KANSAS COMMENT, 1973

This act, entitled the Kansas Consumer Protection Act, replaces the 1968 Buyer Protection Act (former K.S.A. 50-601 through 50-616), which in broad terms had rendered unlawful any deception or misrepresentation in connection with the sale of merchandise. Under this act, prior Kansas law is both broadened and made more specific. Private remedies are provided in addition to public enforcement by the attorney general; under the Buyer Protection Act, no private remedies were available. Whereas the old Buyer Protection Act covered only merchandise, this act covers the sale of services and real estate as well. Finally, new substantive provisions are added relating to disclaimers of warranty and cancellation of home solicitation sales.

K.S.A. 50-623 provides interpretative guidelines and describes the the general scope of the act.

Law Review and Bar Journal References:

Landlord-tenant implied warranty of habitability, 22 K.L.R. 666, 682 (1974).

Consumer protection in Tenth Judicial District, William P. Coates, Jr., 44 J.B.A.K. 67, 71 (1975).

"A New Kansas Approach to an Old Fraud," on consumer protection, Polly Higdon Wilhardt, 14 W.L.J. 623, 637, 638 (1975).

"U.C.C.—Limitations on Personal Injury Damages for Breach of Warranty," 14 W.L.J. 714 (1975).

The uniform commercial code, the statute of frauds, and the farmer, 25 K.L.R. 318, 322 (1977).

"Recovery of Attorney Fees in Kansas," Mark A. Furney, 18 W.L.J. 535, 550, 551 (1979).

"Insurer's Bad Faith: A New Tort for Kansas?" Janet Amerine and Jan E. Montgomery, 19 W.L.J. 467, 485 (1980).

"Housing Defects: Homeowner's Remedies—A Time for Legislative Action," William J. Fields, 21 W.L.J. 72, 82 (1981).

"Anticipating Common Issues in Revocation of Acceptance Cases," Ronald L. Shalz, 12 J.K.T.L.A. No. 1, 21, 22 (1988).

"Resolved: That the Kansas and Other State Legislatures Should Enact Article 2A of the Uniform Commercial Code", William H. Lawrence and John H. Minan, 39 K.L.R. 95, 114 (1990).

"The Untapped Potential of the Kansas Consumer Protection Act," Amy Fellows, 74 J.K.B.A. No. 4, 24 (2005).

"Williamson v. Amrani: The KCPA Applies to the Practice of Medicine ‒ For a Limited Time," Nancy Ogle, K.D.J. Summer (2007).

Attorney General's Opinions:

Consumer protection; disclaimer or limitation of warranties. 86-25.

Control of unsolicited consumer telephone calls. 2000-21.

Financial institution that occasionally sells motor vehicles it has repossessed is not a "supplier" under Kansas Consumer Protection Act. 2005-2.

CASE ANNOTATIONS

1. Section applied; salesman used deceptive and unconscionable sales practice. Bell v. Kent-Brown Chevrolet Co., 1 Kan. App. 2d 131, 132, 561 P.2d 907.

2. Statement made in sale of new home held to be "puffing"; Consumer Protection Act did not apply. Baldwin v. Priem's Pride Motel, Inc., 224 Kan. 432, 580 P.2d 1326.

3. Cited; on counterclaim for damages under Consumer Protection Act for violations of the Residential Landlord and Tenant Act, held that the Residential Landlord and Tenant Act was specific and took precedence over the broader Consumer Protection Act. Chelsea Plaza Homes, Inc. v. Moore, 226 Kan. 430, 434, 601 P.2d 1100.

4. Debt collection agency is "supplier" within meaning of Consumer Protection Act. State ex rel. Miller v. Midwest Service Bureau of Topeka, Inc., 229 Kan. 322, 323, 623 P.2d 1343.

5. Disclaimer of implied warranty of merchantability sufficiently conspicuous; factors to be considered discussed. J & W Equipment, Inc. v. Weingartner, 5 Kan. App. 2d 466, 469, 618 P.2d 862.

6. Contract provision requiring written notice to Orkin company before suit does not render contract unconscionable. Atkinson v. Orkin Exterminating Co., 5 Kan. App. 2d 739, 741 742, 625 P.2d 505.

7. Delay of over three months in notifying plaintiff that order for a limited production car could not be filled held a deceptive practice. Willman v. Ewen, 6 Kan. App. 2d 321, 323, 627 P.2d 1190.

8. Solicitation by supplier may be sufficient to subject supplier to act; act not unconstitutionally vague. Watkins v. Roach Cadillac, Inc., 7 Kan. App. 2d 8, 9, 15, 637 P.2d 458 (1982).

9. Decision in Willman v. Ewen, 6 Kan. App. 2d 321, affirmed. Willman v. Ewen, 230 Kan. 262, 634 P.2d 1061 (1981).

10. Purpose of act in part to protect consumers from unbargained-for warranty disclaimers and from suppliers who commit deceptive practices. Stair v. Gaylord, 232 Kan. 765, 768, 775, 659 P.2d 178 (1983).

