Jim Carlson Const., Inc. v. Bailey, WD
| Court | Court of Appeal of Missouri (US) |
| Writing for the Court | FENNER |
| Citation | 769 S.W.2d 480 |
| Parties | JIM CARLSON CONSTRUCTION, INC., Respondent, v. William G. BAILEY and Judy Bailey, Appellants. 40953. |
| Docket Number | No. WD,WD |
| Decision Date | 09 May 1989 |
Page 480
v.
William G. BAILEY and Judy Bailey, Appellants.
Western District.
Robert H. Modeer, Kansas City, for appellants.
David Keith Holdsworth, Liberty, for respondent.
Before SHANGLER, P.J., and LOWENSTEIN and FENNER, JJ.
FENNER, Judge.
Appellants, William and Judy Bailey, (hereinafter referred to as the Baileys), appeal the denial by the trial court of their Application to Compel Arbitration in regard to a contract dispute between them and respondent, Jim Carlson Construction, Inc., (hereinafter referred to as Carlson Construction).
The Baileys entered into a contract on October 29, 1986, with Carlson Construction for the construction of a residential dwelling. The parties used a standard form contract prepared by the American Institute of Architects. The standard form contract used is referred to on the face of the contract as AIA Document A101. The contract is entitled "Standard Form of Agreement Between Owner and Contractor where the basis of payment is a STIPULATED SUM 1977 EDITION", (hereinafter referred to as the Agreement).
Jim Carlson, president of Carlson Construction, selected the Agreement for use by the parties herein, filled in the blanks on the agreement and presented it to the Baileys.
On April 26, 1986, Carlson Construction filed suit against the Baileys for breach of the contract. On June 15, 1988, the Baileys filed an Application to Compel Arbitration pursuant to Section 435.355, RSMo 1986.
Page 481
The Application to Compel Arbitration was denied by the trial court.The Baileys argue on appeal that the trial court erred in denying their Application to Compel Arbitration in that the Agreement incorporated by reference certain general conditions which contained a clause that required arbitration of all disputes relating to Contract Documents.
Article 1 of the Agreement provides as follows:
ARTICLE 1
The Contract Documents consist of this Agreement, the Conditions of the Contract (General, Supplementary and other Conditions) the Drawings, the Specifications, all Addenda issued prior to and all Modifications issued after execution of this Agreement. These form the Contract, and all are as fully a part of the Contract as if attached to this Agreement or repeated herein. An enumeration of the Contract Documents appears in Article 7. (emphasis added)
The conflict herein, as to whether or not the Agreement requires arbitration, arises from the provisions of Article 7 of the Agreement. Article 7 of the Agreement provides as follows:
ARTICLE 7
7.1 Terms used in this Agreement which are defined in the Conditions of the Contract shall have the meanings designated in those Conditions.
7.2 The Contract Documents, which constitute the entire agreement between the Owner and the Contractor, are listed in Article 1 and, except for Modifications issued after execution of this Agreement, are enumerated as follows: (List below the Agreement, the Conditions of the Contract (General, Supplementary, and other Conditions), the Drawings, the Specifications, and any Addenda and accepted alternates, showing page or sheet numbers in all cases and dates where applicable.) (emphasis added)
Closing will be no later than ten days after contractor notifies owner that home is complete. Owner is responsible for all meter deposits.
There were no contract documents enumerated following Section 7.2 under Article 7. Additionally, there were no...
To continue reading
Request your trial
-
State ex rel. Hewitt v. Kerr, SC 93846
...Metro Demolition & Excavating Co. v. H.B.D. Contracting, Inc., 37 S.W.3d 843 (Mo.App.2001), and Jim Carlson Construction, Inc. v. Bailey, 769 S.W.2d 480 (Mo.App.1989), the agreements did not themselves contain the arbitration procedures but instead referred to another contract or standard s......
-
Dunn Indus. Group v. City of Sugar Creek, SC 85024.
...in construction contracts that were incorporated by reference into the subcontracts. Id. at 847; Jim Carlson Constr., Inc. v. Bailey, 769 S.W.2d 480, 482 (Mo.App.1989). For example, in Jim Carlson Construction, Inc. v. Bailey, where an owner/contractor agreement for the construction of a re......
-
Baum v. Helget Gas Products, Inc., 05-2142.
...parties disagree about the contract's interpretation does not, by itself, create an ambiguity. See Jim Carlson Constr., Inc. v. Bailey, 769 S.W.2d 480, 482 (Mo.App.1989). Rather, the test is "whether the disputed language, in the context of the entire agreement, is reasonably susceptible of......
-
Alack v. Vic Tanny Intern. of Missouri, Inc., 78423
...by the court." Royal Banks of Missouri v. Fridkin, 819 S.W.2d 359, 361 (Mo. banc 1991) (citing Jim Carlson Construction, Inc. v. Bailey, 769 S.W.2d 480, 482 (Mo.App.1989)). "An ambiguity arises when there is duplicity, indistinctness, or uncertainty in the meaning of the words used in the c......