Jacobson Warehouse Co., Inc. v. Schnuck Markets, Inc. ( 2021 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 20-1595
___________________________
Jacobson Warehouse Co., Inc., doing business as XPO Logistics Supply Chain
lllllllllllllllllllllPlaintiff - Appellee
v.
Schnuck Markets, Inc.
lllllllllllllllllllllDefendant - Appellant
___________________________
No. 20-1690
___________________________
Jacobson Warehouse Co., Inc., doing business as XPO Logistics Supply Chain
lllllllllllllllllllllPlaintiff - Appellant
v.
Schnuck Markets, Inc.
lllllllllllllllllllllDefendant - Appellee
____________
Appeals from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: April 14, 2021
Filed: September 7, 2021
____________
Before KELLY, GRASZ, and KOBES, Circuit Judges.
____________
KELLY, Circuit Judge.
This breach of contract and tort dispute arises from a business relationship
between a regional supermarket chain and a logistics company that managed one of
its distribution centers. Defendant, Schnuck Markets, Inc. (SMI), and Plaintiff,
Jacobson Warehouse Company, Inc. d/b/a XPO Logistics Supply Chain (XPO), cross-
appeal parts of the district court’s1 orders and judgment. Having jurisdiction under
28 U.S.C. § 1291, we affirm.
I. Background
SMI is a supermarket retailer that owns and operates “Schnucks” branded
grocery stores across Missouri, Illinois, Indiana, Iowa, and Wisconsin. XPO is a
global logistics company that, among other things, provides warehouse management
and related logistical services to clients. Effective May 1, 2015, XPO and SMI
entered into an Amended and Restated Operating Agreement (the Agreement) that set
forth the terms and conditions under which XPO would provide certain warehouse
management services for a new distribution center (Northpark) that SMI was planning
to utilize. Previously, SMI had used three distribution centers in and around St.
Louis, Missouri, to provide perishable and non-perishable groceries to Schnucks
stores in the surrounding area. With XPO managing Northpark, SMI planned to
1
The Honorable John A. Ross, United States District Judge for the Eastern
District of Missouri.
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transition the majority of its warehousing and distribution services to Northpark when
the facility was ready.
XPO began providing warehouse management services at Northpark in July
2016, during which time SMI transferred large amounts of inventory from its other
warehouses to Northpark. Almost immediately, Northpark began to experience
operational issues, including with its receipt of fresh produce from another warehouse
and its shipping of food to Schnucks stores. According to SMI, XPO’s
mismanagement of this transition period resulted in the loss of or damage to
substantial amounts of inventory, often when pallets of food were improperly stored
within Northpark or left to spoil on the distribution center’s docks, as well as
diminished sales at local Schnucks stores (whose inventories were consequently
reduced). And SMI incurred additional expenses to mitigate the severity of the
situation (e.g., temporarily moving inventory back to SMI’s other warehouses,
implementing promotional deals to retain grocery store shoppers). Although this
“crisis” was largely resolved within a few weeks, SMI claims that XPO continued to
mismanage Northpark, resulting in additional lost or damaged inventory and XPO
running substantially over budget. Several months into XPO’s management of
Northpark, SMI demanded that XPO reimburse SMI for the losses XPO allegedly
caused and began withholding payments from XPO.
On February 17, 2017, XPO sued SMI, claiming among other things that SMI
had breached the Agreement and unlawfully withheld payments for properly
performed warehouse management services. SMI counterclaimed, alleging among
other things that XPO had breached the Agreement and negligently managed
Northpark. In a contentious litigation, the parties proceeded through discovery and
pre-trial motions practice to trial. At the conclusion of a ten-day trial, the jury
rendered its verdict, awarding $3,650,526.38 (as modified by post-trial orders
granting pre-trial interest and offset) to XPO on its action on account claim, and
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awarding $147,000 to SMI on its breach of contract claim. The district court
considered and decided the parties’ post-trial motions, and the parties now cross-
appeal.
II. SMI’s Arguments on Appeal
A. Dismissal of SMI’s Counterclaims for Non-Direct Damages Under Section
5(b) of the Agreement.
First, SMI argues that the district court erred by misinterpreting Section 5(b)
of the Agreement to dismiss SMI’s breach of contract, breach of the covenant of good
faith and fair dealing, negligence, fraud, and conversion claims to the extent they
sought damages other than direct damages (e.g., incidental, consequential, indirect,
special, or punitive damages).2 We review de novo the district court’s grant of a
motion to dismiss and grant of a motion for judgment on the pleadings, “accepting the
facts alleged in the complaint as true and drawing all reasonable inferences in favor
of the nonmovant.” Pietoso, Inc. v. Republic Servs., Inc., 4 F.4th 620, 622 (8th Cir.
2021); see Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012). To
survive either motion, the “complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Gallagher, 699 F.3d
at 1016 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
2
In addition to seeking direct damages for inventory loss, SMI sought damages
for its alleged “lost profits, lost sales, lost productivity, lost inventory, increased labor
expenses, increased or additional clean-up expenses, equipment rental expenses, loss
of backhaul revenue, increased acquisition costs, increased transportation expenses,
increases in workers’ compensation claims and expenses, increases in severance
owed, excessive Warehousing Fees, and damages to SMI’s . . . reputation and
goodwill.” (Dist. Ct. Dkt. 69 at ¶ 62.)
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Under Missouri law,3 “[t]he construction and interpretation of a contract is a
matter of law,” and we pay no deference to the trial court’s interpretation. Sligo, Inc.
v. Nevois, 84 F.3d 1014, 1019 (8th Cir. 1996). “The cardinal principle of contract
interpretation is to ascertain the intention of the parties and to give effect to that
intent.” J.H. Berra Constr. Co. v. City of Washington, 510 S.W.3d 871, 874 (Mo. Ct.
