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No. 116,764

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DAVID L. WASINGER, d/b/a

ALLEGIANT CONSTRUCTION & DESIGN,

and DAVID L. WASINGER, Personally,

Appellants,

v.

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.

SYLLABUS BY THE COURT

1.

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."

2.

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 agreement."

3.

The concept of binding mediation is inconsistent with the definition for mediation 

under the Kansas Dispute Resolution Act, K.S.A. 5-501 et seq.
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4.

When 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.

5.

Failure on the part of the appellee to cross-appeal an issue decided by the district 

court cannot be raised before this court.

6.

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.

Appeal from Russell District Court; MIKE KEELEY, judge. Opinion filed November 17, 2017. 

Reversed and remanded.

John T. Bird and Todd D. Powell, of Glassman, Bird, Brown & Powell, LLP, of Hays, for 

appellants.

Norman R. Kelly, of Norton, Wasserman, Jones & Kelly, L.L.C., of Salina, for appellees.

Before STANDRIDGE, P.J., HILL and SCHROEDER, JJ.

SCHROEDER, J.: David 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 
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dispute. We find Wasinger's arguments persuasive. We reverse and remand with 

directions.

FACTS

In 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.

A 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 defamation 

based on comments made by a priest, Michael Elanjimattathil, during a mass at St. Mary

Queen of Angels Church. 

RCDS filed a motion for summary judgment arguing the dispute clause was 

actually an arbitration provision and the mediator's decision was a binding arbitration 

award. Wasinger responded, arguing the dispute clause reflected the parties' desire to 

resolve issues through mediation but did not preclude litigation if the mediation failed to 

reach an amicable result for both parties. Alternatively, he argued the language of the 

dispute clause was ambiguous. The district court heard oral arguments on RCDS's motion 

for summary judgment and subsequently issued a memorandum decision. It held the 

contract did not require arbitration; however, it found "the language as set out in the 

contract indicates the parties intended to have binding mediation and a final solution 

established by the mediator." The district court dismissed Wasinger's claims for 
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foreclosure of the mechanic's lien and improper use of the design plans and affirmed the 

mediator's final decision. 

With respect to Wasinger's defamation claim against Elanjimattathil, the district 

court found the claim was barred because Wasinger failed to raise the issue during 

mediation. The district court also determined, based on competing affidavits as to where 

the materials for the building project came from, the contract involved interstate 

commerce and therefore "trigger[ed] the Federal Arbitration Act, [9 U.S.C. § 1 et seq.,] 

which pre-empts [sic] the Kansas Arbitration Act [K.S.A. 5-401 et seq]." With the 

contract involving interstate commerce, the district court determined Wasinger had 

knowledge of the defamatory statements by Elanjimattathil and should have raised his 

claim against Elanjimattathil during mediation because the Federal Arbitration Act does 

not preclude tort claims from being resolved by arbitration, whereas the Kansas 

Arbitration Act does. Accordingly, the district court found Wasinger had waived the 

defamation claim and dismissed it. 

ANALYSIS

Mediator's Decision Cannot Be Binding

Wasinger argues the dispute resolution clause did not make the mediator's final 

decision binding upon the parties or otherwise preclude further litigation of disputed 

issues. He asserts binding mediation is not recognized by Kansas caselaw, nor is it 

consistent with the plain meaning of mediation. He contends the dispute clause should be 

interpreted as requiring the parties to submit to mediation as a prerequisite to filing suit. 

RCDS responds the contract provided the mediation process and the resulting decision 

was to be the final answer to resolve the parties' dispute. We find Wasinger's argument 

persuasive.
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Appellate courts exercise unlimited review over the interpretation and legal effect 

of written instruments, and the appellate court is not bound by the lower court's 

interpretation of those instruments. Prairie Land Elec. Co-op v. Kansas Elec. Power Coop, 299 Kan. 360, 366, 323 P.3d 1270 (2014). The question of whether a written 

instrument is ambiguous is a question of law subject to de novo review. See Waste 

Connections of Kansas, Inc. v. Ritchie Corp., 296 Kan. 943, 964, 298 P.3d 250 (2013). 

"'The primary rule for interpreting written contracts is to ascertain the parties' intent. If 

the terms of the contract are clear, the intent of the parties is to be determined from the 

language of the contract without applying rules of construction.' [Citations omitted.]" 

Stechschulte v. Jennings, 297 Kan. 2, 15, 298 P.3d 1083 (2013).

