United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-3713

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The Weitz Company LLC, *

*

Appellant, *

*

v. * Appeal from the United States 

* District Court for the 

MacKenzie House, LLC; * Western District of Missouri.

MH Metropolitan, LLC; *

Arrowhead Contracting, Inc.; *

Concorde Construction Co., Inc., *

*

Appellees. *

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Submitted: September 20, 2011

Filed: January 5, 2012

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Before MELLOY, SMITH, and BENTON, Circuit Judges.

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BENTON, Circuit Judge.

The Weitz Company, LLC sued MacKenzie House, LLC and MH

Metropolitan, LLC for breach of a construction contract. Arrowhead Contracting,

Inc. and Concorde Co., Inc. are third-party defendants. MH Metropolitan

counterclaimed for breach of the same contract, seeking liquidated damages and the

cost to complete the project. Arrowhead also counterclaimed. The jury returned a

verdict of $4,991,970.87 for MH Metropolitan, of $556,110 for Arrowhead, and for
Concorde on Weitz’s claim. The district court denied post-judgment motions. Weitz 1

appeals. Jurisdiction being proper under 28 U.S.C. § 1291, this court affirms.2

I.

MacKenzie House was the developer of a multi-building apartment project

known as the Metropolitan Apartments. MacKenzie was also the managing member

of MH Metropolitan, the owner of the Apartments. MH Metropolitan hired Weitz as

the general contractor. Weitz initially agreed to complete the project within 458 days

for a maximum price of $13,498,006. The time for completion was ultimately

extended to 507 days, with the maximum price increased to $14,401,609. Weitz

subcontracted with Arrowhead and Concorde, among others.

Work on the Apartments was delayed. Weitz attributes the delays to its

subcontractors. MH Metropolitan blames Weitz, asserting several material breaches,

including failing to provide required lien waivers, allowing liens to be filed against

the project, providing poor quality construction, and falsifying a pay application. MH

Metropolitan contends it exercised its contractual right to withhold payment on two

of Weitz’s applications. Weitz stopped work on December 26, 2006. By then, the

first Building of the project was four months late, and the entire project two months

late. On January 18, 2007, MH Metropolitan terminated Weitz for cause, finishing

the project without Weitz.

The next month, Weitz sued MacKenzie House and MH Metropolitan for the

unpaid contract balances. MH Metropolitan counterclaimed for breach of contract,

seeking liquidated damages and the cost to complete. According to MH

The Honorable Ortrie D. Smith, United States District Judge for the Western 1

District of Missouri.

This opinion supercedes the opinion filed on December 8, 2011. 2

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Metropolitan, Weitz’s mismanagement was cause to stop payment and cancel the

contract. Weitz made third-party claims against Arrowhead and Concorde for their

allegedly defective work, the cost to complete their work, and the delays they

allegedly caused. Arrowhead counterclaimed for amounts due under its subcontract,

arguing Weitz terminated it improperly. 

The jury awarded MH Metropolitan liquidated damages of $3,022,520 due to

project delay, and $1,969,450.87 for the cost of completion. The jury also awarded

Arrowhead $556,110, and found for Concorde. The district court denied postjudgment motions, entering judgment on the jury’s verdict. Weitz appeals.

II.

Weitz contends that the district court erred as a matter of law in six ways by:

not granting judgment as a matter of law against MH Metropolitan; excluding

evidence of two other construction projects involving the parties; miscalculating the

liquidated damages and completion costs; declining to enter judgment on Weitz’s

breach-of-contract claims against Arrowhead; not entering a default judgment against

Concorde for failing to appear at trial; and ruling that MacKenzie House could not

be vicariously liable for the acts of MH Metropolitan.

A.

Weitz argues that the district court erred in failing to grant it judgment as a

matter of law on MH Metropolitan’s breach-of-contract claim. 

This court reviews de novo a denial of a motion for judgment as a matter of

law. Chalfant v. Titan Distrib., Inc., 475 F.3d 982, 988 (8th Cir. 2007). Judgment

as a matter of law is granted if “a party has been fully heard on an issue and there is

no legally sufficient evidentiary basis for a reasonable jury to find for that party on

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that issue.” Fed. R. Civ. P. 50(a)(1). This court makes all reasonable inferences in

favor of the nonmoving party and views the facts most favorably to that party. 

Chalfant, 475 F.3d at 988. 