App. 2017) (quoting Dunn Indus. Grp., Inc. v. City of Sugar Creek, 112 S.W.3d 421,
428 (Mo. banc 2003)). A contract is unambiguous when it “uses plain and
unequivocal language,” in which case we enforce it as written. Deal v. Consumer
Programs, Inc., 470 F.3d 1225, 1230 (8th Cir. 2006). A contract is ambiguous, on the
other hand, when “its terms can be genuinely and reasonably construed in more than
one way.” J.H. Berra Constr., 510 S.W.3d at 874. “To determine whether a contract
is ambiguous, we consider the instrument as a whole, giving the words contained
therein their ordinary meaning.” Deal, 470 F.3d at 1230. “A contract is not
ambiguous merely because the parties dispute its meaning.” Id.The parties’ dispute centers on their varying interpretations of Section 5(b) of
the Agreement, which provides in pertinent part:
[1] Subject to its applicable insurance limit(s), each party shall
indemnify and hold the other and its representatives harmless from and
against all claims, liabilities, losses, damages and expenses (including
reasonable attorneys’ fees and expenses) incurred or suffered by any of
them as a result of or in connection with (i) any breach of any of their
respective obligations under this Agreement or (ii) the negligence or
willful misconduct of the indemnifying party or its representatives. [2]
In addition, XPO shall defend, indemnify and hold [SMI] harmless from
3
In this diversity action, the parties agree that Missouri law governs the
interpretation of the Agreement given the Agreement’s choice of law provision. See
Agreement § 13(f) (“This Agreement shall be governed and construed in accordance
with the laws of the State of Missouri.”).
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and against all claims, liabilities, losses, damages and expenses made
and/or assessed by the landlord of the Facility (including reasonable
attorneys’ fees and expenses) and incurred or suffered by [SMI] and its
representatives as a result of or in connection with XPO’s breach of this
Agreement, willful misconduct, negligent acts or negligent omissions.
. . . [4] Except for their respective indemnification obligations
hereunder, as limited herein, unless otherwise prohibited by law, neither
party shall be liable for incidental or consequential damages or indirect,
special or punitive damages.
Agreement § 5(b). Both parties argue that Section 5(b) is unambiguous, but they
disagree as to its meaning. SMI focuses on the first sentence of Section 5(b) (the
Indemnification Provision). That provision, according to SMI, creates first-party
indemnification obligations that are not subject to the damages limitations set forth
in the fourth sentence of Section 5(b) (the Limitation of Liability Provision). In
contrast, XPO argues that the Indemnification Provision creates only third-party
indemnification obligations. Thus, under XPO’s view, the Limitation of Liability
Provision limits either party’s exposure to first-party claims solely to direct damages.
Having carefully examined the language of Section 5(b) and the Agreement as
a whole, we conclude that Section 5(b) unambiguously bars SMI from recovering
non-direct damages from XPO. Setting aside the prefatory clause for a moment, the
Limitation of Liability Provision clearly provides, “unless otherwise prohibited by
law, neither party shall be liable for incidental or consequential damages or indirect,
special or punitive damages.” This language does not purport to cabin the types of
claims to which the limitation applies (e.g., first- vs. third-party claims, contract vs.
tort claims).4
4
Other provisions in the Agreement suggest that the parties intended XPO to
be liable to SMI solely for direct damages, at the least for lost or damaged inventory.
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SMI nevertheless focuses on the Limitation of Liability Provision’s prefatory
clause—“[e]xcept for their respective indemnification obligations hereunder, as
limited herein”—to argue that it is not limited to recovering direct damages in this
case. SMI asserts that, pursuant to the Indemnification Provision, XPO has a first-
party indemnification obligation to SMI, and that obligation is expressly excepted
from the damages limitation. We disagree. Viewed in light of Missouri contract law
and the whole Agreement, we read the Indemnification Provision to create only
mutual third-party indemnification obligations for XPO and SMI.
To begin, we are conscious that “[i]ndemnity suits ordinarily arise in the
context of third-party claims.” Monarch Fire Prot. Dist. of St. Louis Cnty. v.
Freedom Consulting & Auditing Servs., Inc., 644 F.3d 633, 638 (8th Cir. 2011).
Although Missouri law does not limit indemnification to third-party claims, see
Praetorian Ins. Co. v. Site Inspection, LLC, 604 F.3d 509, 516 (8th Cir. 2010), we
look for “express language referencing litigation between the parties” before
concluding that an indemnification provision encompasses first- and third-party
claims, Monarch Fire, 644 F.3d at 638. The Indemnification Provision contains no
such express language, and we presume the parties intended to create indemnification
obligations in their ordinary sense. See Indemnity, Black’s Law Dictionary (11th ed.
2019) (“Reimbursement or compensation for loss, damage, or liability in tort; esp.,
See, e.g., Agreement § 5(a)(i) (“Where XPO is otherwise liable under this Agreement
for loss of, or damage to inventory, said liability shall be limited to the actual cost of
the inventory lost or damaged based on the replacement cost for said inventory.”);
Agreement § 6(c) (“XPO shall be responsible, at its sole cost and expense, for all
inventory losses due to pilferage or damage caused by the negligence or willful
misconduct of XPO or its employees . . . .”); Agreement § 6(h) (noting, in accordance
with the Inventory Claim Procedure for “damaged, spoiled, out-of-date, [or] missing”
inventory, that “[SMI] shall be entitled to reimbursement for [lost or damaged
inventory] at the replacement cost of the inventory lost or damaged”).
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the right of a party who is secondarily liable to recover from the party who is
primarily liable for reimbursement of expenditures paid to a third party for injuries
resulting from a violation of a common-law duty.”). This reading is supported by the
second sentence of Section 5(b), which requires XPO to not only indemnify but also
defend SMI from claims brought by a specific third party: Northpark’s landlord.
Read together, the first and second sentences of Section 5(b) indicate that XPO and
SMI were contemplating third-party indemnification in the Indemnification Provision.
Finally, by reading the Indemnification Provision as only creating third-party
indemnification obligations, we avoid rendering any portion of Section 5(b)
surplusage. Under Missouri contract law, “people are presumed not to intend
nullities,” and a contract’s “preferred construction is one that provides a reasonable
meaning to each phrase and clause, not one that leaves some of the provisions
without function or sense.” Tuttle v. Muenks, 21 S.W.3d 6, 12 (Mo. Ct. App. 2000)
(cleaned up); see also United States v. Lewis, 673 F.3d 758, 762 (8th Cir. 2011) (“[I]t
is a familiar principle of contractual interpretation that contracts must be interpreted
to give effect to every provision.” (cleaned up)). Recall that the Limitation of
Liability Provision provides: “Except for their respective indemnification obligations
hereunder, . . . neither party shall be liable for incidental or consequential damages
or indirect, special or punitive damages.” If, as SMI argues, the Indemnification
Provision created both first- and third-party indemnification obligations, those
obligations all would be excepted from the Limitation of Liability Provision, meaning
no liabilities would be limited. Such a reading would render the Limitation of
Liability Provision meaningless. Indeed, SMI has failed to identify a single claim that
could conceivably fall outside of the Indemnification Provision under this reading yet
still be subject to the Limitation of Liability Provision.
