Roof-Techs Int'l, Inc. v. State

• Decision Date: 01 November 2002
• Docket Number: No. 87,075.,87,075.
• Citation: 57 P.3d 538,30 Kan. App.2d 1184
• Parties: ROOF-TECHS INTERNATIONAL, INC., Plaintiff-Appellant/Cross-Appellee, and CENTRAL MECHANICAL CONSTRUCTION CO., INC., and D.L. SMITH ELECTRICAL CONSTRUCTION, INC., Plaintiffs-Appellees/Cross-Appellants, v. THE STATE OF KANSAS, THE LAW COMPANY, INC., and UNITED STATES FIDELITY & GUARANTY COMPANY, Defendants-Appellees/Cross-Appellants, and BRENT BOWMAN AND ASSOCIATES ARCHITECTS, P.A., Defendant-Appellee.
• Court: Kansas Court of Appeals

30 Kan. App.2d 1184

57 P.3d 538

ROOF-TECHS INTERNATIONAL, INC., Plaintiff-Appellant/Cross-Appellee, and CENTRAL MECHANICAL CONSTRUCTION CO., INC., and D.L. SMITH ELECTRICAL CONSTRUCTION, INC., Plaintiffs-Appellees/Cross-Appellants, v. THE STATE OF KANSAS, THE LAW COMPANY, INC., and UNITED STATES FIDELITY & GUARANTY COMPANY, Defendants-Appellees/Cross-Appellants, and BRENT BOWMAN AND ASSOCIATES ARCHITECTS, P.A., Defendant-Appellee.

No. 87,075.

Court of Appeals of Kansas.

Opinion filed November 1, 2002.

Bill H. Raymond, of Bill H. Raymond, P.A., of Wichita, for the plaintiff-appellant/cross-appellee Roof-Techs International, Inc.

James D. Oliver, Wyatt A. Hoch, Trisha A. Thelen, and Caleb Stegall, of Foulston & Siefkin L.L.P., of Topeka, for the defendant-appellee/cross appellee, Brent Bowman and Associates Architects, P.A.

Ron Campbell and Lyndon W. Vix, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, for the defendants-appellees/cross-appellants, The Law Company, United States Fidelity & Guaranty Company, and the State of Kansas.

Stewart Entz and Michael Entz, of Entz & Entz, P.A., of Topeka, for the plaintiffs-appellees/cross-appellants Central Mechanical Construction Co., Inc., and D.L. Smith Electrical Construction, Inc., and the defendant-appellee/cross-appellant State of Kansas.

William A. Larson and Timothy A. Schultz, of Gehrt & Roberts, Chartered, of Topeka, for amicus curiae, The Associated General Contractors of Kansas. Inc.

Before RULON, C.J., PIERRON, J., and STEPHEN D. HILL, District Judge, assigned.

PIERRON, J.:

Roof-Techs International, Inc. (Roof-Techs) appeals from the district court's decision to grant summary judgment in favor of The Law Company, Inc. and its insurance company, United States Fidelity & Guaranty Co.(Law); the State of Kansas (State); and Brent Bowman and Associates Architects, P.A. (BBA). The district court found Roof-Techs' claims were barred by the statute of limitations. Central Mechanical Construction Co., Inc. (Central); D.L. Smith Electrical Construction, Inc. (Smith); the State; and Law collectively appeal from the court's decision to grant summary judgment in favor of BBA. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

This case arises out of the renovation and expansion of Farrell Library on the campus of Kansas State University. The State was the owner, BBA was the architect, Law was the general contractor, and Central, Smith, and Roof-Techs were subcontractors.

The complex facts and issues of this case must be set out in detail for there to be an understanding of the eventual ruling. More than one reading may be necessary.

In November 1992, BBA entered into a contract with the State to provide architectural design and construction administration services for the Farrell Library Expansion and Renovation Project (the project). In May 1994, Law entered into a contract with the State for construction of the project. Thereafter, Law subcontracted mechanical, electrical, and roofing work to Central, Smith, and Roof-Techs, respectively.

In August 1997, Central filed suit against the State, BBA, and Law to recover damages incurred as a result of delays and problems in the project. The petition set forth a breach of contract claim against Law; a professional negligence claim against BBA; a negligent representation claim against the State, Law, and BBA; and claims for quantum meruit and unjust enrichment against both Law and the State. Central's petition was subsequently amended to add Smith as a plaintiff.

In October 1997, Law answered the suit brought by Central and Smith, and filed a cross-claim against the State. Law's claims against the State were breach of contract, breach of implied warranty, and misrepresentation. The State answered Central and Smith's petition as well as Law's cross-claim. The State asserted cross-claims against both Law and BBA for breach of contract, breach of warranty, indemnity/contribution, and negligence. BBA answered the claims asserted by the State, Central, and Smith, then added a cross-claim against the State for unpaid professional services.