During the twelve-day trial, MH Metropolitan presented evidence that Weitz

committed several material breaches — failing to provide the required lien waivers,

allowing liens to be filed against the project, causing substantial delays in the project,

completing poor quality construction, and falsifying a pay application. MH

Metropolitan submitted testimony and videos showing Weitz’s poor quality

construction. The jury also heard that Weitz could not properly prepare, update, or

follow its schedules, which contributed to delaying the project. The project architect

concluded that Weitz breached the contract in at least these respects. The evidence

at trial also established other breaches. As a result, MH Metropolitan exercised the

contractual right to withhold payment and terminate Weitz for cause. As the jury

instructions noted, to recover for breach of contract, a party must show its own

substantial compliance with the contract. Brockman v. Soltysiak, 49 S.W.3d 740,

745 (Mo. App. 2001). Weitz alleges that it complied with the contract, but whether

a contract has been substantially performed depends on the facts and circumstances

of the particular case. In re Estate of English, 691 S.W.2d 485, 489 (Mo. App.

1985). The jury as fact finder resolved this issue against Weitz. See Browning v.

President River Boat Casino-Missouri, Inc., 139 F.3d 631, 634 (8th Cir. 1998)

(“Appellate review of a jury verdict is extremely deferential”). There was a legally

sufficient evidentiary basis for the jury’s verdict. See 8th Cir. R. 47B.

B.

Weitz maintains that the district court incorrectly excluded evidence of two

other construction projects — one ending in litigation — involving the parties. 3

Weitz Co. v. MH Washington, 631 F.3d 510 (8th Cir. 2011). 3

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This court respects the district court’s “‘wide discretion in admitting and

excluding evidence, and its decision will not be disturbed unless there is a clear and

prejudicial abuse of discretion.’” McPheeters v. Black & Veatch Corp., 427 F.3d

1095, 1101 (8th Cir. 2005) (citation omitted). To warrant reversal, such a prejudicial

abuse of discretion must also affect the substantial rights of a party. Id. Likewise,

the denial of a motion for a new trial is reviewed for an abuse of discretion. 

Chalfant, 475 F.3d at 992. “The crucial determination ‘is whether a new trial should

have been granted to avoid a miscarriage of justice.’” PFS Distrib. Co. v. 

Raduechel, 574 F.3d 580, 589 (8th Cir. 2009) (citation omitted). 

MacKenzie House was the developer on the two other projects Weitz

references(other corporate entities MacKenzie House managed owned the projects). 

Even assuming that MH Metropolitan and MacKenzie House are one entity, however,

evidence of prior or other acts “is not admissible to prove the character of a person

in order to show conformity therewith.” Fed. R. Evid. 404(b). “[P]rior acts include

prior lawsuits.” Batiste-Davis v. Lincare, Inc., 526 F.3d 377, 380 (8th Cir. 2008). 

Evidence of prior or other acts “may, however, be admissible for other purposes, such

as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.” Fed. R. Evid. 404(b). This type of evidence is

admitted only when one of these legitimate purposes is at issue in the case. King v.

Arens, 16 F.3d 265, 268 (8th Cir. 1994); Donald v. Rast, 927 F.2d 379, 381 (8th Cir. 

1991). 

The only claims in this case are for breach of contract. The issue at trial was

whether the parties complied with the contract. Proving a breach here does not put

motive, intent, plan, or knowledge at issue. See Unit Drilling Co. v. Enron Oil &

Gas Co., 108 F.3d 1186, 1194 (10th Cir. 1997). Weitz argues that MH Metropolitan

“opened the door” to the evidence, but points to no instance where MH Metropolitan

focused on the other projects. In addition, the district court instructed the jury not to

speculate about the previous projects and to decide the case solely on the law and the

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evidence in this trial. In light of the instruction, the few instances where MH

Metropolitan alluded to another project do not affect Weitz’s substantial rights. The

district court properly exercised its discretion in excluding the evidence of other

projects. 

C.

According to Weitz, the district court erred in miscalculating the liquidated

damages and completion costs. 

Weitz asserts that the liquidated damages clause is a penalty. The

interpretation of a contract is a question of law, reviewed de novo. Simeone v. First

Bank N.A., 971 F.2d 103 (8th Cir. 1992). Here, the liquidated damages clause was

a reasonable forecast of delay damages — as the parties agreed at the time of

contracting — and isthus enforceable. See Diffley v. Royal Papers, Inc., 948 S.W.2d

244, 246 (Mo. App. 1997); Information Sys. & Networks Corp. v. City of Kansas

City, 147 F.3d 711, 714 (8th Cir. 1998) (applying Missouri law). 