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We conclude that the Agreement bars SMI from recovering non-direct damages
from XPO.
B. Whether Section 5(b) of the Agreement Violates Missouri Public Policy by
Limiting Damages for XPO’s Alleged Gross Negligence or Willful Misconduct.
Next, SMI argues that the Limitation of Liability Provision violates Missouri
public policy, and is thus unenforceable, because it contravenes the following
contract law principle: “[O]ne may never exonerate oneself from future liability for
intentional torts or for gross negligence.” Alack v. Vic Tanny Int’l of Mo., Inc., 923
S.W.2d 330, 337 (Mo. banc 1996). When interpreting Missouri law, “we are bound
by the decisions of the Supreme Court of Missouri.” Washington v. Countrywide
Home Loans, Inc., 747 F.3d 955, 957–58 (8th Cir. 2014). Where the Supreme Court
of Missouri has not directly addressed the issue presented, as here, “we must predict
how the court would rule, . . . follow[ing] decisions from the intermediate state courts
when they are the best evidence of Missouri law.” Id. at 958.
At the outset, we question whether the cited principle—articulated in a case
involving adhesion contracts between a business and consumers—applies with equal
force to a contract negotiated at arm’s length between sophisticated commercial
entities. See Alack, 923 S.W.2d at 338 n.4; see also Purcell Tire & Rubber Co. v.
Exec. Beechcraft, Inc., 59 S.W.3d 505, 508 (Mo. banc 2001) (“Sophisticated parties
have freedom of contract . . . [and] may contractually limit future remedies.”); cf. Util.
Serv. & Maint., Inc. v. Noranda Aluminum, Inc., 163 S.W.3d 910, 914 (Mo. banc
2005) (noting the “economic reality” that sophisticated businesses “price” contractual
terms, including indemnities that cover “any and all claims,” into their agreements).
We also note that, since Alack was decided, the Supreme Court of Missouri has
narrowed this principle: “[B]ecause Missouri courts do not recognize degrees of
negligence at common law,” exculpatory clauses that exonerate parties for their gross
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negligence are not void as against public policy. DeCormier v. Harley-Davidson
Motor Co. Grp., 446 S.W.3d 668, 671 (Mo. banc 2014). This leaves SMI to argue
only that the Limitation of Liability Provision violates public policy because it
insulates XPO for its willful misconduct, which is noteworthy, as we have doubts that
SMI has offered facts necessary to show that XPO engaged in willful misconduct.
Cf. id. at 672–73 (declining to hold limitation of liability unenforceable for insulating
the defendant for its reckless conduct because the plaintiff failed to establish facts
necessary to show recklessness); Ferbet v. Hidden Valley Golf & Ski, Inc., 618
S.W.3d 596, 603 n.1 (Mo. Ct. App. 2020).
In any event, the Limitation of Liability Provision does not exonerate XPO
from future liability. The provision provides: “[N]either party shall be liable for
incidental or consequential damages or indirect, special or punitive damages.” This
plain language does not insulate XPO for its gross negligence or willful misconduct;
it merely limits the types of damages that may be recovered for XPO’s wrongdoing.
In Liberty Financial Management Corp. v. Beneficial Data Processing Corp., the
Missouri Court of Appeals construed a similar limitation of liability provision. 670
S.W.2d 40, 47–48 (Mo. Ct. App. 1984). In that case, the parties had agreed that the
defendant would be “liable for breach of contract only for willful or grossly negligent
acts and then only for ‘out-of-pocket losses’ [i.e., direct damages] resulting from the
breach.” Id. at 47. Because the agreement did not wholly exempt the defendant from
liability arising from its own willful misconduct or gross negligence, the court
determined it did not violate public policy. Id.; see also In re NHB, LLC, 287 B.R.
475, 478–79 (E.D. Mo. Bankr. 2002) (“[S]hort of complete exoneration, sophisticated
parties may contractually limit their liability to each other for willful acts and gross
negligence. Exoneration versus a limitation of liability is a distinction with a
difference.”). Similarly, the Limitation of Liability Provision here contractually
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limits both parties’ liability to each other, but does not exonerate them. It is,
therefore, not contrary to Missouri public policy.
C. Whether Section 5(b) of the Agreement Violates Missouri Public Policy by
Preventing SMI from Recovering Losses Incurred Mitigating Its Damages.
SMI also argues that the Limitation of Liability Provision is unenforceable to
the extent it prevents SMI from recovering the losses it incurred when it mitigated the
damages caused by XPO’s alleged misconduct. But SMI has not directed us to any
authorities demonstrating that Missouri law assures, as a matter of public policy, that
an injured party may recover such losses. Instead, under Missouri law, a plaintiff’s
“failure to mitigate damages is an affirmative defense,” Riddell v. Bell, 262 S.W.3d
301, 305 (Mo. Ct. App. 2008), that can be raised by a defendant to limit the measure
of damages recoverable by the plaintiff, see Hertz Corp. v. RAKS Hosp., Inc., 196
S.W.3d 536, 548 (Mo. Ct. App. 2006); see also Scheck Indus. Corp. v. Tarlton Corp.,
435 S.W.3d 705, 729 (Mo. Ct. App. 2014) (“Under the rule of mitigation of damages,
one damaged through [the] alleged breach by another of some legal duty or obligation
has to make reasonable efforts to minimize the resulting damage.” (cleaned up));
Restatement (Second) of Contracts § 350(1) (Am. L. Inst. 1981) (“[D]amages are not
recoverable for loss that the injured party could have avoided without undue risk,
burden or humiliation.”). The Limitation of Liability Provision does not violate
Missouri public policy simply because it prevents SMI from recovering its mitigation
damages.
