AJM Packaging Corp. v. Crossland Const. Co., Inc.

• Decision Date: 17 February 1998
• Docket Number: No. 21480,21480
• Citation: 962 S.W.2d 906
• Parties: AJM PACKAGING CORPORATION, Respondent, v. CROSSLAND CONSTRUCTION COMPANY, INC., Appellant.
• Court: Missouri Court of Appeals

Page 906

962 S.W.2d 906

AJM PACKAGING CORPORATION, Respondent, v. CROSSLAND CONSTRUCTION COMPANY, INC., Appellant.

No. 21480.

Missouri Court of Appeals,

Southern District,

Division One.

Feb. 17, 1998.

Harold W. Mitts, Jr., Kansas City, Svoboda & Mitts, P.C., Stephen J. Dennis, Overland Park, Kansas, Daniel Whitworth, Myers, Taylor & Whitworth, Joplin, for appellant.

Bruce A. Copeland, Copeland & Scott, Joplin, Stuart Teger, Honigman, Miller, Schwartz & Cohn, Detroit, MI, for respondent.

CROW, Judge.

This dispute arises from a contract in which Crossland Construction Company, Inc. (designated "Contractor" in the contract) agreed to perform work for AJM Packaging Corporation (designated "Owner" in contract). This opinion henceforth refers to the parties by their respective designations in the contract.

Owner sued Contractor, averring Contractor breached the contract and breached a warranty that the work "would be of good quality and free of faults and defects."

Contractor moved the trial court to order Owner "to arbitrate the pending claims." The trial court denied Contractor's motion.

Contractor appeals. ¹ Contractor's sole point relied on is:

"The trial court erred in refusing to submit this case to arbitration because [Contractor] has an absolute right to arbitrate this dispute in that the contract provides for arbitration of all 'disputes' between the parties and under the Federal Arbitration Act and/or Missouri Uniform Arbitration Act the trial court had no authority to refuse to compel arbitration."

Owner presents three reasons which, according to Owner, demonstrate the trial court did not err in denying Contractor's motion to compel arbitration. One of Owner's reasons is that Contractor "failed to establish an agreement to arbitrate."

The parties agree that one component of the contract is an eight-page document denominated: "AIA Document A101, Standard Form of Agreement Between Owner and Contractor ... 1987 Edition." This opinion henceforth refers to that document as "the Base Contract."

At the outset, the Base Contract states: "The 1987 Edition of AIA Document A201, General Conditions of the Contract for Construction, is adopted in this document by reference."

On page 6 of the Base Contract is a segment headed: "Article 9, Enumeration of Contract Documents." That segment reads, in pertinent part:

"9.1 The Contract Documents, except for Modifications issued after execution of this Agreement, are enumerated as follows:

9.1.1 The Agreement is this executed Standard Form of Agreement Between Owner and Contractor, AIA Document A101, 1987 Edition.

9.1.2 The General Conditions are the General Conditions of the Contract for Construction, AIA Document 201, 1987 Edition.

9.1.3 The Supplementary and other Conditions of the Contract are those contained in the Project Manual dated 12-18-93, and are as follows: ... Specifications referenced in paragraph 9.1.4 below[.]

9.1.4 The Specifications are those contained in the Project Manual dated as in Subparagraph 9.1.3, and are as follows: ... Project specifications for A.J.M. Packaging Corporation [Pages] 00100-1--16700-1

...."

Paragraph 9.1.2, quoted above, is consistent with the proviso at the outset of the Base Contract (quoted earlier) in that both refer to the 1987 Edition of AIA Document A201, the "General Conditions of the Contract for Construction." This opinion henceforth refers to the latter document as "Document A201 (1987)."

Section 435.355 reads:

"1. On application of a party showing an agreement described in section 435.350,[ ²] and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party; otherwise, the application shall be denied...."

The application to compel arbitration filed by Contractor in the trial court was accompanied by written suggestions. Attached to the suggestions was a copy of the Base Contract. Also attached to the suggestions was a page referred to in the suggestions as "Exhibit B." ³ According to the suggestions, Exhibit B was "the pertinent section" of Document A201 (1987). Exhibit B contained a paragraph numbered 4.5.1. A portion of that paragraph is footnoted below. ⁴

In a written response in opposition to Contractor's application to compel arbitration, Owner averred that the "actual contract between the parties prohibits arbitration as the means of resolving disputes and instead requires that all disputes 'be settled in court by the Courts of the State of Missouri.' "

The trial court held a hearing, evidently pursuant to § 435.355.1 (quoted earlier). At the hearing, Owner offered the Base Contract and 23 other exhibits--all of which were documents--"for the record for purposes of the motion regarding the compelling arbitration[.]"

