Weil and Associates v. Urban Renewal Agency of Wichita, 45852

CourtUnited States State Supreme Court of Kansas
Citation206 Kan. 405,479 P.2d 875
Docket NumberNo. 45852,45852
PartiesWEIL AND ASSOCIATES, Appellant, v. The URBAN RENEWAL AGENCY OF the WICHITA, Kansas Metropolitan Area, and its Board of Commissioners, Appellees.
Decision Date23 January 1971
Syllabus by the Court

1. When a motion to dismiss under K.S.A. 60-212(b)(6) raises an issue concerning legal sufficiency of a claim for relief, the question must be decided from the well-pleaded facts of plaintiff's petition. The motion in such case may be treated as the modern equivalent of a demurrer.

2. Disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure of the petition to state a claim upon which relief can be granted. The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in his favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.

3. In considering a motion to dismiss for failure of the petition to state a claim for relief a court must accept the plaintiff's description of that which occurred, along with any inferences reasonably to be drawn therefrom. However, this does not mean the court is required to accept conclusory allegations on the legal effects of events the plaintiff has set out if these allegations do not reasonably follow from the description of what happened or if these allegations are contradicted by the description itself.

4. In order for parties to form a binding contract, there must be a meeting of the minds as to all essential terms thereof.

5. Generally, an agreement to make a contract in the future is not binding unless all the terms and conditions are agreed upon and nothing is left to future negotiation.

6. Where the intent of the parties is clear that they are negotiating with a definite understanding the terms of any contract are not fully agreed upon and a written formal agreement is contemplated, and no valid, enforceable contract is to exist until the execution of such an agreement, a binding contract does not come into existence in the absence of such execution.

7. K.S.A. 60-209(b), respecting a pleading, requires that in all averments of fraud the circumstances constituting the fraud shall be stated with particularity.

8. One who makes a contract with a municipal corporation is bound to take notice of limitations on its power to contract and also of the power of the particular officer or agency to make the contract. The municipal corporation cannot in any manner bind itself by any contract which is beyond the scope of its powers, and all persons contracting with the corporation are deemed to know its limitations in this respect.

9. In an action for damages for breach of contract which was dismissed for failure of the petition to state a claim upon which relief can be granted, the record is examined and it is held, no error appears.

William L. Fry, Wichita, argued the cause, and John P. Schaefer, Wichita, was with him on the brief for appellant.

Jack Glaves, Wichita, argued the cause, and Edward Weil, Wichita, was with him on the brief for appellees.

HARMAN, Commissioner:

This is an action for damages for breach of contract. Plaintiff appeals from an order sustaining defendants' motion to dismiss for failure of the petition to state a claim upon which relief can be granted (K.S.A. 60-212(b)(6), as amended). The trial court found no contract existed between the parties.

The trial court had before it only plaintiff's petition to which were attached numerous exhibits. The petition was detailed in nature, revealing the following: Plaintiff is an unincorporated joint venture consisting of Bernard Weil of New Orleans, Louisiana, and Bruce C. Quantrell and William L. Fry of Wichita, Kansas. Defendant agency is a body corporate created under our urban renewal law (K.S.A. 17-4742 et seq.) with its affairs conducted by a board of commissioners, also named as a defendant.

On December 6, 1965, defendants published notice to interested developers of their intention to offer for sale and development a tract of about four and one-half acres in the downtown Wichita business district, a part of the Civic Center Urban Renewal Project. The property was described as having a frontage of 318 feet along Douglas avenue with a depth of 600 feet. Defendants also furnished documents containing a map and description of the project and outlining generally the basic land use and building requirements as well as requirements for proposals submitted in response to the offering. Plaintiff then expended much time and money in preparing its proposal and offer to purchase and develop the land. On April 11, 1966, plaintiff submitted a written offer to purchase the tract for the sum of one million dollars and thereafter made a public presentation to defendants of its proposal. By letter April 18, 1966, defendants acknowledged plaintiff's bid and requested more information. Defendants' letter indicated three proposals had been submitted. By letter dated May 11, 1966, plaintiff furnished the infromation requested by defendants. July 8, 1966, defendants adopted a resolution making a tentative selection of plaintiff as the redeveloper for the project. The resolution described the land to be developed as follows:

'A tract of land bounded on the north by the south line of First Street, and the east by the west line of Water Street, on the south by the north line of Douglas Avenue, and on the west by the center line of Wichita Street (as originally platted), all in the City of Wichita, Kansas, constituting 190,800 square feet, more or less; * * *' (Emphasis supplied.)

