Prellwitz Construction ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,470
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
PRELLWITZ CONSTRUCTION, INC.,
Appellee,
v.
NIGEL JONES, KYLE CHANSLER, and DONALD KIMBALL,
Appellants.
MEMORANDUM OPINION
Appeal from Shawnee District Court; TERESA L. WATSON, judge. Opinion filed July 2, 2020.
Affirmed.
Trevor C. Wohlford and Will B. Wohlford, of Morris, Laing, Evans, Brock & Kennedy, Chtd., of
Topeka, for appellants.
Bryan W. Smith, of Smith Law Firm, of Topeka, for appellee.
Before ARNOLD-BURGER, C.J., WARNER, J., and LAHEY, S.J.
PER CURIAM: Kyle Chansler, Nigel Jones, and Donald Kimball (the Owners)
appeal from the judgment in a lawsuit brought against them by the general contractor,
Prellwitz Construction, Inc. (PCI), hired to build their home. Following a bench trial, the
district court found for the general contractor on its breach of contract claim and on the
Owners' counterclaims, including a claim under the Kansas Consumer Protection Act
(KCPA), K.S.A. 50-623 et seq. The Owners argue the district court erred by (1) not
ordering the general contractor to bear the costs of defending a lien foreclosure claim a
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subcontractor brought; (2) holding the Owners breached the contract; and (3) holding the
Owners failed to prove their KCPA claims. Finding no error by the district court, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2013, the Owners bought land in Shawnee County, intending to build a home
there. Jones, who is an architect, designed the home and drew up plans with input from
Chansler and Kimball. In July 2016, the Owners began meeting with George Coe, project
manager for PCI, which is owned by general contractor Mark Prellwitz.
Coe provided an initial bid proposal to the Owners that included a list of
allowances, which Coe said were "realistic or perhaps strong" estimates of costs for
certain items or work required for construction of the home. The allowance for
excavation costs was $10,000, but the parties later agreed to increase it to $12,500 based
on additional work the Owners desired. The proposal required an initial payment of
$55,000 due upon signing of the contract, with monthly draws after excavation began.
Neither the proposal nor the eventual contract included a provision detailing the use of
the $55,000 payment or requiring PCI to provide the Owners with an accounting of its
use.
Prellwitz, Chansler, and Kimball signed the contract on September 29, 2016; Jones
signed on October 5, 2016, and gave Prellwitz a check for $55,000. Prellwitz took the
$55,000 payment, wrote himself a check for $25,000, wrote Coe a check for $25,000, and
left $5,000 in the business account. The contract stated:
"The Owner shall pay the Contractor for the performance of the Contract, but subject to
any additions or deductions provided by the parties, the sum of $529,558.00 which
includes allowances, listed in Description of Materials, inclusive of the Contractor's fee.
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Any Allowance items that go above the listed allowance will be paid to Builder. Any
underages that may result in any allowance category will be refunded to Owner and will
be documented by attached invoices."
The contract included several allowances "to pay for items for which the cost is unknown
or under control of Owner," and it provided: "Cost of all changes and any overages of
allowances shall be billed to the Owner at cost plus a 15% mark-up."
Construction was delayed while the Owners secured financing, but work began in
January 2017. PCI subcontracted with RDR Excavating, Inc. (RDR) for the excavation
phase of construction. Riley Rees, the owner of RDR, did not submit a bid before
beginning work, nor did PCI ask him for one. PCI did not routinely request nor did Rees
routinely provide bids on this type of excavation because there was no way to know what
RDR might encounter when it began digging.
The property had a steep driveway from the road to the planned location of the
house. The home site was also sloped, so RDR had to excavate a flat area by cutting
through vegetation and topsoil to reach native soil that would adequately support the
house's foundation. Because the native soil was mostly clay, which expands and contracts
depending on moisture, Rees had to bring in select fill to create a pad strong enough to
support the house. Wet and cold weather delayed and prolonged the excavation.
A couple of days before RDR finished the pad, Coe visited the job site and spoke
with Rees, who told him the fill alone had cost over $20,000. RDR's bill to PCI for the
excavation work, reflected on an invoice dated February 17, 2017, totaled $44,044.95.
PCI included that amount in its bank draw request to the Owners dated March 6, 2017.
Unhappy that the excavation cost was so much more than the allowance amount, the
Owners did not pay.
