Evergreen Nat. Corp. v. Killian Const. Co.
| Decision Date | 01 March 1994 |
| Docket Number | No. WD,WD |
| Citation | 876 S.W.2d 633 |
| Parties | EVERGREEN NATIONAL CORPORATION, Appellant, v. KILLIAN CONSTRUCTION CO., Respondent. 48041. |
| Court | Missouri Court of Appeals |
William M. Modrcin, Kansas City, for appellant.
Roy Bash, Thomas A. Sheehan, Shughart, Thomson & Kilroy, P.C., Kansas City, for respondent.
Before LOWENSTEIN, Acting P.J., and FENNER and SMART, JJ.
This is an appeal from a motion to dismiss granted under Rule 55.32(a), which requires compulsory counterclaims be filed or lost. The question presented is whether the rule controls rather than the choice of forum clause agreed upon by the parties in their construction contract. This court affirms, holding Rule 55.32(a) controls rather than the parties agreement which called for any action on the contract, other than one for a mechanic's lien action, be tried in Jackson County.
On January 15, 1990 Evergreen National Corporation (Evergreen), appellant, and Killian Construction Company (Killian), respondent, entered into a contract for Killian to construct a corporate facility for Evergreen at Table Rock Lake in Stone County. The contract included the following agreement:
The parties hereto agree that any judicial action or proceeding involving this agreement or any dispute thereunder (except suit to enforce a mechanic's lien) shall be tried in a court of Jackson County, Missouri, and the parties hereto expressly submit themselves to such jurisdiction in any such case. (Emphasis added)
In the case of a mechanic's lien suit, it would be filed in the county where the real property was located as required by Missouri laws § 429.080, RSMo., 1986.
On August 28, 1992, Killian removed its long-time supervisor from the project; issued change orders which increased the fixed costs of the project as set forth in the contract; demanded immediate payment for the change orders and on the same day it presented the change orders to the architect, it filed a mechanic's lien for payment; and, on that day, Killian filed suit to enforce the lien in the Circuit Court of Stone County. Before responding to Killian's mechanic's lien action, Evergreen filed this suit in Jackson County against Killian for abuse of process, tortious interference with prospective contractual relations and fraudulent misrepresentation.
Killian moved to dismiss the Jackson County suit on the grounds the allegations should have been brought as compulsory counterclaims to the mechanic's lien action. The trial court granted the motion, holding it lacked subject matter jurisdiction to consider Evergreen's allegations since it was a compulsory counterclaim to the initial suit.
Review of a motion to dismiss requires the court to treat all facts alleged as true, and gives the non-moving party the benefit of all reasonable inferences that are fairly deducible from the facts. Murphy v. A.A. Mathews, 841 S.W.2d 671, 672 (Mo. banc 1992).
Evergreen asserts Rule 55.32 did not apply to the parties in the case at bar due to their forum selection agreement. Under Missouri law, contracting parties are presumed to know the law and have it in mind when they enter into an agreement. Zirul v. Zirul, 671 S.W.2d 320 (Mo.App.1984). Thus, it is assumed when the parties entered into the agreement they were aware of Rule 55.32 and its effects.
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