Daniels Exp. and Transfer Co. v. GMI Corp., No. 66367
| Court | Missouri Court of Appeals |
| Writing for the Court | SIMON; KAROHL |
| Citation | 897 S.W.2d 90 |
| Parties | DANIELS EXPRESS AND TRANSFER COMPANY, d/b/a Central Warehouse Company, Plaintiffs-Respondents, v. GMI CORPORATION, Morgan Investment, Inc., et al., Defendants-Appellants. |
| Docket Number | No. 66367 |
| Decision Date | 14 March 1995 |
Page 90
Warehouse Company, Plaintiffs-Respondents,
v.
GMI CORPORATION, Morgan Investment, Inc., et al.,
Defendants-Appellants.
Eastern District,
Division Four.
Motion for Rehearing and/or Transfer to
Supreme Court Denied April 12, 1995.
Application to Transfer Denied
May 30, 1995.
Page 91
Warren W. Friedman, Law Offices of Warren W. Friedman, St. Louis, for appellant.
John Ernest Hilton, Carmody, MacDonald, Hilton, Wolf & Keast, Clayton, for respondent.
SIMON, Judge.
This is an appeal from a grant of partial summary judgment in an action to recover a broker's commission. Defendants GMI Corporation and Wayne A. Brent (Brent) present two points on appeal: (1) the trial court erred in failing to consider evidence showing that there was a genuine issue of material fact, and (2) the term "site work" is ambiguous, thus creating a factual issue for the jury. Each of these issues turns on whether the term "site work" is ambiguous. Therefore, they are addressed collectively.
Plaintiff, Thomas M. Dunn, d/b/a T.M. Dunn & Co., entered into a "Contractor's Commission/Fee Agreement" (agreement) with defendants. The agreement provided for the payment of a commission to plaintiff for broker's efforts and coordination of warehouse contract. The agreement further provided:
[t]his commission/fee is due and payable in full to T.M. Dunn & Company/Thomas M. Dunn, Broker, upon commencement of any site work (including any grading and/or excavation for the purpose of building a warehouse but excluding any grading and/or excavation for the purpose of remediation or for any other purpose not related to the construction of a building) for the aforementioned [warehouse].
(Emphasis added.)
Structural Systems, a construction contractor, performed work at the property where the warehouse was to be built. That work included removing trees and shrubs and taking soil samples. The warehouse never was constructed. Claiming that site work had commenced, plaintiff filed a lawsuit seeking payment of a commission under the agreement. Plaintiff moved for summary judgment. In support, plaintiff offered an affidavit from Wayne E. Ortmann, vice president of Structural Systems, stating that site work for the purpose of constructing a warehouse had begun at the property. Plaintiff also alleged that Brent admitted in his deposition that site work had begun.
Defendants' response to plaintiff's motion for summary judgment included two affidavits. One affidavit, by Brent, denied any admission by him that site work within the context of triggering a commission had commenced. The other affidavit by Arthur I. Roufa, an experienced construction...
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Rabius v. Brandon, No. WD 67890.
...for the Healing Arts, 131 S.W.3d 831, 839 (Mo.App. W.D.2004) (emphasis added) (quoting Daniels Express & Transfer Co. v. GMI Corp., 897 S.W.2d 90, 92 (Mo.App. E.D.1995)). "[C]ourts are prohibited from creating ambiguities by distorting contractual language that may otherwise be rea......
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Lacey v. State Bd. of Reg. for Healing Arts, No. WD 62574.
...when the words are given their plain meaning as understood by an average person." Daniels Express & Transfer Co. v. GMI Corp., 897 S.W.2d 90, 92 (Mo.App. E.D.1995). "To determine whether the terms of a contract are ambiguous, words should be given their natural and ordinary me......
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Sanders v. Insurance Co. of N.America
...extrinsic evidence should not be introduced to show the intentions of the parties." Daniels Express and Transfer Co. v. GMI Corp., 897 S.W.2d 90, 92 (Mo. App. E.D. 1995). Therefore, she reasons the policy or underlyer memorandum itself is the only source as to the intent and meaning of......
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Lupo v. Shelter Mut. Ins. Co., No. ED 79238.
...when construction of a contract is at issue and the contract is unambiguous on its face. Daniels Express and Transfer Co. v. GMI Corp., 897 S.W.2d 90, 70 S.W.3d 19 91-92 (Mo.App.1995). We will accord the non-moving party the benefit of all reasonable inferences from the record. ITT, 854 S.W......
-
Rabius v. Brandon, No. WD 67890.
...for the Healing Arts, 131 S.W.3d 831, 839 (Mo.App. W.D.2004) (emphasis added) (quoting Daniels Express & Transfer Co. v. GMI Corp., 897 S.W.2d 90, 92 (Mo.App. E.D.1995)). "[C]ourts are prohibited from creating ambiguities by distorting contractual language that may otherwise be rea......
-
Lacey v. State Bd. of Reg. for Healing Arts, No. WD 62574.
...when the words are given their plain meaning as understood by an average person." Daniels Express & Transfer Co. v. GMI Corp., 897 S.W.2d 90, 92 (Mo.App. E.D.1995). "To determine whether the terms of a contract are ambiguous, words should be given their natural and ordinary me......
-
Sanders v. Insurance Co. of N.America
...extrinsic evidence should not be introduced to show the intentions of the parties." Daniels Express and Transfer Co. v. GMI Corp., 897 S.W.2d 90, 92 (Mo. App. E.D. 1995). Therefore, she reasons the policy or underlyer memorandum itself is the only source as to the intent and meaning of......
-
Lupo v. Shelter Mut. Ins. Co., No. ED 79238.
...when construction of a contract is at issue and the contract is unambiguous on its face. Daniels Express and Transfer Co. v. GMI Corp., 897 S.W.2d 90, 70 S.W.3d 19 91-92 (Mo.App.1995). We will accord the non-moving party the benefit of all reasonable inferences from the record. ITT, 854 S.W......