Date: 02-18-2018

Case Style:

Case Number: 16-4517

Judge: Shepherd

Court: United States Court of Appeals for the Eighth Circuit on appeal from the District of Minnesota (Hennepin County)

Plaintiff's Attorney: Kristen Elizabeth Flick, Benjamin J Hamborg, Court J Anderson, Daniel C. Oliverio, David Bradley Olsen, John L. Sinatra, Jr.

Defendant's Attorney: Steve Kerbaugh, Adrianna Shannon, Bonnie Smith

Description: Qwinstar Corporation and Pro Logistics, LLC, engaged in negotiations that
culminated with Qwinstar agreeing to purchase Pro Logistics and employ its
owner—Curtis Anthony2—for a term of five years. A few months after the sale,
Qwinstar terminated Anthony’s employment and filed this lawsuit against him,
alleging that it did not receive the inventory it bargained for in the sale. Anthony
counterclaimed, asserting that Qwinstar breached the employment contract by not
paying him for the full five-year term. The parties each filed motions for summary
judgment, and the district court granted Anthony’s motion and denied Qwinstar’s. We
affirm in part and reverse in part.
I. Background
Qwinstar and Pro Logistics are or were engaged in the business of selling and
repairing old IBM check-processing systems—specifically, the IBM 3890. Pro
Logistics primarily sold new and refurbished parts for this machine. Qwinstar also
sells these parts, but, in addition, it has a large repair business. As a result, Qwinstar
and Pro Logistics competed for many of the same customers. With the advent of
1The Honorable Richard W. Goldberg, Judge, United States Court of
International Trade, sitting by designation.
2For ease of reference, we collectively refer to both Curtis Anthony and Pro
Logistics as “Anthony” where possible throughout the remainder of this opinion.
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computer-based systems, the demand for the parties’ business shrunk considerably,
and Qwinstar began efforts to acquire its competitors to increase its market share.
Negotiations between Qwinstar and Anthony ensued. In January of 2013,
Anthony completed an inventory of all of the parts he owned at the time, and this 56-
page document showed a total parts value of over $4.7 million. Anthony provided this
inventory to Qwinstar. Subsequently, Qwinstar employees visited Pro Logistics on
three separate occasions over the next several months, but no one ever made an
independent inventory of the parts or compared the parts present in the warehouse to
those represented in Anthony’s inventory document. Ultimately, Anthony agreed to
sell all of his machine parts to Qwinstar in return for $50,000 and a five-year
employment contract with Qwinstar at a salary of $200,000 per year. The parties
memorialized these terms in two separate contracts: (1) the Asset Purchase Agreement
(APA), which dealt primarily with the transfer of Anthony’s parts inventory to
Qwinstar; and (2) the Employment Agreement (EA), which concerned Anthony’s
assumed role with Qwinstar after the sale.
After performing under these contracts for almost one year, Anthony notified
Qwinstar that its parts inventory was getting low on some items. Qwinstar sent two
employees to investigate the shortage, both of whom made comments afterward about
the sparse quantity of parts that existed at the Pro Logistics facility. However, as with
the previous visits, no one documented the remaining parts or compared the parts
present to those in the January inventory. One month later, Qwinstar sent Anthony
an email stating that $1 million in parts had been sold since the business arrangement
had been finalized, and demanding that Anthony account for the remaining $3.4
million3 in parts that Qwinstar purportedly purchased. Qwinstar later recovered about
$600,000 in additional parts from Anthony. Shortly thereafter, Qwinstar terminated
3Although the original inventory listed the total value as $4.7 million, Qwinstar
found roughly $300,000 in duplicate items on that list. Accordingly, the final total
value reflected in the January 2013 inventory was $4.4 million.
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Anthony for alleged cause and filed suit to recover the claimed shortfall in the parts
inventory.
Qwinstar filed the present action asserting a breach of the APA, among other
claims not relevant here. Anthony counterclaimed that Qwinstar breached the EA by
failing to pay him for the full five-year contract term. Qwinstar moved for partial
summary judgment, asserting that it had proven Anthony’s liability for breach of the
APA as a matter of law and that Anthony’s counterclaim should be dismissed.
Anthony moved for full summary judgment, arguing that (1) Qwinstar’s APA claim
should be dismissed because it could not identify a single asset that it purportedly
purchased and failed to receive, and (2) Anthony was entitled to affirmative summary
judgment on his counterclaim because Qwinstar terminated him without cause and
without paying the full sum due under the contract. The district court first granted
summary judgment to Anthony on Qwinstar’s APA claim, finding that Qwinstar could
