Schremmer v. Farmers Insurance Co. ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,485
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
RYAN SCHREMMER,
Appellant,
v.
FARMERS INSURANCE COMPANY, INC., et al.,
Appellees.
MEMORANDUM OPINION
Appeal from Ellis District Court; GLENN R. BRAUN, judge. Opinion filed August 5, 2022.
Affirmed.
Larry G. Michel, of Kennedy Berkley Yarnevich & Williamson, Chtd., of Salina, for appellant.
James R. Holland, II, of Fisher & Phillips, LLP, of Kansas City, Missouri, for appellees.
Before ATCHESON, P.J., WARNER, J, and ANTHONY J. POWELL, Court of Appeals Judge,
Retired.
PER CURIAM: Plaintiff Ryan Schremmer appeals a summary judgment the Ellis
County District Court entered in favor of Defendants Farmers Insurance Exchange, Inc.
and several related corporations on claims they fraudulently and negligently
misrepresented the income potential of a pair of insurance agencies in Hays and Russell
affiliated with the companies. Schremmer contends those representations made by two
district managers led him to invest time and money to take over the agencies and he never
earned what the managers assured him he would. Examining the properly admitted
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summary judgment evidence in the best light for Schremmer, we conclude the challenged
statements made to him were qualified rather than absolute representations that, in any
event, appear to have been substantially accurate. As such, they cannot as a matter of law
support the misrepresentation claims Schremmer has pursued. The district court,
therefore, properly granted summary judgment.
FACTUAL AND PROCEDURAL HISTORY
Because the appeal rests on a summary judgment, the standards of review in both
the district court and here dictate how we look at the relevant facts. So we set out the
standards before turning to a recitation of the governing facts. See Bouton v. Byers, 50
Kan. App. 2d 34, 36-37, 321 P.3d 780 (2014). The standards are well known and often
stated.
When considering summary judgment, the district court must view the evidence
properly submitted in support of and in opposition to the motion most favorably to the
party opposing the motion, here Schremmer, and give that party the benefit of every
reasonable inference that might be drawn from that record. Trear v. Chamberlain, 308
Kan. 932, 935-36, 425 P.3d 297 (2018); Shamberg, Johnson & Bergman, Chtd. v. Oliver,
289 Kan. 891, 900, 220 P.3d 333 (2009). The party seeking summary judgment has to
show that even taking the evidence in that light, there are no genuine disputes over any
material facts and it is entitled to judgment as a matter of law. Trear, 308 Kan. at 935;
Shamberg, 289 Kan. at 900. Basically, the moving party submits any reasonable
construction of the evidence could not permit a jury to return a verdict for the opposing
party.
Even a genuine dispute about a background fact without relevance to the
controlling legal issues cannot avert summary judgment. Northern Natural Gas Co. v.
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ONEOK Field Services Co., 296 Kan. 906, 934, 296 P.3d 1106 (2013). Likewise, a phony
dispute about a relevant fact ginned up in opposition to a motion for summary judgment
cannot save an otherwise legally deficient claim. Christiansen v. Silverbrand, 61 Kan.
App. 2d 8, 26, 497 P.3d 1155 (2021) (Atcheson, J., concurring).
An appellate court applies the same standards in reviewing a challenge to the
district court's entry of summary judgment. We, therefore, owe no particular deference to
the district court's ruling, since it effectively applies a set of undisputed facts viewed
favorably to Schremmer to the controlling legal principles. Summary judgment, then,
presents a question of law an appellate court can assess just as well as the district court.
See Adams v. Board of Sedgwick County Comm'rs, 289 Kan. 577, 584, 214 P.3d 1173(2009).
