OFW Corp. v. City of Columbia, WD

• Decision Date: 28 February 1995
• Docket Number: No. WD,WD
• Citation: 893 S.W.2d 876
• Parties: OFW CORPORATION, Appellant, v. CITY OF COLUMBIA, Missouri, Respondent. 49673.
• Court: Missouri Court of Appeals

Page 876

893 S.W.2d 876

OFW CORPORATION, Appellant, v. CITY OF COLUMBIA, Missouri, Respondent.

No. WD 49673.

Missouri Court of Appeals Western District.

Feb. 28, 1995.

Lawrence R. McClure, Marshall, for appellant.

Fred A. Boeckmann, Columbia, for respondent.

Before KENNEDY, P.J., and LOWENSTEIN and HANNA, JJ.

HANNA, Judge.

This is an appeal from the order of the circuit court dismissing OFW Corporation's petition for declaratory judgment for lack of standing. On September 25, 1992, the City of Columbia and the Boone County Regional Sewer District entered into a written agreement (Waters Edge Agreement) concerning the treatment of sewage generated in the Waters Edge, Lakeland Acres, Lakeland Estates and Lakewood Villa subdivisions. (Waters Edge subdivisions) These subdivisions were located in a portion of Boone County which was outside the city limits of Columbia. The Waters Edge agreement provided that the District would maintain a wastewater treatment facility which would serve the Waters Edge subdivisions named in the agreement. The contract also stated that the City operates a regional wastewater treatment plant which is capable of providing wastewater treatment services for those subdivisions and that it is sound environmental and public health policy to eliminate as many small wastewater facilities as possible; that it would be feasible to construct a sewer line to connect the Waters Edge subdivisions to the City's proposed H-21 Hominy Branch trunk sewer and to eliminate the wastewater treatment facility currently serving those developments; that the District shall retain ownership rights in the sewage collection system and the sewer customers in the Waters Edge, Lakeland Acres, Lakewood Estates and Lakewood Villa subdivisions shall remain District customers. The contract also provided that the Sewer District could not extend any sewer lines outside the Waters Edge area without the prior written consent of the City, and the City agreed not to unreasonably withhold consent. The parties also agreed that the City could not extend sewer lines outside the Waters Edge area without the prior consent of the Sewer District.

In May 1993, OFW Corporation requested authorization from the Sewer District to make a sewer connection to the Lakeland Acres sewer system for a proposed subdivision which it sought to develop. The Sewer District requested the City's consent to connect OFW's proposed subdivision to the existing collection sewer line in the Lakewood Acres subdivision. In June 1993, the City refused consent based on OFW's refusal to request a voluntary annexation of its property to the City. In July 1993, OFW Corporation acquired the property immediately west of the Lakeland Acres subdivision which was outside the city limits of Columbia and within 190 feet of the Sewer District's collection system. Shortly thereafter, the Sewer District renewed its request for a sewer connection. On September 7, 1993, the City adopted a resolution authorizing the extension of sewer services to the OFW property. The authorization was conditioned upon OFW developing the property and its sewer lines to comply with City standards as well as constructing streets, storm sewers and sidewalks in accordance with City specifications and using City water services. OFW objected to this resolution and it was repealed in January 1994. In February 1994, the Sewer District renewed its request for a sewer connection from the OFW property to the sewer line in the Lakewood Acres subdivision. After the City failed to honor this request, OFW filed a petition for a declaratory judgment alleging that the City had acted unreasonably and in violation of the Waters Edge agreement by refusing to authorize the connection of the OFW property to the Lakewood Acres sewer lines. The City filed a motion to dismiss on the grounds that OFW lacked standing to maintain a declaratory judgment action because it was not a party to the Waters Edge agreement. On May 26, 1994, the circuit court sustained the City's motion to dismiss. This appeal followed.

For its sole point on appeal, OFW contends that the trial court erred in dismissing its petition for declaratory judgment for lack of standing because OFW was a third-party beneficiary of the Waters Edge agreement.

In reviewing an order sustaining a motion to dismiss, this court determines whether the facts pleaded and the inferences to be reasonably drawn therefrom state any ground for relief. Duvall v. Coordinating Bd. for Higher Educ., 873 S.W.2d 856, 858 (Mo.App.1994). We accept the facts pleaded as true and construe the allegations in the petition liberally and favorably to the plaintiff. Id. "Only those matters which appear on the face of the petition can be considered in a motion to dismiss for failure to state a claim." Geary v. Missouri State Employees' Retirement Sys., 878 S.W.2d 918, 921 (Mo.App.1994).

"In determining whether plaintiff was a third-party beneficiary to the contract, 'the question of intent is paramount ... [and] is to be gleaned from the four corners of the contract[.]' " Wilson v. General Mortgage Co., 638 S.W.2d 821, 823 (Mo.App.1982) (quoting Laclede Inv. Corp. v. Kaiser, 596 S.W.2d 36, 41 (Mo.App.1980)). There are three types of third-party beneficiaries to a contract: donee beneficiaries, creditor beneficiaries and incidental beneficiaries. Id. "A donee beneficiary is one upon whom the promisee intends to confer the benefit of performance of the contract although such performance will not discharge a preexisting duty or obligation to the beneficiary." Id. A creditor beneficiary is "one upon whom the promisee intends to confer the benefit of the performance of the contract and thereby discharge an obligation or duty the promisee owes the beneficiary." Id. An incidental beneficiary is one "who will be benefited by performance of a promise but who is neither a promisee nor an intended beneficiary." Restatement (Second) of Contracts § 315 cmt. a (1981). Only donee and creditor beneficiaries have...