United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-2368

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Shaw Hofstra & Associates, *

*

Plaintiff – Appellee, *

* Appeal from the United States

v. * District Court for the Western

* District of Missouri.

Ladco Development, Inc., *

* 

Defendant – Appellant. *

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Submitted: February 16, 2012

Filed: March 12, 2012

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Before LOKEN, BYE, and MELLOY, Circuit Judges.

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BYE, Circuit Judge.

This case concerns the payment for architectural services provided by Shaw

Hofstra & Associates (SHA) to Ladco Development, Inc. (Ladco) in conjunction with

a large office building project. In its breach of contract claim, SHA contends it was

not paid for the services it completed under the project. The district court1

 denied

Ladco’s motion for summary judgment, and the case proceeded to trial. Ultimately,

the jury found in favor of SHA and assessed damages of $250,000. In this appeal,

Ladco contends this court should reverse the district court’s denial of its motion for

1

The Honorable Ortrie D. Smith, United States District Judge for the Western

District of Missouri.
judgment as a matter of law and remand the case for entry of judgment for SHA and

against Ladco, but only for $25,617.50 in unpaid invoices, rather than the $250,000

awarded by the jury. In the alternative, Ladco requests a new trial. We affirm.

I

On August 28, 2007, SHA, an architectural firm, submitted a written “fee

proposal” to Ladco to provide architectural services for a 75,000 square foot multitenant office building project in Kansas City, Kansas. The proposal, submitted by

SHA owner Craig Shaw to Ladco Development Manager Mike Belew, was divided

into three separate scopes of services, with three corresponding fee structures.

The first part, titled Site Development Plan/TIF Process, pertained to obtaining

the requisite governmental approvals to build the project, and it covered the design of

the project to the point the project could be submitted to the city for approval and

consideration for tax and other incentives. In return for the site planning, architectural

concept and presentation drawings, landscape preliminary design drawings, and

coordination with the city planning department, this scope proposed a flat fee of

$35,000, which was based on the number of projected hours involved in the scope. 

The scope also provided “SHA shall invoice against the overall estimate on a

percentage completion basis at a standard billing rate of $100.00/hr.” J.A. at 25.

The second part, titled Construction Documents, concerned architectural and

engineering services for the design and construction of the building. This scope

proposed “a percentage based fee of 6.0% of the Construction Cost assuming a

projected cost of $92.00/sq. ft. for the building shell.” Id. Instead of providing hourly

rates, the second part divided the services into five phases, each with a corresponding

percentage of the overall fee:

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Schematic Design Phase 15%

Design Development Phase 20%

Construction Document Phase 40%

Permitting and Sub-Contractor Bidding Phase 5%

Construction Administration Phase 20%

Id. This scope also included a $7,500 credit for schematic design work included in

the $35,000 fee for part one.

The third part, titled Tenant Finish Documents, proposed a fee of $0.12 per

square foot for “Initial Space Planning as Marketing to Secure Tenant.” Id. Under

this scope, the parties planned for SHA to design the tenant space, with future tenants

being able to separately contract with SHA for further work if they desired.

The last paragraph of the fee proposal stated: “Upon acceptance of this

proposal SHA/SDC will prepare a standard AIA contract for the project. We ask that

you sign below and on the attached Statement of Intent and return to SHA prior to

SHA/SDC commencing with the services described above.” Id. at 26.2

 The Statement

of Intent provided SHA would work at “standard hourly rates and under the terms and

conditions contained in this proposal until such time as a final agreement is in place

or until SHA is notified that its services are no longer needed.” Id. at 27. Belew and

Shaw signed the proposal, and Belew signed the statement of intent, on September 12,

2007.

Shortly thereafter, SHA began work on the site development plan, design of the

three-story building, and an initial space plan for a law firm that would occupy 50,000

square feet of the building. Shaw anticipated it would take six weeks to complete the

schematic design phase, which he testified he completed on the initial three-story

2

An AIA contract is a form agreement developed by the American Institute of

Architects outlining the responsibilities of the owner and the architect.

