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Lunsford v. Deatherage

Court of Appeals of Missouri, Southern District, First Division

May 10, 2017

NORINE LUNSFORD, Plaintiff-Respondent,



         Appellants, Joshua Deatherage Builders, LLC ("Contractor") and Joshua Deatherage, challenge an order[1] denying their motion to stay the November 2015 lawsuit filed by Norine Lunsford ("Homeowner") and compel the parties to resolve the dispute via arbitration. See section 435.440.1(1). Count 1 of Homeowner's petition alleges that Contractor breached the parties' "CONSTRUCTION CONTRACT" ("the contract") to build an addition to Homeowner's house in Mountain Grove. Count 2 claims that Appellants' negligent performance of construction services caused "severe financial damages to [Homeowner]."

         Appellants' point on appeal claims the trial court erred in denying arbitration because "the issues in dispute fall within the scope of the arbitration agreement included in [the contract]." Because the contract permitted Contractor to elect arbitration of claims brought by either party, we reverse the decision of the trial court to deny Appellants' motion to stay as to Contractor, and we remand the case for further proceedings consistent with this opinion.

         Applicable Principles of Review and Governing Law

         We review de novo the denial of a motion to compel arbitration. Nitro Distrib., Inc. v. Dunn, 194 S.W.3d 339, 345 (Mo. banc 2006). "Missouri contract law applies to determine whether the parties have entered a valid agreement to arbitrate." State ex rel. Vincent v. Schneider, 194 S.W.3d 853, 856 (Mo. banc 2006); see also Eaton v. CMH Homes, Inc., 461 S.W.3d 426, 431-32 (Mo. banc 2015).

         Evidentiary and Procedural Background

         Homeowner's Count 2 claim for negligence avers, inter alia, that Appellants acted "[i]n furtherance of the [contract]" by performing "certain construction services for [Homeowner] concerning a residential home addition[, ]" but Appellants were "careless and negligent in providing construction and related services to [Homeowner.]" Homeowner invoked the contract as providing Appellants' "duty to ensure that the terms and specifications of the [contract] were carried out with the highest professional skill and knowledge, and in a satisfactory and workmanlike manner." Homeowner's petition incorporated Exhibit A as a purported copy of the contract.

         Appellants responded to Homeowner's petition by filing an "ELECTION TO REQUIRE BINDING ARBITRATION" and a "MOTION TO STAY PROCEEDINGS PURSUANT TO ARBITRATION CLAUSE IN CONTRACT" ("the stay motion"). The stay motion also relied on Homeowner's Exhibit A as a correct copy of the contract, and each party relies on its content in their briefs. As a result, we presume the exhibit is a true and accurate copy of the contract. Cf. Briar Road, L.L.C. v. Lezah Stenger Homes, Inc., 321 S.W.3d 488, 493 (Mo. App. S.D. 2010) (based in part on the "parties' apparent concessions that [a particular exhibit not in the record was] the original assignment of rights document, " the opinion presumed that a purported copy of the original attached to a pleading was an accurate copy).

         The contract is primarily preprinted, but it contains various blanks designed to receive additional information. For instance, Contractor is identified in the preprinted text as the contractor, while Homeowner is identified using hand-written text in the "Client" blank. The contract provides a blank for a signature by Homeowner as the client, and a blank for a signature by Contractor's "Authorized Agent" on behalf of Contractor.[2]

         Preprinted Section 1 of the contract, labeled "SCOPE OF WORK" references the hand-written item, "listed on bid package complete home addition[.] See Exhibit "A" 4 pages[.]" (Capitalization adjusted.) Preprinted terms in this section further describe when and how Homeowner must communicate with Contractor about nonconforming work.

         Preprinted Section 6 of the contract, labeled "LITIGATION, ATTORNEY'S FEES AND COSTS[, ]" states:

In the event of a breach by either party to this Contract and in the event it shall be necessary for the non-breaching party to retain an attorney or commence legal proceedings in order to enforce the terms of this contract, the breaching party shall be responsible to pay all reasonable attorney's fees and expenses as are actually incurred to enforce this contract. In the event of any claim be [sic] either party, Contractor shall have the option to require binding arbitration to be conducted by a [sic] appropriate and authorized arbitration entity.[3]

         The parties filed written suggestions in support of and in opposition to the stay motion. After the trial court entered a docket entry denying the stay motion, Appellants filed a "MOTION ...

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