Livers Bronze, Inc. v. Turner Const. Co.

• Decision Date: 24 June 2008
• Docket Number: No. WD 68692.,WD 68692.
• Parties: LIVERS BRONZE, INC., Appellant, v. TURNER CONSTRUCTION COMPANY, Respondent.
• Court: Missouri Court of Appeals

264 S.W.3d 638

LIVERS BRONZE, INC., Appellant, v. TURNER CONSTRUCTION COMPANY, Respondent.

No. WD 68692.

Missouri Court of Appeals, Western District.

June 24, 2008.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 29, 2008.

Application for Transfer Denied October 28, 2008.

Greg T. Spies, Kansas City, MO, for appellant.

Jerome V. Bales, Justin Nichols, Co-counsel, Kansas City, MO, for respondent.

Before JOSEPH M. ELLIS, Presiding Judge, LISA WHITE HARDWICK, Judge and JOSEPH P. DANDURAND, Judge.

JOSEPH M. ELLIS, Judge.

Livers Bronze, Inc. appeals from the dismissal of its petition against Respondent Turner Construction Company for lack of subject matter jurisdiction. Specifically, it asserts that the trial court erred in finding that a forum selection clause in a separate contract had been incorporated by reference into the contract between the parties.

Respondent was the general contractor on a commercial construction project in Pennsylvania. On February 17, 2005, it entered into a subcontract with Appellant ("the Subcontract"), under which Appellant was to perform and furnish all labor and materials for the glass wall/rail systems on the project. Appellant is a Missouri corporation with its principal place of business in Missouri, and Respondent is a Delaware corporation with offices across the country, including in Missouri.

The Subcontract provides that Appellant was to comply with architectural plans, a "General Contract," and a seven-page document attached to the Subcontract; all of these documents together were "sometimes referred to as the Contract Documents." Neither the "General Contract" nor the architectural plans were attached, but the Subcontract states that they were available for review at Respondent's office. The document attached to the Subcontract is entitled "Turner Construction Company, Scope of Work, Dechert LLP—Cira Centre—Philadelphia, PA, Between, Turner Construction Company and Livers Bronze Company, February 17, 2005" and lists nine additional "Contract Documents" with which Appellant was required to comply.

The Subcontract defines the "General Contract" as "the General Contract (hereinafter called the General Contract) between Turner and California State Teachers Retirement System & Thomas Properties Group LLC Brandywine Cira L.P. (hereinafter called the Owner) dated 2/9/05." The Subcontract also contains a dispute resolution clause, which states:

The parties recognize that problems and disputes between them may occur and that it is preferable for them to reach an amicable resolution of same without the need to resort to formal dispute resolution procedures. In that regard, they each pledge to participate in good faith in voluntary and non-binding Alternate Dispute Resolution (ADR) procedures. However, in the event that such disputes are not resolved by mediation or another ADR procedure as Turner and the Subcontractor may agree then such disputes shall be resolved at Turner's sole option either in the manner and forum pursuant to which disputes between the Owner and Turner are to be resolved under the terms of the General Contract or according to law....

"ADR" is not further defined, and there is no forum selection clause in the Subcontract.

A dispute arose concerning payment under the Subcontract, and the parties met to discuss possible settlement but were unable to resolve the dispute. On February 16, 2007, Appellant initiated this action against Respondent in the Circuit Court of Jackson County, Missouri, to collect amounts due and owing.

On May 1, 2007, Respondent filed a demand for mediation in Pennsylvania pursuant to a dispute resolution clause in the "Dechert Tenant Improvement Agreement," which provides that all disputes must be submitted to non-binding mediation in Pennsylvania and that any disputes not resolved through mediation must be litigated in Pennsylvania. The next day, Respondent filed a motion to dismiss this action based on lack of subject matter jurisdiction, asserting that the forum selection clause in the "Dechert Tenant Improvement Agreement" was incorporated by reference into the Subcontract. Respondent admitted that the Subcontract did not specifically refer to the "Dechert Tenant Improvement Agreement" but stated that the reference to the "General Contract" with a different name, parties, and date was a "clerical error." It asserted that the parties intended for the "Dechert Tenant Improvement Agreement" to be incorporated into the Subcontract because that was the only "General Contract" for this aspect of the construction project. Respondent attached an affidavit from its project executive in support of these allegations.