Weitz argues that the liquidated damages are overstated because they were

measured based on the wrong number of buildings. The district court properly ruled

that the parties’ agreement is unclear about how many buildings should be used. 

Because of this ambiguity, the issue was properly submitted to the jury, and this court

will not overturn their reasoned verdict. See Graham v. Goodman, 850 S.W.2d 351,

354 (Mo. banc 1993) (“The trial court must then determine fromthe evidence whether

the surrounding circumstances are such that a fact issue exists for the jury to

resolve.”); Fitch v. Doke, 532 F.2d 115, 117 (8th Cir. 1976) (“Where, however, the

contract is ambiguous, the meaning of its terms is to be determined by the jury in the

light of the evidence of the surrounding circumstances and the practical construction

of the parties.”). See generally Browning, 139 F.3d at 634 (“Appellate review of a

jury verdict is extremely deferential”).

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Weitz seeks to apply a Missouri Supreme Court decision limiting liquidated

damages for construction delay to the time before the owner removes the contractor

from the project. Moore v. Board of Regents, 115 S.W. 6, 12-13 (Mo. 1908). The

facts in Moore were different from those here: there, the project was not yet late when

the owner terminated the contract. Id. at 12-13. More importantly, if faced with this

case, the Missouri Supreme Court would not follow Moore. See Gilstrap v. Amtrak,

998 F.2d 559, 561 (8th Cir. 1993) (“Our task is fairly simple: if we find clear

evidence that the [state] Supreme Court would not uphold [the prior decision], we

shall not apply it to this case”). Moore relied on a New York case for the principle

that liquidated damages are not the correct measure of damages when the contractor

does not complete the project. Gallagher v. Baird, 66 N.Y.S. 759, 763 (App. Div.

1900). Gallagher actually stands for the proposition that the cost to complete is a

better measure of damages when a contractor abandons the project before the

contracted completion date. Id. at 762-63 (“There was no completion or attempt to

complete, but an utter abandonment, and such [liquidated damages] clause was not

intended to cover such a case, nor was provision made in the contract for such a

contingency.”). That conclusion does not resolve the calculation of liquidated 4

damagesin this case where the project islate when the owner terminatesthe contract. 

Weitz also invokes a Missouri intermediate appellate case that acknowledges

the divided authorities, but follows Moore. Twin River Const. Co. v. Public Water

Dist. No. 6, 653 S.W.2d 682, 693-94 (Mo. App. 1983). Intermediate court decisions,

however, are not dispositive asto how a state’s highest court would resolve a matter. 

At any rate, other cases in New York allow liquidated damages against a

4

contractor who abandons a project. See generally JayM. Zitter, Annotation, Liability

of Contractor who Abandons Building Project Before Completion for Liquidated

Damages for Delay, 15 A.L.R. 5th 376, §§ 4-5 (1993) (compiling two contrary lines

of New York cases about whether the abandoning contractor can or cannot be held

liable for liquidated damages for period of time reasonably necessary to complete

project).

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E.g., Bogan v. General Motors Corp., 500 F.3d 828, 831 (8th Cir. 2007); cf. Six

Companies of California v. Joint Highway Dist. No. 13, 311 U.S. 180, 188 (1940)

(instructing federal appellate courts to follow intermediate state appellate court

decisions when “there is no convincing evidence that the law of the State is

otherwise.”); Washington v. Countrywide Home Loans, Inc., 2011 WL 3962831, *3

(8th Cir. 2011) (noting intermediate appellate court decisions must be followed if

they are the best evidence of the law). In the absence of guidance from the highest

state court (or a statute on point), the federal court’s task is to predict how the

Missouri Supreme Court would rule if confronted with the issue today. E.g.,

Pennsylvania Nat’l Mut. Cas. Ins. Co. v. City of Pine Bluff, 354 F.3d 945, 952

(8th Cir. 2004); Maschka v. Genuine Parts Co., 122 F.3d 566, 573 (8th Cir. 1997).

If the Missouri Supreme Court were to address the issue today, it would allow

liquidated damages for a reasonable time after abandonment by the contractor or

termination by the owner. See Gilstrap, 998 F.2d at 562 (“‘[I]n an appropriate case,

a federal court must not consider itself bound by old state court decisions if it is

convinced by other persuasive data that the highest court of the state would [now]

decide otherwise.” (alteration in original) (citation and internal quotation marks

omitted)). 

Weitz contends that the contract precluded MH Metropolitan from claiming

certain damages as part of the completion costs. “When a breach [in a construction

contract] results from a combination of defective construction and a failure to

complete the work, the owners’ damages are calculated using the reasonable cost of

reconstruction, repair, and completion in accordance with the contract.” Ernery v.

