Nature of the Case
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Facts
In late 2004, P wanted to replace the veneers on her teeth with new ones that would give her a smile which she described as a 'super white' appearance. P saw a magazine advertisement for Cerinate veneers, a proprietary product D manufactures. P called D and D sent a brochure describing the Cerinate veneers as 'thin porcelain shields . . . bonded to the front of' the teeth 'to create dramatic changes in your smile.' The brochure touted 'long-term clinical research' showing the Cerinate veneers would last up to 16 years 'with no discoloration' and '100% retention.' The brochure also explained that the porcelain veneers 'are stronger and more durable' than comparable products made from plastic. According to the brochure, 'sometimes plastic composites stain and discolor with age, whereas, Cerinate Veneers maintain their beautiful luster and vitality.' The brochure referred several times to the durability of the veneers and promoted the 'strong, patented adhesive' used to attach them. P again contacted D for a dentist. D relayed Dr. Gill's name and contact information as the nearest professional authorized to apply Cerinate veneers. Dr. Gill assured P that the porcelain would not discolor. Dr. Gill removed the old veneers, took impressions of Golden's teeth, and ordered the new veneers. On January 10, 2005, Dr. Gill attached the Cerinate veneers to P's upper teeth. Dr. Gill gave P a written warranty for the veneers entitled 'Five Year Limited Warranty' and states the Cerinate porcelain is 'warranted against defects in workmanship and materials for a period of five (5) years from delivery date.' The warranty covers the 'repair or replacement' of the veneers but expressly excludes the costs for 'removal or reinsertion,' any cash refund, and consequential damages such as lost wages or pain and suffering. The warranty card states in small print that it 'is in lieu of all other warranties, whether expressed or implied.' The warranty card was filled in with P's name and address. Dr. Gill signed the card and a certification that the veneers had been applied using Den-Mat's bonding cement and appropriate preparation techniques. P returned to Dr. Gill 3 weeks later and had the remaining veneers applied to her lower teeth. By then, one of the upper veneers had come loose and another appeared to have a crack in it. Dr. Gill ordered replacement veneers and later applied them; she did not charge P for that work. P paid $9,875.25 for the Cerinate veneers. The payment was made to Dr. Gill. Another veneer came off about 6 months later. Dr. Gill reapplied the veneer, again at no cost to Golden. In late March 2007, another veneer came off. Dr. Gill ordered a replacement veneer from D. The replacement veneer was considerably whiter than the veneers P already had. On April 23, 2007, Dr. Gill spoke with a D representative who said it was possible that P's veneers had become stained or had darkened over time. Dr. Gill recounted the conversation to P the same day. Later on April 23, 2007, P wrote a letter to Dr. Gill expressing her dissatisfaction with the veneers and her belief they had developed 'a gray cast' in the 15 months since they were placed on her teeth. Golden asked for Dr. Gill's help in obtaining a new set of veneers from D at no cost. D declined to replace P's veneers. In the first part of 2008, Golden went to her regular dentist to have the Cerinate veneers removed from her upper teeth and replaced with a similar product from another manufacturer. The replacements cost about $4,500. On January 9, 2008, P filed a petition against D and Dr. Gill alleging a breach of express warranties regarding the veneers and a breach of implied warranties of merchantability and fitness for a particular purpose. She also alleged violations of the KCPA for a deceptive act or practice based on statements regarding the characteristics of the veneers and an unconscionable act or practice based on an attempt to limit the implied warranties in violation of K.S.A. 50-639. D and Dr. Gill duly filed separate answers denying liability. P sought to recover the cost of the Cerinate veneers; the cost of the replacement veneers she got in 2008; and $5,000 for lost time, inconvenience, and pain and suffering. D and Dr. Gill filed separate motions for summary judgment with supporting memorandums and exhibits. The district court granted summary judgment to Ds on all of P's claims. The court had applied the tort 2-year statute of limitations. The court held that the 3-year statute of limitations on the KCPA claims against D expired in September 2007. As to Dr. Gill, the district court found the claims to be for professional negligence and, thus, governed by a 2-year statute of limitations that expired before P filed suit. The district court ruled that if the claims were brought under the UCC, P failed to give timely notice as required under the UCC. The district court found the KCPA inapplicable to Dr. Gill because the transaction was one for professional services rather than goods. The district court found that the warranty card Dr. Gill gave to P did not limit implied warranties of merchantability or fitness for a particular use and did not otherwise violate the KCPA. P appealed.
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