### The HONORABLE RICHARD H. KYLE, United States District Judge * 

### for the District of Minnesota, sitting by designation. No. 95-2955

Sligo, Inc., * * Plaintiff/Appellee, * Appeal from the United States * District Court for the v. * Eastern District of Missouri * Cynthia R. Nevois and * Michelle A. Vlahek, Trustees * of the Raymond H. Cornell * Revocable Trust, * * Defendants/Appellants. *

Submitted: April 12, 1996 Filed: May 21, 1996
Before WOLLMAN and HANSEN, Circuit Judges, and KYLE, District Judge. *
KYLE, District Judge. Plaintiff/Appellee Sligo, Inc. (“Sligo”), a closely held corpor ation,
com menced this diversity action against Defendants/Appellants Cynthi a Nevois and Michelle Vlahek (“Trustees”) seeking a declaration that i t properly exercised an option to purchase shares of Sligo stock held by the Trustees, or alternatively, an order of specific performance requiring the Trustees to accept Sligo’s tender offer for the shares. The district cour t found for Sligo and ordered the Trustees to conv ey the stock certificates. The Trustees appeal, claiming the district

### 2

court’s order is contrary to the express language of Sligo’s option an d contesting the proper purchase price for the shares. Sligo subsequently filed a motion to dismiss the appeal as moot on the grounds the Trustees complied with the district court Order and conveyed the stock during the pendency of this appeal. For the reasons set fo rth below, we deny Sligo’s motion to dismiss this appeal, and we reverse th e decision of the district court.

I. BACKGROUND

The parties dispute the proper method for calculating the purchas e price of Sligo stock under the terms of Sligo’s option. The Trustees clai m the pur chase price should be based on the book value of Sligo shares o n December 31, 1989. S ligo maintains the purchase price should be based on the b ook value of the shares on January 31, 1994. The following fact s underlying this conflict are undisputed.

A. Acqu isition of Sligo and the Restrictive Stock Transfe r Agreement

In July, 1988, Raymond H. Cornell (“ Cornell”), and J. Richard Hauser (“Haus er”) engineered a leveraged buyout of Sligo, a St. Louis-base d indus trial supply distributor. (J.A. at 4-5, 37, 96-97.) Cornell an d Hau ser each owned fifty percent of Sligo’s outstanding shares under th e terms of the acquisition, and each served as an officer and director o f Sligo. As a condition of financing this acquisition, Sligo’s lender s required it to purchase and maintain life insura nce policies in the amount of $1 million on the lives of Cornell and Hauser and required that the lif e insurance proceeds be applied toward repayment of the financing loans if either Hauser or Cornell died before the loans were repaid. Sligo later purchased additional life insurance policies on the lives of Cornell and Hauser in the amount of $500,000.00 each. Sligo was the beneficiary o f these life insurance policies.

### The Agreement defined the term “transfer” as follows: 2 

### (e) Transfer . All references herein to “Transfer” shall mean and shall include any sale, exchange, gift, assignment, transfer in trust or otherwise, . . . . In addition, if for any reason any Present Shareholder ceases to be at least an officer, a director or an employee of the Corporation, a “Transfer” subject to the provisions of Section 3.4 hereof shall be deemed to have occurred with respect to the Shares of such Present Shareholder on the first Business Day on which such Present Shareholder is not an officer, director or employee of the Corporation. (J.A. at 10.) 3 In December, 1988, Hauser and Cornell entered into a Restrictiv e Stock Transfer Agreement (“Agreement”) to restri ct each owner’s ability to transfer his shares of Sligo stock. (J.A. at 969.) This Agreemen t provided Sligo with an option to purchase an owner’s share upon certai n events and under cert ain conditions, as more fully set forth below. After executing the Agreement and pursuant to its term s, Cornell transferred his shares of Sligo stock to an inter vivos revocable trust (the “Trust”), of which he was the sole trustee.

Under the Agreement, Sligo’s option was triggered when a specifie d “transfer” occurred. Its option read in pertinent part: 2

3.4 Purchase Options Upon Death of a Shareholder or Othe r Involuntary Transfers

.

