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NOT DESIGNATED FOR PUBLICATION

No. 123,731

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

SASHA BHADURI,

Appellant,

v.

L.M.K. CONSTRUCTION, INC. and LINC MORTENSON,

Appellees.

MEMORANDUM OPINION

Appeal from Douglas District Court; MARK A. SIMPSON, judge. Opinion filed August 12, 2022. 

Affirmed in part, reversed in part, and remanded with directions.

Jonathan Sternberg, of Jonathan Sternberg, Attorney, P.C., of Kansas City, Missouri, for 

appellant. 

Andrew L. Foulston and Katy E. Tompkins, of McDonald Tinker PA, of Wichita, for appellees.

Before HILL, P.J., COBLE, J., and PATRICK D. MCANANY, S.J.

PER CURIAM: This suit and the resulting appeal is an extreme example of the all 

too frequent scenario of disputes and misunderstandings that arise between home builder 

and home buyer during the course of construction of a home. Here, Sasha Bhaduri 

contracted with L.M.K. Construction, Inc. (LMK) to purchase one of two identical 

houses LMK was in the course of building in a residential development in Lawrence, 

Kansas. Linc Mortenson was one of the owners of LMK. The foundation of the house 

Bhaduri selected had already been poured and the framing was going up when the parties 

entered into a standard form Residential Construction Sale Contract and an addendum 

which was prepared by Bhaduri and her real estate agent. The agreement called for a base 
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purchase price of $385,000, a $4,000 earnest money deposit, and a closing date on or 

before June 30, 2016. The addendum to the contract (1) identified features, materials, and 

appliances to be installed as part of the $385,000 purchase price; (2) established 

allowances for certain categories of items included in the purchase price; (3) established a 

process for upgrading items at a mutually agreed additional cost that could be paid, at 

least in part, by using funds remaining in one or more of the allowance categories; and 

(4) provided additional credits to Bhaduri for additional upgrades or modifications 

mutually agreed upon but not included in the purchase price, and itemized additional 

upgrades already requested by Bhaduri and their costs. The contract also contained 

provisions for default which included, in the case of the buyer's default, a provision for 

attorney fees.

Conflicts and resulting construction delays arose immediately after the parties 

entered into the contract. Bhaduri emailed Mortenson two days after signing the contract 

to stop construction because she did not like the windows being installed. A dispute arose 

over the substitution of expensive glass garage doors for the standard garage doors 

provided for in the contract. Mortenson sent Bhaduri several emails, asking her to make 

the necessary selections for windows, doors, flooring, siding, and paint, but Bhaduri did 

not make the selections. Communication problems of this nature persisted throughout the 

building process. As a result, construction was not completed by the June 30, 2016 

deadline called for in the contract. 

Less than two weeks later, on July 11, 2016, Bhaduri filed suit against LMK and 

Mortenson. Bhaduri asserted claims of breach of contract and violations of the Kansas 

Consumer Protection Act (KCPA). LMK counterclaimed, alleging Bhaduri breached the 

contract. The district court granted summary judgment to LMK and Mortenson on the 

KCPA claims. The KCPA claims were the only claims against Mortenson. 
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Following a jury trial on the remaining breach of contract claims between LMK 

and Bhaduri, the jury found in favor of LMK on Bhaduri's claim that LMK breached the 

contract by failing to complete the project by June 30, 2016. The jury also found in favor 

of LMK on its counterclaim that Bhaduri breached the contract by obstructing LMK in its 

efforts to complete the work required under the contract. The jury awarded no damages to 

LMK for Bhaduri's breach. 

LMK moved for an assessment of attorney fees against Bhaduri as provided for in 

the contract. The district court, without holding a requested hearing, summarily denied 

relief. But the court granted LMK's motion to reconsider and after the hearing that 

followed, the court issued a memorandum decision granting LMK attorney fees of 

$44,488.75 and costs and expenses of $6,297.22, for a total award of $50,785.97.

Bhaduri appeals. She contends the court erred in granting partial summary 

judgment against her on her claims under K.S.A. 2021 Supp. 50-626(b) of the KCPA. 

She also contends the district court had no authority to award attorney fees under the 

contract between the parties because of LMK's failure to comply with a condition 

precedent that required it to provide notice of contract termination before asserting its 

counterclaim. Finally, Bhaduri contends that because the jury awarded LMK no damages 

for her breach of the contract, the district court's award of attorney fees and expenses was 

unreasonable as a matter of law.

ANALYSIS

Bhaduri's KCPA Claims

Bhaduri's KCPA claims were brought under the following subsections of K.S.A. 