"An interpretation of a contractual provision should not be reached merely by isolating 

one particular sentence or provision, but by construing and considering the entire 

instrument from its four corners. The law favors reasonable interpretations, and results 

that vitiate the purpose of the terms of the agreement to an absurdity should be avoided." 

Levin v. Maw Oil & Gas, 290 Kan. 928, Syl. ¶ 2, 234 P.3d 805 (2010).

"'It is the duty of courts to sustain the legality of contracts in whole or in part 

when fairly entered into, if reasonably possible to do so, rather than to seek loopholes and 

technical legal grounds for defeating their intended purpose. . . . [T]he paramount public 

policy is that freedom to contract is not to be interfered with lightly.' [Citations omitted.]" 

Idbeis v. Wichita Surgical Specialists, P.A., 279 Kan. 755, 770, 112 P.3d 81 (2005). 

"'In placing a construction on a written instrument, reasonable rather than 

unreasonable interpretations are favored by the law. Results which vitiate the purpose or 

reduce the terms of the contract to an absurdity should be avoided. The meaning of a 

contract should always be ascertained by a consideration of all pertinent provisions and 

never be determined by critical analysis of a single or isolated provision.' [Citations 

omitted.]" In re Estate of Einsel, 304 Kan. 567, 581, 374 P.3d 612 (2016).

Here, we are called upon to apply and interpret the parties' mediation-based 

dispute clause which states, in pertinent part:
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"Mindful of the high cost of litigation, not only in dollars, but also in time and 

energy, the parties intend to and do hereby establish the following out-of-court alternate 

dispute resolution procedure to be followed in the event any controversy or dispute 

should arise out of, or relating to this contract or relating to any change orders or other 

changes or addendums to this contract.

. . . .

"If this meeting does not produce a resolution, the parties agree to submit to 

binding mediation. Bieberly Architects, overseeing architect of the project, will be the 

single mediator. Both parties acknowledge that if there is one or more disputed items that 

remain unresolved at the end of the mediation, the mediator will render a final decision 

on those unresolved items. A Mediation Agreement shall be written and signed by the 

parties indicating the terms and conditions of the issues upon which the parties have 

come to an agreement." (Emphasis added.)

The key term at issue in this provision is "binding mediation." The concept of 

binding mediation is inconsistent with Kansas caselaw and the Kansas Dispute 

Resolution Act, K.S.A. 5-501 et seq. (KDRA). See City of Lenexa v. C.L. Fairley Constr. 

Co., 245 Kan. 316, 323-24, 777 P.2d 851 (1989). To resolve this conflict, it is necessary 

to look at the terms used in the dispute clause and the KDRA for their respective 

definitions. 

 K.S.A. 5-502(e) defines "dispute resolution" as "a process by which the 

parties involved in a dispute voluntarily agree or are referred or ordered by 

a court to enter into discussion and negotiation with the assistance of a 

neutral person." 

 K.S.A. 5-502(f) defines "mediation" 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."
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 K.S.A. 5-502(g) defines "arbitration" 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 

agreement."

 K.S.A. 5-502(h) defines "neutral evaluation" as "a proceeding conducted by 

a neutral person who helps facilitate settlement of a case by giving the 

parties to the dispute an evaluation of the case."

 K.S.A. 5-502(m) defines "neutral person" or "neutral" as "the impartial 

third party who intervenes in a dispute at the request of the parties or the 

court in order to help facilitate settlement or resolution of a dispute."

Through their contract, the parties attempted to provide for an "out-of-court 

alternate dispute resolution procedure." They were not ordered to do so by any court, and 

it was actually completed, although unsuccessfully, before litigation was filed. Thus, we 

must interpret their dispute resolution procedure using the term "mediation" as a 

voluntary agreement to discuss and negotiate with the assistance of a neutral person in the 

hopes of finding a resolution to the issues presented for mediation. See K.S.A. 5-502(e). 

The contract further described the dispute resolution procedure as "binding 

mediation." What does binding mediation mean under Kansas law? Not what RCDS is 

claiming. Mediation cannot be considered binding since K.S.A. 5-502(f) defines it as the 

act of an independent third party entering the dispute and trying to facilitate an 

agreement.

