## Facts

- Paul E. and Mary W. Hillenmeyer agreed to sell residential property in Dry Ridge, Grant County, Kentucky, to Jeffrey K. and Susan C. Clair for $219,000 using a standard form real estate purchase contract.
- Before closing, Clair observed wastewater “percolat[ing] to the surface of the yard” from the property’s septic system; the condition was openly visible during inspection.
- Clair added a handwritten proviso to the contract requiring the seller to “repair [the] system to meet code.”
- The contract’s printed terms also stated that, with timely notice, the seller must make reasonable repairs “in a manner acceptable to the buyer.”
- After the contract was signed, Clair, Hillenmeyer, their agents, and plumber Jeff Franxman met to discuss possible fixes. Franxman suggested multiple options, but discussion centered on adding a secondary leach field controlled by a manual valve to be used when the original field became overloaded or “broke out” above ground.
- The only workable location for the additional leach field was in an area where Clair intended to build an addition to the home.
- The parties did not agree on a repair approach. Clair rejected the option Hillenmeyer considered workable and did not propose an alternative.
- Clair communicated dissatisfaction and withdrew from the purchase contract.
- Hillenmeyer later sold the property to another buyer for substantially less than the Clair contract price and sued Clair for breach of contract, seeking damages based on the reduced resale price.
- In the circuit court, Hillenmeyer testified that surface percolation was “normal,” that the system had always met code, and that the handwritten proviso did not require changes to satisfy Clair personally. Hillenmeyer also acknowledged that neither party truly knew what “meeting code” meant in this setting. Franxman testified that surface percolation indicated septic failure.
- The trial court granted Hillenmeyer summary judgment and later set damages. Clair appealed.

## Issues

1. Whether summary judgment for the seller was proper when the record contained conflicting evidence about whether the septic system had failed and whether the seller satisfied the contract’s “repair … to meet code” and “reasonable repairs … acceptable to the buyer” terms.
2. Whether, given those factual disputes, Clair’s withdrawal could be treated as a breach as a matter of law, or whether a factfinder had to decide if Clair was excused by the seller’s nonperformance.

## Decision

- The Kentucky Court of Appeals reversed the summary judgment entered for Hillenmeyer.
- The court vacated the damages award entered after summary judgment.
- The court remanded for further proceedings because genuine issues of material fact remained concerning the septic system’s condition and the parties’ contractual repair obligations.

## Legal Principles

- Summary judgment is improper when material facts are disputed or when competing evidence permits more than one reasonable view of whether a party performed or breached.
- Conflicting testimony about whether a physical condition constitutes a “failure” can create a fact question that must be resolved by the factfinder, not on summary judgment.
- When a contract contains repair language—such as a handwritten “repair … to meet code” condition plus printed terms requiring “reasonable repairs” acceptable to the buyer—questions about meaning, satisfaction, and reasonableness may depend on disputed facts.
- When liability turns on unresolved disputes about performance and excuse, damages tied to an alleged breach generally cannot be fixed as a matter of law on a summary-judgment record.

## Conclusion

The Court of Appeals held that the seller was not entitled to judgment as a matter of law because the evidence conflicted on whether the septic system was failing and on what the contract required by “repair [the] system to meet code” and by the printed “reasonable repairs … acceptable to the buyer” clause; those disputes had to be resolved through factfinding, so the summary judgment and resulting damages award were reversed and the case was remanded.


Clair v. Hillenmeyer, 232 S.W.3d 544 (2007)