The HONORABLE ANN D. MONTGOMERY, United States District Judge 1

for the District of Minnesota, sitting by designation.

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United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-2365

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PlaNet Productions, Inc., *

*

Plaintiff - Appellant, *

* On appeal from the United States

v. * District Court for the Western

* District of Missouri.

Elizabeth Shank, *

*

Defendant - Appellee. *

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Submitted: January 15, 1997

Filed: July 15, 1997

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Before WOLLMAN and FLOYD R. GIBSON, Circuit Judges, and MONTGOMERY,1

District Judge.

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FLOYD R. GIBSON, Circuit Judge.

In this case, appellant PlaNet Productions, Inc. ("PlaNet") brought claims against

appellee Elizabeth Shank for breach of contract and unjust enrichment. The district

court granted Shank's motion for summary judgment on both claims, and PlaNet now
The HONORABLE SCOTT O. WRIGHT, Senior United States District Judge 2

for the Western District of Missouri.

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appeals. Because we conclude that the district court correctly determined that PlaNet 2

failed to present a genuine issue of material fact on either of its claims, we affirm the

district court's grant of summary judgment.

II. BACKGROUND

Prior to December 31, 1993, Shank served as the vice president and secretary

for PlaNet. She was also a shareholder and member of PlaNet's board of directors.

PlaNet licensed thirty-second television commercials known as "E Patrol" videos,

which were intended to inform children of ways to help the environment. Beginning

in 1993, PlaNet focused its E Patrol marketing efforts toward gas and utility companies.

Shank was primarily responsible for marketing to utilities in the western United States,

including a division of Utilicorp called Missouri Public Service ("Mo. Pub.").

On December 31, 1993, Shank entered into an Agreement (the "Agreement") to

sell her shares in PlaNet to Laura Lombardi, the only other shareholder of the company.

Pursuant to the Agreement, Shank was able to continue marketing for PlaNet as an

independent contractor. Paragraph 5 of the Agreement provided:

5. In exchange for and in reliance upon Ms. Shank's future

work in marketing E Patrol, PlaNet agrees to:

(a) Pay Ms. Shank an amount equal to seventy-five

percent (75%) of the gross receipts of any contract for licensing of

E-Patrol Vignettes with [Mo. Pub.], KCP&L and/or Gas Service

Company that is entered into within six (6) months of the date of

this Agreement. Ms. Shank will serve as a primary liaison in

servicing any of these accounts. PlaNet will also pay Ms. Shank

75% of the gross receipts from any renewals of such contracts with

[Mo. Pub.], KCP&L, and/or Gas Service Company. Payment will
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be made to Ms. Shank on or before thirty (30) days following

receipt by PlaNet of the payment.

(b) Should such a contract be entered into with [Mo.

Pub.], KCP&L, or Gas Service on or before June 30, 1994, PlaNet

will pay to Ms. Shank an amount equal to twenty percent (20%) of

the gross receipts of any E Patrol licensing to the list of utilities set

forth on Exhibit D attached hereto and incorporated herein by this

reference within two years of the date of Closing.

(c) PlaNet will pay Ms. Shank an amount equal to thirty-three

percent (33%) of the gross receipts of any Earth Minute license

agreements to broadcast, cable, utilities or other sponsors,

purchasers or licensees for a period of two years from the date of

Closing. The forgoing [sic] payments shall not include a

percentage of any amounts received by PlaNet for merchandising

utilizing the Earth Minute name or logos.

PlaNet's App. at 20-21. 

After the parties entered into the Agreement, Shank engaged in some marketing

work on behalf of PlaNet, which was directly targeted at Mo. Pub. Specifically, Shank

made phone calls to Nancy Cummings, Mo. Pub.'s Director of Communications. On

March 23, 1994, Mo. Pub. entered into an E Patrol License Agreement with PlaNet.

In an affidavit submitted to the district court, Cummings stated that Mo. Pub. entered

into the license agreement as a direct result of Shank's marketing efforts. However,

Lombardi claims that she made a phone call to Cummings on PlaNet's behalf, and at

the conclusion of the phone call, Cummings told her that Mo. Pub. would enter into a

license agreement with PlaNet. In exchange for the E Patrol license, Mo. Pub. paid

PlaNet $22,000. Pursuant to Shank's Agreement with PlaNet, she received seventy-five

percent of the Mo. Pub. licensing fee, which amounted to $16,500. Shank has also

received additional compensation in accordance with the Agreement. In total, PlaNet

has paid Shank approximately $60,000 since she sold her ownership in the company.
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PlaNet filed a complaint alleging that Shank breached her Agreement with

PlaNet by failing to provide the required marketing efforts and that Shank should

therefore refund the money PlaNet paid her. Alternatively, PlaNet claimed that the

payments provided to Shank amounted to unjust enrichment. The district court granted

summary judgment in favor of Shank. PlaNet appeals.

II. DISCUSSION

"We review the district court's grant of summary judgment de novo." Davidson

& Schaaff, Inc. v. Liberty Nat'l Fire Ins. Co., 69 F.3d 868, 870 (8th Cir. 1995). We

will affirm the district court if "the evidence, viewed in the light most favorable to the

non-moving party, shows that no dispute of material fact exists and that the moving

party is entitled to judgment as a matter of law." Id. Because this is a diversity case,

we review the district court's interpretation of Missouri law de novo. See id.

PlaNet's breach of contract claim largely hinges upon its contention that the

Agreement contains ambiguous language. PlaNet contends that the term "future work

in marketing" is ambiguous, and therefore the court should have looked to parol

evidence, including the past practices of the parties, to determine what the term means.

