Woods of Somerset, LLC v. Developers Surety & Indemnity Co.

422 S.W.3d 330, 2013 WL 5311922, 2013 Mo. App. LEXIS 1110
CourtMissouri Court of Appeals
DecidedSeptember 24, 2013
DocketNos. WD 75533, WD 75534
StatusPublished
Cited by9 cases

This text of 422 S.W.3d 330 (Woods of Somerset, LLC v. Developers Surety & Indemnity Co.) 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
Woods of Somerset, LLC v. Developers Surety & Indemnity Co., 422 S.W.3d 330, 2013 WL 5311922, 2013 Mo. App. LEXIS 1110 (Mo. Ct. App. 2013).

Opinion

VICTOR C. HOWARD, Judge.

This case arises from the cross-claims and third-party claims of Developers Surety and Indemnity Company (“DSI”) against Daniel Waldberg, Brenda Wald-berg, Barney Ashner, Marlene Ashner, and Woods of Somerset, LLC (“the Somerset defendants”) relating to an indemnity agreement they signed to obtain a payment bond in connection with the development of a subdivision. The trial court entered judgment in favor of the Somerset defendants concluding that the indemnity agreement was unenforceable because it was not properly executed and because there was no meeting of the minds. On appeal, DSI contends that the indemnity agreement was properly executed because all four individuals with any ownership interest in any of the Somerset entities signed the document, that it applies to each of the Somerset defendants, and that it was accepted by its use in obtaining the bond that the agreement was made to induce and delivering it to the City of Kansas City. DSI also contends that the trial court erred in concluding that there was no meeting of the minds because such conclusion was irrelevant due to the indemnity agreement being unambiguous. The judgment of the trial court is reversed, and the case is remanded.

FACTS

Bardan, Inc. was a company owned by Barney Ashner, Marlene Ashner, Daniel Waldberg, and Brenda Waldberg or their personal or family trusts. Somerset Development, Inc. is a subsidiary of Bardan, Inc., and is the sole member of Woods of Somerset, LLC. Woods of Somerset, LLC owned land that was being developed into [333]*333the Woods of Somerset subdivision. For the development of the subdivision, Woods of Somerset, LLC needed to extend the City of Kansas City’s (“the City”) water main, so it submitted plans for an extension that listed “Somerset Development” as the applicant, and the plans were accepted by the City. After receipt and acceptance of a bid for the water main extension from Haines & Associates Construction Co., Inc. (“Haines”), the Somerset defendants entered into a contract for the extension with the City on behalf of “Somerset Development.” Pursuant to statute and city charter, the City required the Somerset defendants to procure a payment bond to cover the water main extension work.

The Somerset defendants asked their insurance agent, Michael Schroeger, to procure an appropriate payment bond for them. Subsequently, Mr. Schroeger presented the Somerset defendants a two-page Subdivision/Plat Short Form Application (“Application”) for signing. Page one of the Application document was a fíll-in-the-blanks form calling for principal information and information regarding the owners, the project, and the bond. Page two of the Application document stated in all capital letters in bold at the top, “INDEMNITY AGREEMENT — READ CAREFULLY.” Below was preprinted indemnity contract language filling approximately half the page, followed by a text box which read, in pertinent part: “IMPORTANT. ... If a Limited Liability Company, two managers/members must sign on behalf of the company. The two authorized managers/members and their spouses must sign personal indemnity below.”

Below the text were eleven lines for names and signatures, in two columns. In the left column were six lines — one for the “Company Name,” two for the “Name/Title” of the persons signing on behalf of the company, and two for their signatures. In the right column were six lines — two for the names of “Indemnitor,” two for their signatures, and two for their spouse’s signatures.

The Somerset defendants signed the second page of the Application and left Mr. Schroeger’s office. Thereafter, the hand-printed portions were filled in. Somerset Development, LLC was printed on the Company Name line. Barney Ashner’s name was printed on the Name/Title line below it as a person signing on behalf of the company. His signature appeared on the signature line below his printed name. Marlene Ashner’s name was printed on the next Name/Title line for a person signing on behalf of the company, and her signature appeared on the signature line below her printed name. In the right column, Dan Waldberg’s name was printed on the first Indemnitor line, and his signature appeared below that on the signature line. Brenda Waldberg’s signature was on the spouse’s signature line. Her name was then printed on the second Indemnitor line. Nobody signed their name on the second Indemnitor’s signature or spouse’s signature lines.

Following the submission of the Application, DSI issued the Somerset defendants a payment bond listing Somerset Development, LLC as the principal and applicant, to cover the contract for water main extension with the City. Barney Ashner signed the bond, and it was delivered to the City. Subsequently, Haines made a claim against the bond. DSI responded to Haines and also brought counterclaims and third-party claims against each of the Somerset defendants. DSI alleged that, based on the indemnity agreement contained in the Application, it was entitled to indemnity and specific performance in response to the collateral demands from the Somerset defendants jointly and severally.

[334]*334After the trial court dismissed Haines’s claims against DSI and denied Haines’s motion for reconsideration, a bench trial was held at which Haines and the Somerset defendants filed a stipulation in which Woods of Somerset, LLC consented to judgment against it in the amount of $108,697.24 in exchange for Haines’s dismissal with prejudice of its claims against the individual Somerset defendants. At the time of the trial, Woods of Somerset, LLC did not have any assets. The trial then proceeded as to the indemnity agreement.

The trial court found that Barney Ash-ner and Dan Waldberg never intended to be personal guarantors when they signed the Application, and that neither would have signed the Application if they knew they would be personal guarantors. The trial court further found that Barney Ash-ner and Marlene Ashner were not two managers/members of Somerset Development, LLC, Woods of Somerset, or Somerset Development, Inc. Additionally, the trial court found that two managers/members and their spouses did not sign on the right side of the second page of the Application “where the indemnity language is contained.”

Based on these factual findings, the trial court concluded that the Application containing the indemnity agreement was not properly executed and not enforceable against the separate defendants because two managers/members of the company did not sign on behalf of the company in the left column on the second page, and also two authorized managers/members and their spouses did not sign in the right column on the second page as required. The trial court further concluded that because the Somerset defendants never believed they were signing a personal guaranty, there was no meeting of the minds, and thus no contract was formed with respect to the indemnity agreement in the Application. The court reasoned that there was no mutual assent between the parties as to the terms as required to form a contract, and thus the elements of an enforceable contract were not met.

The trial court issued its judgment in favor of the Somerset defendants. DSI appeals.

ANALYSIS

Standard of Review

Appellate review of a court tried case is governed by the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

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Cite This Page — Counsel Stack

Bluebook (online)
422 S.W.3d 330, 2013 WL 5311922, 2013 Mo. App. LEXIS 1110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/woods-of-somerset-llc-v-developers-surety-indemnity-co-moctapp-2013.