not establish exactly what inventory it purchased under the APA as a result of its
failure to inventory the items at the time of the sale. Qwinstar argued that the January
2013 inventory represented an accurate inventory of parts purchased, but the district
court stated that the list was outdated and Qwinstar was well aware that Anthony was
still selling parts during the intervening months between the date of the inventory and
the execution of the APA. As a result, the district court held that Qwinstar could not
establish the breach element of its claim. Next, the court granted summary judgment
to Anthony on his counterclaim, finding that the contract provision governing
Anthony’s compensation after termination was ambiguous, and, as a result, that it
must be construed against Qwinstar. Qwinstar appeals.
II. Discussion
A party is entitled to “summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). When construing an unambiguous contract,
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“interpretation is a question of law, and is reviewed de novo.” Swift & Co. v. Elias
Farms, Inc., 539 F.3d 849, 851 (8th Cir. 2008) (internal quotation marks omitted). On
the other hand, “[i]f the contract is ambiguous, . . . the meaning of the contract
becomes a question of fact, and summary judgment is inappropriate unless the
evidence of the parties’ intent is conclusive.” Id. (citing Donnay v. Boulware, 144
N.W.2d 711, 716 (Minn. 1966)).
Qwinstar argues that the January 2013 inventory established the list of items it
purchased in the APA and that the EA clearly states that Anthony’s full compensation
is guaranteed only in the event of his death or disability. We agree with Qwinstar’s
latter assertion and summary judgment was premature given the ambiguous nature of
the EA provisions at issue, but we reject the former because, under the unambiguous
terms of the APA, Qwinstar received that which it bargained for. Accordingly, we
affirm the district court’s ruling on the first issue and reverse on the second.
A. The APA
Qwinstar claims that the January 2013 inventory establishes what the term “all”
meant in the APA provision stating that Anthony was conveying “all of [his] right,
title and interest in and to the . . . assets.” Therefore, Qwinstar continues, because
there is a difference of “millions of dollars” between the value represented in the
inventory and that which Anthony actually delivered, Qwinstar has proven breach as
a matter of law. Anthony responds by noting that the January 2013 inventory was
completed a number of months before the contract was finalized and that Qwinstar
was aware that Anthony was continually selling parts during this time. As a result,
Anthony concludes, Qwinstar cannot prove breach because it cannot prove what it
purchased under the contract and how that differs from what it received. We agree.
“In order to state a claim for breach of contract, the plaintiff must show
(1) formation of a contract, (2) performance by plaintiff of any conditions precedent
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to his right to demand performance by the defendant, and (3) breach of the contract
by defendant.” Park Nicollet Clinic v. Hamann, 808 N.W.2d 828, 833 (Minn. 2011).
To determine whether a breach occurred, the court must first decide what performance
was due under the contract.
Under Minnesota’s parol evidence rule,
[t]erms . . . set forth in a writing intended by the parties as a final
expression of their agreement with respect to such terms as are included
therein may not be contradicted by evidence of any prior agreement or
of a contemporaneous oral agreement but may be explained or
supplemented . . . by evidence of consistent additional terms unless the
court finds the writing to have been intended also as a complete and
exclusive statement of the terms of the agreement.
Minn. Stat. § 336.2-202. In other words, “courts should not interfere with a contract
when the rights of the parties are evidenced by writing which purports to express their
full agreement.” St. Croix Printing Equip., Inc. v. Rockwell Int’l Corp., 428 N.W.2d
877, 880 (Minn. Ct. App. 1988). Thus, “where a written agreement is ambiguous or
incomplete, evidence of oral agreements tending to establish the intent of the parties
is admissible.” Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 664
N.W.2d 303, 312 (Minn. 2003) (internal quotation marks omitted). But “[p]arol
evidence of any prior agreement is inadmissible where the agreement is unambiguous
and completely integrated.” Maday v. Grathwohl, 805 N.W.2d 285, 288 (Minn. Ct.
App. 2011). “A merger clause establishes that the parties intended the writing to be
an integration of their agreement.” Alpha Real Estate, 664 N.W.2d at 312. And “a
court need not look beyond the writing to determine whether a contract is a complete
integration, where a clause explicitly states the parties’ intent.” Maday, 805 N.W.2d
at 289 (internal quotation marks omitted).4
4Alpha Real Estate and Maday were both decided under common law