We now turn to a recitation of the facts taken most favorably to Schremmer. In
early 2018, Schremmer was recently divorced when he determined he needed to leave his
job as a sales representative to better accommodate the shared custody and parenting plan
for his young child. Although Schremmer had no experience in the insurance business,
his cousin, who was a Farmers agent, suggested there might be an opportunity for him to
take over the agencies in Hays and Russell. Schremmer followed up on that suggestion
by contacting Bianca Pitts, his cousin's district manager. Pitts oversaw Farmers insurance
agents in eastern Kansas and did not manage the agencies in Hays or Russell. Pitts and
Schremmer, nonetheless, discussed the opportunity to take over those agencies. We get
into Schremmer's account of those discussions shortly in outlining Schremmer's
misrepresentation claims.
Schremmer, in turn, spoke multiple times with Steve Brazil, then the Farmer's
district manager for a territory in western Kansas that included the insurance agencies in
Hays and Russell. We also turn to the specifics of those conversations shortly.
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Based principally on his discussions with Pitts and Brazil, Schremmer decided to
take over the Farmers agencies in Hays and Russell. He knew the agent in Russell was
retiring and the agent in Hays had left, although it's not entirely clear Schremmer
understood the reasons. More pertinently, he was aware no one had been contacting
policyholders insured through the Hays agency for some time.
Farmers required Schremmer to become a licensed insurance agent, so he
undertook a course of study and passed an examination. The company also obligated
Schremmer to maintain a physical office for each agency staffed with at least one full-
time employee. To satisfy those conditions, Schremmer dedicated a substantial amount of
time and made cash outlays he later estimated at $11,000. In December 2018, Schremmer
signed an agreement with Farmers to operate company affiliated insurance agencies in
Hays and Russell. Under the agreement, Schremmer was considered an independent
contractor with Farmers rather than an employee.
Schremmer filed this action in March 2020 in Ellis County District Court and
amended the petition twice—the second time in September, several weeks after Farmers
gave written notice terminating the independent contractor relationship with him. The
second amended petition names Farmers and four related corporations as defendants and
alleges they "represented that the combined agencies [in Hays and Russell] had close to
$100,000 in revenue" and "promised" Schremmer "the opportunity" to acquire a second
agency in Hays. The second amended petition asserts the revenue figure was falsely
inflated and Schremmer was never seriously considered for the second Hays agency, so
the opportunity didn't materialize. In short, the pleading says those misrepresentations
were made to induce Schremmer to handle two otherwise rudderless agencies.
Schremmer sought recission of the relationship with Farmers and money damages based
on those purported misrepresentations.
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The defendants duly answered each iteration of Schremmer's petition and denied
any wrongdoing or liability. Throughout these proceedings, all of the corporate
defendants have been jointly represented, and we have no need to distinguish among
them, so we refer to them collectively as Farmers or the defendants.
In the interests of completeness, we mention Schremmer also asserted a claim for
breach of the independent contractor agreement. The parties agreed to a dismissal of that
claim, and it does not figure in this appeal. The circumstances of the termination,
therefore, are immaterial to the dispositive issues in front of us.
The parties conducted discovery—including the depositions of Schremmer, Pitts,
and Brazil—that added detail to the terse allegations of misrepresentation in the
pleadings. During his deposition, Schremmer testified Pitts described the insurance
agency in Hays and the one in Russell together as a "$100,000 a year opportunity" with
the potential for double that amount or more. Schremmer understood the $100,000 figure
to be "a book of business," meaning an amount generated annually in commissions to the
agent on existing policies. After their discussion, Pitts sent Schremmer an email on May
15, 2018, characterizing the opportunity as "pretty darn good and close to [$]100,000
revenue." Schremmer has identified those statements as one of the actionable
misrepresentations made to him.
Schremmer testified that Brazil later told him he would earn $100,000 annually
from the two agencies. Brazil offered the $100,000 figure at least twice as a sound
estimate. According to Schremmer, he couched an inquiry to Brazil about earnings in
terms of income because he was primarily concerned with what he would realize after
paying overhead and wages. But Schremmer acknowledged that Brazil qualified the
number by pointing out the commissions were dependent upon the policies being
renewed and the policyholders could choose to take their business elsewhere. Schremmer
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also testified Brazil mentioned problems with the agent in Hays and suggested several
hundred policyholders probably were not too happy with the situation. Schremmer said
he asked Brazil for documentation confirming the agencies' recent revenues but never
received anything. Brazil's revenue estimates form the bases of the second actionable
misrepresentation Schremmer has claimed.