2021 Supp. 50-626: (b)(1)(A) and (F), (b)(2), and (b)(3). She does not distinguish her 

claims under (b)(1)(A) from those under (b)(1)(F). Those subparts of the statute provide:
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"(b) Deceptive acts and practices include, but are not limited to, the following, 

each of which is hereby declared to be a violation of this act, whether or not any 

consumer has in fact been misled:

(1) Representations made knowingly or with reason to know that:

(A) Property or services have sponsorship, approval, accessories, characteristics, 

ingredients, uses, benefits or quantities that they do not have;

. . . .

(F) property or services has uses, benefits or characteristics unless the supplier 

relied upon and possesses a reasonable basis for making such representation." K.S.A. 

2021 Supp. 50-626(b)(1)(A), (F).

Bhaduri's claims under (b)(1) are: 

• Defendants knowingly misrepresented the allowance for the garage door.

• Defendants knowingly misrepresented the cost to Bhaduri for the garage door.

• Defendants knowingly misrepresented that LMK always added 15% to bids on 

change orders.

Bhaduri does not distinguish her claims under subsections (b)(2) of the statute 

from those under (b)(3). Those subsections define additional deceptive acts and practices 

as

"(2) the willful use, in any oral or written representation, of exaggeration, 

falsehood, innuendo or ambiguity as to a material fact;

"(3) the willful failure to state a material fact, or the willful concealment, 

suppression or omission of a material fact." K.S.A. 2021 Supp. 50-626(b)(2), (3).

Bhaduri's claims under (b)(2) and (b)(3) are:
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• Defendants willfully failed to inform Bhaduri about the 15% addition to all 

change orders until the issue arose over the selection of the garage door.

• Defendants willfully refused to disclose LMK's cost for upgrades selected by 

Bhaduri, including the deck door, and willfully refused to disclose the 

allowance for the deck door.

Bhaduri also made claims of unconscionable acts and practices for which the 

defendants also sought summary judgment. The district court granted summary judgment 

on all of Bhaduri's claims of unconscionability, but Bhaduri has not appealed that ruling.

In its memorandum decision granting partial summary judgment, the district court 

distilled Bhaduri's various KCPA claims into the following:

"1. Defendants added fifteen percent (15%) to change orders and required Bhaduri to pay 

that fifteen percent (15%), when the Contract did not provide that right. Plaintiff 

claims this is an inappropriate charge and constitutes a deceptive act and/or an 

unconscionable act or practice.

"2. Defendants refused to provide plaintiff detailed information on the actual costs for 

the upgrades selected by plaintiff or the information on the baseline of the costs for 

the selections made or desired to be made by plaintiff to enable her to know the costs 

of her selection. Defendants' failure to provide that information constitutes a 

deceptive act and practice and/or an unconscionable act and practice."

The district court then analyzed Bhaduri's KCPA claims under K.S.A. 2021 Supp. 

50-626(b)(3), which requires evidence of willful conduct. The court provided no analysis 

of the claims brought under the "knowingly or with reason to know" standard of K.S.A.

2021 Supp. 50-626(b)(1). The district court concluded:
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"Defendants are granted summary judgment on plaintiff's claims for willful 

omissions regarding defendants' failure to inform plaintiff that change orders would 

include a 15% overhead/profit margin and the failure to provide plaintiff with the actual 

costs for the upgrades."

As we shall see, the district court failed to address a number of Bhaduri's KCPA 

claims, yet the parties treated the district court's ruling as dispositive of all of them. 

Apparently, so did the district court. The jury trial that followed involved the parties'

competing claims of breach of contract and did not include any of the unresolved KCPA 

claims. 

In this appeal, Bhaduri claims that the district court erred in granting summary 

judgment on her claims under K.S.A. 2021 Supp. 50-626(b). As noted earlier, she does 

not contend that the district court erred in granting summary judgment on her claims of 

unconscionability under K.S.A. 50-627. Thus, we will direct our review only to Bhaduri's 

claims under K.S.A. 2021 Supp. 50-626(b).

Standard of Review

K.S.A. 2021 Supp. 60-256(b) permits a defendant to move for summary judgment 

on all or part of a plaintiff's claims. On appeal, we review summary judgment motions de 

novo to determine whether the district court erred in its ruling. The oft-repeated standards 

for considering summary judgment motions—whether in the first instance in the district 

court or on appeal—are well known to the parties and once again are set forth in our 

Supreme Court's opinion in GFT Lenexa, LLC v. City of Lenexa, 310 Kan. 976, 981-82, 

453 P.3d 304 (2019):

"Summary judgment is appropriate when the pleadings, depositions, answers to 

interrogatories, admission of file, and supporting affidavits show that no genuine issue 

exists as to any material fact and the moving party is entitled to judgment as a matter of 
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law. The district court must resolve all facts and reasonable inferences drawn from the 

evidence in favor of the party against whom the ruling is sought. When opposing 

summary judgment, a party must produce evidence to establish a dispute as to material 

fact. In order to preclude summary judgment, the facts subject to the dispute must be 

material to the conclusive issue in the case. Appellate courts apply the same rules and, 

where they find reasonable minds could differ as to the conclusions drawn from the 

evidence, summary judgment is inappropriate. Appellate review of the legal effect of 

undisputed facts is de novo. [Citation omitted.]"

