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Neal A. Leno and Susan A. Leno v. K & L Homes

September 2, 2011

NEAL A. LENO AND SUSAN A. LENO,
PLAINTIFFS AND APPELLEES
v.
K & L HOMES, INC., A NORTH DAKOTA CORPORATION, DEFENDANT AND APPELLANT



Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Gail H. Hagerty, Judge.

The opinion of the court was delivered by: Kapsner, Justice.

N.D. Supreme CourtLeno v. K & L Homes,

2011 ND 171

This opinion is subject to petition for rehearing. [Go to Documents]

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AFFIRMED.

Opinion of the Court by Kapsner, Justice.

[¶1] K & L Homes appealed the district court judgment based upon a jury verdict in favor of Neal A. Leno and Susan A. Leno ("the Lenos"). On appeal, K & L Homes argued the district court erred by deciding K & L Homes had not sufficiently raised the defense of fault by the Lenos in its answer, the court erred by refusing to instruct the jury on comparative fault, the court erred by denying K & L Homes' request for inspection and not allowing a defendant to testify on his observations during a jury viewing, and the court erred by ruling K & L Homes had not disclaimed any implied warranties as a matter of law. We affirm.

I

[¶2] The Lenos purchased a newly-constructed house from K & L Homes. The Lenos alleged they noticed cracks, unevenness, and shifting due to improper construction not long after purchasing the house from K & L Homes. Initially, the Lenos claimed K & L Homes was negligent, breached the parties' contract, and breached implied warranties. The Lenos claimed the parties' contract implied warranties that the house would be built according to the applicable codes, that it would fit its purpose as a residence, and that it would be constructed according to engineering standards and in a workmanlike condition. K & L Homes denied the Lenos' allegations and responded by claiming the Lenos were at fault for the damage to the house. The Lenos subsequently dropped their negligence claim and proceeded with the case on the breach of contract and breach of implied warranties claims. K & L Homes requested the jury be instructed on comparative fault, but the district court denied the proposed comparative fault instruction. The district court decided K & L Homes had not adequately pled fault, and comparative fault did not apply to Lenos' cause of action. The district court also found, as a matter of law, that K & L Homes had not disclaimed any implied warranties in a Homeowners' Guide given to the Lenos at the closing on the house.

[¶3] Before trial, K & L Homes made a "request for entry for inspection," requesting that two witnesses be allowed to inspect the house. The district court noted the deadline for discovery had passed and denied the request. The district court also refused to allow Kelly Moldenhauer, the owner of K & L Homes and a witness, to testify about what he observed during the jury's viewing of the house.

[¶4] The jury found K & L Homes had breached the contract or implied warranty and awarded the Lenos damages. K & L Homes appealed.

II

[¶5] K & L Homes argued the district court erred in deciding K & L Homes had not sufficiently raised the defense of fault in its answer to the Lenos' complaint and erred in refusing to instruct the jury on comparative fault. K & L Homes pled in response to the Lenos' negligence claims: "Defendant asserts that the plaintiffs are guilty of comparative fault and that such fault is greater than any negligence or fault of the defendant, which negligence or fault are specifically denied." The Lenos argued fault and comparative fault were irrelevant to their breach of implied warranties claim, and the court properly denied K & L Homes' fault arguments and comparative fault jury instructions.

[ΒΆ6] The Lenos dropped their claim that K & L Homes was negligent, but proceeded with their claims that K & L Homes breached the contract and implied warranties. In support of ...


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