Schremmer testified Brazil told him he might "have a shot" at purchasing a second
agency in Hays when the agent running it retired. Schremmer recounted that about a year
later, after he had been running the agencies in Hays and Russell, Brazil's successor told
him the company intended to continue with three agencies in Hays, maintaining the
historical configuration. Another individual took over for the retiring agent. Those
statements set up the third misrepresentation Schremmer has alleged.
Schremmer has claimed that in 2019 he realized slightly more than $52,000 in
commissions on existing policies against fixed monthly expenses of about $3,900 in
running the two agencies. With commissions from new policies, he asserted he netted just
under $14,000 in 2019 after paying those expenses. For summary judgment purposes,
those figures are undisputed.
Central to one of the points on appeal, in August 2020, Schremmer described the
$100,000 figures from Pitts and Brazil as "gross" revenue in answering an interrogatory
from the defendants. That characterization is consistent with descriptions Schremmer
made in earlier correspondence the defendants produced in support of their summary
judgment motion. In February 2021, Schremmer amended the interrogatory answer and
asserted the $100,000 figure referred to "net" revenue, meaning the amount left after
paying expenses.
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Asked about the change in the interrogatory answers during his deposition,
Schremmer testified that when he communicated with Pitts and Brazil, neither he nor
they attached the term "gross" or the term "net" to the $100,000 figure. At the time,
Schremmer explained, he assumed they were talking about a gross amount, i.e., before
deducting overhead and other operating expenses. But as the litigation had gone on, he
concluded they must have been referring to an amount after expenses or a net amount.
Schremmer never offered a more precise explanation. Brazil testified that the $100,000
referred to gross revenue without considering operating expenses. He explained that he
would not have offered a net figure, since he had no way of knowing how much
Schremmer would decide to spend on office rent or to pay his employees.
Citing the sham affidavit doctrine, the district court declined to give Schremmer's
amended interrogatory answer any evidentiary weight and dismissed the change as a
litigation tactic designed to generate an entirely artificial factual dispute. See Mays v.
Ciba-Geigy Corp., 233 Kan. 38, 46-47, 661 P.2d 348 (1983). The district court rejected
Schremmer's reliance on several other evidentiary submissions as inadmissible hearsay—
rulings he also contests on appeal.
In support of the motion for summary judgment, Farmers submitted the affidavit
of Kessa Hasty, identified as a new agency specialist for the defendants whose duties
included "provid[ing] support" to district managers and agents in Kansas and Missouri. In
the affidavit, Hasty asserts that as of May 2018, the projected annual commissions for the
two agencies being offered to Schremmer totaled $92,000. Schremmer never disputed the
foundation for Hasty's representation. Schremmer argued, however, that the $92,000
figure conflicted with Brazil's deposition testimony that he estimated the commissions
from the existing policies to be about $120,000 at that time. Although the figures are
different, they do not create a dispute over a material fact—the representations to
Schremmer revolved around the stated projections of $100,000. Moreover, in his
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deposition, Schremmer acknowledged he would consider an amount over $90,000 to be
"close" to the representations made to him. Brazil's higher undisclosed estimate is legally
beside the point, since Schremmer never heard it or relied on it.
After reviewing the evidence properly submitted in the summary judgment papers
from both sides, the district court concluded Farmers made no false representations to
Schremmer about the revenue the two agencies would likely produce and did not promise
or guarantee that Schremmer would obtain a second agency in Hays when its owner
retired. Schremmer, therefore, failed to adduce evidence from which reasonable jurors
could find the defendants made a false representation of a material fact—a necessary
element of both his fraudulent and negligent misrepresentation claims. The district court
granted the defendants' summary judgment motion. Schremmer has timely appealed.
