Metro Demolition v. H.B.D.

CourtMissouri Court of Appeals
Writing for the CourtGary M. Gaertner, Sr.; AFFIRMED IN PART, REVERSED AND REMANDED IN PART. Crahan and Draper III
Citation37 S.W.3d 843
Parties(Mo.App. E.D. 2001) Metro Demolition &B Excavating Company, Respondent v. H.B.D. Contracting, Inc., and E.M. Harris Construction/H.B.D. Contracting, L.L.C., Appellant. ED76988 0
Decision Date13 February 2001

37 S.W.3d 843 (Mo.App. E.D. 2001)
Metro Demolition &B Excavating Company, Respondent
v.
H.B.D. Contracting, Inc., and E.M. Harris Construction/H.B.D. Contracting, L.L.C., Appellant.
ED76988
Missouri Court of Appeals Eastern District
02/13/2001

Appeal From: Circuit Court of the City of St. Louis, Hon. Michael B. Calvin

Counsel for Appellant: Andrew W. Manual and Jackson D. Glisson

Counsel for Respondent: Stephen J. Nangle

Opinion Summary: Appellants, H.B.D. Contracting, Inc. ("HBD"), and E.M. Harris Construction/H.B.D. Contracting, L.L.C. ("LLC"), appeal the order entered by the Circuit Court of the City of St. Louis denying their motion to stay litigation pending arbitration.

Division Three holds: The trial court correctly denied appellants' motion to stay litigation pending arbitration regarding the Tot Lot and Playground Construction subcontract, because the subcontract did not validly incorporate by reference the arbitration provisions of a later dated prime contract. The trial court erred in denying appellants' motion regarding the Earthwork Site Preparation and Public Improvements subcontracts because these subcontracts incorporated by reference arbitration provisions of their respective prime contracts.

Gary M. Gaertner, Sr., Presiding Judge

Appellants, H.B.D. Contracting, Inc. ("HBD"), and E.M. Harris Construction/H.B.D. Contracting, L.L.C. ("LLC"), appeal the order entered by the Circuit Court of the City of St. Louis denying their motion to stay litigation pending arbitration.1 We affirm in part and reverse in part.

This case involves three construction subcontracts arising out of the same project between respondent, Metro Demolition & Excavating Company ("Metro"), and appellants. The subcontracts relate to excavation and earthwork to be performed at the Murphy Park Public housing project located in the City of St. Louis. Appellants are the general contractors on different phases of the project.

The first subcontract between HBD and Metro was entered into on February 7, 1996, the Tot Lot and Playground Equipment Construction subcontract. The subcontract provided in pertinent part:

The Drawings; Specification; Addenda to the Specifications and Contractor's Construction Contract including General Conditions of the Contract for Construction, are hereby made a part of this Subcontractor's Agreement.

The above subcontract incorporates many documents, including the General Conditions of the Contract for Construction, which states in relevant part:

THIS AGREEMENT, made the 20th day of March 1996,2 by and between H.B.D. CONTRACTING INC. (hereinafter called the "Contractor") and VAUGHN ASSOCIATES, L.P. (hereinafter called the "owner").

WITNESSETH, that the Contractor and the Owner, for the consideration hereafter set out, agree as follows:

Article 1 -- Scope of Contract

A. The Contract between the parties is set forth in the "Contract Documents", which consist of this Agreement, the Drawings and the Specifications, to which are attached the current edition of AIA Document A201, "General Conditions of the Contract for Construction", and FHA Form No. 2554, "Supplementary Conditions of the Contract for Construction". The provisions of this instrument and the said FHA Supplementary Conditions take precedence over all inconsistent provisions in the said AIA General Conditions. Any provision in said AIA General Conditions whereby the undersigned waive all rights against each other for damages caused by fire and other perils covered by insurance shall be inapplicable. This Contract constitutes the entire agreement between the parties, and any previously existing contract concerning the work contemplated by the Contract Documents is hereby revoked.

Article 4.5.1 of A201 provides in pertinent part:

4.5.1 Controversies and Claims Subject to Arbitration. Any controversy or Claim arising out of or related to the Contract, or the breach thereof, shall be settled by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association ....