Appellant opposed the motion to dismiss, arguing that the "Dechert Tenant Improvement Agreement" was not incorporated into the Subcontract because it had a different title, parties, and date and none of its terms were specifically referenced in the Subcontract. Appellant stated that it had never seen the "Dechert Tenant Improvement Agreement" until Respondent provided it as an attachment to its motion. Appellant further stated that there was never any discussion between the parties that any disputes must be resolved in Pennsylvania, that it did not intend or agree to be bound by any such forum selection clause, and that it always intended to retain its right to pursue claims in Missouri. Appellant presented an affidavit from its president in support of these statements.

After considering the parties' arguments, including Respondent's reply and Appellant's surreply that primarily addressed the admissibility of the affidavits, the trial court granted Respondent's motion to dismiss. This appeal follows.

In its sole point of error, Appellant asserts that the trial court erred in dismissing its petition because it necessarily found, erroneously, that the forum selection clause contained in the "Dechert Tenant Improvement Agreement" was incorporated by reference into the Subcontract.

As a preliminary matter, we must determine our standard of review. Respondent contends that the proper standard of review is abuse of discretion because the court granted a motion to dismiss for lack of subject matter jurisdiction. Appellant concedes that this is generally the proper standard of review for such motions, but it asserts that the proper standard in the case at bar is de novo because the court granted the motion to dismiss based on enforcement of an outbound forum selection clause. Appellant relies on Gibbons v. J. Nuckolls, Inc., 216 S.W.3d 667 (Mo. banc 2007), and Burke v. Goodman, 114 S.W.3d 276 (Mo.App. E.D.2003).

Appellant's reliance on these cases is misplaced. Gibbons did not address a forum selection clause but, rather, privity of contract, and it merely cited Burke for the de novo standard of review. 216 S.W.3d 667, 668-69. Burke affirmed the trial court's grant of a motion to dismiss based on an outbound forum selection clause and stated that an order granting a motion to dismiss is reviewed de novo, with no further discussion of the standard of review. 114 S.W.3d 276, 278-79. The standard of review in these cases was not dependent on the grounds for dismissal, and our Supreme Court has summarized the proper standard of review for motions to dismiss based on lack of subject-matter jurisdiction:

Dismissal for lack of subject-matter jurisdiction is proper whenever it appears, by suggestion of the parties or otherwise, that the court is without jurisdiction. The quantum of proof is not high; it must appear by the preponderance of the evidence that the court is without jurisdiction. Generally, the decision to dismiss for lack for subject-matter jurisdiction is a question of fact left to the sound discretion of the trial court, and it will not be reversed on appeal absent an abuse of that discretion. However, where ... the facts are uncontested, a question as to the subject-matter jurisdiction of a court is purely a question of law, which is reviewed de novo. This Court is primarily concerned with the correctness of the result, not the route taken by the trial court to reach it; the trial court's judgment will be affirmed if it is correct on any ground supported by the record, regardless of whether the trial court relied on that ground.

Mo. Soybean Ass'n v. Mo. Clean Water Comm'n, 102 S.W.3d 10, 22 (Mo. banc 2003) (internal citations omitted); see also Powell v. State Farm Mut. Auto. Ins. Co., 245 S.W.3d 864 (Mo.App. E.D., 2008).

Gibbons and Burke were both presented on undisputed facts, so de novo review was proper. See Gibbons, 216 S.W.3d at 668-69; Burke, 114 S.W.3d at 278-81. However, in the case at bar, the parties each presented an affidavit alleging different facts concerning intent to incorporate a "General Contract" into the Subcontract. Thus, because the facts are contested, we review the trial court's grant of the motion to dismiss for abuse of discretion. Mo. Soybean, 102 S.W.3d at 22. However, the court's ruling was based on contract interpretation, which we review de novo on appeal. Monsanto Co. v. Syngenta Seeds, Inc., 226 S.W.3d 227, 230 (Mo.App. E.D. 2007). "[W]e defer to the trial court's factual finding[s], [but] we independently evaluate its conclusions of law." Id. (internal quotation omitted).

In interpreting a contract, we attempt to ascertain the parties' intentions "based on the contract alone unless the contract is ambiguous." Ethridge v. Tierone Bank, 226 S.W.3d 127, 131 (Mo. banc 2007) (internal quotation omitted). "Where a written contract is unambiguous and complete on its face, parol evidence may not be introduced to vary or contradict the terms of the agreement." Jackson County v. McClain Enters., Inc., 190 S.W.3d 633, 640 (Mo.App. W.D.2006) (internal quotation omitted). However, a party may introduce parol evidence for such purposes if it argues that there was "fraud, mutual mistake, accident or erroneous omission," such that the contract does not reflect the parties'...