LEGAL ANALYSIS
On appeal, Schremmer largely reprises arguments he submitted to the district court
and suggests they were erroneously rejected. We take them up serially, adding
background facts as necessary. We have already outlined the standards of review
governing summary judgment.
To prove his fraudulent misrepresentation claim, Schremmer had to show:
(1) Farmers made one or more false statements of existing and material fact; (2) Farmers
knew the representations were false or made them recklessly without considering their
truth or falsity; (3) Farmers intentionally made the statements to induce him to act upon
them; (4) he reasonably relied and acted on the representations; and (5) he sustained
damages as a result of that reliance. See Stechschulte v. Jennings, 297 Kan. 2, 19, 298
P.3d 1083 (2013) (elements of fraud). Similarly, on the negligent misrepresentation
claim, Schremmer had to show: (1) Farmers conveyed false information to him; (2)
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Farmers failed to exercise reasonable care or competence in obtaining or communicating
that information; (3) he reasonably relied on the false information; and (4) he suffered
damages as a result. See Rinehart v. Morton Buildings, Inc., 297 Kan. 926, 937, 305 P.3d
622 (2013). As we have indicated, common to both claims, a defendant must
communicate false information to the plaintiff. This case pivots on that element as it
pertains to the statements Pitts and Brazil made about the commissions the two agencies
had generated and would likely generate. Each of them floated the $100,000 figure to
Schremmer as an estimate of the annual revenue he might expect from commissions on
existing policies.
The undisputed affidavit from Hasty establishes that when Pitts and Brazil
discussed the agencies with Schremmer, the projected annual revenue from existing
policies was $92,000. Given the summary judgment record, that figure itself is not open
to interpretation or shading higher or lower. Coupled with Schremmer's deposition
testimony that a deviation of more than $10,000 from the $100,000 amount would not be
considered "close," the evidence shows Pitts and Brazil made what Schremmer
necessarily would have treated as substantially accurate statements about the agencies'
combined revenue from existing policies.
Other evidence buttresses the conclusion. Perhaps most significantly, the revenue
derives from existing policies and depends upon each policyholder's decision to renew
rather than obtain insurance elsewhere. According to Schremmer, Brazil informed him of
that economic reality. So Schremmer knew the revenue figure was subject to change.
Although Schremmer was a neophyte in the insurance business, the concept is
commonsensical: Revenue generated through commissions on a periodically renewable
product will fluctuate with the number of existing consumers who choose to renew. And
Schremmer knew that for some time no agent had been contacting the policyholders
insured through the Hays agency about renewing. Although Brazil could have been more
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explicit about the problem, he testified that the Hays agency still had in place enough
policies that its revenue combined with the Russell agency would have exceeded
$100,000. Schremmer has offered no admissible evidence calling into question those
circumstances. After Brazil made his revenue representations to Schremmer, the Hays
agency continued to lose policyholders during the months Schremmer prepared to take
over the two agencies. Based on the communications between Brazil and Schremmer, the
continuing loss was foreseeable, if not especially quantifiable. Schremmer chose to go
forward anyway.
On this record, the district court correctly concluded the revenue representations
Pitts and Brazil made to Schremmer were not false—or more precisely, no reasonable
juror could conclude they were false. The upshot for Schremmer is legally devastating; he
cannot show a material factual dispute suggesting the falsity of the key representation on
which both his fraudulent and negligent misrepresentation claims rest. The claims,
therefore, fail as a matter of law.
Schremmer offers several arguments to avert that result, largely retracing steps he
took in the district court:
⦁ Schremmer contends the district court refused to consider his amended
interrogatory answer that he understood the representations Pitts and Brazil made
described "net" rather than "gross" revenue the agencies would produce. The amendment
came late in the discovery process and entailed a substantive change in the nature of
Schremmer's claims—conflicting with his earlier descriptions that the claims were based
on representations of revenues before, rather than after, paying the agencies' fixed
operating expenses.