. . . (b) First Option of Corporation . Withi n thirty (30) days of the Corporation’s receipt of actual notice of a Transfer .

. . the Corporation may exercise an option hereby granted t o the Corporation to purch ase all, but not less than all, of the Shares so Transferred . . . for the price and upon the othe r terms provided in Article V hereof. . . .
(J.A. at 1 3.) The Agreement treated the death of a shareholder as a “transfer” which accordingly triggered Sligo’s option to purchase

### 4

the deceased shareholder’s shares.
The Agree ment also established two mechanisms for setting the value of t he shares in the event of a transfer. The first was a “fail-safe ” provision which read:

5.2 Market Value . Unless otherwise specifie d in a certificate of agreed value then in effect pursuant to Section 5.3 hereof, the “Market Value” of Shares as used herein shall mean:

. . . (b) Death and In surance . In the case of a sale and purchase of Shares by the Corporation under [the terms of it s option] as a result of the death of a Shareholder if the Corporatio n recei ves life insurance proceeds upon the death of suc h Shareholder, the Market Value shall mean the book v alue of said Shares for the period ending December 31, 1989, and One an d one-half (1 1⁄2) times said book value thereafter . Book valu e sh all conclusively be determined by the accountant o r accounting firm then servicing the Corporation. ( Id. at 16 (emphasis added).) As an alternative, the Agreement provided tha t the shareholders could change the Market Value as determined unde r Section 5.2(b) by executing a “Certificate of Agreed Market Value.” The amount agreed upon in such a certificate superseded the Market Value as se t out in S ection 5.2(b). Specifically, Section 5.3 of the Agreemen t provided:

5.3 Certificate of Agreed Market Value . Th e Shareholders and the C orporation may, at any time and from time to time , det ermine “Market Value” as used in Section 5.2 hereof b y executing and filing wit h the Corporation a written instrument wherein such determination is set forth, whereupon, for th e per iod of time stated in such instrument, “Market Value” s o determined shall supersede “Market Value” as determined i n Section 5.2. . . .
( Id. at 16-17.) Cornell and Hauser executed a Certificate of Agreed Marke t Value effective for the period August 1, 1988 through December 31, 1988. They did not execute a subsequent Certificate of Agreed Market Value.

### A third individual, Michael A. Lazaroff, was also 3 

### named as a successor and co-trustee of the Trust; he resigned as a co-trustee on February 16, 1994. (J.A. at 38.)

In calculating this value, Deloitte & Touche did not include the $1.5 million 4 

### due Sligo from the life insurance policies payable upon Cornell’s death. 

### Sligo did not receive payment on these policies until approximately March, 1994, at which time it received $504,247.38 from Kentucky Central Life Insurance Company and $1,000,638.58 from Allianz Life Insurance Company. (J.A. at 715, 716.)
5 B. Sligo’s Attempt to Exercise its Option

Cornell committed suicide on January 31, 1994, and the Trustee s succeeded him as successor co-trustees of the Trust. Under th e Agreement, 3 his de ath constituted a “transfer” which triggered Sligo’s option t o purchase the shares held in the Trust. On February 18, 1994, Slig o exercised its option and notified the Trustees of its intention to purchas e the shares of Sligo stock held in the Trust.

In order to determine the purchase price of these shares, Slig o contacted “the accounting firm then servicing the Corporation,” Deloitte & Touche, and requested that it calculate the book value of Sligo as of th e date of Cornell’s death, January 31, 1994

. That book value was calculated using Sligo’s financial statemen ts for 1993 and information obtained from Sligo regarding income for the period January 1 -31, 1994. Deloitte & Touche determined the book value of al l Slig o shares on January 31, 1994 to be $546,523.00. Cornell’s fift y percent interest was $273,261.50, and Sligo tendered one and one-half time s this amount, $409,892.25, to the Trustees. 4
Although Deloitte & Touche did not c alculate the book value of Sligo shares as of December 31, 1989 -- the date referred to in

### 6

Section 5.2(b)of the Agreement -- the parties do not dispute that the book value on that date was $879,724.00. The book value of Cornell’s fifty

percent interest in Sligo at that time was $439,862.00. (J.A. at 724.)