D. Classification of SMI’s Claimed Damages as Consequential Damages.
In addition to its challenge to the enforceability of the Limitation of Liability
Provision, see supra Sections II.B–.C, SMI contends that the district court erred by
determining at summary judgment that three categories of SMI’s claimed damages
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were consequential damages and therefore barred under the Agreement. See
Agreement § 5(b) (“[N]either party shall be liable for incidental or consequential
damages or indirect, special or punitive damages.”). “We review de novo the district
court’s grant of summary judgment, viewing all evidence and drawing all reasonable
inferences in favor of the nonmoving party.” Odom v. Kaizer, 864 F.3d 920, 921 (8th
Cir. 2017) (cleaned up). “Summary judgment is appropriate ‘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.’” Anderson v. Hess Corp., 649 F.3d 891, 896 (8th Cir.
2011) (quoting Fed. R. Civ. P. 56(a)).
Under Missouri law, actual damages are damages stemming from “the direct
and natural consequences of the [defendant’s] breach” of some duty. Kforce, Inc. v.
Surrex Solutions Corp., 436 F.3d 981, 984–85 (8th Cir. 2006); see also Restatement
(Second) of Contracts § 347(a) & cmt. b (describing an injured party’s entitlement to
the loss in value “of the [injuring] party’s performance that is caused by the failure
of, or deficiency in, that performance”). Consequential damages, in contrast, are
“loss[es] resulting from [the injured party’s] general or particular requirements and
needs of which [the injuring party] had reason to know and which could not
reasonably be prevented.” Gen. Elec. Cap. Corp. v. Rauch, 970 S.W.2d 348, 358
(Mo. Ct. App. 1998); see also Ullrich v. CADCO, Inc., 244 S.W.3d 772, 779 (Mo. Ct.
App. 2008) (defining consequential damages as “those damages naturally and
proximately caused by the commission of the breach and those damages that
reasonably could have been contemplated by the [injuring party] at the time of the
parties’ agreement”); Restatement (Second) of Contracts § 347(b) & cmt. c
(“Consequential losses include such items as injury to person or property resulting
from defective performance.”). Generally, all losses are recoverable. See
Restatement (Second) of Contracts § 347 cmt. c. However, where parties agree to
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exclude liabilities for certain damages, as here, the damages available to the injured
party will be circumscribed accordingly. See id. § 347 cmt. a.
First, SMI argues that the district court improperly classified lost profits as
consequential, rather than actual, damages. SMI seeks lost profits related to a
decrease in sales at its grocery stores that it claims was directly caused by XPO’s
mismanagement of Northpark and the resulting lost, damaged, or spoiled inventory.
Lost profits refers to “the amount of net profits a plaintiff would have realized if its
clients had not been lost as a result of a defendant’s actions.” See Ameristar Jet
Charter, Inc. v. Dodson Int’l Parts, Inc., 155 S.W.3d 50, 54 (Mo. banc 2005) (cleaned
up). Although “it is incorrect to classify mechanically the prospective lost profits
portion of [an injured party’s] damage award as consequential damages,” Computrol,
Inc. v. Newtrend, L.P., 203 F.3d 1064, 1071 n.5 (8th Cir. 2000), here the Agreement
bars the recovery of the lost profits SMI seeks. As an initial matter, it is undisputed
that the Agreement expressly provides that XPO will be liable for only the actual
replacement cost of lost or damaged inventory. See supra note 4. Moreover, the lost
profits sought here are consequential damages. SMI’s decreased sales were an
ancillary effect of XPO’s deficient warehouse management. XPO may have
anticipated such damages in the event of a breach, but a loss of sales to third-party
customers was not assured, and SMI’s lost profits cannot reasonably be described as
“the direct and natural consequence” of a breach of the Agreement.
Second, SMI seeks to recover the expenses incurred to transfer some of its
inventory from Northpark to another warehouse and to stock its supermarkets from
both warehouses when faced with XPO’s failure to properly manage Northpark.
Incidental damages include “any reasonable expense incident to the breach.” Gen.
Elec. Cap. Corp., 970 S.W.2d at 358; see also Restatement (Second) of Contracts
§ 347 cmt. c (“Incidental losses include costs incurred in a reasonable effort, whether
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successful or not, to avoid loss . . . .”). Moving inventory out of Northpark was an
effort by SMI to mitigate the effects of XPO’s deficient warehouse management.
These are incidental damages barred by the Agreement’s Limitation of Liability
Provision.
Third, SMI claims that its expenditures incurred to correct for XPO’s
mismanagement of Northpark—housing and feeding its “crisis team” and paying
them overtime, purchasing extra produce to stock supermarket shelves, instituting
sale promotions to lure back customers, and marking down overstocked or short-
dated products—were direct damages that are not barred by the Agreement. But these
losses, too, were incurred to mitigate SMI’s direct losses from XPO’s deficient
warehouse management and are not recoverable under the Limitation of Liability
Provision.
E. Grant of Judgment as a Matter of Law on SMI’s Negligence Counterclaim.
At trial, after conclusion of the evidence, XPO moved for judgment as a matter
of law on SMI’s negligence counterclaim, arguing that SMI provided “no evidence
of a breach of any duty separate and independent from the contract.” The district
court agreed, reasoning that SMI’s negligence counterclaim was duplicative of its
breach of contract counterclaim. After the jury rendered its verdict, SMI moved for
a new trial, arguing that the district court erred by granting judgment as a matter of
law in favor of XPO. The court denied the motion, “finding no independent basis for
negligence liability.”
“Federal Rule of Civil Procedure 50 allows the trial court, after a party has
been fully heard on an issue, to resolve the issue against that party and enter judgment
accordingly if a reasonable jury could not find in that party’s favor.” Adeli v.
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Silverstar Auto., Inc., 960 F.3d 452, 458 (8th Cir. 2020) (quoting White v. Union Pac.
R.R. Co., 867 F.3d 997, 1000 (8th Cir. 2017)). We review de novo the district court’s
grant of a motion for judgment as a matter of law, viewing the evidence in the light
most favorable to the nonmoving party. See Captiva Lake Invs., LLC v. Fidelity
Nat’l Title Ins. Co., 883 F.3d 1038, 1054 (8th Cir. 2018). As with summary
judgment, we look to “whether the evidence presents sufficient disagreement to
require submission to a jury, or is so one-sided that one party must prevail as a matter
of law.” Adeli, 960 F.3d at 458 (cleaned up). “We review the denial of a motion for
a new trial for a ‘clear’ abuse of discretion.” Hallmark Cards, Inc. v. Murley, 703
F.3d 456, 462 (8th Cir. 2013).