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75,000 square foot building. However, Shaw was tasked with multiple redesigns of

the project due to certain tenants being relocated within the building for various

reasons. At the same time, Ladco was recruiting additional tenants that enlarged the

scope of the project. As a result, Shaw testified SHA completed schematic design

multiple times over the course of several months:

In my opinion [the documents shown to the jury] constitute[] schematic

design about three times. We described the building, its size, its

relationship to the site, its functions and how tenants could fit into it for

an initial building. The criteria changed. Another building joined us. 

We redid the schematics to accommodate that. The rules changed again

and we couldn’t use a portion of the site so we redid the buildings in the

site plan with that scheme. Then the insertion of the parking into the

building caused yet another change. So, yes, I think we did schematic

design over and over.

Trial Tr. vol. 2, at 238-39.

In March 2008, SHA and Ladco executed a letter agreement. Because of the

increased interest prospective tenants had in relocating to the site, the project had

grown from one 75,000 square foot building and a parking garage to an 80,000 square

foot building and an additional 170,000 square foot building, and an 800 stall parking

garage. The new proposal for the larger project expanded the scope of work, and

SHA’s fee for the entitlement process was increased from $35,000 to $55,000. The

letter agreement included a provision noting it “supersedes all prior agreements[.]” 

J.A. at 296. However, Shaw testified his intention was to have the letter agreement

displace only part one of the fee proposal, not part two, because it essentially

expanded the scope of work and fee included in the first part of the proposal.

On March 27, 2008, Shaw sent an email to Steve Bessenbacher, a Ladco

development manager, suggesting the proposed schedule was impossible to meet. 

Bessenbacher responded the project would be a challenge, but it would not be

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impossible, and he noted Belew had brought up using another architectural firm, Bell

Knott & Associates (BKA) to add resources. During this time, the project continued

to grow even more. By early April 2008, it had increased to an eight-story building

containing 240,372 square feet, including 103,890 square feet of parking for 343

vehicles; a five-story, 165,675 square foot building including a preschool; and a

separate 137,624 square foot parking garage for 348 vehicles. On April 22, 2008,

Belew informed Shaw by email that BKA would take over as lead architect on the

project, and SHA would be responsible for interiors, tenant space, and streetscape.

Pursuant to discussions between BKA-head Kerry Knott and Belew, Knott

stated in an April 28, 2008, email to Belew that BKA’s fee would be six percent of the

general construction cost of the entire project, which Belew testified was to be the

same fee originally proposed to SHA. On May 12, 2008, Shaw sent Knott a letter

asserting SHA had completed 80 percent of the schematic design services of the

project. Shaw calculated a fee of $320,000, based not on the hourly rate, but on the

percentage in part two of the fee proposal. On May 20, 2008, Shaw sent a follow-up

email to Knott confirming these terms and asserting the drawings, images, and

supporting documents were copyright protected and the exclusive property of SHA.

After analyzing the drawings BKA previously obtained from SHA, Knott

concluded SHA had completed 40 percent of the schematic design phase of the

project, not 80 percent, although Knott did not have all of SHA’s documents at the

time of his May 22, 2008 report. On May 30, 2008, Bessenbacher sent an email to

Shaw and Knott noting their review determined the schematic design portion was 40

percent complete. In the email, Bessenbacher stated a contract with BKA was near:

As we are all aware, a key issue related to this agreement is Ladco’s

assessment of the percent detail of the SD [schematic design] portion as

performed by Shaw Hofstra. After review by our counsel, we

determined that the SD portion was at 40% complete. Per this

determination, we have agreed to the following arrangement with Shaw

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Hofstra in return for immediate, full release of the SD documents to Bell

Knott.

Upon Ladco and Bell Knott executing the Architectural Services

contract, Ladco will give a check made out to Bell Knott in the amount

of 25% of the total invoice for 40% of SD. It would be our assumption

that Bell Knott would serve as a conduit between Ladco and Shaw

Hofstra, thus immediately forwarding the funds directly to Shaw Hofstra. 

An additional 25% of the total invoice will be paid under “net 30” terms

under the same assumptions. The final 50%, as agreed upon in the

Architectural Services contract, will be deemed “at risk” until

construction financing is put in place, estimated to be late Summer 2008.