Based on the accountant’s calculation of the January 31, 1994 boo k val ue, Sligo offered the Trustees $409,892.25 for the Trust’s shares o f Sligo stoc k. The Trustees refused the offer, claiming that Sligo ha d improperlycalculated the book value and asserting the following: First , because the shareholders and Sligo never determined “Market Value” under the procedure established in Section 5.3, the “fail safe” provision i n Section 5.2(b) applies, and the “Market Value” of the shares was one and one-half times their “book value” as of December 31, 1989 , not January 31, 1994. They accordingly assert that Sligo must pay $659,793.00 for th e shares -- the agreed upon December 31, 1989 book value of $439,862.0 0 multiplied by 1.5.

Second , a nd alternatively, if the book value is to be calculated as of the date of Cornell’s death, the $1.5 million due to Sligo fro m Cornel l’s life insurance policies should have been included in th e determination of book value.

Third , and also based on the calculation of book value as of th e date of Cornell’s death, the accountants “did not mak e an independent review of the records of Sligo in order to calculate book value” and instead relied on unreviewed informa tion Sligo supplied. (Appellant’s Br. at 13.) They accordingly claim the accountants did not “determine” the book value of th e shares as required by Section 5.2(b) of the Agreement.

C. District Court Proceedings

### 7 The parties submitted their claims to the district court on a stipulated record. I n its Findings of Fact, Conclusions of Law and Final Order, the district c ourt concluded Sligo had timely and validly executed its option. It held that the purchase price of the shares to be purchased under Section 5.2(b) should be based on their bo ok value as of January 31, 1994, the date of Cornell’s death. The district court further concluded that Deloitte & Touche properly excluded the $1.5 million in life insuranc e proceeds payable to Sligo from the calculation of the shares’ book value
as of Jan uary 31, 1994. Finally, the district court concluded tha t Deloitte & Touche complied with the Agreement’s term that it “determine” the shares’ book value, notwithstanding its failure to independently revie w financial records, because: (1) the Agreement did not explicitly require the accountants to conduct an audit and (2) the Trustees failed to show th e book value was determ ined in an arbitrary or capricious manner. Based on these determinations, the district court enteredjudgment in Sligo’s favor and ordered the Trustees to accept Sligo’s tender of $409,892.25 and conve y the shares.

D. Post-Trial Proceedings
The Trustees filed a notice of appeal to this Court on July 25, 1995. They simultaneously filed a motion with the dist rict court seeking to stay execution of its Order pending resolution of the ir appeal; this motion was denied. On August 14, 1995, Sligo informed the district court that i t intended to execute on the Order pursuant to Rules 69 and 70 of the Federa l Rules o f Civil Procedure. (Wunderlich Aff. ¶ 7.) Sligo also informe d counsel for the Trustees that unless they tender ed the shares, Sligo would dee msuch inaction as refusing to comply with the terms of the Order

. ( Id. , Ex. E.)

The Tr ustees subsequently advised Sligo that they would accep t Sligo’s tender of $409,892.25 for the shares to avoid risk of a

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contempt citation, but without waiving or prejud icing their appeal rights. ( Id. ¶ 15 & id. , Exhs. H, J.) Accordingly, the certificate conveyed t o Sligo contained the following reservation of rights clause:

Without waiving any issue or right on appeal, Trustees of the Raymond H. Cornell Trust dated 10-3-90 hereby deliv er to Sligo, Inc. the 50 shares of common stock of Sligo, Inc. as directed in the Fi nal Order of Judge Shaw signed on June 29, 1995 i n Sligo, Inc. v. Cynthia R. Nevois, et al. , Cause No., 4:94-cv670 CAS, in the United States District Court for the Easter n District of Missouri. ( Id. , Ex. K.) Sligo tendered a check for $409,892.25, which the Trustees deposited in a separate account pending resolution of this appeal. (Nevoi s Aff. ¶ 7 & id

. , Ex. A; Vlahek Aff. ¶ 7 & id. , Ex. A.)

Sl igo currently claims the Trustees abandoned their appeal becaus e they “accepted” payment for the shares.