Here, there is no dispute that defendants are suppliers, that Bhaduri is a consumer, 

and that the matters now before us arise out of a consumer transaction. Turning to 

Bhaduri's claims under K.S.A. 2021 Supp. 50-626(b), her burden includes the 

requirement that she show that she was aggrieved by the claimed deceptive conduct. See 

Hernandez v. Pistotnik, 58 Kan. App. 2d 501, 506, 472 P.3d 110 (2020). A plaintiff is 

aggrieved when the plaintiff is legally harmed and that harm is connected to the 

defendant's violation of the KCPA. See 58 Kan. App. 2d at 507. 

Whether a person has engaged in deceptive acts or practices under K.S.A. 2021

Supp. 50-626 is normally a question of fact, but summary judgment is appropriate when 

there is no evidence of deceptive conduct. Dana v. Heartland Management Co., Inc., 48 

Kan. App. 2d 1048, 1063, 301 P.3d 772 (2013). 

Bhaduri's Claims Under K.S.A. 2021 Supp. 50-626(b)(1)(A) and (F)

K.S.A. 2021 Supp. 50-626(a) prohibits a supplier from engaging in any deceptive 

act or practice in connection with a consumer transaction. Deceptive acts and practices 

under subsections (b)(1)(A) and (F) of the statute are defined as follows:
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"(b) Deceptive acts and practices include, but are not limited to, the following, 

each of which is hereby declared to be a violation of this act, whether or not any 

consumer has in fact been misled:

(1) Representations made knowingly or with reason to know that:

(A) Property or services have sponsorship, approval, accessories, characteristics, 

ingredients, uses, benefits or quantities that they do not have;

. . . .

(F) property or services has uses, benefits or characteristics unless the supplier 

relied upon and possesses a reasonable basis for making such representation." K.S.A. 

2021 Supp. 50-626(b)(1)(A), (F).

Bhaduri's claims under these provisions of the KCPA are that (1) LMK made 

misrepresentations to her about the allowance for a more expensive garage door and the 

cost to her for such a door, and (2) LMK misrepresented that it always added 15% to bids 

on change orders when, in fact, it did not. Bhaduri claims LMK knew or had reason to 

know its representations on these matters were false. 

Bhaduri's claims under subsections (b)(1)(A) and (F) require her to show that the 

defendants made representations knowingly or with reason to know that "(A) [p]roperty 

or services have sponsorship, approval, accessories, characteristics, ingredients, uses, 

benefits or quantities that they do not have;" or that "(F) property or services has uses, 

benefits or characteristics unless the supplier relied upon and possesses a reasonable basis 

for making such representation." K.S.A. 2021 Supp. 50-626(b)(1)(A), (F).

Both of these subsections of the statute deal with the characteristics and physical 

qualities of the property or service in question. Bhaduri did not claim the upgraded 

garage door was somehow defective or deficient in any way. The dispute between the 

parties was over the cost of the garage door. Bhaduri's claims under (b)(1) all relate to the 

price of the garage door, and subsections (A) and (F) on their face do not address the 

price of a product. The only subsection of K.S.A. 2021 Supp. 50-626(b)(1) that deals
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with price is subsection (E), which relates to rebates and discounts promised in return for 

the consumer providing customer leads, matters not involved in this dispute.

Bhaduri relies on language in Via Christi Regional Med. Center, Inc. v. Reed, 298 

Kan. 503, 314 P.3d 852 (2013), to create a viable (b)(1) claim. Via Christi came to the 

Supreme Court following the grant of summary judgment in favor of the hospital. The 

hospital had filed a lien against any tort settlement for the services it claimed to have 

provided Reed following his injuries in a railroad crossing accident. The lien was 

itemized in a 45-page bill. After Reed settled with the railroad, the hospital sued Reed to 

enforce its lien and Reed countered with claims under the KCPA. The hospital's bill 

supporting its lien claim contained a number of inaccuracies as determined by an 

auditor's report. The court stated: "Based on the inaccuracies in the bill and the auditor's 

report, a reasonable jury could conclude . . . that Via Christi 'intended to give the [false 

billing] information even though [it] knew that it was false.'" 298 Kan. at 523. The court 

in Via Christi relied on the holding in Ray v. Ponca/Universal Holdings, Inc., 22 Kan 

App. 2d 47, 48, 913 P.2d 209 (1995), to support the proposition that an "overcharge or 

duplicate charge—in essence, a demand for payment for a service the consumer did not 

receive—misrepresents the use, benefit, or quantity of that service" in violation of K.S.A. 

