Southwest Nat. Bank v. Simpson and Son, Inc.

• Decision Date: 12 October 1990
• Docket Number: No. 64605,64605
• Citation: 799 P.2d 512,14 Kan.App.2d 763
• Parties: SOUTHWEST NATIONAL BANK, et al., Appellant, v. SIMPSON AND SON, INC., Appellee.
• Court: Kansas Court of Appeals

Page 512

799 P.2d 512

14 Kan.App.2d 763

SOUTHWEST NATIONAL BANK, et al., Appellant, v. SIMPSON AND SON, INC., Appellee.

No. 64605.

Court of Appeals of Kansas.

Oct. 12, 1990.

Review Denied January 29, 1991.

Syllabus by the Court

1. In general, a party may only appeal from the entry of a summary judgment in favor of the opposing party and not from the denial of the party's own motion for summary judgment. However, when a motion for summary judgment is denied at the time a motion for summary judgment in opposition is granted, and no other claims remain to be decided, the denial of summary judgment may be considered with an appeal from the grant of summary judgment.

2. Under the facts of this case, a standard form contract (American Institute of Architects Form A111) used for construction and remodeling of a commercial building incorporated by reference AIA Form A201, "General Conditions for Construction," and all provisions thereof concerning indemnification even though Form A201 was not physically attached or stapled to form A111 and was not enumerated following the section of the agreement providing that "the contract documents ... are enumerated as follows."

3. Under the facts of this case, the plaintiff did not waive its claim for indemnification by paying the final contract price with the express understanding that the contractor would complete the work on the contract by furnishing and installing equipment required by the agreement.

Bruce B. Waugh and Carol A. Zuschek of Gilliland & Hayes, P.A., Kansas City, Mo., for appellant.

Brian C. Wright and Robert J. Nugent of Turner & Boisseau, Chartered, Wichita, for appellee.

Before BRAZIL, P.J., and RULON and LEWIS, JJ.

LEWIS, Judge:

Southwest National Bank (Bank) filed suit against Simpson & Son, Inc., (Simpson) for contractual indemnification. Both parties filed motions for summary judgment and the trial court granted summary judgment in favor of Simpson. The Bank appeals from the entry of summary judgment against it and from the trial court's denial of the Bank's own motion for summary judgment.

After review, we reverse and remand.

In 1985, the Bank retained Simpson as a general contractor to do remodeling and construction work. Simpson prevailed on an architect to prepare the agreement for the parties. The parties utilized as their agreement a form devised by the American Institute of Architects (AIA). The particular form utilized was AIA document A111, 1978 edition. This document, on its face, is to be used "where the basis of payment is the cost of the work plus a fee." The agreement also provided, on its face, "Use only with the 1976 edition of AIA document A201, General Conditions of the Contract for Construction."

This lawsuit arises as a result of injuries initially sustained by Scott Brunner. Brunner was injured in the replacement of freight elevator doors located at the Bank. The replacement of these doors was part of the work to be performed by Simpson for the Bank. In order to complete this particular part of the project, Simpson purchased the replacement doors and accompanying hardware from a concern known as Hollow Metal Doors (HMD). Included in the materials ordered by Simpson were "closures" or "closers," which apparently functioned in the manner their name implies. When Simpson attempted to complete the replacement of the elevator doors, it found that the "closures" did not fit. After some discussion, HMD agreed to order replacement closures and to install them upon their arrival. This arrangement was apparently satisfactory to all parties, and the Bank paid Simpson in full with the understanding the job was to be completed when the proper closures arrived.

Upon arrival of the closures, HMD sent its own employees, including Scott Brunner, to install the hardware. During the process of the installation, Brunner was seriously injured.

Brunner proceeded to sue the Bank and Simpson, alleging that their negligence was the proximate cause of his injuries. Simpson settled with Brunner, who continued his lawsuit against the Bank. Ultimately, the jury returned a verdict of $270,000 in favor of Brunner and against the Bank, and found the Bank to be 7.5 percent at fault, Brunner to be 7.5 percent at fault, and Simpson to be 85 percent at fault. The Bank appealed the verdict to this court and, after reducing the damage award by $21,000, we otherwise affirmed the award in favor of Brunner. Brunner v. Southwest Nat'l Bank, No. 63,489, unpublished opinion filed December 8, 1989 .