In May 1998, Roof-Techs filed a separate lawsuit which mirrored that of Central and Smith and sought to recover damages sustained as a result of defects in the plans and delays on the project. The petition set forth a breach of contract claim against Law, a professional negligence claim against BBA, and a negligent misrepresentation claim against Law, the State, and BBA, collectively. In October 1998, the Roof-Techs case was consolidated with the Central and Smith case.

In April 2000, BBA filed a motion for summary judgment on the tort claims asserted directly against it by Central and Smith, primarily arguing the claims were barred by the statute of limitations. In June 2000, the State joined BBA's motion and sought summary judgment on the tort claims asserted against the State by Central and Smith. In September 2000, the court granted the motions of BBA and the State, and entered judgment against Central and Smith on the tort claims asserted against BBA and the State.

Central and Smith did not appeal the judgment against them on their tort claims.

In November 2000, BBA filed a motion for summary judgment as to the tort claims asserted against it by Roof-Techs. In December 2000, Law and the State filed a similar motion seeking summary judgment with regard to the tort claims asserted against them by Roof-Techs.

Also in November 2000, Central, Smith, Law, and the State entered into a settlement and liquidation agreement whereby all claims among those parties were settled. As part of the agreement, the State paid $750,000 to settle all claims unrelated to BBA's conduct. The agreement assigned to Law, Central, and Smith all claims the State might have against BBA. In addition, under the terms of the agreement, the breach of contract claims of Central and Smith and Law asserting defects in the architectural plans were purportedly "passed through" the State to be asserted against BBA.

In other words, the agreement intended to allow the contractors to step into the shoes of the State to present their claims directly against BBA. The agreement authorized the contractors to pursue those claims either in their own names or in the State's name.

In December 2000, an amended petition was filed which showed Central, Smith, Law, and the State as plaintiffs and BBA as the defendant. No formal order allowing the amendment was ever entered.

While the motions aimed at Roof-Techs' claims were pending, BBA moved for summary judgment on the State's indemnity claims and also moved to dismiss the amended petition. The motion for summary judgment alleged that BBA was entitled to judgment as a matter of law on all of the State's cross-claims because the State had failed to designate an architectural expert. The motion to dismiss rested on essentially the same grounds, but added the allegation that the State's indemnity claim should be dismissed because the State had extinguished any obligation to pay the contractors for damages attributable to the conduct of BBA by entering into the agreement with Law, Central, and Smith.

In January 2001, the court granted BBA's dispositive motions with regard to the State's claims. At the same time, the court granted the summary judgment motions of BBA, the State, and Law with regard to the tort claims asserted by Roof-Techs.

The court found that the statute of limitations barred Roof-Techs' claims for negligent misrepresentation against BBA, the State, and Law and also barred its claim for professional negligence against BBA. Concerning BBA's motion for summary judgment against the State, the court found the agreement was not a valid liquidating agreement; it did not assign all claims of the State to Law, Central, and Smith; and the State's failure to designate an expert witness to support its claims against BBA rendered those claims unenforceable and, thus, incapable of assignment. As to BBA's motion to dismiss the amended petition, the court determined the agreement was effective to release the State from liability for any claims for harm that might have been caused by BBA, which rendered the State's indemnity claims inappropriate. Further, the court reiterated its finding the State had failed to identify expert witnesses to sustain its claims against BBA directly. Thus, the court found no remaining legal basis for the amended petition and dismissed it accordingly.

Law, the State, Central, and Smith filed motions to amend the judgment. In addition, BBA filed a motion to "unconsolidate" the two consolidated cases under the theory that the Roof-Techs contract claim against Law could proceed, while the case involving Central, Smith, Law, the State, and BBA would be final and ripe for appeal. On March 12, 2001, the district court denied the motions to amend judgment filed by Law, the State, Central, and Smith. The court also denied the motion to unconsolidate, holding that "there are no longer any case(s) pending to which the motion to `unconsolidate' can apply." In so doing, the court presumably disposed of Roof-Techs' contract claim against Law.

On March 26, 2001, Roof-Techs sent a letter to the district court inquiring about the status of its contract claim against Law. The letter stated, inter alia: "[I]t appears the decision overrules all claims, including the contract claim of [Roof-Techs]. If this understanding is not correct, please advise." There is no record of any answer from the court. Subsequently, on April 11, 2001, Roof-Techs filed a notice of appeal from the district court's ruling. On April 10, 2001, Central, Smith, the State, and Law filed a joint notice of appeal from the district court's ruling.

"`Summary judgment is appropriate when the pleading[s], depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine

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