II. DISCUSSION

A. Motion to Dismiss the Appeal
Sligo’s motion to dismiss this appea l is premised on the “acceptance of benefits” doctrine, which provides that an ap peal from a court judgment may be barred where t he appealing party has voluntarily and intentionally accepted t he benefits of that judgment. See Commercial Union Ins. v

. Walbrook Ins. , 41 F.3d 764, 769 (1st Cir. 1994); Wynfield Inns v. Edward LeRoux Group, Inc. , 896 F.2d 483, 489 (11th Cir. 1990); Internationa l Harvester Credit Corp. v. East Coast Truck , 547 F.2d 888, 889 (5th Cir

. 1977). T he application of this doctrine requires a party to accept th e benefits of a judgment under circumstances which “indicate an intention to finally settle and compromise a disputed claim.” In re Tudor Assoc., Ltd. II , 20 F.3d 115, 118 (4th Cir. 1994)

### 9

(quotation omitted).

In the present case, the circumstances clearly indicate that th e Trustees did not intend to finally settle their dispute with Sligo whe n they conveyed the sha res. The conveyance was made pursuant to an adverse court ord er and under a threat of contempt. Moreover, the Trustee s repeatedlyand consistently informed Sligo that they did not intend t o waive their appeal by conveying the shares; the certificate itsel f specifically memorializes this position. The Trustees did not seek to tak e “ad vantage” of the court order compelling them to transfer the shares. This was precisely the result the Trustees litigated to avoid. W e accordingly deny Sligo’s motion to dismiss this appeal.

B. Merits of the Appeal

The Trust ees raise three issues on appeal: (1) whether the district court properly interp reted Section 5.2(b) of the Agreement in determining the date for establishing the book value of the shares; (2) whether th e insurance proceeds pa yable to Sligo upon Cornell’s death should have been included in the “Market Value” of the shares if the date for determining book value is January 31, 1994; and (3) whether the accountant “determined ” the boo k value as required under the Agreement. We need only reach th e first issue.

1. Section 5.2(b)
Sligo an d its shareholders did not execute a Certificate of Agree d Market Value pursuant to Section 5.3 for the per iod following December 31, 1988. As a result, the “Market Value” determination is governed by th e fail-saf e clause found in Section 5.2(b), which provides that if a shareholder dies and Sligo receives life insurance proceeds, and if there is not a Certificate of Agreed Market Value covering the date of such a shareholder’s death:

### 10 the Marke t Value shall mean the book value of said Shares for th e period ending December 31, 1989 , and One and one-half times sai d book value thereafter. (Emphasis added.)

The Trustees argue that the words “said book value” refer to the previousl y stated boo k value, and thus expressly require the market value of th e Shares to be determined as of December 31, 1989. Sligo argues that th e phrase “for the period ending December 31, 1989” qualifies the reference to “Ma rket Value” in this clause, and does not modify the term “boo k value.” Sligo mainta ins the book value to be used in this section is the book valu e as of the date of the shareholder’s death, January 31, 1994

. Both parties rely on the alleged plain meaning of Section 5.2(b) to suppor t their conflicting interpretations.

The distr ict court did not find Section 5.2(b) ambiguous, found the Trustee’s construction of Section 5.2(b) “withou t merit,” and concluded as follows:

December 31, 1989, is clearly not the only date on which book value is to be calculated. Due to the use of the wor d ‘thereafter,’ the Court concludes that the Agreement provides for the purchase price to be calculated on dates af ter December 31, 19 89. Said date is used by the Agreement as a line o f demarc ation between when the purchase price is straight boo k value and when it is one and one-half times book value. (J.A. at 971-72.)