The Bank then sued Simpson, seeking indemnification under a provision included in AIA document A201. Simpson argues that A201 was not a part of its agreement with the Bank. Document A201 was not attached to document A111, although it was referred to in document A111, and was purportedly incorporated by reference into the agreement of the parties.

This is an appeal which involves a number of issues, and we shall address them separately.

DID THE TRIAL COURT ERR IN GRANTING SUMMARY JUDGMENT IN

FAVOR OF SIMPSON?

As we pointed out above, Brunner filed a lawsuit against both the Bank and Simpson after he was injured on the job site. During the pendency of this action, Simpson filed a motion for summary judgment against Brunner on the ground that Brunner's only relief against Simpson would be to file a workers compensation claim. The trial court denied the motion for summary judgment, holding as follows:

"I'm going to deny the motion. At best defendant has a factual issue that needs to be determined by a jury. That's all I'm going to say other than suggest to both counsel you better work real hard on your jury instructions on this issue. You want to help the trial judge and, more important than helping the trial judge, present your issue to a jury for a determination." (Emphasis added.)

Rather than submit the factual issue identified by the court to the jury, Simpson quietly settled with Brunner for the sum of $40,000.

During the trial between the Bank and Simpson, Simpson filed its own motion for summary judgment against the Bank. This motion was heard by Judge Buchanan, whereas the Brunner motion had been heard by Judge Kennedy. Judge Buchanan granted Simpson's motion for summary judgment and, as his only reason, stated:

"The decision of Judge Kennedy on the motion for summary judgment of Simpson and Son, Inc., heard August 11, 1988, filed August 12, 1988, became the law of the case, even though not journalized as ordered, and determined the relationship of Scott Bruner [sic ] to the various parties. If Scott Bruner [sic ] had been doing work under the contract, as opposed to merely delivering and unloading goods, his exclusive remedy would be under the Workers' Compensation Act. The decision of Judge Kennedy took him out of the contract and out of the sole remedy against Simpson and Sons, Inc. Therefore, Scott Bruner [sic ] was not doing work under the contract."

The trial court's reliance on the decision of Judge Kennedy as a basis for granting summary judgment in favor of Simpson was misplaced. It is immediately apparent that Judge Buchanan misread the decision of Judge Kennedy. Judge Kennedy did not decide that Scott Brunner was not doing work under the contract. Judge Kennedy decided that whether Brunner was a statutory employee of Simpson was a question of fact to be determined by the jury. Judge Kennedy determined only that this issue was a disputed question of fact. Since Simpson chose not to litigate this question of fact, but settled with Brunner, the issue identified by Judge Kennedy was never resolved.

We have no choice but to hold that Judge Buchanan was in error concerning the effect of the decision of Judge Kennedy. It follows that his decision to grant Simpson's motion for summary judgment on the basis of Judge Kennedy's ruling was also in error, and we reverse the entry of summary judgment in favor of Simpson.

Simpson rather ingenuously argues that we should indulge in some speculation and that, by so doing, we can sustain the decision of Judge Buchanan. Despite the apparent seriousness with which it pursued its motion against Brunner, Simpson now argues that its motion for summary judgment against Brunner was without merit. It strongly suggests that, had there been a trial, it would have lost on that issue. Simpson now argues that we should sustain the decision of the district court on the rather startling premise that, had it gone to trial based on the theory set forth in its motion for summary judgment, it was doomed to certain failure. We choose not to speculate as to how that issue might have been decided had it gone to trial. We deal in realities here, and the reality is that Judge Buchanan granted the motion for summary judgment on an incorrect premise. He labored under the belief that Judge Kennedy had resolved the factual questions and that this decision was the "law of the case."

The term "law of the case" simply means that, once an issue is determined by a previous order of the court, further litigation of that issue is generally foreclosed insofar as that particular lawsuit is concerned. See, e.g., United States v. U.S. Smelting Co., 339 U.S. 186, 198-99, 70 S.Ct. 537, 544-45, 94 L.Ed. 750 (1950); Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912); United States v. Carson, 793 F.2d 1141, 1147 (10th Cir.1986). The ruling by Judge Kennedy certainly did not establish as the "law of the case" the fact that Brunner was not injured when performing the work.

Our scope of review on a decision sustaining a motion for summary judgment has been set forth on a number of occasions.

"Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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. [Citations omitted.] When a summary judgment...