Lake Ozark Construction Industries, Inc. v. North Port Associates

859 S.W.2d 710, 1993 Mo. App. LEXIS 829, 1993 WL 180360
CourtMissouri Court of Appeals
DecidedJune 1, 1993
DocketNo. WD 46629
StatusPublished
Cited by3 cases

This text of 859 S.W.2d 710 (Lake Ozark Construction Industries, Inc. v. North Port Associates) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lake Ozark Construction Industries, Inc. v. North Port Associates, 859 S.W.2d 710, 1993 Mo. App. LEXIS 829, 1993 WL 180360 (Mo. Ct. App. 1993).

Opinion

LOWENSTEIN, Chief Judge.

The appeal here basically concerns a motion to dismiss a suit for a declaratory judgment the appellant wanted to determine the right to perform construction in accordance with two contracts.

This case involves multiple respondents and appellants. One respondent, North Port Associates, Inc. (North Port), owns approximately 1,100 acres of property along the Lake of the Ozarks and the Osage River in Miller County. North Port is [712]*712a corporation of which there are four shareholders. North Port intended to develop and construct a residential resort community consisting of condominiums, marina, hotel, office and retail space as well as golf courses. North Port and appellant, Lake Ozark Construction Industries, Inc. (Lake Ozark), a wholly owned subsidiary of appellant, Everett Holding Company (Everett), entered into a contract calling for Lake Ozark to do all of the site preparation and infrastructure work on the project, except for the actual construction of the golf course in question, an Arnold Palmer course. Lake Ozark and North Port agreed Lake Ozark would do only site preparation on the golf course. North Port warranted the agreement would bind its assigns and that it controlled all aspects of the project. Respondent, North Port Golf Associates (Golf Associates), a limited partnership under the same ownership as North Port, would develop the golf course. The managing general partner of Golf Associates is North Port Equities (Equities), a corporation.

North Port and Lake Ozark entered into a two page agreement on November 8, 1989. The agreement had two provisions. One called for Lake Ozark to transfer a thirty-five acre parcel of land which North Port wanted to include in the overall project. The other provision provided North Port would contract solely with Lake Ozark for all site preparation and infrastructure work. The Lake Ozark petition stated the details of these provisions. Taken as true based on the standard of review when a court grants a motion to dismiss, this court discerns the following facts. North Port could not fit the entire golf course on the land it had assembled without including the thirty-five acre tract owned by Lake Ozark. Under the first provision of the contract, Lake Ozark agreed to sell and transfer to North Port the thirty-five acre piece of land subject to Lake Ozarks’ “... satisfaction as to its rights and obligations pursuant to the terms and conditions of such partnership agreements, which satisfaction will not be unreasonably withheld.” In return, Lake Ozark was to receive an equity interest in the overall project. When the parties could not consummate the sale and agree on the equity interest of Lake Ozark, as an interim measure, Lake Ozark sold the thirty-five acres to North Port, taking a note for $105,000 and deed of trust. In June 1990 North Port paid off the note. Everett, Lake Ozarks’ parent corporation, paid a like amount for a limited partnership interest in Golf Associates. The other part of this agreement stated as a condition of the Lake Ozark transfer of the property, North port agreed, “it will contract solely” with Lake Ozark, “for all site preparation and infrastructure work needed on the property,” except for the Arnold Palmer golf course where Lake Ozark would be limited to site preparation work, “for a specific golf construction company to construct the actual golf course.” North Port agreed, “it will not engage, and it will cause any other entity ... of the Project or any phase thereof, not to engage, any contractor other than [Lake Ozark] for the performance of the site preparation and infrastructure work on the project ...”

After Lake Ozark transferred the land and the terms jelled as to Lake Ozark becoming a limited partner in Golf Associates Limited Partnership, a second agreement followed. In June 1990, Golf Associates, as owner, and Lake Ozark, as the contractor, entered into a standard form American Institute of Architects contract for the construction of just the golf course in question. That contract expressly provided any dispute between the parties “arising out of, or relating to the Contract, or the breach thereof, shall be decided by arbitration ...” The agreement included a provision that the contract itself constituted the entire agreement and no other documents were incorporated. A dispute arose between Golf Associates and Lake Ozark over construction related to the golf course. That dispute is currently being arbitrated under that contract provision. It is the dispute between Golf Associates and Lake Ozark that triggered this suit.

Lake Ozark filed the suit which is the subject of this appeal. The entire petition covered many additional claims of Lake Ozark and its allies against North Port and [713]*713its allies, but only four matters in the dismissed petition were before the court. Count I sought a declaratory judgment so the November 1989 agreement between Lake Ozark and North Port would remain in full force. Count II asked the court to impress an equitable lien on all the project property to ensure Lake Ozark performed and received payment for project construction. Count III, filed on behalf of Everett, Lake Ozark’s parent, sought access by a limited partner to the books and records of Golf Associates. Count IV asked for recision of the sale of the thirty-five acre tract if the court found the November agreement unenforceable, or, in the alternative, an equitable lien on the thirty-five acre tract. Pursuant to Rule 74.01(b), the trial court sustained a motion to dismiss all four counts. The appellants as to this portion of the entire dispute are Lake Ozark and Everett. The respondents are North Port, Golf Associates and Equities.

At the very heart of this appeal is the issue contained in Count I, of whether Lake Ozark will, under the November 1989 agreement retain the right as sole contractor on the whole project, or whether the June 1990 agreement between Lake Ozark and Golf Associates negated the earlier agreement or subjected any disputes as to construction of anything in the project done by Lake Ozark to arbitration as opposed to court relief.

This court will address the appeal as to Count I. Next, the opinion deals with Counts II and IV, which the trial court denied because the judgment declared the declaration of rights under the contract in the respondents’ favor.

The last part of the opinion deals with Everett’s prayer as a limited partner, under Count III for an inspection of partnership records against Golf Associates, and its managing general partner, Equities.

I.

In Count I, Plaintiffs Everett and Lake Ozark sought a declaratory judgment as to the status of the November 1989 contract against the relevant defendants North Port, Equities and Golf Associates. The petition quoted at length from the North Port contract with Lake Ozark, particularly those portions describing the 1,100 acre project area, the contents of the project (300 condominiums, marina 260 room hotel, homes golf courses, sports camp, industrial park, etc.), and language regarding site preparation and infrastructure work on the entire project.' The parties accomplished these projects via a contract between North Port and Lake Ozark, which conditioned the agreement upon Lake Ozarks’ transfer of the thirty-five acre parcel to North Port. The petition recounts negotiations whereby Lake Ozark would make an equity contribution to an entity involved in the entire project, such contribution in an amount equal to the value received for the thirty-five acre tract now included in the project area.

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Bluebook (online)
859 S.W.2d 710, 1993 Mo. App. LEXIS 829, 1993 WL 180360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lake-ozark-construction-industries-inc-v-north-port-associates-moctapp-1993.