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On March 24, 2017, RDR filed a mechanic's lien against the property in the
amount of $44,044.95. Three days later, the Owners emailed Prellwitz and Coe and said
they would pay $25,000 to settle the excavation bill. Two days after that, Coe replied by
email, stating RDR was willing to accept $30,000 as payment in full. On April 10, 2017,
Kimball responded, stating he would not sign a draw request for $30,000 until he had a
signed statement from Riley and Prellwitz acknowledging that the $30,000 would fully
settle the invoice and they would seek no further payment.
The next day, Coe told the Owners that Prellwitz would bring a signed document
to the bank when he picked up the checks, but the day after that, Kimball emailed Coe
and stated he had spoken with Rees, who was reluctant to provide a signed statement.
Although Rees was willing to release RDR's lien after he received the money, Kimball
told Coe the Owners would not release the $30,000 without a signed and notarized lien
release form given to them immediately upon receipt of the funds. The Owners' bank,
Capital Federal (CapFed), issued a check to RDR dated April 18, 2017, but Rees did not
pick up the check because he was angry about some comments the Owners had made.
CapFed voided the check on April 19, 2017.
Meanwhile, PCI continued construction work on the house. PCI's June 7, 2017
request for a bank draw included invoices for $17,200 for windows; $1,572.03 for garage
doors; and $1,898.34 for exterior paint. PCI sent the Owners an invoice dated June 28,
2017, that included invoices from Insulation and Drywall Contractors, Inc. in the amount
of $43,792, as well as charges for nonpayment for the windows and exterior paint. PCI
demanded payment on June 28, 2017, and, when the Owners did not pay, PCI stopped
work on the house. The next day, PCI filed a lien against the property in the amount of
$25,531.31, which included the 15% overage on the excavation allowance, the cost of the
windows and the late fees for nonpayment of that bill, the cost of the garage doors, and
the cost of the exterior paint.
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On July 3, 2017, PCI and RDR filed suit seeking foreclosure of their liens, and
PCI sued the Owners for breach of contract and unjust enrichment. On July 19, 2017, PCI
filed a second lien against the property in the amount of $47,402.93, which included
money owed for the insulation and drywall work, fees for nonpayment of the windows
bill, and fees for nonpayment of the exterior paint bill. The Owners eventually paid for
the paint and the drywall work.
Around July 20, 2017, Prellwitz sent a letter to each of the Owners' employers,
stating he was in a contract dispute with the Owners, who owed him money. Prellwitz
asserted that the Owners' "lack of professionalism reflects poorly on them and also poorly
on the institutions that employ them." He concluded each letter by stating: "I am quite
certain this type of behavior would be considered conduct unbecoming." Kimball was a
sergeant in the Wichita Police Department, Chansler was a lieutenant colonel in the
Kansas Army National Guard, and Jones was an architecture professor and building
project manager at Oklahoma State University.
On August 18, 2017, the Owners filed their answer and brought counterclaims
against PCI and RDR. Many details of the litigation in the district court are not relevant
to the issues now on appeal. For example, PCI and RDR first named the Owners and
CapFed as defendants, but the parties later stipulated to dismissing CapFed from the suit.
The district court also dismissed RDR from the case and granted partial summary
judgment in the Owners' favor on RDR and PCI's lien foreclosure claims. Neither
CapFed nor RDR is a party to this appeal, nor do the issues on appeal involve them.
Similarly, the claims and counterclaims changed multiple times, but that evolution is not
relevant to the issues on appeal.
Suffice it to say that going into trial, PCI was the only remaining plaintiff and
counterclaim-defendant, and it brought (1) a claim of breach of contract based on the
Owners' failure to pay the excavation costs and the related 15% mark-up, the window
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costs, and the garage door costs; and (2) a claim for unjust enrichment. As the remaining
defendants, the Owners brought counterclaims alleging breach of contract, unjust
enrichment, breach of the duty of good faith and fair dealing, breach of express and
implied warranties, slander of title, and violations of the KCPA.
The four-day bench trial began on April 30, 2019. Due to the limited nature of this
appeal when compared to the many trial issues, much of the testimony and evidentiary
exhibits presented are not relevant to this appeal. This opinion therefore details only the
relevant evidence; it greatly summarizes the rest and provides additional facts as needed.
