Haag v. Dry Basement, Inc.

732 P.2d 392, 11 Kan. App. 2d 649, 1987 Kan. App. LEXIS 772
CourtCourt of Appeals of Kansas
DecidedFebruary 5, 1987
Docket59,608
StatusPublished
Cited by29 cases

This text of 732 P.2d 392 (Haag v. Dry Basement, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Haag v. Dry Basement, Inc., 732 P.2d 392, 11 Kan. App. 2d 649, 1987 Kan. App. LEXIS 772 (kanctapp 1987).

Opinions

Meyer, J.:

Defendant appeals the district court’s award of $3,460.00 in damages to plaintiff in her action against defendant arising out of a contract to repair plaintiffs basement. After defendant furnished its initial work, plaintiff s basement continued to leak, despite defendant’s frequent efforts to repair it.

Plaintiff filed suit against defendant under the Limited Actions procedure, seeking damages in the amount of $5,000.00. She based her cause of action on the theories of fraud, breach of express and implied warranties, and violation of the Consumer Protection Act.

Defendant asserts the trial court erred in allowing plaintiff to recover on all the theories. We agree that the court erred in concluding that she could recover on her fraud and implied warranty claims. Further, plaintiff s counsel stated at oral argument that plaintiff had abandoned her express warranty theory, and sought recovery only under the provisions of the Kansas Consumer Protection Act. Consequently, this cause of action is the only one we will address herein.

The defendant contends the trial court erred in allowing the plaintiff to recover under the provisions of the Kansas Consumer [650]*650Protection Act (KCPA), K.S.A. 50-623 et seq., because the action is barred by the statute of limitations. We disagree.

K.S.A. 60-512(2) provides:

“The following actions shall be brought within three (3) years: . . . An action upon a liability created by a statute other than a penalty or forfeiture.”

The appropriate inquiry to determine whether a liability is created by a statute (thus making K.S.A. 60-512[2] applicable) is whether liability for resultant damages would not arise but for the statute. Pecenka v. Alquest, 6 Kan. App. 2d 26, 28, 626 P.2d 802, cert. denied 229 Kan. 670 (1981). We conclude that the liability imposed by the KCPA fits in this category.

The KCPA gives consumers a private right of action against suppliers who commit deceptive and unconscionable practices. K.S.A. 50-623(b); K.S.A. 50-634(b). Although the actions upon which a consumer may establish liability under the KCPA sound largely in fraud, see K.S.A. 50-626, a critical element of a common-law fraud action, the intent to defraud, need not be proven. Willman v. Ewen, 230 Kan. 262, 267, 634 P.2d 1061 (1981) (“there may be liability even though the deception or unconscionable practice was performed innocently and without the intent to injure the consumer”); Bell v. Kent-Brown Chevrolet Co., 1 Kan. App. 2d 131, 133, 561 P.2d 907 (1977). Further, it has been written:

“In determining the elements of proof required in a damage suit under the [KCPA,] proof of the ‘deceptive trade practice’ proscribed by the Act does not require proof of all the elements of a common law fraud.” Note, A New Kansas Approach to an Old Fraud, 14 Washburn L.J. 623, 635 (1975).

We hold that because a supplier’s liability to a consumer is created by the provisions of the Kansas Consumer Protection Act, the three-year statute of limitations for an action upon a liability created by statute, K.S.A. 60-512(2), applies to suits brought under the Act. That statute’s three-year limitation has been clearly met in this case. The defendant completed its work in September of 1981 and plaintiff filed suit in February of 1984, within three years of the act giving rise to injury. We hold that plaintiff s petition was timely filed.

However, defendant contends that either the two-year statute of limitations in K.S.A. 60-513(3) or the one-year statute of [651]*651limitations in K.S.A. 60-514(3) bars plaintiffs action under the KCPA. We disagree.

K.S.A. 60-513(3) is the two-year statute of limitations which applies to fraud actions. Defendant asserts that because an action under the KCPA is, in fact, an action based on fraud, the provisions of that statute should apply to bar plaintiffs action. As stated and cited above, and as supported by other Kansas authority, a plaintiff pursuing a cause of action under the KCPA may establish a supplier’s liability without proof that the supplier intended to injure the consumer. This difference clearly distinguishes the KCPA action from the common-law fraud action. A violation of the KCPA is not the same as a common-law action for fraud such as is contemplated by the provisions of K.S.A. 60-513(3). Therefore, the defendant’s argument that K.S.A. 60-513(3) bars plaintiff s action is not persuasive.

Defendant argues in the alternative that the one-year statute of limitations found in K.S.A. 60-514(3) bars plaintiffs action. That statute states:

“The following actions shall be brought within one (1) year. . . . An action upon statutory penalty or forfeiture.”

The defendant contends that because a violation of the KCPA may give rise to a statutory penalty (see 50-634[b]), K.S.A. 60-514(3) is the appropriate statute of limitations. We disagree.

Defendant’s argument is specifically addressed in Holley v. Coggin Pontiac, 43 N.C. App. 229, 259 S.E.2d 1, cert. denied 298 N.C. 806 (1979). Although the case is from a different jurisdiction, we believe its legal analysis is relevant to the issue. The most enlightening aspect of the opinion is the court’s emphasis on the nature of the right which has been injured and not the remedy therefor. Holley, 43 N.C. App. at 241. According to the court, “to let the limitations be determined by the remedy would be to have the tail wag the dog.” We conclude the North Carolina court properly stated the focus of the issue presented to this panel.

The nature of plaintiff s action was to recover upon a liability created by statute and not upon a statutory penalty.

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Bluebook (online)
732 P.2d 392, 11 Kan. App. 2d 649, 1987 Kan. App. LEXIS 772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/haag-v-dry-basement-inc-kanctapp-1987.