The split of the remaining 60% of SD will be determined solely

between Bell Knott and Shaw Hofstra.

If you feel that the arrangement agreed upon is separate from this,

please let me know. If we are in full agreement, please note that to the

group. Once all have agreed, Craig, I would request that you forward the

SD documents to Kerry today so that we can continue to keep moving

forward.

J.A. at 29-30. In response, Shaw requested that someone at Ladco sign a hard copy

of the email, and Ladco complied. On June 2, 2008, SHA delivered its drawings and

computer aided design files to BKA.

Ultimately, Ladco and BKA never signed an architectural services contract,

financing was never put in place, and the project was never built. In turn, while Ladco

paid several invoices over the months submitted by SHA based on hourly rates, which

cumulatively totaled over $100,000, Shaw testified SHA was never paid for the

percentage of schematic design work it completed.

Consequently, SHA brought suit against Ladco for breach of contract, and later

added a quantum meruit claim. In its complaint, SHA asserted it was entitled to

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$170,171 based on the 40 percent of schematic design work it had completed, as well

as $25,617.50 for six unpaid invoices for architectural and interior design services, for

a total of $195,788.50.

Ladco moved for summary judgment based on the May 2008 email, arguing the

email constituted a settlement agreement that contained conditions precedent to

payment which were never met. The district court denied the motion, concluding

there were disputed issues of material fact remaining “regarding the existence and

terms of any contract[s] between the parties.” Id. at 136. Prior to trial, Ladco

proposed a verdict director, which asked the jury to decide only whether SHA was

entitled to payment on the unpaid invoices. Ladco also objected to SHA’s verdict

director because it charged the jury with interpreting a contract between the parties. 

The district court entered an order, again concluding the parties’ agreement was

ambiguous. The court noted its “inability to divine whether and how much Plaintiff

was entitled to be paid for its work led to the denial of Defendant’s summary

judgment motion.” Id. at 529.

At trial, Ladco claimed Shaw demanded a fee for schematic design work based

on the percentage in part two of the fee proposal, rather than proceeding according to

the terms of the May 2008 email. Ladco moved for judgment as a matter of law,

arguing the fee proposal stated SHA was to be paid at an hourly rate, the fee proposal

was replaced by the March 2008 letter agreement, and both were replaced by the May

2008 email. The district court denied the motion. At the instructions conference,

Ladco again objected to sending any contract to the jury to interpret, but argued in the

alternative for a contra proferentem instruction because it claimed Shaw drafted the

proposal. The court overruled Ladco’s objection and denied its instruction request. 

Ultimately, the jury ruled in favor of SHA, assessing damages of $250,000.

After trial, Ladco renewed its motion for judgment as a matter of law on the

same grounds as before, which the court denied, stating “Defendant’s contention that

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the evidence was insufficient to support a verdict for Plaintiff turns on its premise that

the parties’ contract was unambiguous. The Court adheres to its prior rulings on this

issue: the contract was ambiguous and its interpretation was a matter for the jury to

resolve.” Id. at 608. Ladco appeals.

II

Ladco raises two issues on appeal. It argues the district court erred by allowing

the jury to interpret the parties’ agreement, and it abused its discretion by refusing a

requested contra proferentem instruction. We address each issue in turn.

A. Whether the District Court Erred in Sending the Fee Proposal to the Jury

“We review de novo the grant or denial of a motion for judgment as a matter

of law, using the same standards as the trial court.” Penford Corp. v. Nat’l Union Fire

Ins. Co. of Pittsburgh, PA, 662 F.3d 497, 503 (8th Cir. 2011). “We draw all

reasonable inferences in favor of the nonmoving party without making credibility

assessments or weighing the evidence.” Id. (internal quotation marks and citation

omitted). “To sustain an entry of judgment as a matter of law, the evidence must point

unswervingly to only one reasonable conclusion. This demanding standard reflects

our concern that, if misused, judgment as a matter of law can invade the jury’s rightful

province.” Id. (internal quotation marks and citation omitted).