The dispute clause provides that a mediation agreement would be written and 

signed by the parties indicating the terms and conditions upon which they had come to an 

agreement. However, it further provides should one or more disputed items remain 

unresolved at the end of mediation, the mediator would "render a final decision on those 

unresolved items." To this extent, there is an analytical tension between the agreed role of 
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the mediator and the definition of mediation under the KDRA. Again, by statute, a 

mediator has no decision-making authority; rather, the mediator is to assist the parties in 

reaching a resolution. See K.S.A. 5-502(f).

When looking at the dispute resolution clause, given RCDS's argument, one might 

agree it should be called an arbitration agreement and not an agreement calling for 

mediation. However, in reconciling the dispute resolution provision as a whole, such a 

conclusion is unsupported by its plain terms. "The meaning of a contract should always 

be ascertained by a consideration of all pertinent provisions and never be determined by 

critical analysis of a single or isolated provision." In re Estate of Einsel, 304 Kan. at 581. 

Here, the parties never use the term arbitration and even if they had, arbitration is not 

necessarily binding unless specifically agreed to. See K.S.A. 5-502(g). Further, 

arbitration contemplates a hearing where the parties may present evidence and crossexamine witnesses. See K.S.A. 5-405(b). In arbitration, the arbitrator may hear and 

determine the controversy based on the evidence produced, may determine any question,

and render a final award. See K.S.A. 5-405(a) and (c). The dispute resolution procedure 

in this contract as set forth contains no provision for the presentation of evidence or 

cross-examination of witnesses—a key component of arbitration. It does not allow the 

mediator to decide all of the issues—only those issues unresolved by the parties. It also 

does not refer to a final award. Based on its plain terms, the dispute clause does not 

contemplate arbitration. See K.S.A. 5-405 (setting out how an arbitration hearing occurs).

Here, the parties use the terms dispute resolution, mediation, mediator, and 

mediation agreement. As used in K.S.A. 5-502(e), (f), and (m), and as discussed above, 

these terms contemplate nonbinding resolution of the dispute based on an agreement by 

the parties facilitated by a neutral third party. Whether the mediator's final decision is 

binding on the parties can be resolved by the absence of any language to that effect 

within the dispute clause other than the term "binding mediation." The contract clause 

fails to contain any language stating the dispute resolution procedure is the exclusive 
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means of dispute resolution. Further, it contains no language stating the mediator's final 

decision shall be conclusive and binding on the parties. Nor does it state the parties shall 

be prohibited from litigating issues not resolved through mediation. Based on a complete 

analysis of the clause and the lack of these terms, we are persuaded the parties did not 

contract for the mediator's decision to be final, conclusive, and binding. They actually 

contracted to enter into mediation as a process to possibly resolve any dispute and to 

eliminate litigation—a great goal, but an unrealistic one given the facts of this case.

Our Supreme Court has held: "'Mediation . . . clauses are not to be treated as 

arbitration clauses. From a procedural standpoint, arbitration is binding whereas 

mediation . . . [is] not. Parties signing mediation . . . clauses may not wish to expose 

themselves to the inherent finality of an arbitral proceeding.' [Citation omitted.]" City of 

Lenexa, 245 Kan. at 323. 

Like many words used in the law, they have become terms of art. Arbitration is a 

term of art as defined by K.S.A. 5-502(g). Mediation is also a term of art as defined by 

K.S.A. 5-502(f). The terms are not interchangeable and one cannot be inserted in a 

contract to clarify what the parties now claim they intended. The district court's finding 

the dispute was fully and finally resolved by binding mediation is inconsistent with the 

plain language of our statutes and caselaw. Kansas law does not recognize binding 

mediation and we must adhere to that principle, whereas arbitration is generally 

recognized in Kansas law as a binding resolution of the issues arbitrated. With that 

understanding, we find Wasinger's position persuasive—the contract provided the parties 

are bound to enter into mediation in an attempt to resolve the issues without the need for 

litigation. We cannot find the agreement foreclosed either party from seeking resolution 

of the issues not resolved by mediation through litigation.
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No Cross-Appeal

RCDS argues the dispute clause should alternatively be interpreted as requiring 

binding arbitration. The district court rejected this argument and RCDS did not crossappeal. 

"[O]ur Supreme Court has held that before an appellee may present adverse rulings to the 

appellate court, the appellee must file a cross-appeal. If an appellee does not file a crossappeal, the issue is not properly before the appellate court and may not be considered. 

Cooke v. Gillespie, 285 Kan. 748, 755, 176 P.3d 144 (2008); see K.S.A. 60-2103(h). . . . 