50-626(b)(1). (Emphasis added.) Via Christi, 298 Kan. at 521. But Ray never addressed 

subsection (b)(1) of the statute. It dealt only with a claim under K.S.A. 50-626(b)(7), not 

(b)(1). Under K.S.A. 50-626(b)(7) it is a deceptive act or practice to make

"'false or misleading representations, knowingly or with reason to know, of fact 

concerning the reason for, existence of or amounts of price reductions, or the price in 

comparison to prices of competitors or one's own price at a past or future time.'" 22 Kan. 

App. 2d at 49. 

Bhaduri has made no claim under (b)(7). 
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The Via Christi court continued:

"It is not crystal clear which subsection or subsections of K.S.A. 50-626 his claims 

depend upon. If it is K.S.A. 50-626(b)(1), then he need only come forward with enough 

evidence to demonstrate the existence of a genuine issue of material fact on whether Via 

Christi knew or should have known that the bill filed in support of its lien contained 

overcharges and duplicate charges in violation of the KCPA. . . .

"At this stage of the case, we know that the billing statement Via Christi provided 

Reed in support of its lien proved to be inaccurate in some of its particulars. Although 

there is no direct evidence of whether Via Christi knew or should have known of the 

inaccuracies when the lien was filed and pursued, there is at least circumstantial evidence 

that it knew or should have known of them; and it is sufficient to create a genuine issue of 

material fact preventing summary judgment under K.S.A. 50-626(b)(1)." (Emphasis 

added.) 298 Kan. at 522-23. 

We are duty bound to follow Kansas Supreme Court precedent—including our 

Supreme Court's interpretation of the breadth of K.S.A. 2021 Supp. 50-626(b)(1)—absent 

an indication that the Supreme Court is departing from this interpretation of the statute. 

We see no such indication in the court's later rulings. 

The district court failed to address Bhaduri's claims under K.S.A. 2021 Supp. 50-

626(b)(1). Had it done so, it would have been forced to conclude that under Via Christi's 

broad application of K.S.A. 50-626(b)(1), and considering Bhaduri's statement of 

additional uncontroverted facts in her response to the defendants' motion, there remained 

a genuine issue of material fact as to whether the defendants knowingly misrepresenting 

the allowance for the garage door, the cost to Bhaduri for the garage door, and the added 

15%, which Bhaduri characterizes as resulting in an overcharge for the garage door. 

Accordingly, we remand for further proceedings on Bhaduri's claims under K.S.A. 

2021 Supp. 50-626(b)(1)—that the defendants knowingly misrepresented the allowance 
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for the garage doors, knowingly misrepresenting the cost to Bhaduri for the garage doors, 

and knowingly misrepresented that it always added 15% to the cost of a change order.

Bhaduri's Claims Under K.S.A. 2021 Supp. 50-626(b)(2) and (b)(3)

Based on subsections (b)(2) and (b)(3) of K.S.A. 2021 Supp. 50-626, Bhaduri alleged 

that defendants (1) willfully failed to inform Bhaduri about the 15% addition to all change 

orders until the issue arose over the selection of the garage door; (2) willfully refused to 

disclose LMK's cost for upgrades selected by Bhaduri, including the deck doors; and (3) 

willfully refused to disclose the allowance for the deck doors. Bhaduri lumps subsections

(b)(2) and (b)(3) together in her analysis and does not distinguish one from the other or 

identify which is violated under a particular set of facts.

K.S.A. 2021 Supp. 50-626(b)(2) and (b)(3) define deceptive acts and practices as:

"(2) the willful use, in any oral or written representation, of exaggeration, 

falsehood, innuendo or ambiguity as to a material fact;

"(3) the willful failure to state a material fact, or the willful concealment, 

suppression or omission of a material fact."

Under the KCPA a willful act "is one performed with a designed purpose or intent on the 

part of a person to do wrong or to cause injury to another." Dana, 48 Kan. App. 2d at 

1063. 

With respect to Bhaduri's first two claims, she points to nothing in the record to 

establish that the defendants had a duty to disclose that they added a profit factor to the 

cost of items Bhaduri requested that deviated from the contract's allowances. Under the 

contract, LMK and Bhaduri agreed that LMK would provide Bhaduri with its charge for 

any requested change from the allowances in the contract. Bhaduri then could accept 
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LMK's charge or negotiate a price she was willing to pay. The material fact Bhaduri's 

decision turned on was the cost to her of the upgrade she sought. No reasonable person 

would assume that materials provided for the construction of the home would be 

provided at the builder's cost without adding a factor to cover overhead, administration 

costs, and a profit to the builder. 