principles, rather than those expressed in the Minnesota Uniform Commercial Code
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We find that the APA is unambiguous; therefore, no external evidence can be
admitted to contradict, explain, or supplement the terms contained therein. Section
1.1 of the APA states: “On the terms and subject to the conditions set forth in this
Agreement, [Anthony] hereby sells . . . to [Qwinstar] all of [Anthony’s] right, title and
interest in and to the following assets.” R. at A-1657. The “assets” are then defined
to include, inter alia, “all finished goods, raw materials, work in process, packaging,
parts, supplies, tooling and other inventory.” R. at A-1657. Section 7.6 then provides
that “[t]his Agreement . . . constitutes the entire agreement between the Parties with
respect to the subject matter of this Agreement, superseding all oral and written
proposals, representations, understandings and agreements previously made or
existing with respect to such subject matter.” R. at A-1664 to A-1665.
The contract means precisely what it says: Anthony agreed to sell all inventory
he had at the time the APA was executed. See Turner v. Alpha Phi Sorority House,
276 N.W.2d 63, 67 (Minn. 1979) (“[T]he language found in a contract is to be given
its plain and ordinary meaning.”). Because the parties included the integration clause,
it is clear “that the parties intended the writing to be an integration of their
agreement.” Alpha Real Estate, 664 N.W.2d at 312. Had the parties wished to define
the “assets” to include all parts described in Anthony’s inventory list, they could have
incorporated that document into the APA by reference. See Lund, 2002 WL 1327012,
(UCC). But St. Croix Printing applied the same logic in the UCC context to hold that
“a clause stating that the ‘written agreement is a complete and exclusive statement of
the terms of the agreement’ will likely be sufficient to exclude from any evidence
proof of any oral warranty.” 428 N.W.2d at 880. Thus, because the principles
announced in Alpha Real Estate and Maday are in agreement with Minn. Stat.
§ 366.2-202(b), those cases are instructive of how the Minnesota Supreme Court
would address this issue. See also Lund Indus., Inc. v. Wonder Indus., Inc., No.
C0-01-2118, 2002 WL 1327012, at *5 (Minn. Ct. App. June 18, 2002) (unpublished)
(applying above principles to determine a contract under the UCC was unambiguous).
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at *6.5 But this did not occur, and, prior to the sale, no one from Qwinstar conducted
an independent inventory of the parts on their many trips to Pro Logistics. Ultimately,
because Qwinstar has presented no evidence that Anthony failed to deliver the
inventory he possessed at the time the APA was executed, Qwinstar is unable to prove
that Anthony breached the contract. See Hamann, 808 N.W.2d at 833 (stating that
proof of “breach of the contract by defendant” is necessary to state a claim).
B. The EA
Anthony contends that Qwinstar breached the EA by terminating his
employment prior to the expiration of the full five-year contract term. According to
Qwinstar, the EA clearly provides for the continued payment of Anthony’s salary only
if the Agreement itself is terminated by his death or disability. Moreover, even
assuming the EA is ambiguous, Qwinstar contends that the district court improperly
relied on one interpretive device to the exclusion of all others, and parol evidence
reveals the parties’ intent. We conclude that summary judgment was prematurely
granted on this claim because the material provisions are ambiguous and the parties’
intent is inconclusive. See Swift & Co., 539 F.3d at 851.
“[T]he primary goal of contract interpretation is to determine and enforce the
intent of the parties.” Motorsports Racing Plus, Inc. v. Arctic Cat Sales, Inc., 666
N.W.2d 320, 323 (Minn. 2003). “A court ascertains the parties’ intent by putting
itself in the parties’ positions at the time they formed the contract and determining
5Moreover, “[h]ere we have a contract between ‘merchants,’ [and] [t]here is no
unequal bargaining power.” St. Croix Printing Equip., 428 N.W.2d at 880; see also
id. at 881 (“While St. Croix could have inspected the press prior to ‘sealing’ the
agreement, Sexton declined any opportunity to inspect the press. At minimum, Sexton
was fully aware of the danger in foregoing personal inspection and should have
foreseen the possibility that the printer would not be in the same condition as was
alleged, especially since such equipment is disassembled prior to shipping.”).
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what they reasonably meant to accomplish in view of the contract as a whole, its plain
language, and the surrounding circumstances.” Ecolab, Inc. v. Gartland, 537 N.W.2d
291, 295 (Minn. Ct. App. 1995). “Where the parties express their intent in
unambiguous words, those words are to be given their plain and ordinary meaning.”
Motorsports Racing Plus, 666 N.W.2d at 323. A contract is ambiguous when “‘the