Rees testified about RDR's involvement in the construction. He explained the
work RDR completed and testified the work billed was for work RDR had done. Another
experienced excavator testified he would have bid the excavation at $52,770, and a
second experienced excavator testified that, in his opinion, $12,500 was not an
unreasonable allowance for the excavation. PCI also presented testimony from other
subcontractors who worked on the project, as well as the facility manager for the
lumberyard PCI used.
Coe testified at length about his involvement in the negotiating process and his
common use of allowances in contracts for items for which he cannot get a fixed price.
For example, there are so many types of cabinets that without a specific choice being
made, there is no way to determine a set price for the cabinets without the client making a
firm choice prior to signing the contract. Coe explained that excavation was an allowance
"[b]ecause we don't know what we're going to encounter. . . . [W]hat if we run into other
utilities? What if we run into water? It's just because we don't know, it's an unknown."
Coe also testified that he explained to the Owners the $55,000 was their "skin in
the game" to balance PCI's risk in placing orders on its own credit for items such as
windows without the Owners paying for those items before ordering them. He said that
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prior to the contract, the Owners never asked for an accounting of the $55,000. Coe
described it as "a payment towards the contract price." Similarly, when Prellwitz testified,
he said he understood the $55,000 payment was "a deposit that ties us together, they have
skin in the game. We bring the knowledge, and the subs, and the materials and they bring
money." After Prellwitz testified, PCI rested its case.
Jones, Kimball, and Chansler testified on their own behalf, relating their memories
of the negotiating process and the construction. They each testified about meetings before
and after they signed the contract during which Coe told them PCI would use the $55,000
payment to bring electricity to the site and order custom-made doors and windows. The
Owners also testified they had hired Terravest Custom Homes to finish construction of
the house. The owner of Terravest testified about the work it had done. After PCI called
Coe as a rebuttal witness on damages, the parties made closing argument and the district
court ordered each side to submit proposed findings of fact and conclusions of law.
The district court filed its journal entry of judgment on May 16, 2019. It found in
PCI's favor on its breach of contract claim, holding that the Owners had breached the
contract by failing to pay for the excavation costs, the 15% mark-up on the amount those
costs exceeded the allowance, the windows, and the garage doors. After calculating
prejudgment interest, the district court awarded PCI $80,497.92. Because it found for PCI
on the breach of contract claim, the district court did not consider PCI's unjust enrichment
claim. The district court considered and denied each of the Owners' counterclaims.
The Owners timely appeal.
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I. DID THE DISTRICT COURT ERR BY NOT HOLDING K.S.A. 60-1106 REQUIRED PCI
TO BEAR THE COST OF DEFENDING THE OWNERS AGAINST RDR'S CLAIMS?
The Owners argue the district court erred by failing to hold that K.S.A. 60-1106
required PCI to pay the costs of defending against RDR's claim. But as PCI argues, we
find the issue is not properly before us.
K.S.A. 60-1106 provides that when an action to foreclose on a mechanic's lien
"is brought by a subcontractor, or person other than the original contractor, such original
contractor shall be made a party defendant, and shall at his or her own expense defend
against the claim of every subcontractor, or other person claiming a lien under this article,
and if he or she fails to make such defense the owner may make the same at the expense
of such contractor; and until all such claims, costs and expenses are finally adjudicated,
and defeated or satisfied, the owner shall be entitled to retain from the contractor the
amount thereof, and such costs and expenses as he or she may be required to pay."
Supreme Court Rule 6.02(a)(5) (2020 Kan. S. Ct. R. 35) mandates that appellants
provide "a pinpoint reference to the location in the record on appeal where the issue was
raised and ruled on." The Owners cite to their motion to realign parties, the joint pretrial
order, and the trial transcript. The Owners did file a motion to realign parties that raised
this argument, but they later withdrew the motion "to the extent that it requests that the
parties be realigned," and there is no further mention in the record of the motion. The
page of the joint pretrial order to which the Owners cite is an itemized list of the damages
the Owners sought, which includes the item "Attorney Fees (KCPA; K.S.A. § 60-1106)"
in an amount to be determined. And at trial, the Owners briefly included in their closing
argument a reference to K.S.A. 60-1106 and its requirement that PCI defend them against
RDR's claim and bear the costs.