Under Missouri law, “a mere breach of contract does not [itself] provide a basis
for tort liability.” Bus. Men’s Assurance Co. of Am. v. Graham, 891 S.W.2d 438, 453
(Mo. Ct. App. 1994). However, in limited circumstances, “the complained of act or
omission which breaches a contract may also be a negligent act which would give rise
to a liability in tort.” Am. Mortg. Inv. Co. v. Hardin-Stockton Corp., 671 S.W.2d
283, 293 (Mo. Ct. App. 1984). “If the duty [allegedly breached by the defendant]
arises solely from the contract, the action is contractual.” Bus. Men’s Assurance Co.,
891 S.W.2d at 453.
“The action may be in tort, however, if the party sues for breach of a duty
recognized by the law as arising from the relationship or status the parties have
created by their agreement.” Id. Thus, in Business Men’s Assurance Co., the
Missouri Court of Appeals held that the plaintiff was permitted to submit both breach
of contract and negligence claims against the defendant architectural firm because it
demonstrated two independent duties that the defendant allegedly breached. Id. at
454 (“In addition to the contractual duties [for the rendition of architectural services]
arising from the contract . . . , [the defendant] had a[n] [extracontractual] duty to
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provide professional architectural services in a manner consistent with the skill and
competence of other members of its profession.”). Similarly, in Hardin-Stockton
Corp., the district court erred by directing a verdict in favor of the defendant real
estate broker on the plaintiff’s negligence claim where the defendant had allegedly
breached two separate duties of care. See 671 S.W.2d at 293–94 (discussing the
defendant’s contractual duty and its common law duty to “exercise reasonable skill,
diligence, and care in the handling of business given over or entrusted to the broker”).
We agree with the district court that SMI has not provided sufficient evidence
to show that XPO breached a duty of care other than its contractual duty under the
Agreement. In its negligence counterclaim, SMI alleges that XPO breached its duty
to “conduct [its] operations pursuant to prevailing warehouse industry practices.” Yet
the Agreement specifically incorporates that standard of care into XPO’s contractual
duty. See Agreement § 2(a)(i), (iv) (“XPO agrees that the Services to be performed
by XPO’s personnel hereunder shall be done in a good, professional, workmanlike
manner, in an expeditious and economical manner, consistent with the most efficient
operation of the warehouse in accordance with the Standards and prevailing practices
in the warehousing industry, and in compliance with all applicable statutes, law,
ordinances, codes, rules, and regulations.”). And SMI does not explain how or to
what extent XPO’s alleged non-contractual duty of care differs from its contractual
duty. Thus, in both its breach of contract and negligence counterclaims, SMI alleges
that XPO breached the same duty of care. Also, SMI seemingly concedes that the
damages for both counterclaims would be the same: inventory losses. In contrast to
the permissible negligence claims in Business Men’s Assurance Co. and Hardin-
Stockton Corp., SMI’s negligence counterclaim is not based upon a common law duty
that XPO owes independent of the Agreement. See 891 S.W.2d at 454; 671 S.W.2d
at 294. The district court did not err in granting judgment as a matter of law in favor
of XPO on SMI’s negligence counterclaim, cf. Estate of Petersen v. Bitters, 954 F.3d
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1164, 1171 (8th Cir. 2020) (granting judgment as a matter of law in favor of the
defendant on the plaintiff’s negligence claim because it was “identical” to the
plaintiff’s breach of fiduciary duty claim), and therefore did not abuse its discretion
in denying SMI’s motion for a new trial on this basis.
F. Admission of the Ryberg Emails.
Before trial, SMI moved to enforce a protective order that allowed either party
to claw back attorney-client privileged information it had inadvertently disclosed
during discovery. Specifically, SMI sought an order requiring XPO to destroy or
return two emails under the clawback provision. The district court denied SMI’s
motion and permitted XPO to introduce the emails at trial. The court also rejected
SMI’s argument that the emails were unduly prejudicial under Federal Rule of
Evidence 403. After trial, the district court also denied SMI’s motion for new trial
based on the admission of the emails.
The scope of the attorney-client privilege is a mixed question of law and fact
that we review de novo. See United States v. Ivers, 967 F.3d 709, 715 (8th Cir. 2020)
(“We review the district court’s factual findings underlying the privilege for an abuse
of discretion and its legal conclusions de novo.”). Nevertheless, we review the
district court’s evidentiary rulings for an abuse of discretion and will reverse “only
if the evidentiary ruling was a clear and prejudicial abuse of discretion,” meaning it
“had a substantial influence on the jury’s verdict.” Vogt v. State Farm Life Ins. Co.,
963 F.3d 753, 770–71 (8th Cir. 2020) (cleaned up). And as noted above, we review
the denial of a motion for a new trial for “a ‘clear’ abuse of discretion.” Id. at 770.
“The attorney-client privilege protects confidential communications between
an attorney and client concerning representation of the client.” State ex rel. Polytech,
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Inc. v. Voorhees, 895 S.W.2d 13, 14 (Mo. banc 1995) (cleaned up).5 As the party
asserting the attorney-client privilege, SMI bears the burden of proof to demonstrate
that the privilege applies. See State ex rel. Koster v. Cain, 383 S.W.3d 105, 116 (Mo.
Ct. App. 2012). The attorney-client privilege applies to corporations and “covers
counsel’s communications with both top management and lower level employees.”
DeLaporte v. Robey Bldg. Supply, Inc., 812 S.W.2d 526, 531 (Mo. Ct. App. 1991).
Communications between corporate counsel and lower level employees will be
privileged if:
(1) the communication was made for the purpose of securing legal
advice; (2) the employee making the communication did so at the
direction of his corporate superior; (3) the superior made the request so
that the corporation could secure legal advice; (4) the subject matter of
the communication is within the scope of the employee’s corporate
duties; and (5) the communication is not disseminated beyond those
persons who, because of the corporate structure, need to know its
contents.
Id. (emphasis added) (quoting Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 609
(8th Cir. 1977)). In the corporate context, where corporate counsel may act as both
business and legal advisor, to be privileged the communication “must have been made
to the attorney in his professional capacity, and on account of the relation of attorney
and client.” State ex rel. Great Am. Ins. Co. v. Smith, 574 S.W.2d 379, 386 (Mo.
banc. 1978). In other words, “[t]o be privileged the communication must relate to
attorney-client business and not to extraneous matters.” State v. Fingers, 564 S.W.2d
579, 582 (Mo. Ct. App. 1978).