### Section 8.9 of the Agreement provides that “[t]his 5 

### agreement shall be subject to and governed by the laws of the State of Missouri.” (J.A. at 22.)

In its Brief, Sligo claims that the district court 6 

### relied on extrinsic evidence in “resolving the issues in this case,” and that as a result, its conclusions must be reviewed under the clearly erroneous standard. (Appellee’s Br. at 14.) This is clearly not the law with respect to the district court’s interpretation of the language of the Agreement.
11 2. Legal Standard

We review the district court’s interpretation of Missouri law d e 5
novo. Bell Lumber & Pole Co. v. United States F ire Ins. , 60 F.3d 437, 441 (8th Cir. 1995). The construction and interpretation of a contract is a matter o f law, and no deference is paid to the trial court’s in terpretation. See Central CityLtd. v. United Postal Sav. Ass’n , 903 S.W.2d 179, 182 (Mo. Ct. App. 1995). Whether the language of a contract is am biguous is also a question of law. CIT Group/Sa les Fin., Inc. v. Lark , 906 S.W.2d 865, 868 (Mo. Ct. App. 1995); see also Maurice Sunderland Architecture, Inc. v. Simon , 5 F.3 d 334, 33 7 (8th Cir. 1993) (explaining that “[t]he determination that a contract is or is not ambiguous is a legal deter mination, and no deference is paid t o the trial court’s determination on that issue” and “[i]f th e cont ract is unambiguous, the interpretation is a question of law an d determine d de novo”) (applying Minnesota law). A contract is no t 6 ambiguous simply because the parties disagree as to its meaning. Youn g Dental Mfg. Co. v. Engineered Prod., Inc. , 838 S .W.2d 154, 155-56 (Mo. Ct. App. 1992). Rather, to determine whether a contract is ambiguous, th e court must “consider the whole instrument and give the words their ordinar y and natural meaning.” Angoff v. Mersman , 917 S.W.2d 207, 210 (Mo. Ct. App

. 1996) (quotation omitted).
Accordingly, a contract is ambiguous only if “its terms are

### 12

susceptible of more than one meaning so that rea sonable persons may fairly and honestly differ in their construction.” CIT Group Sales , 906 S.W.2d at 868; see also Central City , 903 S.W.2d at 182 (“[w]here a contract is not ambig uous, we ascertain the intent of the parties by giving th e language used its natural, ordinary and common sense meaning”). A court may n ot use “forced or strained meanings” and “cannot use extrinsic o r parol evidence to cre ate an ambiguity.” Young Dental , 838 S.W.2d at 156. If no ambiguity exists, the court must construe and enforce the contract according to its plain meaning. Schuster v. She lter Mut. Ins. , 857 S.W.2d 381, 383 (Mo. Ct. App. 1993); see also Lake Cable, Inc. v. Trittler , 914 S.W.2d 431, 435-36 (Mo. Ct. App. 1996)(“[w]hen a contract uses plain and unequivocal language, it must be enforced as written”).

3. Application

We agre e with the district court that Section 5.2(b) is no t ambiguous, but disagree with its interpretation of the plain language used in this section.

Th e crux of the parties’ dispute, and the claimed district cour t error, centers upon the meaning of the word “said” as it is used in Sectio n 5.2(b). Missouri courts have explained that the plain meaning of the word “said” is “before men tioned,” “already spoken of” or “aforesaid” and that it “refers to an appr opriate antecedent.” York Pharmacal Co. v. Henry C. Bee kmann Realty & Inv. Co. , 304 S.W.2d 40, 42 (Mo. Ct. App. 1957 ) (qu otation omitted); accord Smith v. Stowell , 125 N.W.2d 795, 797 (Iow a 1964) (quotation omitted); see also Barilaro v. Consolidated Rail Corp. , 876 F.2d 260, 265 (1s t Cir. 1989) (noting that “[i]n usual parlance, when the word ‘said’ precedes another term it is so used in order to call the reader’s attention to an antecedent meaning or d esignation for the term”); Black’s Law Dictionary1336 (6th ed. 1990) (defining “said” as “[b]efore mentioned” and noting that “[t]his