language used is reasonably susceptible of more than one meaning.’” Swift & Co.,
539 F.3d at 851 (quoting Blattner v. Forster, 322 N.W.2d 319, 321 (Minn. 1982)).
Minnesota courts employ several interpretive maxims when discerning the
parties’ intent. First, courts should “construe a contract as a whole and attempt to
harmonize all clauses of the contract.” Chergosky v. Crosstown Bell, Inc., 463
N.W.2d 522, 525 (Minn. 1990). “Because of the presumption that the parties intended
the language used to have effect,” Minnesota courts “will attempt to avoid an
interpretation of the contract that would render a provision meaningless.” Id. at 526.
Second, “[w]here there is an apparent conflict between two clauses or provisions of
a contract, it is the court’s duty to find harmony between them and to reconcile them
if possible.” Nat’l City Bank v. Engler, 777 N.W.2d 762, 765 (Minn. Ct. App. 2010)
(internal quotation marks omitted). Any “[a]pparent conflicts between clauses will
be resolved by giving full effect to principal and more important clauses and
subordinating thereto those of minor importance.” Id. Third, “if the language is
ambiguous—that is, susceptible to more than one reasonable interpretation—parol
evidence may be considered to determine the intent of the parties.” Caldas v.
Affordable Granite & Stone, Inc., 820 N.W.2d 826, 832 (Minn. 2012). Finally, “[a]
fundamental principle of contract law is that when contract language is reasonably
susceptible of more than one interpretation it is ambiguous, and ambiguous contract
terms must be construed against the drafter.” Hilligoss v. Cargill, Inc., 649 N.W.2d
142, 148 (Minn. 2002); see also Gartland, 537 N.W.2d at 295 (“[W]here a contract is
open to two interpretations, the one more favorable to the party who did not draft the
instrument should be adopted in the absence of a clear showing that a contrary
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meaning was intended by the parties at the time of its execution.” (alteration in
original) (internal quotation marks omitted)).
The following language from the EA is critical to our discussion:
Effect of Termination on Compensation. If Employee’s employment
with Company is terminated by Employee or Company, Company will
have no further liability to Employee under this Agreement other than to
pay Employee the Employee’s Base Salary and benefits under Section
3 accrued, and expenses properly incurred, through the date of
termination or resignation; provided, however, that if this Agreement is
terminated under Section 4 for any reason, the Company will continue
to pay the Employee (or his estate in the event of his death) the Base
Salary for the balance of the five-year Term of this Agreement remaining
after the date of any such death or Disability.
EA § 4(d). Analyzing this language, the district court found that “if Anthony’s
employment is terminated, Qwinstar owes him nothing beyond his salary and benefits
accrued through termination.” On the other hand, the court noted, “the second clause
guarantees Anthony his full five-year salary if the Agreement is terminated ‘under
Section 4 for any reason.’” After concluding that this provision was ambiguous, the
court applied the fourth interpretive aid from above—that ambiguous contracts are
construed against the drafter—to conclude that the second clause controlled and
Anthony was therefore entitled to his full salary.
Although we agree with the district court that the provision is ambiguous and
should therefore be construed against Qwinstar, see Hilligoss, 649 N.W.2d at 148,
“this does not . . . ineluctably lead to the conclusion that . . . [Qwinstar] is to lose,”
Turner, 276 N.W.2d at 67; see also Swift & Co., 539 F.3d at 854 (applying Minnesota
law and stating “this rule applies only as a last resort, after all other evidence fails to
demonstrate the intent of the parties”). Instead, we must turn to the other interpretive
tools to aid in the ultimate goal of ascertaining the parties’ intent. See Turner, 276
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N.W.2d at 67. To be sure, the district court’s interpretation was not without some
persuasive force, but application of the remaining three interpretive aids leads us to
conclude that “the language is reasonably susceptible to” the alternative Qwinstar
advances. See Swift & Co., 539 F.3d at 852.
One could reasonably interpret the second clause—the clause guaranteeing full
compensation—to apply only when Anthony’s death or disability led to the
termination of the agreement. First, this interpretation harmonizes and provides
meaning to both clauses. See Chergosky, 463 N.W.2d at 525. On the other hand, the
district court’s interpretation—that Anthony received payment in full regardless of the
reason for his termination—renders the first clause meaningless because there is
seemingly no context in which that clause would apply, and Minnesota courts “will
attempt to avoid an interpretation of the contract that would render a provision
meaningless.” Id. at 526.
Second, reading the second clause as an exception to the first harmonizes the