5
We look to Missouri law, which governs questions involving privilege in this
diversity action. See Baker v. Gen. Motors Corp., 209 F.3d 1051, 1053 (8th Cir.
2000); Fed. R. Evid. 501 (“[I]n a civil case, state law governs privilege regarding a
claim or defense for which state law supplies the rule of decision.”).
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The district court did not abuse its discretion by determining that the two
emails SMI sought to exclude did not seek or reflect legal advice. Both emails were
sent by Jaime Ryberg, SMI’s Accounts Payable Manager, to Mark Doiron, SMI’s
Chief Merchant and Supply Chain Officer, and Rachel Steele, SMI’s Assistant
General Counsel, and the second email was also sent to Brian Brink, in-house counsel
at SMI. In both emails, Ryberg discussed the application of the Agreement’s Loss
Allowance Provision,6 noting her particular concern that XPO might avoid
compensating SMI for some lost inventory by moving inventory around within
Northpark.7
We agree with the district court that Ryberg, in voicing her concerns, was not
explicitly or implicitly seeking legal advice on the correct interpretation of the Loss
Allowance Provision. Nor did the emails reflect the legal advice of counsel. Rather,
Ryberg was explaining the potential financial implications of XPO’s management of
6
Under the Agreement, XPO was “entitled to an allowance for loss of, or
damage to inventory equivalent to one percent (1%) of the cases received and the
cases shipped annually by each department” at Northpark. Agreement § 6(i).
7
In the first email, Ryberg informed her colleagues of this concern, noting “[i]f
I am reading the contract correctly [XPO] can adjust the following # of cases per area
before we would be able to recoup damages.” Dist. Ct. Dkt. 107-1. She continued,
“I want to keep the discussion on everyone’s radar but if we don’t feel we can recover
losses from XPO then I will not make period end adjustments to results.” Id. And
two days later, in her second email, Ryberg elaborated on her previous email by
providing a specific example of XPO potentially “gaming” the Loss Allowance
Provision: “I only have a total cases shipped number right now so I don’t to [sic] a
full review but wanted to show you part of my concerns. If you look at product while
they added inventory units they actually decreased the inventory dollar value. This
is because they added lower average cost items and pitched higher average cost items.
[I]f we went strictly by the contract we would not be able to recover any funds for
that area.” Dist. Ct. Dkt. 107-2.
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Northpark based on her understanding of the Loss Allowance Provision. And
although Ryberg addressed both emails to SMI’s in-house counsel, she was not
asking for legal advice. See Diversified Indus., 572 F.2d at 602 (explaining that, for
a communication to an attorney to be privileged, “the attorney must have been
engaged or consulted by the client for the purpose of obtaining legal services or
advice services or advice that a lawyer may perform or give in his capacity as a
lawyer, not in some other capacity”). “A communication is not privileged simply
because it is made by or to a person who happens to be a lawyer.” Id. Because the
emails were made in the ordinary course of business and were not “prepared with the
intention of seeking legal advice,” they were not attorney-client privileged. See St.
Louis Little Rock Hosp., Inc. v. Gaertner, 682 S.W.2d 146, 151 (Mo. Ct. App. 1984).
Nor did the district court abuse its discretion by declining to exclude the two
emails for any unfair prejudice they might cause. See Fed. R. Evid. 403 (“The court
may exclude relevant evidence if its probative value is substantially outweighed by
a danger of . . . unfair prejudice . . . .”). Unfair prejudice “means an undue tendency
to suggest decision on an improper basis, commonly, though not necessarily, an
emotional one.” Walker v. Kane, 885 F.3d 535, 540 (8th Cir. 2018). SMI argues that
the emails were unfairly prejudicial because they improperly implied that Ryberg’s
interpretation of the Agreement, in the absence of any opinion from corporate counsel
to the contrary, was correct. But as noted above, see supra Section II.A, “[t]he
interpretation of a contract is a question of law,” Helterbrand v. Five Star Mobile
Home Sales, Inc., 48 S.W.3d 649, 658 (Mo. Ct. App. 2001) (cleaned up), and by
suggesting how XPO might circumvent the loss allowance under the Agreement,
Ryberg was not providing a legal opinion that made the Agreement susceptible to
misinterpretation.
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G. Award of Prejudgment Interest to XPO.
Finally, SMI argues that the district court erred by awarding prejudgment
interest to XPO. After the jury rendered its verdict, finding in favor of XPO on its
claim for action on account and awarding XPO $3,166,837.01 in damages, and after
the district court entered judgment accordingly, XPO moved to alter or amend the
judgment to include an award of prejudgment interest. The district court found that
XPO was entitled to the statutory prejudgment interest rate of 9% per annum, see Mo.
Rev. Stat. § 408.020 (1979),8 and awarded XPO $643,301.37 in prejudgment interest.
“We review the statutory right to prejudgment interest pursuant to section 408.020
de novo.” Barkley, Inc. v. Gabriel Bros., Inc., 829 F.3d 1030, 1039 (8th Cir. 2016)
(quoting Mitchell v. Residential Funding Corp., 334 S.W.3d 477, 508 (Mo. Ct. App.
2010)).
Under Missouri law, “[a]wards of prejudgment interest are not discretionary;
if the statute applies, the court must award prejudgment interest.” Mitchell, 334
S.W.3d at 509 (cleaned up); see also Assurance Gen. Contracting, LLC v.
Ekramuddin, 604 S.W.3d 761, 772 (Mo. Ct. App. 2020) (“The purpose of statutory
pre-judgment interest is to promote settlement of lawsuits and fully compensate
plaintiffs by accounting for the time-value of money.”). For an award of
prejudgment interest, three requirements must be met: “(1) the expenses must be due;
(2) the claim must be liquidated or the amount of the claim reasonably ascertainable;
and (3) the obligee must make a demand on the obligor for the amount due.” Barkley,
Inc., 829 F.3d at 1039 (quoting Jablonski v. Barton Mut. Ins. Co., 291 S.W.3d 345,
350 (Mo. Ct. App. 2009)).
8
Missouri law governs the issue of prejudgment interest in this diversity action.
See Macheca Transp. Co. v. Phila. Indem. Ins. Co., 737 F.3d 1188, 1196 (8th Cir.
2013).
