United States District Court, D. Kansas
MEMORANDUM AND ORDER
Kathryn H. Vratil United States District Judge
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.
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.
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.
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).
And Procedural Background
summarized, plaintiffs allege as follows:
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.
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.
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., ¶¶
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).
February 6, 2018, Van Valkenburg filed the pending motion to
dismiss or compel mediation. Defendant seeks dismissal of all
claims against her: (1) breach of contract (Count 6), (2)
negligence (Count 7) and (3) negligent misrepresentation
(Count 8). 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. In relevant part, it provides as
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, ...