Silver Dollar City, Inc. v. Kitsmiller Const. Co., Inc., 20186

CourtCourt of Appeal of Missouri (US)
Citation931 S.W.2d 909
Docket NumberNo. 20186,20186
PartiesSILVER DOLLAR CITY, INC., Plaintiff-Respondent, v. KITSMILLER CONSTRUCTION CO., INC., Defendant-Appellant.
Decision Date25 September 1996

Steven E. Marsh, Hulston, Jones, Gammons & Marsh, Springfield, for defendant-appellant.

Grant Q. Haden, Tamara F. de Wild, Schroff, Glass & Newberry, P.C., Springfield, for plaintiff-respondent.

BARNEY, Presiding Judge.

On remand by this Court, Appellant Kitsmiller Construction Company, Inc., (Kitsmiller) In its judgment the hearing court held invalid certain arbitration provisions contained in a disputed construction contract. The hearing court determined that the contract itself was void in that it did not reflect a "meeting of the minds" of the parties because the contracting parties could not be identified with reasonable certainty. We reverse and remand.

now appeals the judgment of the Circuit Court of Christian County, Missouri, in a declaratory judgment action originally brought by Silver Dollar City, Inc., (SDC) arising from a purported construction contract entered into between the parties herein.


This suit began on April 10, 1992, when SDC filed a two count petition against Kitsmiller. It averred that Kitsmiller was demanding arbitration of a claim against SDC for $341,432.17 arising from a purported construction contract heretofore entered into by the parties providing for concrete construction work. 1

In its Count I, SDC sought relief and an express declaration that the arbitration provisions be held unenforceable and requested that arbitration be permanently stayed. In Count II, SDC prayed for injunctive relief, barring Kitsmiller from pursuing arbitration.

Kitsmiller counterclaimed, requesting that the parties be required to submit to binding arbitration of Kitsmiller's claim.

In time, both parties respectively moved for summary judgment.

The prior hearing court held that Kitsmiller was not entitled to arbitration since its exclusive remedy was Chapter 429, RSMo 1986, as amended (mechanics' lien).

On appeal in Silver Dollar City v. Kitsmiller Const. Co., 874 S.W.2d 526 (Mo.App.1994), this Court determined that since SDC was the "Architect" under the terms of the disputed contract, but was not licensed or registered as one, the arbitration provisions contained in the disputed contract were otherwise valid and were not waived by Kitsmiller's failure to submit its claim against SDC to the "Architect" of the project.

Secondly, this Court determined that the provision in the disputed contract, which stated that the alleged contract would be governed by the law of the place where the project was placed, did not mean that Missouri's equitable mechanics' lien procedure would override the arbitration provisions of the contract and result in the mechanics' lien enforcement proceeding being the exclusive remedy for Kitsmiller.

This Court remanded the case stating that: "If the trial court finds the Contract void or, for some other reason, unenforceable, there is obviously no valid arbitration provision.... However, if the trial court finds the Contract is binding on the parties, Kitsmiller is entitled to an order compelling arbitration [per terms of the contract]." Silver Dollar City, 874 S.W.2d at 537.

As further background, other ancillary actions have taken place between the parties herein.

On February 10, 1992, Kitsmiller filed a mechanic's lien against the Grand Palace in the office of the Clerk of the Circuit Court of Taney County. 2 Additionally, Kitsmiller filed a demand for arbitration with the American Arbitration Association, in Case No. 57 110

0018 92, to which SDC responded by entering a general appearance without consenting to the jurisdiction of the arbitration tribunal. SDC then pled, inter alia, that the purported contract was "void, has been voided, or is revocable upon the law or in equity."


Kitsmiller posits five major points of error. We address only Point One since it is dispositive herein. Kitsmiller argues that the hearing court erred when it determined that there was no contract entered into between the parties herein.


The first page of the disputed agreement was dated June 27, 1991, and denominated SDC as the "Owner" and Kitsmiller and Vinyard Construction Co., Inc., JV (Vinyard) as the "Contractor." 3 It provided that the Contractor was to perform certain concrete construction work on the "Grand Palace" theater project in Branson, Missouri, and in return SDC promised to pay the Contractor $648,656.00. The disputed contract also contained an arbitration provision. 4

A factual dispute centers around the signature portion of the purported contract wherein only Rick Todd, the representative of "Owner", SDC, and Cary A. Paschke, Project Manager of "Contractor", Kitsmiller, have signed the document. No other signatures or parties appear on the page. Unlike the face sheet, the name "Vinyard" is not found.