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First, SMI argues that it is not obligated to pay prejudgment interest on a
category of damages that amounted to $1,719,788.00 of the jury’s total damages
award. The parties refer to this category of damages as the “labor credits,” an amount
SMI withheld—pursuant to the Agreement’s “true-up” provision9—from payments
owed to XPO. See Agreement § 4(a)(i)[D]. SMI argues these “labor credits” were
unliquidated in part because the parties “genuinely disputed if and how the true-ups
should be conducted.” See Barkley, Inc., 829 F.3d at 1039–40.
“In order to be liquidated so as to allow interest, a claim must be fixed and
determined or readily determinable.” Macheca Transp., 737 F.3d at 1196; see also
Barkley, Inc., 829 F.3d at 1039 (“The denial of prejudgment interest for unliquidated
claims ‘is based, generally, on the idea that where the person liable does not know the
amount he owes he should not be considered in default because of failure to pay.’”
(quoting Fohn v. Title Ins. Corp. of St. Louis, 529 S.W.2d 1, 5 (Mo. banc 1975))).
To begin, the amount of these “labor credits” was reasonably ascertainable because
SMI itself determined that amount when it unilaterally decided to withhold payments
from XPO for its properly invoiced amounts due. Moreover, even assuming the
parties disagreed about the applicability or proper calculation of the Agreement’s
true-up mechanisms, “a dispute over the actual amount owed” does not render a claim
unliquidated. Macheca Transp., 737 F.3d at 1197; see Comens v. SSM St. Charles
9
In the payment provision of the Agreement, XPO and SMI provided for a
“true-up” mechanism. Pursuant to this provision, the parties would agree to a budget
for a given accounting period. Agreement § 4(a)(i)[C]. If XPO operated the facility
under budget, it would receive a monetary reward equal to 50% of the dollar amount
by which it was under budget (i.e., an incentive to be cost-efficient). If XPO
operated the facility over budget, SMI would deduct a penalty from its payment equal
to 50% of the dollar amount by which it exceeded budget. When SMI withheld $1.7
million in “labor credits,” it claimed it was doing so to “true up on the account” under
the “true-up” mechanism.
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Clinic Med. Grp., Inc., 335 S.W.3d 76, 82 (Mo. Ct. App. 2011) (“The mere fact that
a party denies liability or defends a claim against him or her, or even the existence of
a bona fide dispute as to the amount of the indebtedness, does not preclude recovery
of interest.” (cleaned up)). The district court did not err in finding that XPO’s claim
for “labor credits” was liquidated.
Next, SMI asserts that the district court erred in concluding that XPO was
entitled to prejudgment interest because XPO’s invoices were not “demands” for
payment. See Barkley, Inc., 829 F.3d at 1039. Prejudgment interest is allowed “only
after demand of payment is made.” Juan v. Growe, 547 S.W.3d 585, 597 (Mo. Ct.
App. 2018). “Although the demand need be in no certain form, it must be definite as
to amount and time.” Nusbaum v. City of Kansas City, 100 S.W.3d 101, 109 (Mo.
banc 2003). Contrary to SMI’s argument, Missouri courts have recognized that
invoices qualify as demands for payment. See, e.g., Juan, 547 S.W.3d at 598; City
of Cape Girardeau ex rel. Kluesner Concreters v. Jokerst, Inc., 402 S.W.3d 115, 125
(Mo. Ct. App. 2013); Doe Run Res. Corp. v. Certain Underwriters at Lloyd’s London,
400 S.W.3d 463, 477 (Mo. Ct. App. 2013). The district court did not err in finding
that XPO’s invoices to SMI were definite as to the amount owed and the time within
which to be paid. SMI’s argument that XPO was required to separately invoice SMI
for the amounts SMI unilaterally withheld as “labor credits” from XPO’s otherwise
properly submitted invoices is likewise unavailing. See Agreement § 4(a)(i)[A]
(requiring SMI to pay invoices within eight days of their issue date).
We affirm the district court’s grant of statutory prejudgment interest to XPO.
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III. XPO’s Arguments on Cross-Appeal
A. Denial of Judgment as a Matter of Law on SMI’s Breach of Contract
Counterclaim.
First, XPO argues that it was entitled to judgment as a matter of law on SMI’s
breach of contract claim because there was insufficient evidence to support any award
of damages for that claim. We review the district court’s denial of a renewed motion
for judgment as a matter of law de novo, viewing the evidence in the light most
favorable to the jury’s verdict. See Adeli, 960 F.3d at 458; see also Letterman v.
Does, 859 F.3d 1120, 1124 (8th Cir. 2017) (“The court is not at liberty to reweigh the
evidence or consider questions of credibility, and it must give great deference to the
jury’s verdict.” (cleaned up)). To determine whether judgment as a matter of law is
warranted, we look to “[w]hether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must prevail
as a matter of law.” Axelson v. Watson, 999 F.3d 541, 546 (8th Cir. 2021) (quoting
Kinserlow v. CMI Corp., 217 F.3d 1021, 1025 (8th Cir. 2000)). “Judgment as a
matter of law is appropriate only when all of the evidence points one way and is
susceptible of no reasonable inference sustaining the position of the nonmoving
party.” Letterman, 859 F.3d at 1124.
XPO contends that SMI failed to introduce evidence that would have enabled
the jury to calculate a damages award without speculation, and more specifically, that
SMI failed to introduce evidence that would have permitted the jury to award an
amount of $147,000, which it in fact awarded to SMI. “Under Missouri law, a
plaintiff in a contract action generally has the burden of proving ‘the existence and
amount of . . . damages with reasonable certainty.’” Cole v. Homier Distrib. Co., 599
F.3d 856, 864 (8th Cir. 2010) (quoting Ullrich, 244 S.W.3d at 779). “Stated
otherwise, proof of actual facts which present a basis for a rational estimate of
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damages without resorting to speculation is required.” Delgado v. Mitchell, 55
S.W.3d 508, 512 (Mo. Ct. App. 2001) (cleaned up).
The parties agree that SMI submitted two damages theories on its breach of
contract claim. First, SMI sought more than $2 million in damages for the lost
inventory it attributed to XPO’s alleged mismanagement of Northpark. Second, SMI
sought $248,249 in “clawback” damages—damages reflecting amounts that SMI
allegedly overpaid to XPO. SMI offered evidence to support both theories, including
evidence and testimony demonstrating substantial quantities of lost or damaged
inventory and potential overpayment by SMI under the Agreement’s “true-up”
mechanism, and the jury could have relied on either or both theories and their
attendant evidence to issue an award.
