dissenting in part:
While I concur with most aspects of the majority’s resolution of this case—difficult in itself and made more so by appellate argument—I am compelled to dissent respectfully from my colleagues in the following two respects: (1) as to whether the terms and conditions became part of the parties’ contract, and (2) as to whether the Darner analysis raises a material question of fact.
As to the first issue, the majority concludes that there are unspecified fact questions that prevent it from deciding whether Digital’s terms and conditions became part of the original contract (the “Work Statement”) consummated in March 1983. While one can readily generate interesting factual speculations about how this dispute could have been avoided, I find none of them truly “material” under Rule 56. The necessary material facts are before us. In my view, there are several separate reasons why Digital’s terms and conditions cannot as a matter of law be part of the parties’ contract of March 1983.
The first reason is that these terms and conditions were not made part of the original contract of March 1983; they are on a separate document which Dr. Jacoby, Angus’ president, states under oath he neither saw nor discussed, a statement which on appellate review from an adverse summary judgment must be taken favorably to him. The reference in the work statement to familiarity with the “terms and conditions” above Dr. Jacoby’s signature cannot bind Angus in view of Jacoby’s affidavit that he was unaware of any such document, including its 18-month limitation period.
Secondly, Digital’s May 30, 1983 letter to Angus which enclosed this terms and conditions document refers twice to this document explicitly as a “change” from the March contract. Digital’s “change” terminology reinforces the conclusion that these terms and conditions enclosed with its May 30 letter were not part of the original March contract. At a minimum Digital’s “change” language means that Digital itself did not consider the terms and conditions enclosed in its May letter to be part of the original contract two months earlier. Put differently, Digital’s desire for a contractual “change” in order to incorporate the terms and conditions belies its claim that these same terms and conditions were already incorporated in the March agreement, i.e., one would seek to incorporate these terms only because they were not incorporated in the March agreement.
Third, after the May correspondence, the parties did not comply with their own contractual requirements for changing their original contract. The terms and conditions enclosed with Digital’s May 30 letter were not “mutually agreed on” nor “mutually acceptable,” nor were they “jointly negotiated” nor, indeed, was any resulting change ever put in “writing” by the two representatives the parties designated as having the exclusive right to negotiate such changes to the contract.
There is further legal reason for denying inclusion of the terms and conditions, namely, Sambrone’s statement, on behalf of Digital, to Angus employee Kelley that these terms and conditions did not apply to Angus. This statement is never denied by Digital. It is clear on its face. Its meaning is reinforced even more by the parties’ subsequent consistent conduct: they take no steps whatsoever to “mutually negotiate”, “mutually agree,” or render any such changes in writing by the designated negotiators as they bound themselves to do if they intended to change the original March contract.
*169Because these terms never became part of the parties’ contract, the specific term limiting the statute of limitations to 18 months did not become part of the contract and, therefore, I would find that the Angus contractual claim survives the 18-month statute of limitations.
It is true that Angus made neither a cross motion for summary judgment nor any precise contract formation argument in the trial court and only most obliquely in this court. However, though it happens rarely, summary judgment may be entered against the moving party and in favor of the nonmoving party. Johnson v. Collins, 11 Ariz.App. 327, 464 P 2d 647 (1970). Such is exactly what the trial court should have done on this contract formation issue.
Secondly, because of the conclusion above, I disagree that the Darner analysis raises any question of material fact, nor to my mind is it a necessary or even helpful component for resolving this case. Prescinding from whether the “reasonable expectation” test fits at all workably in this context, I can see on these facts no expectation by any truly reasonable person that the belated terms and conditions of May 1983 were really intended to be part of the original contract of two months earlier. Sending the case back to the trial court so the parties can reshape (or even create) and then recount their expectations on this issue nine years after the fact strikes me as fruitless an exercise as it is predictable. Such a remand is unnecessary once one reaches what I take as the proper legal conclusion that the terms and conditions of May 1983 simply never became part of the March 1983 contract.