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The district court refused to consider the amended interrogatory answer under
what's commonly known as the sham affidavit doctrine. Basically, the doctrine precludes
a party from resisting summary judgment by offering an affidavit that contradicts his or
her earlier testimony or attestation and then claiming the contradiction creates a genuine
dispute about a material fact. Mays, 233 Kan. at 46-47; Christiansen, 61 Kan. App. 2d at
13-14. Although typically defined and applied to a late conflicting affidavit, the doctrine
also precludes the modification of interrogatory answers to create phony evidentiary
disputes. 61 Kan. App. 2d at 28-29 (Atcheson, J., concurring).
We review the district court's invocation or rejection of the doctrine for an abuse
of judicial discretion. Christiansen, 61 Kan. App. 2d at 13. A district court exceeds that
broad authority if it rules in a way no reasonable judicial officer would under the
circumstances, if it ignores controlling facts or relies on unproven factual representations,
or if it acts outside the legal framework appropriate to the issue. See Biglow v. Eidenberg,
308 Kan. 873, 893, 424 P.3d 515 (2018); Northern Natural Gas Co., 296 Kan. at 935.
The party asserting an abuse of judicial discretion bears the burden of proving the point.
Gannon v. State, 305 Kan. 850, 868, 390 P.3d 461 (2017).
Here, the doctrine fits Schremmer's offer of his changed interrogatory answer on
first consideration. The doctrine, however, comes with recognized exceptions when the
later affidavit or modified interrogatory answer serves a legitimate purpose that is
adequately explained. See Mays, 233 Kan. at 44 (evidence discovered after first statement
may prompt legitimate revision in later affidavit); 233 Kan. at 45 (confusing or
incomplete questioning in deposition generating first statement permits later
clarification); 233 Kan. at 46 (second more expansive statement does not create actual
conflict). Schremmer has not been forthcoming with that sort of explanation, and his
deposition testimony about his evolving understanding of the $100,000 figure Pitts and
Brazil offered doesn't measure up. It actually fails on its own terms.
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At the time Schremmer relied on the representations to take over the agencies, he
understood Pitts and Brazil to be referring to gross revenue. That understanding and
reliance necessarily form the legal foundation for his misrepresentation claims. His
reliance could not have been the result of a different understanding he arrived at long
after entering into the agency agreement with Farmers. As we have explained, the district
court properly concluded the representations as statements of gross revenue (consistent
with Schremmer's understanding at the time) were substantively accurate and, therefore,
could not support the misrepresentation claims. Assuming Schremmer truly came to
believe the representations meant something else after he acted on his original
understanding of them, that later belief could support a cause of action for
misrepresentation.
In short, Schremmer's amended interrogatory answer does not create a disputed
issue of material fact precluding summary judgment for Farmers.
⦁ During his deposition, Schremmer testified that Jim Cross, who retired from the
Farmers insurance agency in Russell, told him the office never generated more than
$70,000 a year from its "book of business," meaning commissions on existing policies.
The defendants objected to Schremmer's presentation of this statement in opposition to
their summary judgment motion as inadmissible hearsay. Schremmer now says the
district court erred in agreeing with the defendants. Schremmer is mistaken.
When ruling on a summary judgment motion, the district court should consider
testimony that would be admissible if the declarant were testifying at trial. In other
words, inadmissible hearsay cannot create a disputed issue of material fact on summary
judgment, assuming the party opposing the motion has lodged a proper objection to the
evidence. See Schultz v. Schwartz, 28 Kan. App. 2d 84, 89-90, 11 P.3d 530 (2000);
12
Supreme Court Rule 141(d) (2022 Kan. S. Ct. R. at 223). The opposing party's failure to
object constitutes a waiver, just as it would at trial. But here the defendants did object.