Besides, there is no evidence—even viewed in the light favoring Bhaduri— from 

which a reasonable factfinder could conclude that the defendants engaged in willful 

concealment; that is, that in stating LMK's charge for an upgrade the defendants did so 

"with a designed purpose or intent . . . to do wrong or to cause injury to another." Dana, 

48 Kan. App. 2d at 1063. An inference drawn from evidence must be reasonable in order 

to be considered by the factfinder. Whether an inference sought to be drawn from the 

evidence is reasonable is an issue of law for the court. GFT Lenexa, LLC, 310 Kan. at 

982. When Bhaduri asked for a breakdown of costs and profit on each change order, 

Mortenson's response was that he did not have time to do such a breakdown on each and 

every item in each and every change order. The defendants had no legal duty to do so. 

We find no reasonable inference of intent to do wrong or to harm Bhaduri.

Bhaduri's final claim under K.S.A. 2021 Supp. 50-626(b)(2) and (b)(3) is that the 

defendants willfully refused to disclose the allowance for the deck door. Under (b)(3) it is 

a deceptive act to willfully fail to state a material fact or to willfully conceal, suppress, or 

omit a material fact. 

To begin with, there was no allowance for the deck door. The allowances are set 

forth in paragraph 2 of the addendum. There is no provision there for doors. There is a 

provision for an additional general credit or allowance of $2,500 available for other, 

unspecified upgrades. But Bhaduri does not claim that the defendants would not disclose 

how much of that $2,500 was available. Moreover, we find no authority that imposes a 

requirement of a seller—absent a contractual agreement to do so—to divulge the cost of 
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their product or, as here, disclose the aggregate of the various costs of each component of 

labor and materials that goes into a product installed in a house under construction. We 

do not require that every building contractor be a cost accountant in responding to a 

buyer's demands. The district court did not err in granting partial summary judgment on 

this claim.

In summary, we remand for further proceedings on Bhaduri's three claims under 

(b)(1). We find no error in the district court's partial summary judgment with respect to 

the claims under (b)(2) and (b)(3).

The Award of Attorney Fees and Costs

The district court awarded fees and costs (collectively referred to as attorney fees) 

to LMK after it successfully defended against Bhaduri's breach of contract claim and 

obtained judgment on its counterclaim. The contract provision relating to attorney fees is 

as follows:

"If Buyer defaults, Seller may either (i) specifically enforce this Contract; or (ii) 

terminate this Contract by written notice to Buyer and, at Seller's option, either retain the 

Earnest Money as liquidated damages as Seller's sole remedy (the parties recognizing that 

it would be extremely difficult to ascertain the extent of actual damages caused by 

Buyer's breach, and that the Earnest Money represents as fair an approximation of such 

actual damages as the parties can now determine), or pursue any other remedy and 

damages available at law or in equity. If as a result of Buyer's default, Seller employs an 

attorney to enforce its rights, Buyer shall, unless prohibited by law, reimburse Seller for 

all reasonable attorneys' fees, court costs and other legal expenses incurred by Seller in 

connection with the default."

Bhaduri makes two claims regarding attorney fees. First, she contends that LMK 

was not entitled to an award of attorney fees because it failed to satisfy a condition 
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precedent to any such award. Second, Bhaduri contends that because the jury awarded no 

damages on the counterclaim for Bhaduri's breach of the contract, the only reasonable fee 

award to LMK as a matter of law was zero dollars.

Bhaduri's counsel made clear to us in oral argument that the dispute over attorney 

fees is wholly independent of the dispute over claimed violations of the KCPA, and the 

disposition of one does not affect the disposition of the other.

Standard of Review

A Kansas court may not award attorney fees unless authorized by statute or by an 

agreement between the parties. The question of a court's authority to award attorney fees 

is a legal question which we review de novo. Snider v. American Family Mut. Ins. Co., 

297 Kan 157, 162, 298 P.3d 1120 (2013). 

Bhaduri's first claim—whether LMK satisfied a condition precedent—presents a 

legal issue which we review de novo. The primary rule for interpreting written contracts 

is to determine the parties' intent. If the terms of the contract are clear, the parties' intent 

is determined by the contract's language without applying rules of construction. If the 

language is ambiguous, extrinsic or parol evidence may be considered. The law favors 

reasonable interpretations. Trear v. Chamberlain, 308 Kan. 932, 936, 425 P.3d 297 

(2018).

