Metro Demolition & Excavating Co. v. H.B.D. Contracting, Inc.

37 S.W.3d 843, 2001 Mo. App. LEXIS 262, 2001 WL 118277
CourtMissouri Court of Appeals
DecidedFebruary 13, 2001
DocketNo. ED 76988
StatusPublished
Cited by12 cases

This text of 37 S.W.3d 843 (Metro Demolition & Excavating Co. v. H.B.D. Contracting, Inc.) 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
Metro Demolition & Excavating Co. v. H.B.D. Contracting, Inc., 37 S.W.3d 843, 2001 Mo. App. LEXIS 262, 2001 WL 118277 (Mo. Ct. App. 2001).

Opinion

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 Condi[845]*845tions 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 Agree-' ment, 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:

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 contract for construction referenced above was between HBD and MBA Development Corp., the Site Preparation Construction Contract. The contract was entered into on March 20, 1996. The contract consists of an agreement, which incorporates other documents into the agreement by reference, including the AIA Document A201.

The third subcontract was between LLC and Metro, the Public Improvement subcontract. It was entered into on June 17, 1996. 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 contract for construction referenced above was between LLC, as prime contractor, and the St. Louis Housing Authority, as the owner, the “Public Improvements Construction Contract”. The contract was entered into on June 13, 1996. The contract includes an arbitration clause within the main body of the agreement itself. Article 7 of the contract provides in part: “[t]he parties agree that all disputes and claims relating to this contract shall be settled by arbitrators in accordance with the rules of the American Arbitration Association.”

[846]*846After Metro began its work under the three subcontracts, a dispute arose between the parties. On May 28, 1999, Metro filed its petition for breach of contract. In count I of the petition, Metro alleged HBD owed it an additional $11,780.00 for extra work performed in connection with the Tot Lot Subcontract. Count II alleged' that HBD owed Metro additional $43,657.00 for extra work performed in connection with the Earthwork Site Preparation Subcontract. Count III alleged that LLC, HBD and E.M. Harris are jointly and severally liable to it in the amount of $190,670.00 for extra work performed in connection with the Public Improvements Subcontract. Count IV is a quantum me-ruit claim against all the defendants seeking the aggregate principal amount of $246,107.00.

On August 6, 1999, appellants filed a motion to stay litigation pending arbitration. A hearing was held on September 10, 1999. On October 4, 1999, the trial court through an order denied appellants’ motion to stay litigation pending arbitration. Appellants appeal.

Appellants raise one point on appeal. Appellants argue the trial court erred in denying their motion to stay litigation pending arbitration. Appellants argue the three subcontract agreements between the parties included enforceable arbitration agreements by incorporating the general conditions to the respective prime contracts, including a written arbitration provision.

Our standard of review is essentially de novo. Fru-Con Constr. Co. v. Southwestern Redevelopment Corp. II, 908 S.W.2d 741, 743-44 (Mo.App. E.D.1995). Courts favor and encourage arbitration proceedings. Westridge Inv. Group, L.P. v. McAtee, 968 S.W.2d 243, 245 (Mo.App. W.D.1998). “A court must stay litigation if it determines that the parties agreed to arbitrate.” Fru-Con Constr. Co., 908 S.W.2d at 744. For the purposes of determining whether an arbitration agreement exists which warrants staying litigation a court evaluates:

(1) whether the parties agreed to arbitrate; (2) the scope of the agreement; if federal statutory claims are asserted, whether Congress intended those claims to be arbitrable; and (4) if the court concludes that some but not all claims are arbitrable, whether to stay the balance of the proceeding pending arbitration. Id.

We must determine whether the parties agreed to arbitrate.

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Bluebook (online)
37 S.W.3d 843, 2001 Mo. App. LEXIS 262, 2001 WL 118277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/metro-demolition-excavating-co-v-hbd-contracting-inc-moctapp-2001.