At a trial, Schremmer could not have testified to Cross' out-of-court statement
about the Russell agency's revenue if the statement were being offered for the truth of the
matter asserted. See K.S.A. 2021 Supp. 60-460. That would be a classic form of
inadmissible hearsay, absent a statutory exception under K.S.A. 2021 Supp. 60-460. By
the same token, Schremmer's deposition testimony recounting Cross' statement was
inadmissible as substantive evidence in opposition to the defendants' summary judgment
motion. Schremmer would have had to offer Cross' affidavit or deposition testimony to
establish the asserted fact.[*]
[*]To be thorough (perhaps to a fault), we mention that Schremmer could have
testified to Cross' statement at a trial if Cross were also present and available to testify.
K.S.A. 2021 Supp. 60-460(a). Either party could then call Cross as a witness to confirm
or deny what Schremmer said and to face the rigors of cross-examination in front of the
jury as to his own account of the out-of-court statement. The hearsay exception in K.S.A.
2021 Supp. 60-460(a) specifically applies to in-court testimony and does not cover
hearsay in depositions or affidavits submitted in support of or in opposition to summary
judgment motions.
⦁ During his deposition, Schremmer testified that after he had begun running the
agencies in Hays and Russell, he looked at computerized records for them that showed
they didn't generate revenue approaching $100,000. He offered that testimony in
opposition to the defendants' summary judgment motion. The district court declined to
consider the testimony in the face of the defendants' hearsay objection. Schremmer says
that was error. We, again, disagree.
In opposing summary judgment, Schremmer did not offer the records themselves
and provided no evidentiary foundation for how they were compiled or used, thus sinking
any suggestion they might come within the hearsay exception for business records. See
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K.S.A. 2021 Supp. 60-460(m). Those omissions render his testimony as to the purported
content of the records inadmissible hearsay. See State v. Cremer, 8 Kan. App. 2d 699,
700-01, 666 P.2d 1200 (1983); Burris v. Brown, No. 103,231, 2011 WL 135031, at *6
(Kan. App. 2011) (unpublished opinion). The district court properly declined to consider
the testimony.
⦁ Schremmer presented the deposition testimony of Tara Myers, a former Farmers
agent in western Kansas, to the effect Brazil overstated the revenues of the agency she
took over. In the deposition, Myers conceded she had no knowledge about what Pitts or
Brazil conveyed to Schremmer about the agencies in Hays and Russell. The argument
seems to be that if Brazil misled Myers—something that's not necessarily self-evident
from her testimony—then that conduct is circumstantial evidence Brazil made false
representation to Schremmer.
But the premise is faulty. The properly considered summary judgment record
shows that Brazil's representations about the revenue from the Hays and Russell agencies
were substantially correct, i.e., they were not false. Myers' testimony describing her
dealings with Brazil about another agency is wholly irrelevant on that point. Even if
Brazil utterly bamboozled Myers, his interactions with her do not flip a switch in this
case converting otherwise demonstrably accurate statements made to Schremmer into
actionable misrepresentations. Cf. State v. Otero, No. 114,762, 2017 WL 4183208, at *6
(Kan. App. 2017) (unpublished opinion) ("Relevant evidence makes a disputed, material
fact either more or less likely true[,]" and generally should be admitted on that basis.).
⦁ Schremmer offered a copy of a newsletter compiled by and circulated among
Farmers agents and former agents reporting on the company's purported mistreatment of
agents, particularly in making inaccurate revenue projections to induce them to enlist.
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The district court declined to consider the newsletter in assessing the summary judgment
motion. The district court ruled correctly.
The newsletter was offered to prove the truth of the matters asserted—Farmers
misled numerous individuals contemplating becoming agents and, thus, had a practice of
doing so. And it constituted inadmissible hearsay for that purpose. See State v. Hunter,
241 Kan. 629, 637, 740 P.2d 559 (1987) (newspaper article offered to prove truth of
reported facts characterized as "classical . . . hearsay" and properly excluded as
evidence). Information recited in widely disseminated periodicals, such as newspapers,
may be offered to show notice to the public, an evidentiary purpose derived from the
dissemination itself and wholly divorced from the truth of the reported information. See,
e.g., Hudson v. City of Shawnee, 246 Kan. 395, 407, 790 P.2d 933 (1990) (newspaper
articles reporting on upcoming road construction and closure properly admitted to show
public notice and, thus, likely diminution of traffic through described area but not to
prove construction would, in fact, occur). Common knowledge or notice of the
defendants' purported nefariousness is not a material fact bearing on the summary
judgment issues.