### For example, rather than providing the purchase price 7 

### to be the book value of the shares for the period ending December 31, 1989, “and One and one-half times said book value thereafter,” the Agreement, if the parties wanted to use the current book value, could simply have provided the purchase price to be the book value of the shares for the period ending December 31, 1989, “and One and one-half times the current book value thereafter,” or “and One and one-half times their book value thereafter.”
13 wor d is frequently used in contracts, pleadings, and other legal paper s with the same force as ‘aforesaid’”). We agree with this construction.
Applying this construction to Section 5.2(b), its meaning, w e be lieve, becomes clear and not reasonably susceptible to conflictin g interpretations. Sec tion 5.2(b) creates two distinct periods fo r calculating the purchase price of the shares, de pending upon the date this provision is triggered. The first period is “for the period endin g December 31, 1989.” The second period is for an y time “thereafter.” With respect to calculating the book value before December 31, 1989 -- the firs t period -- this section provides that the Market Value shall mean the “book value of the shares” for the period ending on that date. With respect to cal culating the Market Value anytime after the first period, the Marke t Value i s one and one-half times “said book value.” In other words, th e Market V alue is one and one-half times the previously mentioned o r aforesaid book value. In this section, the previously mentioned book valu e is th e book value of the shares on December 31, 1989 . This language i s plain and unequivocal.

To ho ld otherwise would be to ignore the use of the word “said” i n this section, or to g ive it a strained or unnatural meaning. This we may not do. See Liberty Storage Co. v. Kansas City Terminal Warehouse Co. , 34 0 S.W.2d 189, 192 (Mo. Ct. App. 1960) (explaining “[w]e are not at liberty to ignore the presenc e of [a word in a contract], but must attach meaning and significance to it, because every part of the contract must be given effect, if fairly and reasonably possible”). If the paries had wanted the fail-safe clause to use the current book value of the shares, they could have easily provided language to this effect. They did not. 7

### 14

They specified the book value on December 31, 1989.
With respect to the district court’s construction, we note its focus
was on the term “thereafter.” The district court found that, because of this term, the date December 31, 1989 marked a “line of demarcation ” between when the purchase price was straight book value and when it was on e and one-half times book value. It concluded that Section 5.2(b) did no t provide a fixed date to be used to determine the book value, but merel y provided that the book value at the time the pur chase price was calculated would be multiplied by 1.5.

The district court read too much int o Section 5.2(b). We agree that Sectio n 5.2(b)contemplates that the purchase price may be calculated o n different dates, and that December 31, 1989 marks a line of demarcatio n between w hen the purchase price will be straight book value and when i t will be 1.5 times the book value. It does not follow, however, that the book value used in the calculation must change merely because th e multiplier applied to that book value changed. This additional condition is found nowhere in t he Agreement. To the contrary, as stated above, the book value specified by the Agreement is the previously mentioned boo k value of the shares on December 31, 1989.

Moreo ver, this construction is consistent with the remainin g provisions of the Agreement. The Agreement establishes a fixed purchase price for the shares for the period August 1, 1988 to December 31, 1988. Section 5.2(b) is a f ail-safe provision which establishes two alternative fixed purchase prices for the shares for the per iod following December 31, 1988. This provided a

### The Court also notes that calculating the book value at 8 

### the end of an accounting period rather than the purchase date is reasonable. See 1 O’Neal, Close Corporations § 7.30 at 141 (3d ed. 1994) (“Ordinarily, in order to avoid closing books, making an audit and taking inventory, it is preferable to provide that book value will be calculated as of the end of the last preceding fiscal or calendar year or some other designated accounting period”). The Trustees concede that the remaining issues

9 

### regarding life insurance proceeds or the accountants’ actions need be addressed only if it is determined that the book value is determined as of a date other than December 31, 1989.
15 predic table basis from which the parties could determine whether t o supersede the purchase price pursuant to Section 5.3 with a curren t valuation of the shar es. If the parties had intended to deviate from the values established by the fail-safe provision, t hey could have easily done
so. 8
Based on the foregoing, we find the language of Section 5.2(b) is not ambiguous. The purch ase price for the Trust’s shares is one and one-half times the book value of those shares on December 31, 1989, not thei r January31, 1994 book value -- the date of Cornell’s death. The parties do not dispute that the book value of Cornell’s shares on December 31 , 1989, was $439,862.00. The purchase price of the Trust’s shares i s accordingl yone and one-half times that amount, or $659,793.00. As a result of this conclusion, we need not address the remainder of th e Trustees’ claims. 9

III. CONCLUSION

The decision below is reversed and this action is remanded to th e district court with d irections to enter judgment in favor of the Trustees in an amount consistent with this Opinion.

### 16 A true copy.

Attest:

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