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Wasinger v. Roman Catholic Diocese of Salina in Kansas

Court of Appeals of Kansas

November 17, 2017

David L. Wasinger, d/b/a Allegiant Construction & Design, and David L. Wasinger, Personally, Appellants,
v.
Roman Catholic Diocese of Salina in Kansas; St. Mary Queen of Angels Parish;St. Mary Queen of Angels Parish Council;and Michael Elanjimattathil, Individually, Appellees.

         SYLLABUS BY THE COURT

         1. Mediation is a term of art defined by K.S.A. 5-502(f) as "the intervention into a dispute by a third party who has no decision making authority, is impartial to the issues being discussed, assists the parties in defining the issues in dispute, facilitates communication between the parties and assists the parties in reaching resolution."

         2. Arbitration is a term of art defined by K.S.A. 5-502(g) as "a proceeding in which a neutral person or panel hears a formal case presentation and makes an award, which can be binding or nonbinding upon the parties relative to a prior agreement."

         3. The concept of binding mediation is inconsistent with the definition for mediation under the Kansas Dispute Resolution Act, K.S.A. 5-501 et seq.

         4. When a contract calls for mediation, the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (2012), and the Kansas Arbitration Act, K.S.A. 5-401 et seq., do not apply.

         5. Failure on the part of the appellee to cross-appeal an issue decided by the district court cannot be raised before this court.

         6. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

         Appeal from Russell District Court; Mike Keeley, judge.

          John T. Bird and Todd D. Powell, of Glassman, Bird, Brown & Powell, LLP, of Hays, for appellants.

          Norman R. Kelly, of Norton, Wasserman, Jones & Kelly, L.L.C., of Salina, for appellees.

          Before Standridge, P.J., Hill and Schroeder, JJ.

          SCHROEDER, J.

         David L. Wasinger d/b/a Allegiant Construction and Design (Wasinger) appeals the district court's determination the dispute resolution clause providing for mediation in his construction contract with the Roman Catholic Diocese of Salina (RCDS) should be applied as a binding arbitration agreement. He also argues the district court prematurely granted summary judgment because material facts were in dispute. We find Wasinger's arguments persuasive. We reverse and remand with directions.

         Facts

         In October 2014, Wasinger entered into a contract with RCDS to design and construct a parish rectory for St. Mary Queen of Angels Church in Russell. The contract contained a dispute clause requiring the parties to submit to "binding mediation" if disputes arose that defied informal resolution. The clause also provided the mediator the power to "render a final decision on those unresolved items" at the end of the mediation.

         A dispute arose early in the construction process. The parties proceeded to mediation and the mediator issued a final decision. Wasinger did not agree with the mediator's decision and filed a mechanic's lien on the property in August 2015. In June 2016, he filed a motion to foreclose on the mechanic's lien and included additional causes of action for improper use of copyrighted design plans as well as a claim for ...


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