Kendrick Memorial Hospital, Inc. v. Totten
Decision Date | 23 July 1980 |
Docket Number | No. 1-180A12,1-180A12 |
Citation | 408 N.E.2d 130 |
Parties | KENDRICK MEMORIAL HOSPITAL, INC., Plaintiff-Appellant, v. Charles A. TOTTEN, Jr., Defendant-Appellee, and John Stapp and Arthur Miller d/b/a Stapp and Miller Construction Company, and Pioneer National Title Insurance Co., Defendants. |
Court | Indiana Appellate Court |
Jack Rogers, Rogers, Tompkins & Gesse, Franklin, John T. Hume, III, and Michael E. Simmons, Smith & Jones, Indianapolis, for plaintiff-appellant.
Alan H. Lobley, Ice, Miller, Donadio & Ryan, Indianapolis, Young, Gholston & Young, Franklin, for defendant-appellee.
Plaintiff-appellant Kendrick Memorial Hospital, Inc. (Kendrick) appeals from the granting of a Motion for Summary Judgment in favor of defendant-appellee Charles A. Totten, Jr. (Totten). The record reflects that all other defendants in this cause have filed separate Motions for Summary Judgment, but rulings on these motions have been stayed pending appeal.
The granting of a motion for summary judgment is appropriate only where there is no genuine issue of material fact presented by the case and where the moving party is entitled to judgment as a matter of law. Ind. Rules of Procedure, Trial Rule 56(C). To determine whether a genuine issue exists the court will take as true all facts alleged by the non-moving party and will resolve all doubts against the moving party. Krueger v. Bailey, (1980) Ind.App., 406 N.E.2d 665. The facts, therefore, will be viewed in the light most favorable to the non-moving party, appellant Kendrick.
Appellant Kendrick entered into a contract with appellee Totten, an architect, on August 25, 1970, for the design and construction of a forty room proctological hospital. The contract contained the following provisions:
Totten agreed to provide design and construction supervision services, and upon Construction of the hospital was begun on May 20, 1971, but was not completed within the twelve month period required by the contract. Other problems arose during construction involving additional expenses and financing, changes in plans, and the quality of workmanship. On January 16, 1974, Totten executed the following document:
Totten's recommendations Kendrick entered into contracts with the other defendants.
Jr., A.I.A.
On September 29, 1976, Kendrick filed a civil action against Totten and the other above-named defendants for compensatory damages alleging overcharges, repairs of poor workmanship, lost revenues, and increased financing costs and also for punitive damages alleging wilful and wanton acts of fraud and misrepresentation. All defendants answered alleging the arbitration provision in the contract at issue as an affirmative defense. For approximately two and one-half years thereafter all defendants participated in discovery procedures and preparation for trial. Prior to the first trial date set by the court for August 17, 1978, Totten moved to continue the trial date because his local counsel would be out of town. On May 11, 1979, Totten filed his Motion for Summary Judgment which was granted by the trial court on June 6, 1979, and plaintiff-appellant Kendrick's complaint against Totten was ordered dismissed without prejudice. The court's Order on Motion for Summary Judgment is stated as follows:
and considered the argument of counsel on June 1, 1979 now sustains such motion for the following reasons:
On appeal Kendrick raises three issues for our consideration.
I. Whether the trial court erred when it held that the contract between Kendrick and Totten contained a binding arbitration provision and that Totten had properly raised that provision as an affirmative defense in this action.
II. Whether the trial court erred when it held that Totten had not expressly or impliedly waived his right to arbitration under the contract at...
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...provisions can be waived and the existence of waiver depends upon the circumstances of each case. Kendrick Mem'l Hosp., Inc. v. Totten, 408 N.E.2d 130, 134-35 (Ind.Ct.App.1980). Neither party directs us to any Indiana cases addressing the effect of a parol decision to arbitrate outside Indi......
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