David L. Wasinger, d/b/a Allegiant Construction & Design, and David L. Wasinger, Personally, Appellants,
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.
BY THE COURT
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."
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
concept of binding mediation is inconsistent with the
definition for mediation under the Kansas Dispute Resolution
Act, K.S.A. 5-501 et seq.
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.
Failure on the part of the appellee to cross-appeal an issue
decided by the district court cannot be raised before this
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.
from Russell District Court; Mike Keeley, judge.
T. Bird and Todd D. Powell, of Glassman, Bird, Brown &
Powell, LLP, of Hays, for appellants.
R. Kelly, of Norton, Wasserman, Jones & Kelly, L.L.C., of
Salina, for appellees.
Standridge, P.J., Hill and Schroeder, JJ.
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.
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.
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 ...