Fouts v. Armstrong Commercial Laundry Distributing Co.

• Decision Date: 08 April 1972
• Docket Number: No. 46227,46227
• Citation: 209 Kan. 59,495 P.2d 1390
• Parties: Ralph W. FOUTS, d/b/a Fouts Plumbing & Heating Company, Appellee, v. ARMSTRONG COMMERCIAL LAUNDRY DISTRIBUTING COMPANY, a/k/a Armstrong-Maytag Laundry Distributing Company, Appellant, and George E. Sybrant and Betty J. Sybrant, his wife, Appellees.
• Court: Kansas Supreme Court

Page 1390

495 P.2d 1390

209 Kan. 59

Ralph W. FOUTS, d/b/a Fouts Plumbing & Heating Company, Appellee, v. ARMSTRONG COMMERCIAL LAUNDRY DISTRIBUTING COMPANY, a/k/a Armstrong-Maytag Laundry Distributing Company, Appellant and George E. Sybrant and Betty J. Sybrant, his wife, Appellees.

No. 46227.

Supreme Court of Kansas.

April 8, 1972.

Syllabus by the Court

1. Under the provisions of K.S.A. 60-240, the assignment of cases for trial and the granting or refusing of continuances rests in the sound discretion of the trial court; such discretion, however, is not without limitation and is subject to review.

2. Where the effect, for practical purposes, of the denial of a motion for a continuance of a trial is to deprive a party of his day in court, a trial court's discretion is to be exercised in a sound and legal manner and not arbitrarily or capriciously and in ruling on a motion for continuance, under such conditions, a court must consider all attending circumstances, particularly larly such matters as the applicant's good faith, his showing of diligence or the absence thereof, previous proceedings and the timetable of the lawsuit.

3. In seeking the continuance of a case assigned for trial it is incumbent upon the applicant to affirmatively show due diligence with respect to all grounds upon which the continuance is sought.

4. In an action for the foreclosure of a mechanic's lien, in which certain defendants filed cross-claims against each other arising out of a controversy stemming from an arrangement between them to establish a self-service laundry, the recorded is examined and it is held: (1) The trial court did not abuse its discretion in refusing a further continuance of the trial. (2) The findings of the trial court on the cross-claim of appellees-Sybrants are supported by evidence. (3) The judgment of plaintiff-appellee against appellant is not supported by any evidence and it is set aside with directions to grant a new trial. (4) The case is remanded for further proceedings on the cross-claim of appellant.

Thomas D. Herlocker, of Roberts & Roberts, Winfield, and Charles W. Stubbs, Oklahoma City, Okl., argued the cause and were on the brief for appellant.

Donald Hickman, of Dale, Hickman & Mills, Arkansas City, argued the cause and was on the brief for appellees Sybrants.

KAUL, Justice:

This action was initiated by plaintiff-appellee, Ralph W. Fouts, d/b/a Fouts Plumbing & Heating Company, to foreclose a mechanic's lien. The principle controversy, however, arises from cross-petitions between defendants-appellees, George E. Sybrant and Betty J. Sybrant, and defendant-appellant, Armstrong Commercial Laundry Distributing Company, a/k/a Armstrong-Maytag Laundry Distributing Company. These parties will be referred to hereafter as Sybrants or appellees and Armstrong or appellant, respectively.

Since the most serious issue on appeal concerns the trial court's denial of Armstrong's request for a continuance; it is necessary to review the history of the litigation.

The dispute arose from an arrangment whereby Sybrants were to furnish and remodel a building owned by them and Armstrong was to furnish laundry equipment to establish a self-operating laundry to the based for the mutual benefit of both parties.

In 1966 Sybrants acquired the property involved which and been used for many years as a filling station. They had in mind improving it for use as some type of retail outlet. Before they had made any definite plans, Sybrants were approached by Fred Washington, who introduced himself as an agent of Armstrong. Washington presented a proposition for converting the property into a self-service laundry. Mr. Sybrant testified that he told Washington he knew nothing about the laundry business, but that Washington said Armstrong had looked over the site and thought it was excellent for its purposes. Sybrant restated his lack of knowledge about the laundry business; that he knew of similar businesses within the city which had not been successful, and that he doubted the wisdom of the enterprise.

According to Sybrant, Washington responded by stating that his company handled Maytag products throughout the area and had had extensive experience in this type of enterprise; that the location was excellent for such a facility; and further that he had a man, Don Clapsaddle-a building contractor, who had had considerable experience in constructing similar facilities for the Armstrong Company, and that he was an expert in this type of work.