11. Rental agreement with option to purchase TV set, terminable at will by renter, not violative of unconscionability provisions of act. Remco Enterprises, Inc. v. Houston, 9 Kan. App. 2d 296, 300, 677 P.2d 567 (1984).

12. Used car dealer cannot limit implied warranty of merchantability and fitness by extending narrow express warranty. Duke v. King Lincoln-Mercury, Inc., 234 Kan. 840, 841, 676 P.2d 744 (1984).

13. Whether deceptive act has occurred is not question of law but one for trier of fact. Manley v. Wichita Business College, 237 Kan. 427, 432, 701 P.2d 893 (1985).

14. Where action tried and judgment entered under Real Estate Brokers' and Salespersons' License Act, provisions herein inapplicable. Johnson v. Geer Real Estate Co., 239 Kan. 324, 332, 720 P.2d 660 (1986).

15. Consumer protection act not preempted by state corporation commission in cases involving deceptive practices by intrastate shipper (K.S.A. 60-304). Bailey v. Morgan Drive-Away, Inc., 647 F. Supp. 648, 655, 656 (1986).

16. Act cited; resurrection of warranties required by law, representations to lessee by farm equipment leasing company examined. Wight v. Agristor Leasing, 652 F. Supp. 1000, 1011 (1987).

17. Cited; act held applicable to real estate transactions; claim dismissed on theory no evidence of deceptive act or practice shown. Hoffman v. Haug, 242 Kan. 867, 872, 873, 752 P.2d 124 (1988).

18. Cited; punitive damages award for fraud, attorney fees award even though factor in considering punitive damages examined. Equitable Life Leasing Corp. v. Abbick, 243 Kan. 513, 514, 757 P.2d 304 (1988).

19. Mere nondisclosure of a material fact as not proscribed by K.S.A. 50-626(b)(3) determined. Heller v. Martin, 14 Kan. App. 2d 48, 50, 782 P.2d 1241 (1989).

20. Application of act to direct mail business did not violate article. 1, § 8 or first, fifth or 14 th amendments to U.S. Constitution; federal interest in preventing fraud does not preclude state law on subject. Conte & Co., Inc. v. Stephan, 713 F. Supp. 1382 (1989).

21. Where action duly revived (K.S.A. 60-225), appellate decision, if any, noted as final judgment perfecting demand against estate (K.S.A. 59-2238). In re Estate of Rains, 249 Kan. 178, 184, 815 P.2d 61 (1991).

22. Unconscionability under act is a question of law; appellate review of conclusions of law is unlimited. Farrell v. General Motors Corp., 249 Kan. 231, 815 P.2d 538 (1991).

23. Action brought under Kansas consumer protection act subject to three year statute of limitation provided by K.S.A. 60-512(2). Skeet v. Sears, Roebuck & Co., 760 F. Supp. 872, 875 (1991).

24. Act does not alter negotiable instruments section of the UCC. First Nat'l Bank v. Jones, 17 Kan. App. 2d 269, 270, 839 P.2d 535 (1992).

25. Act does not apply to sureties who are not themselves seeking or acquiring property. First Nat'l Bank of Anthony v. Dunning, 18 Kan. App. 2d 518, 524, 855 P.2d 493 (1993).

26. Trial court's refusal to instruct on intent as a required element (K.S.A. 60-526) held to be reversible error. Porras v. Bell, 18 Kan. App. 2d 569, 857 P.2d 676 (1993).

27. Cited; whether evidence plaintiff prosecuted action in bad faith warranted sanctions for attorney fees examined. Morris v. Lomas and Nettleton Co., 825 F. Supp. 979, 980 (1993).

28. Trial court's failure to instruct jury that deceptive act must be shown by clear and convincing evidence not clearly erroneous. Ray v. Ponca/Universal Holdings, Inc., 22 Kan. App. 2d 47, 49, 913 P.2d 209 (1995).

29. Claims based on misrepresentation, fraud and KCPA were not preempted by federal law. Snyder v. City of Topeka, 884 F. Supp. 1504, 1523 (1995).

30. Claim by plaintiff that state bank issued false credit report to credit bureau governed by KCPA. Maberry v. Said, 911 F. Supp. 1393, 1401 (1995).

31. Fact issue concerning whether automobile certificate of title was delivered in timely fashion precluded summary judgment. Griffin v. Bank of America, 971 F. Supp. 492, 494, 496 (1997).

32. Homeowners' claims for actual damages accrued when they discovered corporation's alleged misrepresentations. Alexander v. Certified Master Builder Corp., 43 F. Supp. 2d 1242, 1249 (1999).

33. Attorney General is responsible for enforcing the act and inquiring into the unauthorized practice of law by a proceeding in quo warranto. State v. Martinez, 27 Kan. App. 2d 9, 996 P.2d 371 (2000).

