Kohner Props., Inc. v. SPCP Grp. VI, LLC
| Decision Date | 17 September 2013 |
| Docket Number | No. ED 99900.,ED 99900. |
| Citation | 408 S.W.3d 336 |
| Parties | KOHNER PROPERTIES, INC., Debra J. Pyzyk, Individually and as Trustee of the Debra J. Pyzyk, Revocable Living Trust, and as Trustee of the Residuary Trust Created under the Jon M. Pyzyk Revocable Living Trust, Jamestown Indianapolis, LLC, Willowbrook Indianapolis, LLC, Whitfield Square, LLC, Waterstone Place, LLC and Vineyards Management, Inc, Plaintiffs/Appellants, v. SPCP GROUP VI, LLC, Defendant/Counterclaim Plaintiff/Respondent, v. Barrington Place Management, Inc., Vineyards Apartments, LLC, Shenandoah Valley, LLC, Heatherstone Apartments, LLC, and Barrington Place, LLC., Counterclaim Defendants. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
Joseph R. Dulle, Robert Hellwig, Clayton, MO, for Plaintiffs/Appellants.
Booker T. Shaw, William R. Bay, Christopher M. Hohn, John S. Kingston, St. Louis, MO, Ryan L. Leitch, Kevin N. Tharp, Attorneys–Pro Hac Vice, Indianapolis, IN, for Defendant/Counterclaim Plaintiff/Respondent.
Kohner Properties, Inc. (Kohner); Debra J. Pyzyk, Individually and as Trustee of the Debra J. Pyzyk Revocable Living Trust (Debra Trust) and as Trustee of the Residuary Trust created under the Jon M. Pyzyk Revocable Living Trust (Jon Trust); Jamestown Indianapolis, LLC (Jamestown); Willowbrook Indianapolis, LLC (Willowbrook); Whitfield Square, LLC (Whitfield); Waterstone Place, LLC (Waterstone); and Vineyards Management, Inc. (Vineyards Management) (collectively Appellants) appeal from the trial court's judgment denying their Application to Compel Arbitration. We affirm.
Starting in 2004, Bank of America, N.A. (BOA) loaned approximately $34.5 million to Jamestown, Willowbrook, Waterstone, Whitfield (collectively, the Borrowers) and Shenandoah Valley, LLC (Shenandoah), the owners and operators of apartment buildings located in Tulsa, Oklahoma and Indianapolis, Indiana.
In January 2005, Jamestown, Willowbrook, Shenandoah and Waterstone entered into a term loan agreement with BOA (the Loan Agreement). Section 8.16 of the Loan Agreement 1 contains an arbitration clause:
Section 8.16 Dispute Resolution
(a) Arbitration. Except to the extent expressly provided below, any Dispute shall, upon the request of either party, be determined by binding arbitration in accordance with the Federal Arbitration Act, Title 9, United States Code (), the applicable rules for arbitration of disputes of JAMS and the “Special Rules” set forth below ...
...
(c) Reservations of Rights. Nothing in this Agreement shall be deemed to ... (ii) apply to or limit the right of Lender (A) to exercise self help remedies such as (but not limited to) setoff, or (B) to foreclose judicially or nonjudicially against any real or personal property collateral, or to exercise judicial or nonjudicial power of sale rights, (C) to obtain from a court provisional or ancillary remedies such as (but not limited to) injunctive relief, writ of possession, prejudgment attachment, or the appointment of a receiver, or (D) to pursue rights against a party to this Agreement in a third-party proceeding in any action brought against Lender in a state, federal or international court, tribunal or hearing body (including actions in specialty courts, such as bankruptcy and patent courts). Lender may exercise the rights set forth in clauses (A) through (D), inclusive, before during or after the pendency of any arbitration proceeding brought pursuant to this Agreement....
The Loan Agreement contains the following definitions:
“Dispute” means any controversy, claim or dispute between or among the parties to this Agreement, including any such controversy, claim or dispute arising out of or relating to (a) this Agreement, (b) any other Loan Document, (c) any related agreements or instruments, or (d) the transaction contemplated herein or therein (including any claim based on or arising from an alleged personal injury or business tort).
“Loan Document” means this Agreement, the Note, the Mortgage, the Environmental Agreement, the Guaranty, any application or reimbursement agreement executed in connection with any Letter of Credit, and any and all other documents which Borrower, Guarantor or any other party or parties executed and delivered, or may hereafter execute and deliver, to evidence, secure or guarantee the Obligations, or any part thereof, as the same may from time to time be extended, amended, restated, supplemented or otherwise modified.
Kohner, Jon M. Pyzyk and Debra J. Pyzyk executed various guaranty agreements (the Guaranty Agreements) in favor of BOA in connection with the Loans over the course of several years.
In 2009, 2010, and 2011, the Debra Trust, the Jon Trust, Vineyards Management and Barrington Place Management, Inc. (Barrington Place) (collectively Pledgors) executed a Pledge Agreement in favor of BOA in connection with BOA's extension and modification of the Loans.
The Pledge Agreement states BOA required the agreement “in order to secure the prompt and complete payment, observance and performance of all of the indebtedness, obligations and liabilities owing to Lender under the Whitfield Note and/or the [Loan Agreement] and any of the other ‘Loan Documents,’ as such term is defined in each of the Whitfield Note and/or [the Loan Agreement]....” The agreement pledged additional collateral for the Loans and granted a security interest to BOA in “all of [Pledgors'] right to receive any profits, proceeds, distributions, loan repayments, advances, contributions and/or payments in money or in kind” from the collateral. The collateral includes 100 percent of Pledgors' ownership interests in Vineyards Apartments, LLC (Vineyard Apartments); Barrington Place, LLC; Shenandoah; and Heatherstone Apartments, LLC (Heatherstone) (collectively the Collateral or Pledge Companies).
