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Taylor v. Prince

United States District Court, D. Kansas

June 6, 2018

DARRYL TAYLOR and SUSAN TAYLOR, Plaintiffs,
v.
HYRUM PRINCE, et al., Defendants.

          MEMORANDUM AND ORDER

          Kathryn H. Vratil United States District Judge

         On December 21, 2017, Darryl Taylor and Susan Taylor filed suit against Hyrum Prince, Amy Prince and Virginia Van Valkenburg. Notice Of Removal (Doc. #1) filed January 31, 2018, ¶ 1. Plaintiffs seek damages from Hyrum Prince and Amy Prince (“the Princes”), who allegedly misrepresented the condition of a home which they sold to plaintiffs, and Van Valkenburg, who allegedly failed to discover defects while inspecting the home. Petition For Damages (Doc. #1-1), ¶¶ 9-14. This matter comes before the Court on Defendant Virginia Van Valkenburg's Motion To Dismiss Or Compel Mediation (Doc. #5) filed February 6, 2018. For reasons stated below, the Court sustains defendant's motion.[1]

         Legal Standard

         In ruling on a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., the Court assumes as true all well-pleaded factual allegations and determines whether they plausibly give rise to an entitlement of relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). To survive a motion to dismiss, a complaint must contain sufficient factual matter to state a claim which is plausible - not merely conceivable - on its face. Id. at 679-80; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In determining whether a complaint states a plausible claim for relief, the Court draws on its judicial experience and common sense. Iqbal, 556 U.S. at 679. The Court need not accept as true those allegations which state only legal conclusions. See id.

         Plaintiffs bear the burden of framing their claim with enough factual matter to suggest that they are entitled to relief; it is not enough to make threadbare recitals of a cause of action accompanied by conclusory statements. See Twombly, 550 U.S. at 556. Plaintiffs make a facially plausible claim by pleading factual content from which the Court can reasonably infer that defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678. Plaintiffs must show more than a sheer possibility that defendant has acted unlawfully - it is not enough to plead facts that are “merely consistent with” defendant's liability. Id. (quoting Twombly, 550 U.S. at 557). A pleading which offers labels and conclusions, a formulaic recitation of the elements of a cause of action or naked assertions devoid of further factual enhancement will not stand. Iqbal, 556 U.S. at 678. Similarly, where the well-pleaded facts do not permit the Court to infer more than the mere possibility of misconduct, the pleading has alleged - but has not “shown” - that the pleader is entitled to relief. Id. at 679.

         The Court does not analyze potential evidence that the parties might produce or resolve factual disputes when ruling on a Rule 12(b)(6) motion. Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002). The Court accepts well-pleaded allegations as true and views them in the light most favorable to the non-moving party. Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). In addition to the complaint, the Court “may consider documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity.” Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215 (10th Cir. 2007) (quoting Jacobsen, 297 F.3d at 941).

         Factual And Procedural Background

         Briefly summarized, plaintiffs allege as follows:

         In 2015, plaintiffs entered into a contract with the Princes to purchase property in Overland Park, Kansas. Petition For Damages (Doc. #1-1), ¶¶ 9-10. Among other things, the Princes represented to plaintiffs that (1) the crawl space had no deterioration problems; (2) the property did not have water leakage, wood rot or plumbing issues; (3) they had not attempted to repair any defects, and all material alterations to the property had been completed in compliance with relevant codes; (4) they did not know of any mold on the property; and (5) they had disclosed all material information about the property. Id., ¶ 11.

         Before closing on the property, plaintiffs hired Van Valkenburg to inspect the home. Id., ¶¶ 3, 12. The inspection noted several problems but failed to disclose issues concerning the crawl space, plumbing, floor joists and mold. Id., ¶¶ 13-15. In July of 2015, plaintiffs completed their purchase of the property. Id., ¶ 15.

         Approximately six months later, a dishwasher fell through the kitchen floor of the home. Id., ¶ 17. In the following months, repair efforts revealed that the property had leaks and significant mold growth. Id., ¶¶ 18-19. Plaintiffs also discovered signs that the Princes had attempted to conceal defects and had made repairs which did not comply with housing codes. Id., ¶¶ 19-21.

         On December 21, 2017, plaintiffs filed suit in the District Court of Jackson County, Kansas. Notice Of Removal (Doc. #1), ¶ 1. Plaintiffs seek damages from the Princes and Van Valkenburg under multiple common law causes of action and the Kansas Consumer Protection Act, K.S.A. § 50-623 et seq. See generally Petition For Damages (Doc. #1-1). On January 31, 2018, Van Valkenburg removed the action to this Court. Notice Of Removal (Doc. #1).

         On February 6, 2018, Van Valkenburg filed the pending motion to dismiss or compel mediation.[2] Defendant seeks dismissal of all claims against her: (1) breach of contract (Count 6), (2) negligence (Count 7) and (3) negligent misrepresentation (Count 8).[3] See Motion To Dismiss Or Compel Mediation (Doc. #5) at 3-6. Defendant's motion largely relies on the inspection contract - the Pre-Inspection Agreement And Notice Of Inspection (the “Agreement”) - which outlines the services which she agreed to provide plaintiffs. Id. at 2; see Doc. #5-1. Defendant attached the Agreement as an exhibit to her motion.[4] In relevant part, it provides as follows:

Client: Sue Taylor
Dated: June 23, 2015
The purpose of this inspection is to provide the client with information about the condition of the house at the time of the inspection. It will be a visual, nondestructive examination of the major components of the home and will be conducted in accordance with the Standards of Practice and Code of Ethics of the American Society of Home Inspectors (ASHI) and the Kansas Home Inspector Standard of Practice. (A copy of these Standards is available upon request.)
The inspector will provide a written report that is the sole property of the client. Copies of the report or summary will be provided to the other parties involved with the client's permission to disclose such information.
The following systems will be examined and described: Roof, attic, walls, floors, doors, windows, stairs, fireplaces (partial), foundation, grading, exterior, electric, ...

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