However, looking to the $147,000 the jury did in fact award, XPO argues that
the jury could have awarded damages only under the lost inventory theory and that
there was insufficient evidence for the jury to do so.10 XPO reasons that the jury’s
ultimate award was “inconsistent” with the clawback calculations presented by SMI
and the jury’s damages award to XPO on its action on account claim, which included
approximately $1.7 million that SMI unilaterally withheld as “labor credits” under the
true-up mechanism. See supra Section II.G.
10
Because we conclude that there was sufficient evidence to support the jury’s
award of $147,000 under the “clawback” theory of damages, we need not address
XPO’s latter argument that SMI did not provide evidence that detailed the amount of
lost inventory that exceeded XPO’s loss allowance under the Agreement. See
Agreement § 6(i) (“XPO shall be entitled to an allowance for loss of, or damage to
inventory equivalent to one percent (1%) of the cases received and the cases shipped
annually by each department at the Facility.”).
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In closing argument, XPO told the jury that if they found that XPO
“underperformed” or “should have done better,” it could “take the management fee11
of $147,000 away.” In other words, XPO invited the jury to award SMI a clawback
of XPO’s management fee if it concluded that XPO breached the Agreement by
failing to abide by the prevailing industry warehouse standards. And by our reading,
that is what the jury did. There was a sufficient evidentiary basis for the jury to award
breach of contract damages to SMI. Cf. In re Japanese Electronics Prods. Antitrust
Litig., 631 F.2d 1069, 1079 (3d Cir. 1980) (“The law presumes that a jury will find
facts and reach a verdict by rational means. It does not contemplate scientific [or
accounting] precision but does contemplate a resolution of each issue on the basis of
a fair and reasonable assessment of the evidence and a fair and reasonable application
of the relevant legal rules.”).
B. Denial of Attorney’s Fees to XPO.
Finally, XPO argues that the district court erred by determining that XPO was
not entitled to attorney’s fees under Section 6(h) of the Agreement. “We review de
novo the legal issues related to an award of attorneys’ fees, while the actual award is
reviewed for an abuse of discretion.” Snider v. City of Cape Girardeau, 752 F.3d
1149, 1159 (8th Cir. 2014).
Missouri law12 adheres to the American rule, under which “litigants ordinarily
bear the expense of their own attorneys’ fees.” Green v. Plaza in Clayton Condo.
11
Under the Agreement, in addition to receiving direct compensation for its
weekly fixed and variable operating costs managing Northpark, XPO was entitled to
a management fee equaling 7% of the sum of those costs. See Agreement § 4(a)(i).
12
“State law governs the availability of attorney fees in diversity cases where
no conflicting federal statute or court rule applies.” Ryan Data Exch., Ltd. v. Graco,
Inc., 913 F.3d 726, 735 (8th Cir. 2019).
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Ass’n, 410 S.W.3d 272, 280 (Mo. Ct. App. 2013). “[A]ttorneys’ fees are only
recoverable when a statute specifically authorizes recovery or when attorneys’ fees
are provided for by contract.” Essex Contracting, Inc. v. Jefferson Cnty., 277 S.W.3d
647, 657 (Mo. banc 2009). “If a contract provides for the payment of attorneys’ fees
and expenses incurred in the enforcement of a contract provision, the trial court must
comply with the terms of the contract and award them to the prevailing party.”
DocMagic, Inc. v. Mortg. P’ship of Am., L.L.C., 729 F.3d 808, 812 (8th Cir. 2013)
(quoting Clean Uniform Co. St. Louis v. Magic Touch Cleaning, Inc., 300 S.W.3d
602, 612 (Mo. Ct. App. 2009)). We review de novo the district court’s interpretation
of an attorney’s fees provision in a contract. See Jet Midwest Int’l Co. v. Jet Midwest
Grp., LLC, 932 F.3d 1102, 1105 (8th Cir. 2019).
On appeal, XPO argues that Section 6(h) of the Agreement is a general
attorney’s fees provision that entitles XPO to attorney’s fees as the prevailing party
in this litigation. XPO relies almost entirely on the final sentence of Section 6(h) to
expansively argue that it is entitled to attorney’s fees: “The prevailing party in
Alternative Dispute Resolution or litigation shall be entitled to recover (and the non-
prevailing party shall be obligated to pay) all costs and expenses incurred by the
prevailing party in connection therewith including reasonable attorney fees, third
party fees for Alternative Dispute Resolution, and court costs.” Agreement § 6(h).
But XPO largely ignores the eight immediately preceding sentences in Section 6.
These sentences lay out the “Inventory Claim Procedure,” the procedure pursuant to
which XPO was to reimburse SMI for any inventory that is identified as damaged,
spoiled, out-of-date, or missing during an inventory “cycle count.” And, if SMI and
XPO were unable to resolve claims for such lost or damaged inventory, the parties
were to seek alternative dispute resolution before resorting to formal legal
proceedings. See id.
Read as a whole, see Knob Noster R-VIII Sch. Dist. v. Dankenbring, 220
S.W.3d 809, 816 (Mo. Ct. App. 2007) (“The primary contract interpretation rule is
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to rely on the plain and ordinary meaning of the words in the contract and to consider
the document as a whole.”), Section 6(h) guarantees the recovery of attorney’s fees
only if the dispute arises in the context of an “Inventory Deficiency” and SMI and
XPO abide by the Inventory Claim Procedure set forth in the provision. Contrary to
XPO’s argument, the fee-shifting provision is not “a separate agreement” from the
other provisions of Section 6(h). XPO does not contend that this lawsuit arose from
a dispute under Section 6(h), and we agree with the district court that Section 6(h)
does not authorize the recovery of attorney’s fees in this case. Contra Parkway
Constr. Servs., Inc. v. Blackline LLC, 573 S.W.3d 652, 666–68 (Mo. Ct. App. 2019)
(construing a broadly worded provision, entitling the recovery of attorney’s fees “in
any dispute . . . arising out of or relating to” the contract, to award the plaintiff
attorney’s fees).
IV. Conclusion
For the foregoing reasons, we affirm the judgment of the district court in its
entirety.
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