In the instant hearing and on appeal herein, SDC contends that it was contracting with a joint venture consisting of Kitsmiller and Vinyard and not Kitsmiller alone. 5 It alleges that it did so because Kitsmiller lacked the financial strength to be engaged in such a project alone and was unable to put up the necessary performance, labor and material bond without Vinyard's financial assistance. SDC makes allegations of misrepresentation on the part of Kitsmiller and Vinyard when they held themselves out to be jointly involved in the project, knowing they would not be.

SDC further contends that in contracting with the joint venture it did so because of Vinyard's expertise in "tilt up" concrete work 6, since Kitsmiller had little or no experience in this type of work. SDC also contends that the term "Kitsmiller" or "Kitsmiller Construction Co., Inc.," was a shorthand method for describing the joint venture. Therefore, when the term "Kitsmiller Construction Co., Inc.," was used in the signature portion of the disputed document, SDC interpreted the term to mean the joint venture of Kitsmiller and Vinyard, without which it would never have entered into the contract.

SDC steadfastly denies that it knew that Kitsmiller and Vinyard were not engaged in In this latest court hearing forming the basis for this appeal, SDC was allowed to amend its original declaratory petition by interlineation to assert that the contract in question did "not reflect the mutual assent, or the meeting of the minds, of the parties hereto, and [was] void." Over objection of Kitsmiller, the hearing court allowed SDC to amend the pleadings to conform to the evidence consistent with the prior theories pled.

a joint venture project and freely accepted Kitsmiller's work on the project. SDC contends that it was not until Kitsmiller removed itself from the project about October 17, 1991, after a series of disputes had arisen between SDC and Kitsmiller that SDC came upon this knowledge. 7

Kitsmiller, on the other hand, maintains that SDC was always aware of Kitsmiller's sole involvement in the project and that SDC's project manager, Wayne Brodt, had specifically authorized Kitsmiller to proceed on its own without a performance bond. It also maintains that SDC prepared the last page of the disputed contract which had typed thereon "CONTRACTOR: Kitsmiller Construction Co., Inc.", thereby showing that SDC was contracting only with Kitsmiller as opposed to a joint venture of Kitsmiller and Vinyard. Further, Kitsmiller contends that during all the litigation herein SDC essentially acknowledged the existence of a contract, until the instant hearing herein. Therefore, Kitsmiller contends there exists a valid contract and that the arbitration provisions contained in the disputed contract are viable and that all disputes between Kitsmiller and SDC arising from the construction work performed by Kitsmiller should be submitted to the appropriate arbitration tribunal named in the purported contract.


The review of a court-tried case is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The judgment of the trial court will be upheld unless there is no substantial evidence to support it, is against the weight of the evidence, or it erroneously declares or applies the law. Behr v. Bird Way, Inc., 923 S.W.2d 470, 472 (Mo.App.1996).

In determining the sufficiency of the evidence, an appellate court accepts as true the evidence and inferences favorable to the trial court's judgment, disregarding all contrary evidence. Aviation Supply Corp. v. R.S.B.I. Aerospace, Inc., 868 S.W.2d 118, 120 (Mo.App.1993). We defer to the factual findings of the trial judge who is in a superior position to assess credibility. Behr, 923 S.W.2d at 472. As the trier of fact, the court may disbelieve and reject any portion of the testimony. Computer Network, Ltd. v. Purcell Tire & Rubber, Co., 747 S.W.2d 669, 673 (Mo.App.1988). "[T]he fact that there is evidence or testimony in the record which may have supported a different conclusion does not demonstrate that the judgment of the court is contrary to the weight of the evidence." Id. However, on review of a court-tried case this Court will independently evaluate the trial court's conclusions of law. Unlimited Equip. Lines, Inc. v. Graphic Arts Centre, Inc., 889 S.W.2d 926, 932 (Mo.App.1994).


In review of Kitsmiller's first point, that the court erred in concluding that there is no binding contract between Kitsmiller and SDC, we note that "the first essential of a valid contract is the existence of two or more competent parties who agree." Shofler v. Jordan, 284 S.W.2d 612, 614 (Mo.App.1955). "[A]lthough the parties need not be named formally there can be no...

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