Raytown Consolidated School District Number 2 v. American Arbitration Ass'n

907 S.W.2d 189, 1995 Mo. App. LEXIS 1464
CourtMissouri Court of Appeals
DecidedAugust 22, 1995
DocketNo. WD 50332
StatusPublished
Cited by2 cases

This text of 907 S.W.2d 189 (Raytown Consolidated School District Number 2 v. American Arbitration Ass'n) 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
Raytown Consolidated School District Number 2 v. American Arbitration Ass'n, 907 S.W.2d 189, 1995 Mo. App. LEXIS 1464 (Mo. Ct. App. 1995).

Opinion

SPINDEN, Judge.

Raytown Consolidated School District No. 2 refuses to arbitrate a contract dispute with Citizens Bank of Edina because the district’s contract was with Interstate Insulation of America, not the bank. The bank obtained rights to collect Interstate’s accounts receivable in bankruptcy proceedings and seeks to collect $100,000, which it claims the district owes Interstate for asbestos removal. When the bank endeavored to arbitrate the matter, the district filed an application in circuit court seeking the court’s stay of arbitration proceedings. The circuit court granted the application. The bank appeals, and we reverse.

The dispute arose over a contract dated April 12, 1989, in which Interstate agreed to remove asbestos from seven district school buddings for $252,308. After Interstate finished removing the asbestos, it claimed $109,-176.14 more for removing “newly-discovered” asbestos. On January 29, 1990, the district offered to settle the additional claim by paying $59,091.39 more. On May 24, 1990, the district had paid Interstate $239,692.60, and Interstate was claiming that the balance due was $121,791.54. Interstate rejected the district’s offer, and, on September 28, 1990, it [191]*191filed an arbitration claim pursuant to a contract provision which said:

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, and judgment upon the award rendered by the arbitrator or arbitrators may be entered in any court having jurisdiction thereof, except controversies or Claims relating to aesthetic effect and those waived [by making final payment].

Before the matter could be arbitrated, Interstate’s creditors forced the firm into bankruptcy. The bankruptcy court suspended the arbitration proceedings. On March 25, 1992, the bankruptcy court ordered the bankruptcy trustee to abandon all interest in Interstate’s accounts receivable, and it lifted its stay of the arbitration proceedings. The bank pursued Interstate’s claim against the school district as part of Interstate’s accounts receivable.

When the arbitration proceedings resumed, the school district refused to participate beyond filing a motion to dismiss. The district contended that its contract with Interstate was not assignable and that the bank had no authority to pursue Interstate’s claim against the district. When the arbitrator denied the district’s motion to dismiss, the district initiated this action in circuit court which ruled for the district. The circuit court said in its order:

The [bankruptcy] Court never ordered that Interstate’s contracts or contract rights be assigned to Citizens Bank of Edina. If the bank has security interests in proceeds from contracts, then it may be able to obtain them. But the bank does not have the right to arbitrate a contract which does not allow assignability of the arbitration clause without [the school district’s] consent.

We disagree. The bankruptcy court’s order cleared the way for the bank to pursue the security agreement it had with Interstate. By means of Interstate’s granting the bank a security interest in its accounts receivable, it gave the bank the right to pursue its claim against the school district. That the bankruptcy court’s order did not specifically assign Interstate’s claim to the bank was inconsequential.

The contract’s prohibition against assigning the contract was irrelevant. The contract prohibited only assignment of the contract “as a whole.” Interstate did not seek to assign its performance. It granted the bank, through the security agreement, the right to pursue amounts owed it by the school district. The right to receive money due under a contract is not personal in nature and, unless specifically prohibited by the contract, generally can be assigned. Kenneth D. Corwin, Ltd. v. Missouri Medical Service, 684 S.W.2d 598, 600 (Mo.App.1985). The contract in this case did not prohibit Interstate’s giving the bank the right to collect proceeds from the contract. The contract’s provision concerning assignment was:

The [school district] and [Interstate] respectively bind themselves, their partners, successors, assigns and legal representatives to the other party hereto and to partners, successors, assigns and legal representatives of such other party in respect to covenants, agreements and obligations contained in the Contract Documents. Neither party to the Contract shall assign the Contract as a whole without written consent of the other. If either party attempts to make such an assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Contract.

Hence, the school district’s refusal to participate in the arbitration proceedings was wrong under its contract with Interstate. The bank, having received the benefits of Interstate’s accounts receivable, stands in Interstate’s shoes. The bank has the power to enforce any benefit due and owing Interstate. The enforcement authorized by the contract is the arbitration already initiated by Interstate. The bank has the right to pursue that action.

The school district argues that § 435.465, RSMo 1994, makes it “immune” from the bank’s arbitration action. That statute says:

[192]*1921. Sections 435.350 to 435.470 shall apply only to written agreements between commercial persons, or between such persons and those with whom they contract other than commercial persons, involving the submission of any existing controversy to arbitration, or involving a written contract between commercial persons, or between such persons and those with whom they contract other than commercial persons, to submit to arbitration any controversy thereafter arising between such parties. Such agreements and provisions are valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract.
2. As used in subsection 1 of this section, the term “commercial persons” shall mean all persons and legal entities, excluding any government or governmental subdivision or agency.

The district argues, “This section prevents governmental subdivisions] such as the [district] from arbitrating against its will[.]”

Any notion that the district is being forced to arbitrate against its will is disingenuous. The district negotiated for the arbitration provision. All the bank seeks to do is to force the district to live up to its agreement.

Moreover, § 435.465.1 does not mean what the district contends. Section 435.465.2 does exclude governmental bodies such as the school district from the definition of “commercial persons.” It does not, however, exempt the district from the statute’s application. It exempts a governmental entity only from being classified a commercial person. In § 435.465.2, the General Assembly defined “commercial persons” as every entity except for governmental entities. Only a governmental entity cannot be a commercial person.

Who belongs to the classification of “other than commercial persons” in § 435.465.1’s exclusion of agreements between commercial persons, or between such persons and those with whom they contract other than commercial

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Bluebook (online)
907 S.W.2d 189, 1995 Mo. App. LEXIS 1464, Counsel Stack Legal Research, https://law.counselstack.com/opinion/raytown-consolidated-school-district-number-2-v-american-arbitration-assn-moctapp-1995.