Owner also had two affidavits of Contractor's president marked as exhibits. One affidavit was dated August 8, 1996; it was marked Exhibit 9. The other affidavit was dated November 21, 1996; it was marked Exhibit 13.

Regarding the affidavits, Owner's lawyer said:

"And # 9 and # 13 are simply Mr. Crossland's two affidavits which I assume if we can stipulate that the [Owner] has presented those for evidence at this purpose I'd be happy to let them be used. I have them here if you want.... If the [Contractor] would like they can use these marked Exhibits, # 9 and # 13, if they like."

One of Contractor's lawyers said:

"Your Honor, I just want to clarify for the record that there is nothing before the Court to say that the plans and specs as a whole, as we look at all these Exhibits here today or otherwise, were given to [Contractor] as a unit. There's just absolutely no testimony to that effect. So with that objection."

Another of Contractor's lawyers said:

"I think I know what [Owner's lawyer] is doing, which is again trying to establish a record from whatever occurs from here on. We have already prior filed the originals of the affidavits, both the affidavits.... We don't have any objection to them being offered as an Exhibit either if that's felt necessary for the purpose of establishing the record. They are contained in the file."

The trial court announced:

"[T]he affidavits are in the file, so I'll have them to read if that's a problem."

Regarding the exhibits offered by Owner, the trial court announced:

"I'll admit these for the limited purpose of review by the Court for the purpose of ruling whether this ought to be tried or arbitrated."

No one testified at the hearing and, as best this court can determine from the record, no other exhibit was offered.

Owner's contention that Contractor "failed to establish an agreement to arbitrate" is based on Owner's failure to present Document A201 (1987) to the trial court at the hearing.

As we have seen, at least two provisions of the Base Contract incorporate Document A201 (1987) into the contract between the parties. The first provision is at the outset of the Base Contract; the second provision is paragraph 9.1.2 of the Base Contract. Both provisions are quoted earlier in this opinion. This opinion henceforth refers to those provisions as "the incorporation provisions."

This court holds Document A201 (1987)--whatever it may say--was incorporated into the parties' contract by the incorporation provisions. ⁵ However, that does not mean Document A201 (1987) compels arbitration. Whether Document A201 (1987) compels arbitration hinges on whether paragraph 4.5.1 (quoted in footnote 4, supra ) is part of Document A201 (1987). To facilitate discussion of that issue, this opinion henceforth refers to paragraph 4.5.1 as "the alleged arbitration provision."

The only indication in the record that the alleged arbitration provision appears in Document A201 (1987) is the averment in the suggestions filed by Contractor in the trial court, to which Exhibit B (referred to earlier) was attached. As previously recounted, Contractor's suggestions alleged Exhibit B was "the pertinent section" of Document A201 (1987). However, pleadings are not self-proving. Brawley & Flowers, Inc. v. Gunter, 934 S.W.2d 557, 561 (Mo.App. S.D.1996). Accordingly, even if Contractor's suggestions constituted a pleading--we do not imply they did--no averment therein proved itself. Therefore, Contractor's suggestions did not establish that Exhibit B was "the pertinent section" of Document A201 (1987).

Owner asserts, and Contractor tacitly concedes, that neither Exhibit B nor any document identical to it was presented to the trial court at the hearing. Nonetheless, Contractor proclaims:

"[I]t was not necessary to introduce 'evidence' of the arbitration provision at the hearing. It was already 'in the record,' as acknowledged by the trial court during the hearing."

In support of that hypothesis, Contractor refers this court to a comment by the trial court at the end of the hearing. There, the trial court acknowledged that all "briefs" and "documents" were "part of the file" and the court was "going to review the file." Consequently, says Contractor, "It was unnecessary to introduce additional 'evidence' of an agreement to arbitrate at the hearing."

Contractor cites no authority for its premise that merely because Exhibit B appeared in the "file," the trial court was compelled to believe that Exhibit B was "the pertinent section" of Document A201 (1987), i.e., a section of Document A201 (1987) containing the alleged arbitration provision.

The authenticity of Exhibit B was not established by any of the usual methods: pleadings, interrogatories, requests for admissions, or testimony. Contractor could have easily used any one of those methods to establish that Exhibit B was what Contractor's suggestions--signed by its lawyers--said it was. However, as this court explained in Re Redemption Proceeding by Hokanson, ...