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Kauk v. First Nat'l Bank of Hoxie

613 P.2d 670, 5 Kan. App. 2d 83, 1980 Kan. App. LEXIS 255
CourtCourt of Appeals of Kansas
DecidedJune 20, 1980
Docket50,986
StatusPublished
Cited by5 cases

This text of 613 P.2d 670 (Kauk v. First Nat'l Bank of Hoxie) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kauk v. First Nat'l Bank of Hoxie, 613 P.2d 670, 5 Kan. App. 2d 83, 1980 Kan. App. LEXIS 255 (kanctapp 1980).

Opinion

Swinehart, J.:

This appeal arose out of an action filed in the district court of Sheridan County by the plaintiffs Doyle and Veronica Kauk against the contractor Tony Woodwyk and subcontractors for their new home. The defendant First National Bank of Hoxie, which was partially financing the contract for the contractor, was also named in the suit.

The plaintiffs appeal from a summary judgment entered in favor of the First National Bank of Hoxie, arising out of its claim against the plaintiffs for $15,000 as guarantors of a loan made to the defendant contractor, and from the denial of plaintiffs’ motion for summary judgment.

Two issues are raised on appeal: (1) whether the trial court properly entered summary judgment for the Bank; and (2) whether the denial of plaintiffs’ motion for summary judgment may be reviewed upon appeal. If the denial may be reviewed, was *84 the plaintiffs’ motion for summary judgment properly denied?

In March of 1977, the Kauks hired the defendants Tony and Ruth Woodwyk, d/b/a Tony Woodwyk Construction Co., to construct a home on the plaintiffs’ real estate. The original construction cost of $59,000 was reduced to $54,000 by written agreement in September, 1977. Under the contract the plaintiffs were to make a down payment of $14,750 and then make successive installment payments of varying amounts which would become due as a fixed percentage of the work was completed. On March 18,1977, the defendant First National Bank sent a letter to Doyle Kauk which alluded to arrangements Kauk had made with Woodwyk for the purpose of enabling Woodwyk to obtain interim financing for the construction project. The letter read as follows:

March 18, 1977
Hr. Doyle Kauk
Hoxie, KS 67740
Dear Doyle:
I am requesting that you retaina^ minimum of $15,000.00, as a final payment to Mr. Woodwyk on your home construction, and that at the time of this final disbursement it be made payable to both Tony Woodwyk AND The First National Bank, Hoxie, KS.
Tony statyd tha* he had informed you of such arrangements with the Bank in the past, and I wish to say this has worked out satisfactorily.
This arrangement gives Tony working capital during construction and gives the Bank protection for fon note.
The $15,000.00 is a maximum/will loan to Tony on your home construction and is an amount agreed to with Tony prior to construction.
Please sigg the duplicate copy of this letter and have it returned to me if the above mentioned arrangements are satisfactory.
Thank you.
Sincerely yours,
MYRON DIETZ
P. S. The note will be dated to mature on June 1, 1977, since Tony feels his cash position will warrant payment of the note by that time.

Kauk signed a duplicate of the letter and returned it to the Bank as requested on March 20, 1977. As a result, the Bank extended credit to Woodwyk in the amount of $15,000. (It is not clear how the $15,000 payment required to be made jointly payable to the *85 Bank and Woodwyk would square with the payment schedule to which Woodwyk and the plaintiffs had originally agreed, as it did not call for a final payment to Woodwyk of $15,000. The Kauks indicated that they had an unwritten understanding with Woodwyk regarding this discrepancy.)

The note was renewed on June 1, 1977, but the Kauks never received notice of that action. A written agreement dated October 14, 1977, was mailed to the plaintiffs, however. That agreement provided:

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Bluebook (online)
613 P.2d 670, 5 Kan. App. 2d 83, 1980 Kan. App. LEXIS 255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kauk-v-first-natl-bank-of-hoxie-kanctapp-1980.