The HONORABLE ANN D. MONTGOMERY, United States District Judge 1 for the District of Minnesota, sitting by designation. -1- United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 96-2365

_____________ PlaNet Productions, Inc., * * Plaintiff - Appellant, * * On appeal from the United States v. * District Court for the Western * District of Missouri. Elizabeth Shank, * * Defendant - Appellee. *

_____________ Submitted: January 15, 1997 Filed: July 15, 1997

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

_____________ FLOYD R. GIBSON, Circuit Judge. In this case, appellant PlaNet Productions, Inc. ("PlaNet") brought claims against ap pellee Elizabeth Shank for breach of contract and unjust enrichment. The distric t court granted Shank's motion for summary judgment on both claims, and PlaNet nowThe HONORABLE SCOTT O. WRIGHT , Senior United States District Judge 2 for the Western District of Missouri. -2- appeals. Because we conclude that the di strict court correctly determined that PlaNet 2 failedto 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 forPlaNe t. She was also a shareholder and member of PlaNet's board of directors

. PlaNe t licensed thirty-second television commercials known as "E Patrol" videos , whichwere intended to inform children of ways to help the environment. Beginning in 1993, PlaNet focused its E Patrol marketing efforts toward gas and util ity companies. Shank was primarily responsible for marketing toutilities 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. Pursua nt to the Agreement, Shank was able to continue marketing for PlaNet as a n independent contractor. Paragraph 5 of the Agreement provided:

5. In exchange for and in reliance upon Ms. Shank's futur e work in marketing E Patrol, PlaNet agrees to:

(a ) Pay Ms. Shank an amount equal to seventy-fiv e percent (75%) of the gross rec eipts of any contract for licensing of E-Patr ol Vignettes with [Mo. Pub.], KCP&L and/or Gas Servic e Company that is entered into within six (6) months of the date of this Ag reement. Ms. Shank will serve as a primary liaison i n servicing any of these accounts. PlaNet will also pay Ms. Shank 75% of the gross receipts from any renewals of s uch contracts with [Mo. Pub.], KCP&L, and/or G as Service Company. Payment will-3-

be mad e to Ms. Shank on or before thirty (30) days followin g receipt by PlaNet of the payment. (b) Should such a contract be entered into with [Mo

. Pub.], KCP&L, or Gas Service on or bef ore June 30, 1994, PlaNet will pay to Ms. Shank an amount equal to twenty percent (20%) of the gross receipts of any E Patrol li censing 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 w ill pay Ms. Shank an amount equal to thirty-three percent (33%) of the gross receipts of any Earth Minute licens e agreements to broadcast, cable, utilities or other sponsors , p u rchasers or licensees for a period of two years from the date of Closing

. The forgoing [sic] payments shall not include a p e rcentage 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 th e Agreement, Shank engaged in some marketing work on behalf of PlaNet, which was directly targeted at M o. 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 af fidavit submitted to the district court, Cummings stated that Mo. Pub. entered into the lic ense 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 conclusio n of the phone call, Cummings told her that Mo. Pub. would enter into a license agre ement with PlaNet. In exchange for the E Patrol license, Mo. Pub. pai d PlaNet $22,000. Pursuant to Shank's Agreement with PlaNet, she received se venty-five percent of

the Mo. Pub. licensing fee, which amounted to $16,500. Shank has als o received additional compensation in accordance with the Agreement. In total, PlaNet has pai d Shank approximately $60,000 since she sold her ownership in the company.-4-

PlaNet filed a complaint alleging that Shank breached her Agreement with Pla Netby failing to provide the required marketing efforts and that Shank shoul d ther efore refund the money PlaNet paid her. Alternatively, PlaNet claimed that th e 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 gr ant of summary judgment de novo ." Davidson & Schaaff, Inc. v. Liberty Nat'l Fire Ins. Co. , 69 F.3d 868, 870 (8th Cir. 1995). W e 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 movin g party is ent

itled 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 th e Agreement contains ambiguou s language. PlaNet contends that the term "future work in mar keting" is ambiguous, and therefore the court should have looked to paro l evidence, including the past practices of the partie s, to determine what the term means. PlaN etthen argues that a reasonable person could conclude that the term mean s "r easonable future marketing, consistent with past practice." PlaNet's Br. at 15

