Court sides with sellers of moldy mansion

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Posted on Tue, Mar. 21, 2006

Court sides with sellers of moldy mansion

BY RON SYLVESTER

http://www.kansas.com/mld/kansas/14148309.htm

Kansas.com - KS

The Wichita EagleFirst, Ron and Tyler owed $1 million because

they sold an upscale house that later turned out to have mold

growing in its walls.

Now, they don't owe anything, because the Kansas Court of Appeals

overturned the judgment against the Tylers on the 1998 sale of their

house. The court said buyers Bill and Jeanine agreed -- in

a routine document they signed at closing -- to accept the property

without any guarantees.

The document, a property acceptance agreement, is presented at

nearly every closing of a house sale.

" They agreed to accept the house, as is, " said Al Herrington, the

Tylers' lawyer.

The court battle involved two prominent Wichitans. Bill

formerly served as chief executive of Co. Ron Tyler is a co-

founder of the Residence Inn chain and namesake of Wichita State

University's baseball field.

Sometime after the es purchased the house in the 1300 block

of Perth Court, near 13th and Oliver, they found the mold. They sued

in 2003, claiming the problems grew from chronic roof defects that

the Tylers should have disclosed during the sale.

A jury agreed in 2004 and ordered more than $1 million in damages.

But the Court of Appeals has now ruled that the Sedgwick County

judges involved in the case should have tossed it out before it

reached the jury.

The property acceptance agreement, cited by the appeals court,

stated:

" The Buyer named herein agrees that he has had an opportunity to

inspect the above referenced home.... The Buyer now accepts the home

in its current condition and will make no further claims or demands

upon the Seller or his agent for repairs. There are no expressed or

implied warranties that have been made by the Seller (or Realtors)

relative to the sale of this property. "

The Court of Appeals explained: " Simply put, the buyers agreed that

they did not rely upon any representations of the sellers in making

the purchase of their house. "

Once the buyers signed that agreement, the Court of Appeals said,

they couldn't then turn around and sue the sellers for " negligent

misrepresentation. "

Still, the dispute isn't settled.

Nick Daily, lawyer for the es, said he expects a further

appeal to the Kansas Supreme Court.

They have until April 9 to file their appeal.

The state's high court doesn't have to accept the case.