The second subcontract between HBD and Metro was entered into on April 17, 1996, the Earthwork Site Preparation subcontract, whereby Metro agreed to provide earthwork work for the project. The subcontract provided in pertinent part:

...

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11 practice notes
  • State ex rel. Hewitt v. Kerr, No. SC 93846
    • United States
    • Missouri Supreme Court
    • April 28, 2015
    ...the contract itself. Reference to the appropriate rules is adequate.In 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 ar......
  • Dunn Indus. Group v. City of Sugar Creek, No. SC 85024.
    • United States
    • United States State Supreme Court of Missouri
    • August 26, 2003
    ...v. Mutual Risk Management, Ltd., 46 S.W.3d 118, 121 (Mo.App.2001); Metro Demolition & Excavating Co. v. H.B.D. Contracting, Inc., 37 S.W.3d 843 (Mo.App.2001)(assumes appealability); Mueller v. Hopkins & Howard, P.C., 5 S.W.3d 182, 186-87 (Mo.App. 1999); Reis v. Peabody Coal Co., 935......
  • U.S. for Use of Light. & Power v. Interface Const., No. 07-3678.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • January 29, 2009
    ...by reference a second contract that is not yet in existence. See Metro Demolition & Excavating Co. v. H.B.D. Contracting, Inc., 37 S.W.3d 843, 846 (Mo.App.2001). In these circumstances, we agree with the district court that, like the bond incorporation provisions at issue in AgGrow Oils......
  • American Insurance Co. v. Siena Construction Corp., 034929
    • United States
    • Superior Court of Massachusetts
    • October 9, 2007
    ...Inc. v. Jefferson Parish School Board, 302 So.2d 280 (La. 1974); Metro Demolition & Excavating Co. v. H.B.D. Contracting, Inc., 37 S.W.3d 843, 847 (Mo.App. 2001); Wasserstein v. Kovatch, 261 N.J.Super. 277, 618 A.2d 886, 891 (1993); Gibbons-Grable Co. v. Gilbane Building Co., 34 Ohio.Ap......
  • Request a trial to view additional results
11 cases
  • State ex rel. Hewitt v. Kerr, No. SC 93846
    • United States
    • Missouri Supreme Court
    • April 28, 2015
    ...the contract itself. Reference to the appropriate rules is adequate.In 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 ar......
  • Dunn Indus. Group v. City of Sugar Creek, No. SC 85024.
    • United States
    • United States State Supreme Court of Missouri
    • August 26, 2003
    ...v. Mutual Risk Management, Ltd., 46 S.W.3d 118, 121 (Mo.App.2001); Metro Demolition & Excavating Co. v. H.B.D. Contracting, Inc., 37 S.W.3d 843 (Mo.App.2001)(assumes appealability); Mueller v. Hopkins & Howard, P.C., 5 S.W.3d 182, 186-87 (Mo.App. 1999); Reis v. Peabody Coal Co., 935......
  • U.S. for Use of Light. & Power v. Interface Const., No. 07-3678.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • January 29, 2009
    ...by reference a second contract that is not yet in existence. See Metro Demolition & Excavating Co. v. H.B.D. Contracting, Inc., 37 S.W.3d 843, 846 (Mo.App.2001). In these circumstances, we agree with the district court that, like the bond incorporation provisions at issue in AgGrow Oils......
  • American Insurance Co. v. Siena Construction Corp., 034929
    • United States
    • Superior Court of Massachusetts
    • October 9, 2007
    ...Inc. v. Jefferson Parish School Board, 302 So.2d 280 (La. 1974); Metro Demolition & Excavating Co. v. H.B.D. Contracting, Inc., 37 S.W.3d 843, 847 (Mo.App. 2001); Wasserstein v. Kovatch, 261 N.J.Super. 277, 618 A.2d 886, 891 (1993); Gibbons-Grable Co. v. Gilbane Building Co., 34 Ohio.Ap......
  • Request a trial to view additional results

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