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But the Owners fail to provide a pinpoint citation to the location in the record
where the district court ruled on the issue. As a result, the Owners have improperly
briefed the issue, and we deem it abandoned. See Jarvis v. Kansas Dept. of Revenue, 56
Kan. App. 2d 1081, 1097, 442 P.3d 1054 (citing State v. Godfrey, 301 Kan. 1041, 1044,
350 P.3d 1068 [2015]), rev. granted on other grounds 310 Kan.1062 (2019). Since 2014,
the Kansas Supreme Court has warned litigants "that Rule 6.02(a)(5) would, in the future,
be strictly enforced." Godfrey, 301 Kan. at 1043-44 (citing State v. Williams, 298 Kan.
1075, 1085, 319 P.3d 528 [2014]). And since 2015, "[w]e are now sufficiently post-
Williams that litigants have no excuse for noncompliance with Rule 6.02(a)(5)." Godfrey,
301 Kan. at 1044.
Moreover, a review of the record in its entirety reveals the district court never
ruled on the issue. And although PCI points this out in its appellate brief, the Owners'
reply brief states only that PCI's "assertion is plainly inaccurate" and refers for the first
time to the posttrial proposed findings of fact and conclusions of law the Owners
submitted to the district court, which included a ruling in their favor on the issue. The
district court's journal entry of judgment, however, did not even mention K.S.A. 60-1106.
"Without a ruling from the district court on this issue, we cannot proceed with formless
appellate review." Manhattan Ice and Cold Storage, Inc. v. City of Manhattan, 294 Kan.
60, 81, 274 P.3d 609 (2012).
In addition, as the Kansas Supreme Court has repeatedly held, "litigants and their
counsel bear the responsibility for objecting to inadequate findings of fact and
conclusions of law in order to give the trial court the opportunity to correct such
inadequacies, and, when there is no objection, omissions in findings are not considered
on appeal." McIntyre v. State, 305 Kan. 616, 618, 385 P.3d 930 (2016). The Owners
could have filed a motion for amended or additional findings under K.S.A. 2019 Supp.
60-252(b) or otherwise sought a ruling on the issue when the district court's journal entry
did not include one. They did not. They "failed to object to the sufficiency of the district
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court's findings of fact and conclusions of law, and the objection will not be considered
for the first time on appeal." Seaman U.S.D. No. 345 v. Kansas Comm'n on Human
Rights, 26 Kan. App. 2d 521, 523, 990 P.2d 155, rev. denied 268 Kan. 888 (1999).
In summary, the district court did not rule on this issue, the Owners did not ask it
to amend its journal entry to do so, and the Owners fail to acknowledge the lack of a
ruling on the issue, much less argue why we should resolve the issue for the first time on
appeal. Thus, the Owners failed to preserve their K.S.A. 60-1106 argument for appellate
review. See St. Francis Regional Med. Center, Inc. v. Weiss, 254 Kan. 728, 747, 869 P.2d
606 (1994) (holding issue "raised but not decided, unless by default, in the district court"
not properly preserved for review).
II. DID THE DISTRICT COURT ERR BY FINDING THE OWNERS BREACHED THE
CONTRACT?
The district court held that the Owners breached the contract by refusing to pay for
the excavation costs, the windows, and the garage doors. The Owners contend they
settled the excavation bill for $30,000 and the district court erred when it determined
there had been no settlement of that disagreement. Furthermore, they argue they were
never in breach for nonpayment because the $55,000 initial payment caused them to have
a credit balance on the contract at all times. They allege the district court erred by failing
to recognize and apply that credit balance.
"The elements of a breach of contract claim are: (1) the existence of a contract
between the parties; (2) sufficient consideration to support the contract; (3) the plaintiff's
performance or willingness to perform in compliance with the contract; (4) the
defendant's breach of the contract; and (5) damages to the plaintiff caused by the breach.
[Citations omitted.]" Stechschulte v. Jennings, 297 Kan. 2, 23, 298 P.3d 1083 (2013).
The Owners appeal only the fourth element—the breach of the contract.
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"We exercise unlimited review when interpreting and determining the legal effect
of contracts. But whether a contract has been breached is a question of fact. A district
court's factual findings will not be disturbed on appeal if they are supported by
substantial competent evidence. In other words, an appellate court will not reweigh the
evidence but will accept the district court's findings so long as there is evidence in the
record that reasonably supports the ultimate finding. [Citations omitted.]" Peterson v.
Ferrell, 302 Kan. 99, 104, 349 P.3d 1269 (2015).