Bhaduri's second claim—the propriety of a fee award—also presents an issue of 

law because Bhaduri contends that when the jury awards no damages, attorney fees may 

not be awarded as a matter of law. While the reasonableness of attorney fees is almost 

always disputed when an award of fees is challenged on appeal, here Bhaduri takes an all 

or nothing approach. Her challenge is to the awarding of any fees at all. She does not 
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claim the district court abused its discretion in the amount of fees awarded. Her position 

is that any award under the circumstances is erroneous as a matter of law. 

The Condition Precedent

Bhaduri claims the district court lacked legal authority under the contract to award 

attorney fees because the contract contained a condition precedent requiring LMK to 

provide written notice of termination of the contract before it could pursue default and 

collect attorney fees. Because LMK did not provide written notice, Bhaduri argues that 

condition was unfulfilled and LMK cannot receive attorney fees. 

A condition precedent is "'something that is agreed must happen or be performed 

before a right can occur to enforce the main contract.'" M West, Inc. v. Oak Park Mall, 

L.L.C., 44 Kan. App. 2d 35, 46-47, 234 P.3d 833 (2010) (quoting Weinzirl v. The Wells 

Group, Inc., 234 Kan. 1016, Syl. ¶ 3, 677 P.2d 1004 [1984]). There are two types of 

conditions precedent: those related to the formation of the contract itself and those related 

to the obligation to perform under an existing contract. Oak Park Mall, 44 Kan. App. 2d 

at 47. Here, the claimed condition precedent relates to performance under the terms of an 

existing contract in that it is claimed to "arise from the terms of a valid contract and 

[defines] an event that must occur before a right or obligation matures under the 

contract." 44 Kan. App. 2d at 47.

Turning to the language of the contract, and pairing it down to the specific 

language at issue, the contract provides:

"If Buyer defaults, Seller may . . . (ii) terminate this Contract by written notice to Buyer 

and . . . pursue any . . . remedy and damages available at law or in equity. If as a result of 

Buyer's default, Seller employs an attorney to enforce its rights, Buyer shall, unless 
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prohibited by law, reimburse Seller for all reasonable attorneys' fees, court costs and 

other legal expenses incurred by Seller in connection with the default."

This provision came into play when LMK filed its counterclaim against Bhaduri 

for breach of contract. LMK's counterclaim was a compulsory counterclaim that it was 

required to assert in response to Bhaduri's petition. K.S.A. 2021 Supp. 60-213(a)(1)(A). 

Under the plain language of the contract, LMK may sue Bhaduri for breach only if it first 

terminates the contract by written notice. But Bhaduri abandoned that provision when she 

did not treat notice of termination to be a condition precedent to LMK's counterclaim. 

She did not contend in her answer to the counterclaim that LMK's action should be 

dismissed for its failure to comply with this claimed condition precedent. Nor did she 

separately move to dismiss the counterclaim for failure to satisfy the condition precedent. 

She left the door open for LMK to proceed with its counterclaim. Once the door was 

open, the condition precedent no longer stood as an impediment to LMK's claim under 

the stand-alone provision in the contract for an award of attorney fees incurred in 

connection with Bhaduri's default. 

Consistent with this analysis, Bhaduri set forth her position on the issue of 

attorney fees in her pretrial questionnaire, but she made no mention of a condition 

precedent barring an award of fees when she advised the court:

"Any attorneys' fees incurred by LMK Construction and Mr. Mortenson in 

defending against the claims of Ms. Bhaduri cannot be charged against Ms. Bhaduri. The 

contract only provides: 'If as a result of Buyer's default, Seller employs an attorney to 

enforce its rights, Buyer shall, unless prohibited by law, reimburse Seller for all 

reasonable attorneys' fees, court costs and other legal expenses incurred by Seller in 

connection with the default.' Thus, only those attorneys' fees incurred by LMK 

Construction 'in connection with the default' may be claimed against Ms. Bhaduri. Since 

LMK Construction and Mr. Mortenson's attorneys' fees incurred in defending against the 

claims of Ms. Bhaduri are not incurred 'in connection with [Ms. Bhaduri's alleged] 
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default,' they are not recoverable. Furthermore, because the one-sided attorneys' fees 

provision is unconscionable, it is not enforceable."

Once Bhaduri abandoned the claimed condition precedent as a bar to LMK 

bringing an action for breach of contract, LMK was entitled to invoke the stand-alone 

contract provision for attorney fees incurred in connection with Bhaduri's default. 

Because LMK could pursue its breach of contract claim without having satisfied any 

claimed condition precedent, the contract permitted LMK to seek an award for the cost of 

employing an attorney to do so.

Bhaduri has cited a number of cases that discuss conditions precedent in general. 