34. Kansas Consumer Protection Act is intended to protect consumers; act does not extend to corporate organization. The CIT Group v. E-Z Pay Used Cars, Inc., 29 Kan. App. 2d 676, 32 P.3d 1197 (2001).

35. Summary judgment affirmed; out of state defendant served by mail at three locations but failed to respond. State ex rel. Stovall v. Alivio, 275 Kan. 169, 61 P.3d 687 (2003).

36. Selling prescription drugs via computer: Held no violation of KCPA; purchasers got exactly what they ordered; waiver of liability insufficient to waive warranties of merchantability and fitness for particular purpose. State ex rel. Stovall v. DVM Enterprises, Inc., 275 Kan. 243, 62 P.3d 653 (2003).

37. Kansas Consumer Protection Act applies to services of professional engineer, intent to deceive not required to prove a deceptive act. Moore v. Bird Engineering Co., 273 Kan. 2, 41 P.3d 755 (2002).

38. No Kansas Consumer Protection Act violation in case involving one carat diamond ring; jeweler kept ring, plaintiff received what he had paid for ring. Queen v. Lynch Jewelers, LLC, 30 Kan. App. 2d 1026, 55 P.3d 914 (2002).

39. Spot delivery agreement, where a buyer takes possession of a vehicle contingent on later third-party financing, does not violate Kansas law. Ed Bozarth Chevrolet, Inc. v. Black, 32 Kan. App. 2d 874, 96 P.3d 272 (2003).

40. Claims against defendant exceeded jurisdictional threshold for federal diversity jurisdiction. Steinert v. Winn Group, Inc., 440 F.3d 1214, 1217 (2006).

41. Act applies to a physician's conduct in providing treatment; expert testimony may be necessary to prove the claim. Williamson v. Amrani, 283 Kan. 227, 152 P.3d 60 (2007).

42. Inmate not a third-party beneficiary to KCPA transaction under facts of case. Ellibee v. Aramark Correctional Services, Inc., 37 Kan. App. 2d 430, 433, 154 P.3d 39 (2007).

43. KCPA claims against towing company relating to price not preempted by federal law. State ex rel. Kline v. Transmasters Towing, 38 Kan. App. 2d 537, 168 P.3d 60 (2007).

44. Commissioner finds unconscionable and deceptive violations of act in unauthorized practice of law case. State ex rel. Morrison v. Price, 285 Kan. 389, 393, 172 P.3d 561 (2007).

45. Cited; jury's finding of no negligence in medical malpractice action does not preclude claim under consumer protection act. Kelly v. VanZant, 287 Kan. 509, 510, 197 P.3d 803 (2008).

46. Claims under Kansas consumer protection act subject to 3-year statute of limitations under K.S.A. 60-512(2); no tolling provision. Bonura v. Sifers, 39 Kan. App. 2d 617, 618, 181 P.3d 1277 (2008).

47. Summary judgment is appropriate on claims under K.S.A. 50-626 and K.S.A. 50-627 only if no evidence of deceptive or unconscionable acts. Osterhaus v. Toth, 39 Kan. App. 2d 999, 1005, 187 P.3d 126 (2008).

48. Consumer protection claim class action regarding fuel temperature claims, defendant's motion to dismiss denied. In re Motor Fuel Temperature Sales Practices Litigation, 534 F. Supp. 2d 1214, 1221 (2008).

49. Expenses associated with IRS challenge were sufficient injury to commence statute of limitation. Hutton v. Deutsche Bank, AG, 541 F. Supp. 2d 1166, 1171 (2008).

50. Insurer held to have wrongfully denied insurer's duty to defend under insurance policy. Miller v. Westport Ins. Corp., 288 Kan. 27, 200 P.3d 419 (2009).

51. Plaintiff's consumer protection act claim dismissed; no consumer transaction involved. Berry v. National Medical Services, Inc., 41 Kan. App. 2d 612, 205 P.3d 745 (2009).

52. School district purchase of land under threat of condemnation not subject to Kansas consumer protection act. Knop v. Gardner Edgerton U.S.D. No. 231, 41 Kan. App. 2d 698, 205 P.3d 755 (2009).

53. Mentioned in case where arbitration required because it was intertwined in dispute subject to arbitration. Hemphill v. Ford Motor Co., 41 Kan. App. 2d 726, 206 P.3d 1 (2009).

54. Summary judgment and dismissal upheld based on contract language. Santana v. Olguin, 41 Kan. App. 2d 1086, 208 P.3d 328 (2009).

55. Court finds the plaintiffs' claim under the KCPA plausible. Wenner v. Bank of America, NA, 637 F. Supp. 2d 944 (D. Kan. 2009).

56. An individual who signs as a guarantor of a transaction between a supplier and a corporate entity cannot invoke the Kansas consumer protection act when tractors purchased by LLC were not used by members as individuals. Griffitts & Coder Custom Chopping v. CNH Ind. Am., 438 F. Supp. 3d 1206, 1225 (D. Kan. 2020).