A. The $30,000 "settlement agreement"
The district court held:
"Defendants claim that there was an enforceable settlement agreement that
Defendants could satisfy the excavating costs by paying $30,000.00 directly to RDR, and
that they tried to pay $30,000.00 to RDR but Rees refused the payment. In order to form
a binding agreement, there must be a meeting of the minds on all the essential elements.
. . . An unconditional and positive acceptance is required to form a contract; a conditional
acceptance of a settlement offer is but a counteroffer which does not create a contract. . . .
"The evidence demonstrates that there was no meeting of the minds on the terms
of a settlement agreement. Plaintiff and Defendants discussed what Rees said he would
take to satisfy his invoice. While Rees appeared to agree to the figure of $30,000.00,
Defendant's, through Kimball, insisted that they would not pay the money until and
unless a written settlement agreement was signed and delivered to them. Prellwitz
insisted that no releases would be given until the money was paid. There was no
agreement. The fact that Capitol Federal later cut a check to RDR for $30,000.00 does
not create or complete any agreement. Thus, Rees' refusal to take the check does not
amount to a breach, and it certainly does not amount to a breach by Plaintiff."
The Owners argue the district court erred by considering Rees' actions. They
contend the only parties to the settlement agreement were PCI and themselves, and they
had a meeting of the minds in that they agreed PCI would accept $30,000 as payment in
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full, as shown by the revised invoice showing that amount. They insist that whether Rees
later refused the payment is irrelevant, as the negotiation was between the Owners and
PCI about how much of the excavation costs the Owners would bear. They assert the
$30,000 check from CapFed was their attempt to perform under that settlement
agreement and PCI breached the agreement by refusing to accept the check.
"Whether a contract exists depends on the intentions of the parties and is a
question of fact. However, when the legally relevant facts are undisputed, the existence
and terms of a contract raise questions of law for the court's determination. . . .
"In order to form a binding contract, there must be a meeting of the minds on all
the essential elements. An unconditional and positive acceptance is required to form a
contract, a conditional acceptance of a settlement offer is but a counteroffer, which does
not create a contract. [Citations omitted.]" U.S.D. No. 446 v. Sandoval, 295 Kan. 278,
282, 286 P.3d 542 (2012).
We find substantial competent evidence supports the district court's finding there
was no meeting of the minds between PCI and the Owners settling the excavation bill for
$30,000. Rather, the $30,000 was the first counteroffer from PCI, a counteroffer the
Owners rejected.
On March 27, the Owners offered $25,000 to settle the excavation bill; that offer
was rejected. Two days later, Coe responded by email that "RDR will accept $30,000.00
from you for payment in full on the $44,000.00." This was a counteroffer. On April 10,
2017, Kimball replied by email, noting he received an invoice for $30,000 but requiring
"a signed agreement or statement from [Rees] and Prellwitz acknowledging that the
$30,000.00 is the agreed upon settlement and that payment of such is the final billing
with no payment expected in the future." Kimball continued: "I will not sign the draw
request for the $30,000.00 until I have such a signed statement." Kimball's added
condition to PCI's offer—a signed release—was a counteroffer, not an acceptance of
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PCI's settlement offer. The remaining conversations between the parties, the Owners'
ultimate preparation of a check for $30,000, and Rees' refusal to accept it does not
operate to somehow revive PCI's initial $30,000 offer that the Owners rejected. See
Lindsey Masonry Co. v. Murray & Sons Construction Co., 53 Kan. App. 2d 505, 517,
390 P.3d 56 (2017) ("A conditional acceptance is a counteroffer that rejects the original
offer.").
Thus, we find the evidence before the district court reasonably supports the
ultimate finding that there was no meeting of the minds and, therefore, no settlement
agreement formed by the Owners and PCI. The amount the Owners owed for excavation
costs, including the contractor's 15% allowance fee, exceeded $48,000.
B. The $55,000 payment
The Owners contend they did not breach the contract by nonpayment. They argue
the initial $55,000 payment should have been credited to their account. According to their
calculations and because of the initial payment, they maintained a credit balance at all
times.