PlaNet then argues that a reasonable person could conclude that the term means

"reasonable future marketing, consistent with past practice." PlaNet's Br. at 15.

Therefore, because Shank's post-Agreement marketing efforts were substantially less

extensive than her past marketing efforts, she breached the Agreement by providing

inadequate marketing efforts. 

We do not agree with PlaNet's contention that the term "future work in

marketing" is ambiguous. Under Missouri law, "[a] contract is ambiguous only if its

terms are susceptible to more than one meaning so that reasonable persons may fairly

and honestly differ in their construction of the terms." Angoff v. Mersman, 917 S.W.2d

207, 210 (Mo. Ct. App. 1996). However, "[a] contract is not ambiguous merely 
PlaNet asserts that a genuine issue of material facts exists as to whether Mo.

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Pub. entered into a license agreement with PlaNet as a result of Shank's marketing

efforts. In her affidavit, Laura Lombardi stated that she made a phone call to

Cummings on February 3, 1994, at the end of which Cummings informed her that Mo.

Pub. would enter into a license agreement with PlaNet. However, assuming, as we

must, Davidson & Schaaff, 69 F.3d at 870, that Lombardi's claim is true, her affidavit

does not prove that Mo. Pub.'s decision to enter into the license agreement was based

on Lombardi's phone call rather than Shank's marketing work. Lombardi's affidavit left

open the possibility that Mo. Pub. had already determined to enter into an agreement

with PlaNet based on Shank's marketing efforts. Cummings's affidavit established that

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because the parties disagree over its meaning." Jake C. Byers, Inc. v. J.B.C. Invs., 834

S.W.2d 806, 816 (Mo. Ct. App. 1992). "To determine whether a contract is

ambiguous, we consider the whole instrument and give the words in the contract their

natural and ordinary meaning." Id. While parol evidence may be used to clarify an

ambiguous contract, see id. at 817, "[a] party cannot use parol evidence to create an

ambiguity or to show that an obligation is other than that expressed in the written

instrument," Angoff, 917 S.W.2d at 211. 

We agree with the district court's conclusion that the Agreement was

unambiguous. The Agreement provided that in exchange for Shank's "future work in

marketing E Patrol," Shank would receive a portion of the proceeds of any contract

entered into between Mo. Pub. and PlaNet. Shank undoubtedly performed some

marketing work for PlaNet after the effective date of the Agreement and before Mo.

Pub. signed a licensing agreement with PlaNet. The Agreement did not specify that

Shank's future marketing had to be consistent with her past practices, and parol

evidence "cannot cause the court to read into the contract something which it does not

say." Craig v. Jo B. Gardner, Inc., 586 S.W.2d 316, 324 (Mo. 1979). Furthermore,

the goal of Shank's marketing effort was to help PlaNet enter into a license agreement

with one of the utilities. Mo. Pub.'s Director of Communications stated in her affidavit

that Mo. Pub. entered into the license agreement as a direct result of Shank's marketing

efforts. As the district court correctly reasoned, if only a moderate marketing effort 3
this was, in fact, the case. Furthermore, between the time Lombardi spoke with

Cummings and Mo. Pub. entered into the license agreement, Shank had additional

contacts with Cummings in furtherance of obtaining the agreement with Mo. Pub. In

light of the overwhelming evidence that Shank's efforts resulted in the Mo. Pub. license

agreement, Lombardi's self-serving affidavit is not sufficient to create a genuine issue

of material fact.

The integration clause provided: 4

15. This Agreement, including all Exhibits hereto, constitute[s]

the entire agreement between Ms. Shank and PlaNet. The undersigned

shall not be bound by any prior communication between or among them

concerning the subject matter of this Agreement. The undersigned hereby

expressly deny any reliance upon said communications. Any prior

agreement between Ms. Shank and PlaNet is voided by the execution of

this Agreement.

PlaNet's App. at 26-27.

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was required to persuade Mo. Pub. to enter into a license agreement, Shank was not

required to do any more than that under the terms of the Agreement.

Additionally, parol evidence cannot be used to "modify or contradict the

unambiguous terms of a written contract purporting to incorporate the whole agreement

between the parties." South Side Plumbing Co. v. Tigges, 525 S.W.2d 583, 588 (Mo.

Ct. App. 1975). The Agreement between Shank and PlaNet contained an integration

clause, which is a strong indication that the parties intended for the Agreement to be 4

complete and final. See Byers, 834 S.W.2d at 813. We conclude that the Agreement

was complete and unambiguous and that under the terms of the Agreement, Shank's

marketing efforts were acceptable.

PlaNet also argues that the only consideration provided in exchange for Shank's

payment was her past service to PlaNet, and because past services cannot constitute

consideration, the contract was not valid. However, because PlaNet raised this 
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argument for the first time in its Reply Brief, we will not consider it. See Myre v.

Iowa, 53 F.3d 199, 201 (8th Cir. 1995).

Finally, PlaNet claims that the payments to Shank resulted in unjust enrichment.

Under Missouri law, a plaintiff is entitled to restitution for unjust enrichment when (1)

the defendant was enriched by the receipt of a benefit; (2) the enrichment was at the

expense of the plaintiff; and (3) it would be unjust to allow the defendant to retain the

benefit. See Ticor Title Ins. Co. v. Mundelius, 887 S.W.2d 726, 727 (Mo. Ct. App.

1994). In this case, it is not unjust to allow Shank to keep the compensation because

she has received only that to which she was entitled under the Agreement.

III. CONCLUSION

For the reasons set forth above, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.