After reciting certain preliminary actions taken, the resolution further stated:

'WHEREAS, in the interest of all parties concerned, the Urban Renewal Agency desires to make known its tentative designation of a Redeveloper for the Site and its acceptance of the appropriate Redevelopment Proposal even though further negotiations must be conducted and completed, additional official actions taken, and appropriate procedures complied with before a formal Contract of Sale can be executed with the Redeveloper for sale and redevelopment of the Site.


'1. That Weil and Associates be and are hereby tentatively designated as Redeveloper for the Site, subject to all laws, rules, regulations and requirements pertaining to disposition of land in Urban Renewal Projects.

'2. That negotiations be entered into between the Agency and such Redeveloper as to contract provisions effecting sale and redevelopment of the Site, and that an appropriate contract be returned to this Body for consideration.

'3. That the Chairman be and is hereby directed, pursuant to K.S.A. 17-4750(b) of the Kansas Urban Renewal Law, to immediately file an appropriate notice with the Board of City Commissioners of the City of Wichita, Kansas evidencing the Agency's intention to accept such Redevelopment Proposal, submitted by Weil and Associates on or after August 25, 1966.

'4. That this tentative designation of Weil and Associates as Redeveloper for the Site is conditioned upon said Redeveloper providing, for the benefit of the Urban Renewal Agency, the sum of $50,000 as evidence of the Redeveloper's willingness, ability and intention to proceed with the redevelopment as herein contemplated, such amount to be provided not later than July 19, 1966, with interest earnings thereon, if any, to accure to the benefit of the Redeveloper; provided that said sum shall remain on deposit and be made available as earnest money to guarantee full and timely performance by the Redeveloper of the Contract in the event of the execution thereof.

'5. That this tentative designation of the Redeveloper is conditioned upon the Redeveloper and the Agency executing the appropriate Contract referred to above in Section 2, not later than October 13, 1966, but shall further cease and determine should either of the following occur prior to said date:

'a. The Agency and the Redeveloper failed to agree as to any provision proposed to be included in Purchase Contract, including any required changes in the Redeveloper's Proposal.

'b. The Redeveloper shall fail to execute the Contract of Sale, including payment of good faith deposit, within ten (10) days after submission by the Agency of said Contract to the Redeveloper for execution.

'6. Notwithstanding any provision hereof to the contrary, it is the expressed intention hereof that in any event the Agency shall not by reason hereof or otherwise be deemed to be liable to Redeveloper, or any other person, firm or association concerned by reason of Redeveloper's proceeding hereunder in planning, developing, or in otherwise determining the feasibility of said Site development and that agency shall at all times have the absolute right without penalty or liability whatsoever and without notice of any kind to rescind its designation hereof and thereupon any and all alleged rights or interest whatever of Weil and Associates in and to said Site shall cease and determine.'

Plaintiff's petition then alleges it performed every requirement in said resolution including the making of the $50,000 good faith deposit, and was at all times ready, willing and able to execute and perform under the standard form of contract used by defendants. One of the other bidders, Garvey Center, Inc., withdrew its bid by letter of July 13, 1966. By letter dated September 6, 1966, defendants sent plaintiff a copy of a proposed disposition contract for review and suggestions as to contents. This letter confirmed a previous telephone conversation regarding the eventual vacation of Wichita street between Douglas avenue and First street, stating defendants had a contractual agreement with the city regarding...

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