The last amended Pledge Agreement contains an Acknowledgement in which the Pledge Companies acknowledge and consent to the amendments and ratify and reaffirm their obligations under the Pledge Agreement. The Acknowledgement is also signed by Jamestown, Willowbrook, Waterstone and Whitfield as “Borrowers,” wherein they acknowledge and consent to the amendment of the Pledge Agreement and acknowledge and agree that Barrington Place shall be deemed one of the Pledge Companies, as such term is used in the Loan Agreement.
The Pledge Agreement contains the following provisions:
12. Events of Default. Each of the following events shall constitute an event of default ...
(c) the occurrence of any “Event of Default” under the Whitfield Note and/or [the Loan Agreement] or under any other “Loan Document” as such term is defined in either the Whitfield Note or [the Loan Agreement].
...
15. Lender's Exercise of Rights and Remedies at Such Time as an Event of Default Exists. Notwithstanding anything set forth herein to the contrary, it is hereby expressly agreed that Lender may exercise any of the rights and remedies provided in this Agreement or the other Loan Documents (as defined in [the Loan Agreement] and/or Whitfield Note) or at law or in equity at any time that an Event of Default exists. Pledgor acknowledges and agrees that this Agreement is a “Loan Document”, as such term is used in [the Loan Agreement] and the Whitfield Note.
The pleadings allege the Loans matured on October 15, 2012; that Borrowers defaulted on the Loans by not paying the outstanding balance of approximately $24 million, and that those defaults have not been cured. In December 2012, BOA sold, transferred, and assigned all of its right, title and interest in the Loans, the Guarantee Agreements and the Pledge Agreement to SPCP Group VI, LLC (SPCP). In February 2013, SPCP filed actions in Indiana and Oklahoma for breach of the Loans.
On February 8, 2013, SPCP noticed the sale of certain Collateral under the Pledge Agreement. On February 15 and February 19, 2013, Appellants filed a Demand for Arbitration with JAMS, the arbitrator named in the Loans.
On February 19, 2013, Appellants instituted the current matter by filing a Verified Motion for Temporary Restraining Order seeking a temporary restraining order (TRO) enjoining SPCP from proceeding with the sale under the Pledge Agreement and an Application to Compel Arbitration seeking an order from the court compelling the parties to arbitrate any and all disputes arising from the Loans, the Guaranty Agreements, and the Pledge Agreement. On February 26, 2013, the trial court entered its judgment denying Appellants' request for a TRO.
On March 6, 2013, SPCP conducted a UCC sale of the payment rights as to Vineyard Apartments, Shenandoah, and Heatherstone. SPCP was the highest bidder at the sale and purchased the payment rights.
Upon SPCP's motion, the trial court added Vineyard Apartments, Shenandoah, Heatherstone, Barrington Place Management and Barrington Place to the action as counterclaim defendants.
On April 1, 2013, SPCP filed its Amended Counterclaims alleging breach of the Pledge Agreement against Vineyards Apartments, Shenandoah, Heatherstone, Barrington Place, the Jon Trust, the Debra Trust, Barrington Management and Vineyards Management (Counts I, III, V); Accounting/Receivership against the same parties (Counts II, IV, VI); and Tortious Interference with Contract against Kohner and Vineyards Management (Count VII). SPCP requested the court enter an order enjoining the Appellants and counterclaim defendants from making any unauthorized use or diverting proceeds of the Pledge Companies other than as specified in the Pledge Agreement and to appoint a receiver and order an accounting to “account for and to keep, preserve, and protect the property rights and interests of SPCP in and to the Pledge Companies[.]”
On April 2, 2013, the trial court conducted a hearing on Appellants' ...
To continue reading
Request your trial
-
Salau v. Denton
...of contract, and a party cannot be required to arbitrate a dispute that it has not agreed to arbitrate." Kohner Props., Inc. v. SPCP Grp. VI, LLC, 408 S.W.3d 336, 343 (Mo.Ct.App.2013) (quoting Dunn Indus. Group, Inc. v. City of Sugar Creek, 112 S.W.3d 421, 435–36 (Mo. banc 2003) ). In the C......
-
Jimenez v. Cintas Corp.
...agreement to "ascertain the intention of the parties and to give effect to that intent." See Kohner Properties, Inc. v. SPCP Group VI, LLC, 408 S.W.3d 336, 342 (Mo.App.E.D.2013) (quoting Dunn Industrial Group, Inc. v. City of Sugar Creek, 112 S.W.3d 421, 428 (Mo. banc 2003) ). Furthermore, ......
-
Jimenez v. Cintas Corp.
...agreement to "ascertain the intention of the parties and to give effect to that intent." See Kohner Properties, Inc. v. SPCP Group VI, LLC, 408 S.W.3d 336, 342 (Mo. App. E.D. 2013) (quoting Dunn Industrial Group, Inc. v. City of Sugar Creek, 112 S.W.3d 421, 428 (Mo. banc 2003)). Furthermore......
-
Harris v. Volt Mgmt. Corp.
...‘a reasonable meaning to all of the provisions of the agreement’ " in doing so. Id. (quoting Kohner Props., Inc. v. SPCP Grp. VI, LLC , 408 S.W.3d 336, 342-43 (Mo. App. E.D. 2013) ). The "[e]xcept as otherwise stated" clause cannot reasonably be read to exempt only the delegation clause or ......