Ladco’s central argument is that the parties’ contractual arrangement was a

matter of law for the district court, rather than the jury, to decide. “Whether an issue

was properly before the jury . . . is a legal question which we review de novo.” 

Chicago Title Ins. Co. v. Resolution Trust Corp., 53 F.3d 899, 904 (8th Cir. 1995). 

“Under Missouri law, determining the meaning of an unambiguous provision is a

question of law for the court, determined by giving language its plain and ordinary

meaning without resort to extrinsic evidence.” Weitz Co. v. MH Washington, 631

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F.3d 510, 524 (8th Cir. 2011). “A contract is ambiguous when the terms are

susceptible of more than one reasonable meaning.” Id. “Interpretation of a contract

is a jury question only when the court determines that the contract is ambiguous and

that there exists a genuine factual dispute regarding the intent of the parties.” Id.

Ladco argues the fee proposal should not have been sent to the jury because its

terms were unambiguous and thus the interpretation was a matter of law for the court

to decide. According to Ladco, SHA invoiced at standard hourly rates until it

discovered it would not be lead architect on the project. In other words, Ladco asserts

SHA interpreted the Statement of Intent as meaningless when it became

disadvantageous to abide by it. Because the proposal was unambiguous, Ladco argues

the court should have enforced the Statement of Intent, which only provided for

hourly compensation, and granted judgment as a matter of law on SHA’s percentage

fee claim.

We disagree. First, “[t]o determine whether a contract is ambiguous the court

must consider the entire written agreement and give words their ordinary and usual

meaning.” Union Elec. Co. v. Sw. Bell Tel. L.P., 378 F.3d 781, 786 (8th Cir. 2004). 

The Statement of Intent provided SHA would work at “standard hourly rates and

under the terms and conditions contained in this proposal until such time as a final

agreement is in place or until SHA is notified that its services are no longer needed.” 

J.A. at 27 (emphasis added). The parties advance competing contract principles in

support of their interpretations of this provision. Ladco argues we must interpret this

provision to give effect to the specific term dealing with hourly rates, rather than the

broader language referencing the other terms and conditions of the proposal. See

Phillips v. Authorized Investors Grp., Inc., 625 S.W.2d 917, 921 (Mo. Ct. App. 1981)

(“[W]e give preference to the specific provisions over the general.”). On the other

hand, SHA offers support for its theory in the principle that “each term of a contract

is construed to avoid rendering other terms meaningless,” which would effectively

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occur if we accepted Ladco’s interpretation of this provision. Dunn Indus. Grp., Inc.

v. City of Sugar Creek, 112 S.W.3d 421, 428 (Mo. 2003).

Given the language of the entire fee proposal, including the Statement of Intent

and the separate scopes of services, the contract is susceptible to each of the meanings

argued by the parties. Namely, it is reasonable to read the fee proposal in accordance

with hourly or percentage-based compensation. Under either approach, determining

the proper amount of compensation becomes particularly confusing under the

circumstances, because SHA was tasked with replicating its efforts under separate

scopes of services throughout the continual revisions and additions to the project.

Indeed, even the parties acted under varying interpretations. For several

months, SHA submitted hourly-based invoices that Ladco paid in full, which accords

with Ladco’s interpretation of the fee proposal. Shaw admitted at trial at least some

of the schematic design work was billed on an hourly basis in certain invoices. 

Nonetheless, when Shaw demanded to be paid based on the percentage of schematic

designs SHA completed, Ladco agreed SHA was entitled to such compensation, even

if it disputed the exact percent SHA had completed. See J.A. at 29-30 (“As we are all

aware, a key issue related to this agreement is Ladco’s assessment of the percent detail

of the [schematic design] portion as performed by Shaw Hofstra.”). We believe the

parties’ conduct is relevant to our interpretation of the contract, and supports a finding

of ambiguity. See Press Mach. Corp. v. Smith R.P.M. Corp., 727 F.2d 781, 785 (8th

Cir. 1984) (“The surrounding circumstances at the time of contracting and the

positions and actions of the parties are relevant to the judicial interpretation of the

contract.”); Wilkinson v. Tarwater, 393 S.W.2d 538, 543 (Mo. 1965) (“The

construction that the parties place upon a contract or an agreement as evidenced by the

acts and conduct is strong evidence of the real intention of the parties.”).