apparent conflict between the provisions. See Engler, 777 N.W.2d at 765. Therefore,
in an attempt to “giv[e] full effect to principal and more important clauses and
subordinating thereto those of minor importance,” id. (internal quotation marks
omitted), the first clause should be viewed as the general rule: In the event that either
party terminates Anthony’s employment, Qwinstar must pay Anthony only the salary
and benefits accrued to that point. The second clause, by contrast, provides an
exception to the first: If the Agreement is terminated under Section 4(b)6—the
6The contract states “under Section 4,” rather than under Section 4(b). Given
the later reference to “such death or Disability,” we believe the parties’ intent was for
the second clause to actually reference Section 4(b). See Restatement (Second) of
Contracts § 202, cmt. d (1981) (“To fit the immediate verbal context or the more
remote total context particular words or punctuation may be disregarded or supplied;
clerical or grammatical errors may be corrected; singular may be treated as plural or
plural as singular.”); id. § 201, cmt. b (“Uncertainties in the meaning of words are
ordinarily greatly reduced by the context in which they are used.”).
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provision that automatically terminates Anthony’s employment upon his death or
disability—then Qwinstar is required to pay the salary for the remainder of the
five-year term “after such death or Disability.” See Advantage Consulting Grp. v.
ADT Sec. Sys., Inc., 306 F.3d 582, 586 (8th Cir. 2002) (applying Minnesota law and
noting that “it makes sense that parties will address issues of more importance first,
followed by those of less importance[;] . . . although a term’s location in a contract
is certainly not dispositive, it may be indicative, of intent”). Here, as in Advantage
Consulting, “[i]f we recognize the [first] provision[] as the principal and more
important clause[] in this contract, the [second provision] still serves a purpose.” Id.;
Restatement (Second) of Contracts § 203, cmt. e (“If the specific or exact can be read
as an exception or qualification of the general, both are given some effect . . . .”).
Finally, because the provision is ambiguous, “parol evidence may be considered
to determine the intent of the parties.” Caldas, 820 N.W.2d at 832. Qwinstar
produced an earlier version of the agreement which read, in relevant part:
If Employee’s employment with Company is terminated by Employee
or Company, Company will have no further liability to Employee under
this Agreement other than to pay Employee the Employee’s Base Salary
and benefits per the five-year Term, and expenses properly incurred;
provided, however, that if this Agreement is terminated as a result of
the death or Disability of the Employee, the Company will continue to
pay the Employee (or his estate in the event of his death) the Base Salary
for the balance of the five-year Term of this Agreement remaining after
the date of any such death or Disability.
(emphases added). The differences between this document and the final version are
emphasized to show that, if the court were to adopt Anthony’s current reading of the
contract, the outcome would be the exact same as it would have been under the earlier
draft agreement between the parties: Anthony receives his full salary regardless of the
reason for his termination. Regardless of the parties’ ultimate intent, a reasonable
juror could conclude that the parties amended these provisions intending to create a
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different outcome. Additionally, Anthony stated in his deposition that during these
negotiations he understood the second clause to mean that in the event of “the demise
of myself, . . . the contract would still be in force for my family.” R. at A-648.
Though Anthony’s admission may not be as conclusive as Qwinstar asserts, it still
provides valuable evidence of the parties’ intent at the time the contract was formed.
Summary judgment was inappropriate on Anthony’s counterclaim because the
contract provisions are ambiguous and reasonably susceptible to more than one
interpretation. As such, interpretation becomes a question of fact precluding summary
judgment.7


7Prior to argument, Qwinstar submitted a motion asking the court to take
judicial notice of documents it states are relevant in limiting Qwinstar’s damages on
Anthony’s counterclaim. We grant the motion, but, because we decide this issue in
Qwinstar’s favor, we leave it to the district court to determine the materiality of this
information on remand.
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Outcome: For the reasons above, we affirm the district court’s grant of summary judgment
to Anthony and Pro Logistics on Qwinstar’s breach of contract claim. We reverse,
however, the court’s grant of summary judgment to Anthony and Pro Logistics on
their counterclaim and remand for further proceedings.

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