code of Business Practices and pay a fee for accreditation review and monitoring. Accreditation is not a BBB endorsement or evaluation of the business’ product quality or competency in performing services.
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BuildZoom combines license information on 3.5 million contractors with 270 million building permits, and over 135,000 reviews from property owners. When it comes to major construction work or even minor alterations to your home, hiring the wrong contractor could result in incomplete or defective work.You may even find yourself dealing with huge liability claims. BuildZoom does the homework for you and helps you hire the right contractor. Because “from seller's perspective, the costs of sale are now indeterminate, uncertain and uncontrollable,” sellers will “seek to limit their liability” rather than leave it open-ended. Kirk's responded that the Hewitts' motion was “a rehash of issues” already argued. The district court denied the Hewitts' motion to alter or amend, stating they had presented “no new theory or legal authority.” The Hewitts then dismissed the remaining defendants with prejudice and filed this appeal.
An executory contract is a contract whose conditions or promises have not been fully performed; that is, one party or both have something yet to perform. Here, the contract seemed to be executed as to the Hewitts but partially executory as to Kirk's. Kirk's still had an obligation to perform under the written warranty.
Kirks Remodeling & Custom Homes
On June 27, 1974, Voth filed a petition alleging, in relevant part, a breach of Chrysler's express warranty that the vehicle was “ ‘safe for use.’ “ 218 Kan. at 645. Voth sought damages for inhaling “ ‘large amounts of gasoline fumes' “ caused by the defective vehicle. Voth alleged the defect was “ ‘a plugged gasoline tank vent tube which caused raw gasoline to be spewed upon various parts of the undercarriage ․, the vapors of which were subsequently gathered by the air conditioning system ․ and dispersed throughout the automobile.’ “ 218 Kan. at 646. As a result of this defect, Voth alleged he contracted lead poisoning which caused him great bodily harm, past and future medical expenses, and loss of past and future income. “ ‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Had simply guaranteed the condition of the property as of the date of closing with a Unit Owner, any breach of that guarantee would necessarily occur at closing and, absent a special statute, the cause of action would accrue for limitations purposes when the breach was discovered. [Citation omitted.] Here, however, additionally promised to repair if notified timely. The breach of that covenant to repair does not occur at closing or necessarily when notice is given. Our Supreme Court rejected the construction company's argument, noting that “there are no facts in the record suggesting a warranty as to the condition or capability of the crane on a date more than five years after its sale and delivery.” 203 Kan. at 747. Finally, the Supreme Court added that while the newly enacted Uniform Commercial Code (U.C.C.) did not apply to this transaction, “we believe the provisions of K.S.A. 84–2–725 to be substantially in accordance with the decisions of this court.” 203 Kan. at 748. First, Voth is a U.C.C. case involving the sale of goods, and its predecessor, Freeto Construction Co., could have been, given its facts.
A DESIGN BUILD REMODELING COMPANY
Kirk's did not repair or replace the defective brickwork or pay the Hewitts to repair or replace it. On June 26, 2008, the Hewitts filed a lawsuit against Kirk's and other entities. Kirk's was served on January 31, 2009, and it eventually moved for summary judgment.
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In the present case, if we take the Repair or Replace Warranty language at face value, Kirk's could not have breached its promise until it had been given written notice by the Hewitts and either refused or failed to repair or replace the defects. These were duties Kirk's had taken upon itself, and we assume it did so for good reasons. If nothing else, we can assume Kirk's contractual duties under the Repair and Replace Warranty provided some welcome assurance to the Hewitts as they considered whether to enter into a contract to build the house. Turning to our Supreme Court decision in Freeto, I note that Freeto filed suit to recover damages from the breakdown of a truck crane sold to Freeto by American Hoist. Our Supreme Court specifically addressed when a cause of action accrues in a breach of contract claim.
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Because the material facts necessary to resolve this issue were clearly controverted and the district court did not grant summary judgment to Kirk's on this basis, we decline to review it on appeal. Moreover, in their brief, the Hewitts point out the district court's ruling, if upheld on appeal, would establish precedent that would hamper a party's ability to negotiate certain warranties. For example, a buyer of real estate might want a longer warranty to repair or replace, but a statute of limitations period running from delivery of the warranty would essentially limit all such warranties to 5 years. These considerations bolster our reading of Kansas law that the statute of limitations clock should start upon breach of the Repair or Replace Warranty. In the present case, the parties mutually entered into a contract mitigating the risks borne by each other. The Hewitts' risk that the house had construction defects was mitigated by Kirk's promise to repair or replace the defects provided the Hewitts gave written notice.
BuildZoom is a database of every licensed contractor in the United States. We work hard to figure out who the great contractors are, and who the bad contractors are. Kansas doesn't require contractors to carry insurance but it is always a good idea to only hire contractors with proof of general liability and workers compensation insurance. Our building permit records indicate that Kirks Remodeling & Custom Homes Inc has worked on at least 14 projects over the past 3 years.
Under the Hewitts' interpretation, their cause of action could have begun—at the earliest—on December 11, 2004, which was the date they sent written notice to Kirk's requesting repair or replacement of the construction defects. If the Hewitts' understanding is correct, their lawsuit was properly filed within the applicable 5–year statute of limitations and the district court erred in granting summary judgment to Kirk's. The Hewitts appeal the district court's ruling granting summary judgment for Kirk's because their cause of action for breach of warranty was filed beyond the statute of limitations for contract actions. As discussed below, we believe the district court erred in finding the Hewitts did not commence their lawsuit within the statute of limitations.
The Freeto court held that “whether it be for breach of an express or of an implied warranty the action accrues at the time of breach.” 203 Kan. at 746. In Freeto, the court held that the breach occurred when the crane was sold and delivered, because it was designed and assembled in an inadequate manner to sustain the warranted load capacity. Six years later, the buyer hired an expert who identified the problem. The buyer brought suit under multiple theories, including breach of express warranty. The statute of limitations for contract claims in Georgia was 6 years, and the district court held that “the contract, implied warranty, and express warranty claims all expired ․ six years after the certificate of occupancy issued.” 255 Ga.App. Our Supreme Court further held that whether the contract is executed or executory does not make a difference in determining the date when a statute of limitations begins to accrue.
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