It is necessary that a cross-appeal be perfected in order to obtain appellate review of the 

adverse decision. If no cross-appeal is filed, the trial court's undisturbed rulings become a 

final ruling when the case is finally adjudicated. Grimmett v. S & W Auto Sales Co., 26 

Kan. App. 2d 482, 484, 988 P.2d 755 (1999)." Chesbro v. Board of Douglas County 

Comm'rs, 39 Kan. App. 2d 954, 969, 186 P.3d 829 (2008). 

Because RCDS did not cross-appeal the district court's finding, the issue cannot be 

raised before this court. Nevertheless, for the reasons previously set forth herein, the 

dispute clause clearly provided for mediation and not arbitration.

Language of the Dispute Clause Is Not Ambiguous

The question of whether a written instrument is ambiguous is a question of law 

subject to de novo review. See Waste Connections of Kansas, Inc., 296 Kan. at 964. As 

previously discussed, the dispute clause shows an intent to submit to mediation in an 

attempt to resolve the parties' dispute. It is not ambiguous. RCDS's desire to apply the 

agreement as binding arbitration does not make the clause ambiguous as written.
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Premature To Find Contract Involved Interstate Commerce

The district court found the contract involved interstate commerce and therefore 

was subject to the Federal Arbitration Act, 9 U.S.C. § 1 et seq., even though it found the 

contract did not call for arbitration. The district court held the Federal Arbitration Act 

preempted the Kansas Arbitration Act, K.S.A. 5-401 et seq. The district court also found 

the Kansas Arbitration Act would have barred Wasinger's defamation claim against 

Elanjimattathil; the Federal Arbitration Act would not. The district court determined that 

since Wasinger failed to present his defamation claim to the mediator, he could not file 

suit on the claim. It erred in doing so. 

The district court should not have reached this issue because, as previously 

discussed herein, the dispute clause does not call for arbitration—it calls for mediation. 

The district court's finding the Federal Arbitration Act applied is not supported by its 

other finding that the contract did not call for arbitration. The district court never 

explained how binding mediation fell within the ambit of arbitration as contemplated by 

the Federal Arbitration Act or the Kansas Arbitration Act. With the dispute clause calling 

for mediation, neither the Federal Arbitration Act nor Kansas Arbitration Act apply. 

Thus, the issue of preemption is irrelevant. Further, the district court decided this issue on 

summary judgment before discovery had been completed and while material facts were 

unresolved. The rules governing summary judgment are often stated:

"'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. The trial court is required to resolve all facts and inferences which may 

reasonably be drawn from the evidence in favor of the party against whom the ruling is 

sought. When opposing a motion for summary judgment, an adverse party must come 

forward with evidence to establish a dispute as to a material fact. In order to preclude 

summary judgment, the facts subject to the dispute must be material to the conclusive 
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issues in the case. On appeal, we apply the same rules and where we find reasonable 

minds could differ as to the conclusions drawn from the evidence, summary judgment 

must be denied.' [Citations omitted.]" Armstrong v. Bromley Quarry & Asphalt, Inc., 305 

Kan. 16, 24, 378 P.3d 1090 (2016).

"[A]n issue of fact is not genuine unless it has legal controlling force as to the controlling 

issue. A disputed question of fact which is immaterial to the issue does not preclude 

summary judgment. Stated another way, if the disputed fact, however resolved, could not 

affect the judgment, it does not present a genuine issue of material fact. [Citation 

omitted.]

. . . .

"Ordinarily, summary judgment should not be granted until discovery is 

complete. However, if the facts pertinent to the material issues are not controverted, 

summary judgment may be appropriate even when discovery is unfinished." Northern 

Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 934-35, 296 P.3d 1106 

(2013).

Here, there was a genuine issue of material fact as to whether the contract 

involved interstate commerce. There were competing affidavits from Duke Strobel, a 

member of the church's building committee, and Wasinger. Strobel claimed materials had 

been purchased from out of state, whereas Wasinger denied purchasing materials from 

out of state and indicated all of the subcontractors involved were located in Kansas. The 

district court was required to resolve all facts and inferences in Wasinger's favor. Based 

on the fact the Federal Arbitration Act does not apply and the conflicting evidence as to 

genuine issues of fact, summary judgment was premature. See Armstrong, 305 Kan. at 

24.

Reversed and remanded.