Paragraph 3 of the contract states: "The Owner shall pay the Contractor for the
performance of the Contract, but subject to any additions or deductions provided by the
parties, the sum of $529,558.00 which includes allowances, listed in Description of
Materials, inclusive of the Contractor's fee." Paragraph 7 states: "Payments by the Owner
to the Contractor shall be due immediately upon receipt of a statement from the
Contractor at the completion of the states of construction according to the following
schedule: A. $55,000.00 when Contract is signed by both parties [and] B. Monthly draws
as soon as excavation starts." As the district court held and as the Owners acknowledge,
there is no contract provision specifying a use for the $55,000, nor does the contract
specify the amount of the contractor's fee. The Owners contended they were told it was to
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be used specifically for windows, but Prellwitz considered it his contractor's fee. Based
on our analysis of the purported settlement agreement, we need not resolve whether the
trial court erred in the manner in which it resolved this point of disagreement. If the
district court had been persuaded by the Owners' factual assertion that the excavation bill
was settled for $30,000, then the Owners may have had an argument there was no breach.
But even if we accept the Owners' view that the $55,000 payment should have been
applied towards the amount due, the Owners were still in breach of the agreement for
nonpayment.
While it is true the $55,000 payment, if applied as a credit towards amounts due
under the contract, would fully satisfy the excavation bill or the billing for the windows
and garage doors, it was not adequate to pay both. The charge for the windows and
garage doors amounted to $18,772.23. When added to the $44,044.95 excavation bill, the
amount due under the contract when this action was filed exceeded $55,000. Thus, even
if the initial $55,000 had been credited against billings, the Owners breached the contract
by not paying the balance due.
We find substantial competent evidence supports the district court's determination
the Owners breached the contract.
III. DID THE DISTRICT COURT ERR BY HOLDING THE OWNERS HAD NOT PROVEN
THEIR KANSAS CONSUMER PROTECTION ACT CLAIMS?
The district court considered five acts or practices by PCI that the Owners
contended violated the KCPA, and it concluded the Owners failed to prove their claims.
The Owners argue on appeal the district court erred in rejecting four of those claims: (1)
"Misrepresentations regarding project pricing," which includes representing that contract
prices were set by subcontractor bids when PCI had not obtained such bids and Coe's
representation that the allowance amounts were realistic and strong; and (2) "Acts
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relating to the Owners' $55,000.00 advance payment," which includes Coe allegedly
telling the Owners that PCI would use the money one way but then using it another way
and concealing that use from the Owners. The other two claims alleged unconscionable
acts: (3) "Failing to keep the Owners advised of incipient cost overruns during the
excavation phase of the project" and (4) "Engaging in false and disparaging
communications with the Owners' employers," based on Prellwitz' letters to the Owners'
employers.
"The KCPA prohibits both deceptive and unconscionable acts and practices by a
supplier in connection with a consumer transaction. . . . The KCPA expressly provides
that it is to be construed liberally in order to protect consumers from suppliers who
commit deceptive and unconscionable practices." Via Christi Regional Med. Center, Inc.
v. Reed, 298 Kan. 503, 519, 314 P.3d 852 (2013). Neither party disputes that the KCPA
applies to their interactions.
Under the KCPA, deceptive acts and unconscionable acts are distinct, although an
act may be both deceptive and unconscionable. K.S.A. 2019 Supp. 50-626 prohibits
deceptive acts and practices and sets forth a nonexclusive list of 14 sample violations.
"'Whether a deceptive act or practice has occurred under the [KCPA] is not a question of
law for the court, but rather a question of fact for the jury to decide.'" 298 Kan. at 520.
On the other hand, K.S.A. 50-627 prohibits unconscionable acts and practices and
sets forth a nonexclusive list of seven circumstances for courts to consider when
determining whether an act or practice is unconscionable. "[W]hether an action is
unconscionable under the KCPA is a legal question for the court . . . . The determination
of unconscionability . . . ultimately depends upon the facts in a given case. And, to a great
extent, the determination is left to the sound discretion of the trial court." 298 Kan. at
525.
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The Owners assert generally that "[q]uestions involving KCPA violations are
mixed questions of fact and law" and do not further articulate a standard of review. PCI
asserts we should determine whether the district court's fact findings are supported by
substantial competent evidence and, if so, whether the fact findings sufficiently support
the district court's conclusions of law. PCI also contends our review should accept as true
all evidence that supports the district court's findings.