None controls under the present facts. In oral argument Bhaduri stressed two Kansas 

cases in particular.

In In re Marriage of Poplin, No. 123,241, 2021 WL 3701345 (Kan. App. 2021) 

(unpublished opinion), the parties were engaged in a dispute over post-divorce discovery 

related to the former husband's financial obligations to his former wife after she began 

cohabitating with her fiancé. In addressing the issue of the former wife's claim for 

attorney fees in the district court, and after already denying any relief on appeal, the 

appellate court noted a condition precedent in the property settlement agreement 

requiring 10 days prior notice to the party in breach to allow the breach to be cured. 

Poplin does not set forth the entirety of the contract provision relating to fees in 

order for us to compare it to the contract now before us. But we know that the condition 

precedent in Poplin required advance notice to allow the breaching party to cure the 

breach. 2021 WL 3701345, at *10. Thus, the notice provision in Poplin was a notice of 

default, not a notice to terminate. 
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Unlike the notice in Poplin, the claimed condition precedent now before us has no 

potential salutary effect of promoting a restoration of the contract. A notice to terminate 

is, as the word expresses, terminal. The contract is over and it's time to figure up the 

damages to the nonbreaching party. LMK's counterclaim makes this clear on its face. 

There is no "cure" period as in Poplin. 2021 WL 3701345, at *10. Under the current 

contract, LMK could give a termination notice on Tuesday morning and file its 

counterclaim on Tuesday afternoon. The termination notice had no practical effect other 

than to be a trap for the unwary. Had Bhaduri raised this claimed condition precedent in 

her reply to the counterclaim, we have no doubt that LMK simply would have sought and 

obtained a dismissal of its counterclaim without prejudice under K.S.A. 2021 Supp. 60-

241, provided notice of termination, and immediately refiled its counterclaim. Thus, 

Bhaduri abandoned the effectively meaningless termination notice and proceeded to 

litigate the counterclaim, giving LMK the right to seek an assessment of attorney fees 

incurred in connection with Bhaduri's default. Given these facts, we do not find Poplin to 

be particularly enlightening.

In Rosson v. Cutshall, 11 Kan. App. 2d 267, 719 P.2d 23 (1986), cited by Bhaduri 

in oral argument, the real estate sales contract gave the nondefaulting seller the right to 

seek forfeiture of the property or money damages. The district court erred in awarding 

both because the court "expanded on the remedies available to plaintiff in granting the 

monetary damages in addition to forfeiture." 11 Kan. App. 2d at 271. Based on Rosson,

Bhaduri argues that the court cannot expand or change the language of the remedies 

provided to LMK in the contract. Of course, our analysis is based on the exact language 

of the contract and does not change the remedies available to LMK upon Bhaduri's 

breach.

Accordingly, we conclude that the claimed condition precedent did not bar LMK 

from seeking attorney fees incurred in connection with Bhaduri's default.
19

The District Court's Award of Attorney Fees

Finally, Bhaduri argues the district court erred as a matter of law in awarding any 

attorney fees to LMK because the jury awarded zero damages after finding in favor of 

LMK on its breach of contract claim. As noted earlier, we review de novo this claim of 

error.

Bhaduri relies on Farrar v. Hobby, 506 U.S. 103, 113 S. Ct. 566, 121 L. Ed. 2d 

494 (1992), as the foundational case supporting her argument that LMK cannot recover 

attorney fees after being awarded $0 for damages. Farrar—and the cases it cites—deal 

exclusively with the recovery of attorney fees under 42 U.S.C. § 1988 by a prevailing 

plaintiff in a civil rights case brought under 42 U.S.C. § 1983. The plaintiff claimed $17 

million in damages for a claimed conspiracy and malicious prosecution aimed at closing 

a private school plaintiff owned and operated. After 10 years of litigation and two trips to 

the Court of Appeals, the case was tried to a jury. In answering special interrogatories, 

the jury found that some of the defendants had conspired against plaintiff, but the 

conspiracy was not the proximate cause of any injury to plaintiff. The jury also found that 

the named defendant deprived plaintiff of a civil right, but this was not the proximate 

cause of any damages. Plaintiff was awarded nominal damages of $1. The Supreme Court 

noted: "In some circumstances, even a plaintiff who formally 'prevails' under § 1988 

should receive no attorney's fees at all." 506 U.S. at 115. Under these facts, the Supreme 

Court determined that while plaintiff, having been awarded nominal damages, was a 

prevailing party under 42 U.S.C. § 1988, "[w]hen a plaintiff recovers only nominal 

damages because of his failure to prove an essential element of his claim for monetary 

relief, . . . the only reasonable fee is usually no fee at all." (Emphasis added.) 506 U.S. at 

115. 

