Brookfield R-III School Dist. v. Tognascioli Gross Jarvis Kautz Architects, Inc., R-III

• Decision Date: 12 January 1993
• Docket Number: R-III,No. WD,WD
• Parties: BROOKFIELDSCHOOL DISTRICT, Respondent, v. TOGNASCIOLI GROSS JARVIS KAUTZ ARCHITECTS, INC., Appellant. 46304.
• Court: Missouri Court of Appeals

Page 103

845 S.W.2d 103

BROOKFIELD R-III SCHOOL DISTRICT, Respondent, v. TOGNASCIOLI GROSS JARVIS KAUTZ ARCHITECTS, INC., Appellant.

No. WD 46304.

Missouri Court of Appeals,

Western District.

Jan. 12, 1993.

G. William Quatman, Kurt D. Tilton, Sughart Thomson & Kilroy, Kansas City, for appellant.

Harold W. Mitts, Jr., Svoboda and Mitts, Kansas City, for respondent.

Before FENNER, P.J., and TURNAGE and KENNEDY, JJ.

TURNAGE, Judge.

Brookfield R-III School District filed suit against Tognascioli Gross Jarvis Kautz Architects, Inc., (TGJK), for damages arising out of a contract by which TGJK performed architectural services for Brookfield in the construction of a school building. The court sustained a motion by Brookfield to stay arbitration and TGJK has appealed contending that arbitration was required under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. Reversed and remanded.

Brookfield and TGJK entered into an agreement in April 1986 by which TGJK agreed to perform architectural services for the construction of a high school in Brookfield. The agreement was a standard form of agreement between an owner and architect as promulgated by the American Institute of Architects. Article 9 of the agreement provided that "All claims disputes and other matters in question between the parties to this agreement, arising out of or relating to this agreement or the breach thereof, shall be decided by arbitration...."

A dispute arose between the parties concerning the condition of a concrete drive. As a result Brookfield filed suit against TGJK and two other parties in 1990 for damages. In its answer TGJK pleaded the arbitration article in the agreement and alleged that the issues presented by the lawsuit were not properly before a judicial forum but were to be decided by arbitration.

Brookfield dismissed its cause of action as to the other parties which left TGJK as the only defendant. Thereupon, Brookfield filed an application to stay arbitration proceedings. In response thereto, TGJK filed an application to compel arbitration and to stay the pending suit. The court entered an order sustaining the application to stay arbitration and overruled TGJK's application to compel arbitration and to stay the lawsuit.

The denial of an application to compel arbitration is appealable. 9 U.S.C. § 16, § 435.440.1(1), RSMo 1986.

The principal question presented by the parties is whether or not the contract between Brookfield and TGJK involves commerce so as to invoke the Federal Arbitration Act, 9 U.S.C. § 1 et seq. Herschel Tognascioli submitted an affidavit to the trial court in which he stated that he was the project architect for the project in question. He stated that he specified certain materials and equipment for the project which were manufactured outside of the State of Missouri. The affidavit listed the specification sections and some of the manufacturers and their out-of-state addresses which had been specified for use in the construction. The affidavit also listed several subcontractors and suppliers for the construction project which were located out-of-state. The affidavit stated the suppliers shipped construction materials across state lines and their employees crossed state lines to perform work on the project. Brookfield does not dispute that materials used in the project moved in interstate commerce and that personnel crossed state lines to build the building.

In R.J. Palmer Constr. Co. v. Wichita Band Instrument Co., 642 P.2d 127, 131 (Kan.App.1982), the court stated "courts have consistently held that contracts to design and construct buildings entirely within a state between parties domiciled in the state may involve commerce and fall within the scope of the Federal Arbitration Act when construction materials come from other states." The same holding was stated in Northwest Mechanical, Inc. v. Public Utilities Comm'n, 283 N.W.2d 522, 523-24 (Minn.1979), "Though two Minnesota entities are parties to this arbitration, the federal arbitration statute, 9 U.S.C. § 1 et seq., applies to this case because construction materials for this project came from all over the country."

Brookfield has not cited and this court has not located any case holding that construction projects involving the use of materials shipped to the project in interstate commerce and utilizing personnel which crossed state lines to work on the project did not involve interstate commerce within the contemplation of the Federal Arbitration Act (FAA). Clearly, the project in this case involved commerce and as such triggered the application of the FAA.

Brookfield contends that no interstate commerce is involved in its pending dispute with TGJK because the two entities are both in Missouri and for that reason the FAA does not apply in this dispute. Brookfield overlooks the provision of the arbitration article which provides that all disputes between the parties arising out of or relating to the agreement or the breach thereof shall be decided by arbitration. The contract is single and cannot be broken down into segments consisting of individual disputes. Because the contract involves commerce, the FAA is applicable and under the...