But the Kansas Supreme Court has held that a district court's finding that "'the
party upon whom the burden of proof is cast did not sustain the requisite burden'"
requires a unique standard of review. Cresto v. Cresto, 302 Kan. 820, 845, 358 P.3d 831(2015). Here, the district court explicitly held that the evidence at trial "does not support
[the Owners'] claims that [PCI] committed deceptive acts punishable by the KCPA" and
"does not support [the Owners'] claims that [PCI] committed unconscionable acts
punishable by the KCPA." In this case,
"'Absent arbitrary disregard of undisputed evidence or some extrinsic consideration such
as bias, passion or prejudice the finding of the trial judge cannot be disturbed. An
appellate court cannot nullify a trial judge's disbelief of evidence nor can it determine the
persuasiveness of evidence which the trial judge may have believed.' [Citation omitted.]"
302 Kan. at 845.
The Owners do not argue the district court arbitrarily disregarded undisputed
evidence or that an extrinsic consideration such as bias, passion, or prejudice affected the
district court's decision. Rather, they reassert the arguments they made to the district
court and ask us to reweigh the evidence. Because the Owners have failed to assert the
grounds necessary for us to reverse the district court's finding, they have waived and
abandoned the argument. See Lambert v. Peterson, 309 Kan. 594, 598, 439 P.3d 317(2019) ("Because of [the appellant's] failure to brief or assert any of these arguments
before us, she has waived or abandoned them.").
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Nonetheless, we briefly address why the Owners' arguments fail on the merits.
First, the Owners do not articulate clearly how the district court erred, instead merely
repeating the arguments they made directly to the district court. Second, the Owners'
arguments ask us to reweigh evidence or reassess witness credibility on appeal, which we
do not do when reviewing for substantial competent evidence. See Geer v. Eby, 309 Kan.
182, 191, 432 P.3d 1001 (2019) ("'The appellate court does not weigh conflicting
evidence, pass on credibility of witnesses, or redetermine questions of fact.'").
A. Alleged deceptive acts
With respect to the alleged deceptive practices, the Owners first argue Coe
knowingly misrepresented that the prices in the contract were keyed to subcontractor
bids. But Coe testified at length about his explanations to the Owners that if they wanted
more specific numbers in the contract and wanted items listed as bid amounts instead of
allowances, the Owners should do the work themselves to determine how much those
items would cost. Coe also testified he did not tell Kimball that PCI was obtaining bids
on every work item—because it was not PCI's practice to do so, he tried to provide
realistic allowance amounts in the contract, and he "[a]bsolutely" did not deliberately use
low allowance amounts.
The Owners also argue Coe told them the $55,000 payment "would be used to
mobilize the project, to lay utilities to power the project, and to purchase custom
windows and doors." But Coe testified he gave the Owners a different explanation for the
$55,000—it was the Owners' "skin in the game" to show their commitment to a project
for which PCI would start spending money. The district court apparently found Coe more
credible, as it held PCI "did not make willful misrepresentations." As we do not reassess
witness credibility on appeal, we find substantial competent evidence supports the district
court's ruling there were no deceptive acts committed by PCI. See Geer, 309 Kan. at 190.
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B. Alleged unconscionable acts
K.S.A. 50-627(b) provides a list of circumstances which the district court is to
consider in determining whether an act or practice is unconscionable. After noting none
of those factors apply here, the district court held:
"Defendant are sophisticated consumers who demonstrated themselves well able to
protect their interests under the contract. Further, the evidence adduced at trial does not
support Defendants' claims that Plaintiff committed unconscionable acts punishable by
the KCPA. Plaintiff did not act unconscionably in regard to the excavating invoice. The
allowance was reasonable for a typical slab on grade project. There was ample testimony
regarding the sloped nature of the property and the difficulty posed by excavating in the
middle of a Kansas winter. There is no evidence Plaintiff purposely deceived Defendants
about the cost of excavation. The costs simply far exceeded the allowance and there was
no evidence of a viable cheaper alternative. This is an unfortunate turn of events on a
construction project, but it does not amount to an unconscionable act.
"Finally, Prellwitz' letter to Defendants' employers was a harsh and perhaps
unprofessional attempt to collect money owed. Even so, it does not amount to an
unconscionable act. Defendants' counterclaim for violation of the KCPA (unconscionable
acts) fails."
The Owners again ask us to reweigh the evidence presented and come to a
different conclusion than the district court: that the excavation cost could and should
have been avoided had Prellwitz behaved differently and that the Owners did not owe
PCI money, so the letters to the Owners' employers were unconscionable. But, again, we
do not reweigh evidence, and the record contains ample evidence to support the district
court's factual findings and legal conclusions.
Affirmed.
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