Sybrant advised Washington that he would not be interested in the project unless he was assured of a long-term lease. Negotiations continued for some time and finally culminated in the execution of a lease between Armstrong and Sybrant, and a building agreement between Sybrant and Clapsaddle. The building agreement was attached to and made a part of the lease by the terms thereof. The building agreement specifically provided for the use of Armstrong blueprints, and an Armstrong ceiling and, further; that the remodeling work and materials should be approved by Fred Washington, as well as Sybrant. The lease and the agreement were executed on July 8, 1966. Under the terms of the building contract, Sybrant was obligated to pay Clapsaddle $3800 upon completion of the work in a workmanlike manner.

Armstrong's operating headquarters were located in Oklahoma City. Clapsaddle worked out of either Claremore or Collinsville, Oklahoma.

Work commenced in the summer of 1966. Difficulties were soon encountered. Sybrants claimed that Clapsaddle negligently failed to perform the contract as agreed; that he caused some of the building walls to collapse; that the roof was substantially damaged in an attempt by Clapsaddle to modify it in order to accommodate a large circulating cooler required by the Armstrong specifications; and that as a result of Clapsaddle's poor workmanship the building was structurally weakened.

Clapsaddle failed to pay several subcontractors and material men and as a result this litigation was initiated by Fouts filing an action to foreclose a mechanic's lien on July 20, 1967.

The Fouts's petition named as defendants the Sybrants, Armstrong, Clapsaddle, Shutlers (mortgagees of the premises), Clarks, who had become tenants, and several other lien holders.

On August 28, 1967, Armstrong filed an answer to plaintiff's petition. Armstrong's answer was signed by Rose McAllister and Charles W. Stubbs, neither of whom were Kansas attorneys.

On August 31, 1967 Sybrants filed their answer to Fouts's petition and a cross-claim against Armstrong and Clapsaddle.

On March 12, 1968, various parties appeared by their attorneys, but neither Clapsaddle nor Armstrong appeared. The record discloses an order of the court made on that date dismissing with prejudice the petition of plaintiff against all parties except Clapsaddle and Armstrong, and also the cross-petitions and cross-claims between other defendants. The last paragraph of the order reads:

'IT IS FURTHER ORDERED AND ADJUDGED, that the plaintiff and the defendants, Sybrant, proceed further herein upon plaintiff's petition and upon said defendants' cross-claim against the defendants, Clapsaddle and Armstrong Commercial Laundry Distributing Company.'

At this point in the chronology of the litigation (March 12, 1968) there remained in the action plaintiff's petition against Clapsaddle and Armstrong and Sybrants' cross-claim against Clapsaddle and Armstrong. The record next shows an order of March 25, 1968, striking the matter from the trial docket upon the agreement of the parties. The firm of Janicke, Herlocker and Bishop, of Winfield, appeared as Kansas counsel for the first time representing Armstrong.

On April 8, 1968, Armstrong filed an answer to Sybrants' cross-claim in the form of a general denial and as an affirmative defense alleged that damages suffered by Sybrants resulted from Sybrants' own negligence. Armstrong also filed a cross-claim which alleged that under the lease George Sybrant agreed to pay one-half the cost of carpeting, which he had failed to pay, and was therefore indebted to Armstrong in the amount of $788.62.

On June 3, 1968, the case was set for trial on September 23, 1968, when it was again stricken from the assignment calendar at the request of Armstrong's Kansas counsel.

On April 16, 1969, the case was again set for trial, but was apparently continued because of negotiations for settlement.

On May 16, 1969, the firm of Janicke, Herlocker and Bishop filed a notice and made oral application to withdraw as counsel for Armstrong. The court entered an order approving the withdrawal of counsel and found that notice thereof had been served upon Armstrong and all other counsel of record.

Under Rule No. 122 (205 Kan.L) of this court and the local rules of the District Court of Cowley County, terms of court open on the second Monday in January and March and the first Monday in June and October of each year at which time the entire docket is called for assignment. In this case nothing appears of record from May 16, 1969, until January 12, 1970, when the case was assigned for trial on January 20, 1970.

On January 15, 1970, Charles W. Stubbs, of Oklahoma City, counsel for Armstrong received notice of the setting from the Clerk of the Court. On the same day Mr. Stubbs arranged with Thomas D. Herlocker, of Winfield, to become associated as Kansas counsel for Armstrong.

On January 16, 1970, Mr. Herlocker filed a motion for a continuance of the trial stating that Oklahoma counsel was unable to attend court on January 20, 1970, and that counsel was unable to notify all witnesses and have them in court for trial on January 20. The motion was heard by consent on January 19, 1970. Counsel for Sybrants appeared and opposed the motion. The court reset the trial for January 21, ruling as follows:

'THE COURT: Gentlemen, it appears to the Court that upon the withdrawal of Mr. Bishop of Janicke, Herlocker and Bishop...