In sum, “[u]nder Missouri law, the court must first determine as a matter of law

whether a contract is ambiguous.” United States v. Green Acres Enters., Inc., 86 F.3d

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130, 133 (8th Cir. 1996). The district court performed this task here, concluding the

parties’ agreement was ambiguous. Given the varying reasonable interpretations of

the fee proposal’s language, we agree.

“[O]nce a contract is deemed ambiguous, a question of fact arises and the issue

is reserved for the jury.” Lafarge N. Am., Inc. v. Discovery Grp. LLC, 574 F.3d 973,

981 n.3 (8th Cir. 2009); see also Weitz Co. LLC v. MacKenzie House, LLC, 665 F.3d

970, 976 (8th Cir. 2012) (“Because of this ambiguity, the issue was properly

submitted to the jury, and this court will not overturn their reasoned verdict.”); Baum

v. Helget Gas Prods, Inc., 440 F.3d 1019, 1022 (8th Cir. 2006) (“Where the contract

is textually ambiguous, a question of material fact exists as to the parties’ intent,

which is for a jury to resolve at trial.”). Accordingly, because the fee proposal was

ambiguous as to the parties’ intent, the district court did not err in submitting it to the

jury to make the necessary factual determination.

Finally, we address Ladco’s contention that the proposal had been replaced by

the May 2008 email, which should be interpreted as a matter of law because it was an

unambiguous settlement agreement. Under the email, Ladco states two conditions

precedent were not met: (1) no contract was entered between Ladco and BKA, and

thus SHA’s fee was unknown; and (2) financing was not obtained, and the email

stated the final 50 percent was deemed “at risk” until such financing was put in place. 

Consequently, Ladco argues none of the payments in the settlement became due.

Notwithstanding the drastic inequity posed by adopting Ladco’s argument, we 

disagree the email operated as an unambiguous settlement agreement that superseded

the original fee proposal.3

 Looking to the language of the email, it begins by focusing

3

Ladco also argues the fee proposal was superseded by the March 2008 letter

agreement. We note Ladco appeared to take the opposite position in its motion for

summary judgment, where it noted the letter agreement was “for some additional

limited services related to the Project,” but “[t]he amount in dispute is relatively small

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on the “contract for Architectural Services” that was to be entered into between Ladco

and BKA. J.A. at 29. Ladco then stated, “a key issue related to this agreement is

Ladco’s assessment of the percent detail of the [schematic design] portion as

performed by Shaw Hofstra.” Id. Ladco indicated it would pay SHA based on a

completion rate of 40 percent of the schematic design in exchange for SHA’s release

of the schematic design documents to BKA. SHA disputed Ladco’s assessment that

it only completed 40 percent of the schematic design work, and it never signed the

purported settlement, although it ultimately turned over the documents to BKA.

Like the fee proposal above, it is unclear whether the parties intended to settle

the schematic design compensation via the May 2008 email. “The issues of whether

the parties entered into a contract and, if so, what terms are included in that contract,

depend on what the parties actually said and did and not upon one party’s own

understanding.” Muilenburg, Inc. v. Cherokee Rose Design & Build, LLC, 250

S.W.3d 848, 854 (Mo. Ct. App. 2008) (internal quotation marks and citation omitted). 

“The real intention of the parties is the universal rule of construction.” Robson v.

United Pac. Ins. Co., 391 S.W.2d 855, 861 (Mo. banc 1965). “Whether an unsigned

writing constitutes a binding contract depends upon the intention of the parties, which

is a question of fact that is seldom capable of direct proof.” Heritage Roofing, LLC

v. Fischer, 164 S.W.3d 128, 134 (Mo. Ct. App. 2005). This is the case here. 

Ultimately, while another jury may agree with Ladco that SHA was only entitled to

be paid based on its hourly rates, “we simply cannot say, on the basis of the record

before us, that [Ladco] is entitled to judgment as a matter of law on this claim[.]” 