. Theref ore, because Shank's post-Agreement marketing efforts were substantially less ex tensive than her past marketing efforts, she breached the Agreement by providin g inadequate marketing efforts. We d o not agree with PlaNet's contention that the term "future work i n marketing" is ambiguous. Under Missouri law, "[a] contract is ambiguous only if it s terms are suscep tible to more than one meaning so that reasonable persons may fairly and honestly differ in their construction of the terms." Angoff v. Mers man , 917 S.W.2d 207, 210 (Mo. Ct. App. 1996). However, "[a] contract is not ambiguous merelyPlaNet asserts that a genuine issue of material facts exists as to whether Mo

. 3 Pub. e ntered into a license agreement with PlaNet as a result of Shank's marketin g efforts. In her affidavit, Laura Lombardi stated that she made a phone call t o Cummings on February 3, 1994, at th e end of which Cummings informed her that Mo. Pub. would enter into a license agreement with PlaNet. However, assuming, as w e must, Davidson & S chaaff , 69 F.3d at 870, that Lombardi's claim is true, her affidavit does not prove that Mo. Pub.'s de cision to enter into the license agreement was based on Lombardi's phone call rather than Shank's marketing wor k. 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 effor ts. Cummings's affidavit established that -5- because the parties disagree over its meaning." Jake C. Byer s, Inc. v. J.B.C. Invs. , 834 S.W.2d 806 , 816 (Mo. Ct. App. 1992). "To determine whether a contract i s ambiguous, we consi der the whole instrument and give the words in the contract their natural and ordinary meaning." Id. While parol evidence may be used to clarify a n amb iguous contract, see id. at 817, "[a] party cannot use parol evidence to create a n ambiguity or to show that an obligation is other than that expressed in the writte n instrument," Angoff

, 917 S.W.2d at 211.
We agre e with the district court's conclusion that the Agreement wa s un ambiguous. The Agreement provided that in exchange for Shank's "future work in marketi ng E Patrol," Shank would receive a portion of the proceeds of any contrac t ente red into between Mo. Pub. and PlaNet. Shank undoubtedly performed som e mar keting work for PlaNet after the effective date of the Agreement and before Mo

. Pub. sign ed a licensing agreement with PlaNet. The Agreement did not specify tha t Shank's future marketing had to be consistent with her past practices, and paro l 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 mar

keting 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 di rect result of Shank's marketing efforts. As the district court correctly reasoned, if only a moderate marketing effort

3this was, in fact, the case. Furthermore, between the time Lombardi spoke with

Cummin gs and Mo. Pub. entered into the license agreement, Shank had additiona l con tacts with Cummings in furtherance of obtaining the agreement with Mo. Pub. In light of the overwhelming evidence that Shank's efforts res ulted 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 Agre ement, including all Exhibits hereto, constitute[s] the entire agreement between Ms. Shank and PlaNet. The undersigne d shall not be bound by any prior communication between or among them concerning the subject matter of this Agreement. The undersigned hereby ex pressly deny any reliance upon said communications. Any prio r agreement between Ms. Shank and PlaNet is voided by the execution of this Agreement. PlaNet's App. at 26-27. -6- was required to persuade Mo. Pub. to enter into a license agreement, Shank was no t required to do any more than that under the terms of the Agreement.
Additional ly, parol evidence cannot be used to "modify or contradict th e unambiguous terms of a written contract purporting to incorpora te the whole agreement between the parties." South S ide Plumbing Co. v. Tigges , 525 S.W.2d 583, 588 (Mo. Ct. App. 1975). The Agreement between Shank and PlaNet contained an integration claus e, 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 c onsideration provided in exchange for Shank's payment was her past service to PlaNet, and because past services cannot constitut e consideration, the contract was not valid. However, because PlaNet raised this-7-

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 i s entitled to restitution for unjust enrichment when (1) the defendant was enriched by the receipt of a benefit; (2) the enrichment was at th e expense of the plaintiff; and (3) it would be unjust to allow the defendant to retain the be nefit. 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.