Freeman, 84 S.W.3d 529, 536 (Mo. App. 2002); see also Information Systems, 147

F.3d at 713 (applying Missouri law). Weitz would categorize some of MH

Metropolitan’s damages as “delay damages” and “theft and property damages” that

the contract bars MH Metropolitan from recovering. MH Metropolitan responds that

the damages are in fact costs to complete incurred when it became the contractor on

the project. The district court correctly decided that these are issues of fact for the

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jury. The jury rejected Weitz’s damages arguments, and this court will not overturn

its reasoned verdict. See Browning, 139 F.3d at 634 (“Appellate review of a jury

verdict is extremely deferential”).

D.

Weitz claims that the district court should have entered judgment as a matter

of law for it on the breach-of-contract claims against Arrowhead. 

This court reviews de novo a denial of a motion for judgment as a matter of law

and grants it if “a party has been fully heard on an issue and there is no legally

sufficient evidentiary basis for a reasonable jury to find for that party on that issue.” 

Chalfant, 475 F.3d at 988; Fed. R. Civ. P. 50(a)(1). This court makes all reasonable

inferences in favor of the nonmoving party and views the facts most favorably to that

party. Chalfant, 475 F.3d at 988. 

Weitz largely reargues its version of the facts. On each point, there was

sufficient evidence to reject Weitz’s position. The jury was entitled to credit

Arrowhead’s evidence that Weitz committed the first material breach and did not

substantially perform its agreement with Arrowhead, excusing Arrowhead from

performance. After receiving the evidence, the jury chose — as it was entitled to do

— to reject Weitz’s evidence. This court finds a legally sufficient evidentiary basis

for that choice. See 8th Cir. R. 47B.

E.

Weitz assertsthat the district court erred in refusing to enter a default judgment

against Concorde when it failed to appear at trial, or in the alternative, refusing to

grant Weitz judgment as a matter of law on its claims against Concorde. This court

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reviews decisions on default judgments for abuse of discretion. Forsythe v. Hales,

255 F.3d 487, 490 (8th Cir. 2001). 

Concorde was represented by counsel for much of the litigation — filing an

answer, complying with all pretrial orders, and responding to all discovery requests

and dispositive motions. By these acts, particularly by filing an answer, Concorde did

defend, and the district court was not required to enter a default judgment against it. 

See United States v. Harre, 983 F.2d 128, 130 (8th Cir. 1993) (“Because [the party]

filed an answer . . . he indicated a desire to defend against the action.”); cf. Ackra

Direct Marketing Corp. v. FingerhutCorp., 86 F.3d 852, 857 (8thCir. 1996) (stating

it is within the district court’s discretion to enter default judgment even after filing

of answer if party’s later conduct includes ‘willful violations of court rules,

contumacious conduct, or intentional delays.’ (citation omitted)). About two and a

half weeks before trial, Concorde’s attorneys moved to withdraw; the court granted

the motion on January 13, 2010. On the morning of January 25, when trial began,

Concorde was not represented by counsel. The district court denied Weitz’s motion

for a default judgment, and Weitz — unopposed — submitted its claims against

Concorde to the jury. Choosing not to appear for trial — especially after defeating

motions to dismiss a counterclaim — does not necessarily constitute the “willful

violation” of court rules that places a defendant in default. See Harre, 983 F.2d at

130. (Default judgment for failure to defend is appropriate when the party's conduct

includes “willful violations of court rules, contumacious conduct, or intentional

delays.”). The jury rejected Weitz’s claims, and the district court properly allowed

that decision to stand. Cf. Pfanensteil Architects, Inc. v. Chouteau Petroleum Co.,

978 F.2d 430, 433 (8th Cir. 1992) (“When there are multiple defendants who may be

jointly and severally liable for damages alleged by plaintiff, and some but less than

all of those defendants default, the better practice is for the district court to stay its

determination of damages against the defaulters until plaintiff's claim against the

nondefaulters is resolved. . . . to avoid the problems of dealing with inconsistent

damage determinations . . . .”) 

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As the district court concluded, it would be unjust to grant judgment to Weitz

after the jury rejected its contentions.

F.

Weitz contendsthat the district court should have ruled that MacKenzie House

— which did not sign the contract — could be vicariously liable for the acts of MH

Metropolitan. Because the district court properly found against Weitz on all issues,

there is no reason to consider the issue of vicarious liability. 

*******

The judgment of the district court is affirmed.

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