Bone v. Refco, Inc., 774 F.2d 235, 245 (8th Cir. 1985). “[R]easonable minds could

differ about the import of the evidence,” and thus the district court properly denied the

and the issue is not the subject of this motion for summary judgment.” J.A. at 102. 

In any event, even if this argument is not waived by Ladco’s failure to raise it below,

Copeland v. ABB, Inc., 521 F.3d 1010, 1015 n.5 (8th Cir. 2008), the letter agreement

is inapposite to the current dispute because it is almost entirely silent on the schematic

design work contemplated by the second scope in the fee proposal.

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motion for judgment as a matter of law. Chicago Title Ins. Co., 53 F.3d at 904. We

affirm the district court.

B. Whether the District Court Abused Its Discretion by Refusing to Give a

Contra Proferentem Instruction

“We review for abuse of discretion the district court’s refusal to submit a

requested instruction.” Powell v. TPI Petroleum, Inc., 510 F.3d 818, 823 (8th Cir.

2007). “A contra proferentem instruction is appropriate where one party drafts and

controls the contractual terms of a contract; in such situation, a contra proferentem

instruction tells the jury to construe any ambiguity in such contract against the

drafter.” Porous Media Corp. v. Midland Brake, Inc., 220 F.3d 954, 960 n.8 (8th Cir.

2000). The contra proferentem rule “is applied more rigorously in insurance contracts

than in other contracts in Missouri.” Burns v. Smith, 303 S.W.3d 505, 509 (Mo.

2010) (internal quotation marks and citation omitted).

In this case, Ladco requested a contra proferentem instruction directing the jury

to adopt Ladco’s contention of the contract in rendering its verdict, because Ladco

claimed Shaw drafted the proposal. The court denied the instruction, stating: “I want

both sides here to have ample opportunity to argue your theory of the case to the jury. 

I’m not going to restrict any argument with rulings of law that essentially result in a

directed verdict for one side or the other.” Trial Tr. vol. 3, at 444. Ladco argues the

refusal of the instruction resulted in the jury’s misunderstanding of its duty to interpret

the fee proposal against SHA. Had the jury been so instructed, Ladco claims the

verdict likely would have been different.

We agree with the district court because there was not sufficient evidence as to

who drafted the Statement of Intent, contrary to Ladco’s assertion. Shaw testified,

“Statement of intent is not a document that we use once every ten years I think. I’m

not sure whether Mr. Belew provided that or we provided it. I simply don’t

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remember.” Trial Tr. vol. 2, at 317. When pressed on some modifications made to

the Statement of Intent, Shaw stated, “Again, I either drafted it or Mike drafted it. I

certainly must have drafted that line or added that line.” Id. at 319. While Ladco

stresses that Shaw “admitted he must have drafted at least some of the statement of

intent,” Appellant’s Reply Br. at 9, this, standing alone, would be insufficient to give

the instruction, because it necessarily means Belew or Ladco drafted some of the

language. It would contravene the purpose of the instruction if both parties drafted

the provision in part.

Accordingly, the court acted within its province in denying the request because

there was not sufficient evidence in the record to form a basis for the instruction. Cf.

Swift & Co. v. Elias Farms, Inc., 539 F.3d 849, 854 (8th Cir. 2008) (“A jury should

be instructed to consider the rule that ambiguous agreements are construed against the

drafter only if it is unable to determine the intent of the parties based on all of the

evidence.”); McClure v. Am. Fam. Mut. Ins. Co., 223 F.3d 845, 858 (8th Cir. 2000)

(concluding the court did not abuse its discretion in denying a contra proferentem

instruction based, in part, on the lack of evidence on argument on the issue). 

Moreover, we note the parties appeared to be at equal bargaining power. See Porous

Media Corp., 220 F.3d at 960 (concluding a party was not entitled to a contra

proferentem instruction because, in part, the parties had equal bargaining power). 

Because the court did not abuse its discretion, we affirm its denial of the requested

instruction.

III

For the foregoing reasons, we affirm the district court’s judgment.

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