Moreover, the newsletter would have been irrelevant on the material issue of the
falsity of the representations Pitts and Brazil specifically made about the revenue from
the Russell and Hays agencies for the same reason Myers' testimony about her interaction
with Brazil was inadmissible. However shabbily Farmers may have generally treated its
agents as depicted in the newsletter would not alter the accuracy of the specific
representations Schremmer has challenged, as established in the evidentiary record on
summary judgment.
Finally, Schremmer has challenged the district court's ruling that his discussions
with Brazil about acquiring a second agency in Hays were not actionable
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misrepresentations. Schremmer agrees Brazil told him he would have the opportunity to
be considered for a second agency in Hays when that agent retired in the relatively near
future. The statements to Schremmer took the form of a qualified prediction of a
possibility rather than a guarantee or an unconditional promise he would get the second
Hays agency. As such, they were neither statements of an existing fact nor unequivocal
promises of a future occurrence that would undergird the misrepresentation claims
Schremmer has pursued. See Gerhardt v. Harris, 261 Kan. 1007, 1014, 934 P.2d 976(1997) ("A promise to do something in the future, if the promisor had no intention at the
time the promise was made to carry it out, is deceit, and if the promisor obtained anything
of value by reason thereof, there is actionable fraud."); Timi v. Prescott State Bank, 220
Kan. 377, 389, 553 P.2d 315 (1976) ("To constitute actionable fraud the representation
must relate to past or present fact, as opposed to mere opinions or puffing or promised
actions in the future.").
Likewise, Schremmer could not have reasonably relied on Brazil's qualified
statements about the second Hays agency to be a promise that he would eventually obtain
that agency, which would be his third, in the area. In that respect, the summary judgment
record does not support a reasonable inference Schremmer viewed his consideration for
or acquisition of a third agency as an essential component of the arrangement with
Farmers. That is, Brazil's representations that Schremmer would be a candidate for the
second Hays agency could not reasonably be construed as a promise he would get that
agency. And the statements would not be actionable on that basis, so they were legally
insufficient to support Schremmer's claims.
For the reasons we have outlined, the district court properly granted summary
judgment to the defendants.
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To close out this appeal, we mention an alternative ground on which the district
court granted summary judgment: A waiver clause in a contract addendum Schremmer
signed with Farmers upon acquiring the agencies in Hays and Russell. The clause states
Schremmer entered into the agreement without relying on any representations Farmers or
anyone acting on its behalf may have made to him and specifically disclaims any sort of
estimates or guarantees about commissions derived from existing policies.
Contracting parties can (and commonly do) limit their bargains to the terms recited
in their written agreements, thus rendering any earlier negotiations or understandings
legally insubstantial and unenforceable. See ARY Jewelers, L.L.C. v. Krigel, 277 Kan.
464, 476-77, 85 P.3d 1151 (2004); see also SodexoMAGIC, LLC v. Drexel University, 24
F.4th 183, 212-13 (3d Cir. 2022) (applying Pennsylvania law); Restatement (Second) of
Contracts § 209 (1981). The legal interplay of those clauses and fraudulent
misrepresentations inducing contractual bargains presents what has been a challenging
question for other courts, and the panel is not of an entirely settled view as to the answer
in the circumstances here. See Miles Excavating, Inc. v. Rutledge Backhoe & Septic Tank
Services, Inc., 23 Kan. App. 2d 82, 84, 927 P.2d 517 (1996); Italian Cowboy Partners,
Ltd. v. Prudential Ins. Co. of America, 341 S.W.3d 323, 331-33 (Tex. 2011). But it is a
question we need not tackle, so we don't. At most, the answer would yield a second and
legally redundant ground for entering summary judgment.
Affirmed.
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