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Katzenmeier v. Oppenlander

March 14, 2008


Appeal from Riley District Court; MERYL D. WILSON, judge.


1. 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. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.

2. When there is no factual dispute and our decision requires us to interpret and give legal effect to a written contract, an appellate court reviews a trial court's grant of summary judgment de novo.

3. Under the facts of this case, the right to rely on representations made in the disclosure statement does not exist where a purchaser chooses to inspect the property before purchase and, in making such inspection, learns of a defect.

The opinion of the court was delivered by: Green, J.



Kail and Rebecca J. Katzenmeier appeal from a summary judgment granted in favor of Lysle R. Oppenlander on their intentional and negligent misrepresentation claims. They argue that the trial court misinterpreted and misapplied a factually similar case, McLellan v. Raines, 36 Kan. App. 2d 1, 140 P.3d 1034 (2006), or, alternatively, that McLellan was wrongly decided. Nevertheless, because the Katzenmeiers waived their right to rely on Oppenlander's representations and relied on their own inspections, summary judgment was appropriate. Accordingly, we affirm.

The Katzenmeiers' primary business was property management, and they had been managing properties since 1994. In June 2005, they owned 25 properties; the majority of their properties were multifamily dwellings.

This dispute arose after the Katzenmeiers purchased two eightplex apartment buildings from Oppenlander in 2003. Oppenlander gave the Katzenmeiers a "Sellers' Disclosure" (disclosure) statement. This document represented that the buildings did not have any "drainage or flood problems," that Oppenlander was not aware of any water leakage in the basements, and that there had never been any water leakage, accumulation, or damage in the basements. Yet, the disclosure statement did state that the buildings had cracks in the walls or the foundations. The disclosure statement also contained a "Buyers' Acknowledgment and Agreement," which stated, in pertinent part:

"5. I specifically represent that there are no important representations concerning the condition or value of the Property made by SELLER or BROKER on which I am relying except as may be fully set forth in writing and signed by them."

The disclosure statement also gave notice to the buyers as follows:

"This is a disclosure of SELLER'S knowledge of the condition of the Property as of the date signed by SELLER and is not a substitute for any inspections or warranties that BUYER may wish to obtain. It is not a warranty of any kind by SELLER or a warranty or representation by the BROKER."

Both the Katzenmeiers and Oppenlander signed the disclosure statement.

The real estate contract authorized the Katzenmeiers to conduct inspections of the property:

"As part of the consideration herein, [the Katzenmeiers] shall have until March 28, 2003, at 5:00 P.M., to conduct at [the Katzenmeiers] expense any inspections of the subject property desired by [the Katzenmeiers]. Such inspection(s) may cover any aspect of the subject property, including, but not limited to, the following: environmental hazards, foundation, roof, fireplace, chimney, sliding windows or doors, ceilings, floors, the exterior, the interior, any wall, fence, and all included appliances, heating and cooling systems, plumbing, electrical systems, and other mechanical equipment. Should [the Katzenmeiers'] inspection(s) reveal any condition(s) that is/are unsatisfactory to [the Katzenmeiers], then such unsatisfactory condition(s), together with specific corrective measures requested by [the Katzenmeiers], shall be reported in writing to Seller or Seller's real estate agent within said time period for action. If Seller, within two (2) working days after delivery of the statement of unsatisfactory condition(s) with specific correction measures, elects in writing to make the requested repairs prior to closing, [the Katzenmeiers] shall remain bound to purchase the property in accordance with this contract. If Seller elects not to make the requested repairs, or if Seller makes a counter offer, [the Katzenmeiers] shall have two (2) working days to either (a) waive the repairs and accept the property in existing condition, (b) respond to the counteroffer, or (c) cancel this contract, in which event the earnest money deposit, less accrued escrow fees, shall be returned ...

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