None of the Kansas cases cited by Bhaduri applied Farrar to a breach of contract 

action under facts similar to those here. Farrar was cited in Taylor v. Kansas Dept. of 
20

Health & Environment, 49 Kan. App. 2d 233, 305 P.3d 729 (2013), and DPR, Inc. v. City 

of Pittsburg, No. 84,631, 2000 WL 36746096 (Kan. App. 2000) (unpublished opinion), 

but those cases involved civil rights actions under § 1983. While Hildenbrand v. Avignon 

Villa Homes Community Association, Inc., No. 120,245, 2021 WL 137339, at *10-11 

(Kan. App. 2021) (unpublished opinion), cited Farrar in a breach of contract case, the 

Hildenbrand court simply found no abuse of discretion in the district court considering 

the amount recovered as a factor in setting a reasonable attorney fee. The court did not 

establish a rule of law that a verdict of no damages mandates a denial of attorney fees.

In our present case, the issues for trial were the competing breach of contract 

claims. The facts giving rise to both claims and the applicable defenses arose out of the 

same transactions and are "'intertwined to the point of being inseparable.'" Stewart Title 

Guar. Co. v. Sterling, 822 S.W.2d 1, 11 (Tex. 1991). In its instructions, the district court 

informed the jury:

"Bhaduri . . . claims that she was damaged due to Defendant, L.M.K. Construction, Inc.'s 

breach of contract by: 

"1. By failing to close and failing to transfer the property to Ms. Bhaduri.

"2. By failing to return the deposits paid by Ms. Bhaduri."

Bhaduri claimed damages of $44,229.67, which consisted of $26,891 in deposits held by 

LMK, the expense of renting another property when the house was not completed on 

time, and her moving expenses.

The court told the jury that LMK denied any breach and claimed that Bhaduri 

breached the contract, which prevented LMK from performing its obligations under the 

contract. 
21

In its counterclaim, LMK asserted that it was damaged due to Bhaduri's breach of 

the contract. The damages it claimed were for the added property taxes, loan interest 

payments, and property insurance expenses incurred after Bhaduri's breach; along with 

the added expense of completing the house, minus the increased value of the house. The 

total damages claimed was $76,215.03.

Bhaduri denied she breached the contract. The jury was instructed that Bhaduri 

claimed "LMK Construction's alleged damages should be reduced by the rent payments it 

received from the property [beginning in September 2017 through December 2018, 

totaling $34,000] . . . and by the $26,891 that Ms. Bhaduri paid in deposits."

In closing argument, Bhaduri's counsel argued that the $26,891 LMK held 

consisted of "deposits that [Bhaduri] paid up front that became refundable once LMK 

refused to close on the sale of this property." Counsel also focused on LMK's duty to 

mitigate its damages. But after a critical analysis of LMK's damages—adjusting for the 

$26,891 in deposits that LMK still held—and after taking into account the rent LMK 

received for the house once it was completed, Bhaduri's counsel concluded, "guess what? 

He's got a negative number: negative 3,903.97. What does that mean? Since that's a 

negative, that actually is a profit to LMK for this transaction."

This also means that LMK did sustain damages as a result of Bhaduri's breach, but 

by retaining the $26,891 deposit and renting out the house once construction was 

completed, it was able to mitigate those damages.

This stands in contrast to the facts in Farrar, in which the jury concluded that the 

plaintiff suffered no damages caused by the defendants. Here, LMK suffered damages 

caused by Bhaduri's breach, but those damages ultimately were mitigated through LMK's 

efforts. 
22

Furthermore, while a claimant's "prevailing party" status is crucial for a recovery 

of attorney fees under some statutes, there is no such requirement under the parties'

contract here. Bhaduri abandoned the predicate for LMK's counterclaim: notice of 

termination. So we turn to the remaining contract provision:

"If as a result of Buyer's default, Seller employs an attorney to enforce its rights, Buyer 

shall, unless prohibited by law, reimburse Seller for all reasonable attorneys' fees, court 

costs and other legal expenses incurred by Seller in connection with the default."

LMK has satisfied this provision. It hired counsel to enforce its contract right to damages 

for breach and, over time, while the suit was pending, completed the construction project 

and rented out the home and retained the $26,891 advanced by Bhaduri as part of its 

efforts to mitigate those damages. There is no legal prohibition to the recovery of 

attorney fees under the circumstances present here. 

Finally, there is no issue about the reasonableness of the fees awarded by the 

district court, other than the claim—for which we find no controlling support under the 

facts presented here—that any award of attorney fees in this case is error as a matter of 

law. The district court did not err in awarding attorney fees to LMK.

Affirmed in part, reversed in part, and remanded with directions.