                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT

                                   ___________

                                   No. 98-3626
                                   ___________


R. M. Taylor, Inc., a Missouri           *
corporation,                             *
                                         *
             Appellee,                   *
                                         *   Appeal from the United States
      v.                                 *   District Court for the
                                         *   Western District of Missouri.
General Motors Corporation, a            *
Delaware corporation,                    *
                                         *
             Appellant.                  *

                                   ___________

                             Submitted: April 21, 1999

                                  Filed: August 13, 1999
                                   ___________

Before RICHARD S. ARNOLD and WOLLMAN,1 Circuit Judges, and
      WOLLE,2 District Judge.
                              ___________



      1
        Roger L. Wollman became Chief Judge of the United States Court of Appeals
for the Eighth Circuit on April 24, 1999.
      2
        The Honorable Charles R. Wolle, United States District Judge for the Southern
District of Iowa, sitting by designation.
WOLLMAN, Chief Judge.

       General Motors Corp. (GM) appeals from the denial of its motion for judgment
as a matter of law following a jury verdict in favor of R.M. Taylor, Inc. (RMT), which
found that GM had impliedly abandoned construction contracts with RMT. We reverse
and remand.

                                           I.

     RMT entered into contracts to design and construct conveyor systems at several
GM plants. Each contract contained the following provision:

      The Owner (GM) shall have the right at any time to require alterations in,
      additions to and deductions from the work shown on the Drawings or
      described in the Specification without rendering void the Contract. . . . All
      changes shall be described in an Emergency Field Order or Bulletin issued
      by the Owner. Receipt of Drawings or verbal orders shall not constitute
      authority to proceed with changes in the work. An Emergency Field
      Order authorizes the Contractor to proceed immediately with the work
      described therein with the price to be determined. A BULLETIN IS A
      REQUEST FOR QUOTATION. The Contractor shall not proceed with
      the work described in the bulletin until the work is authorized by [a]n
      Emergency Field Order, [a] Contract Supplement, or [a] Contract Change
      Order.

GM Construction General Conditions (GM 1638) § 46.1, Appellant’s Appx. at 204.
The contracts also contained detailed provisions on the pricing of emergency field order
work. See id. §§ 46.2-46.4, Appellant’s Appx. at 204-08. Because RMT placed the
bids based on general drawings rather than customized designs for each plant, the
provisions regarding changes in the work were particularly important.




                                          -2-
      To receive periodic payments under the contracts, RMT was required to inform
GM of the status of its payments to subcontractors. See id. § 44.12, Appellant’s Appx.
at 203. This requirement was included because the subcontractors could file
mechanic’s liens against GM’s property if they were not paid by RMT. The contracts
allowed GM to withhold payments from RMT and make payments directly to the
subcontractors in the event RMT did not submit lien waivers showing that the
subcontractors had been paid. Id.

      During the construction of the conveyor systems, GM ordered many changes
from the general drawings originally submitted by RMT. These changes were
implemented through bulletins and emergency field orders. The number of changes
ordered and overall increased costs of the projects were as follows:

        Location     Original Price          Changes       Final Price      Increase
     Arlington, TX    $5,100,000               15         $5,949,173         16.7%
   Bowling Green, KY $14,265,815               42         $16,935,183        18.7%
     Doraville, GA   $11,754,000               64         $24,308,493       106.8%
    Pontiac East, MI  $4,500,000               44         $5,540,506         23.1%
     Shreveport, LA   $2,710,089                5          $3,200,498        18.1%
    Wentzville, MO    $7,787,845                3         $9,600,000         23.3%

See Trial Tr. at 541 (Wentzville final price), 1246-50 (Arlington original price,
changes, and final price; Bowling Green original price, changes, and final price;
Doraville original price, changes, and final price; Pontiac East original price, changes,
and final price; Shreveport final price; Wentzville changes), 1578 (Shreveport original
price), 2372 (Shreveport changes); Def. Ex. 958A (Wentzville original price).

      Because bulletins were simply requests for quotations, RMT did not proceed
with additional work described in bulletins unless it chose to submit a quotation and
was awarded the additional work at that rate by GM. For emergency field orders,
however, the contracts required RMT to perform the additional work immediately and

                                          -3-
then negotiate with GM to obtain payment. The negotiation process required RMT to
provide GM’s local contract manager a quote for the emergency field order work. The
contract manager would then submit the quote to GM’s plant engineer and overall
project engineer for approval. GM could accept the quote or reject it and propose a
different amount for payment. If GM rejected the quote, the contract manager and
RMT’s project manager would meet to discuss the discrepancy and agree on a price,
which would be submitted to GM’s plant engineer and overall project engineer for
approval. This initial quotation process usually lasted between four and ten days.

       After the parties agreed on a quote, RMT would submit a formal invoice, a
sworn statement detailing the amounts to be paid to subcontractors, and the lien
waivers to GM’s contract manager. This documentation would then be submitted to
the GM engineers for approval. It would then be forwarded to GM’s accounting
department, whereupon the first official “receipt” of the invoice would be generated.
The documentation would then be returned to the contract manager for submission to
the local GM finance department, resulting in the issuance of a second receipt, which
would be sent to the GM disbursement department for payment. This process usually
lasted between two and four weeks from the time the parties agreed on a quote.

       If the invoice was for more than $100,000, it would pass through the audit
department. If that department approved the invoice, the contract would be formally
amended and RMT would be paid. In such a case, the total processing time for the
invoice was three to six weeks from the time RMT provided GM’s local contract
manager with a quote for the emergency field order work. If the audit department
found a problem with the invoice or its supporting documentation, however, it would
return the materials to RMT for resubmission. In such a case, the total processing time
might extend to more than ten weeks. Once the invoice was formally approved and the
contract amended, GM had until the 25th of the following month to pay RMT.




                                          -4-
       This negotiation process, as opposed to the bidding process used for bulletins,
required RMT to cover the additional expenses resulting from emergency field orders.
The longer GM negotiated the price of the field orders, the longer RMT was forced to
cover these expenses. As a result of these delays in payment, RMT was unable to pay
its subcontractors, and it ultimately brought suit against GM, alleging excessive
changes in the contracts and excessive delays in payment.

       Count I of RMT’s complaint alleged that GM’s actions constituted a breach of
the contracts; Count II alleged that GM impliedly abandoned the contracts. Although
the jury heard evidence on both counts, the district court severed Count I “for separate
resolution” and submitted only Count II to the jury. The jury found implied
abandonment and awarded RMT quantum meruit damages of $21.5 million. The court
entered judgment on the verdict and denied GM’s renewed motion for judgment as a
matter of law.

                                          II.

       We review the denial of a motion for judgment as a matter of law de novo. See
Arthaud v. Mutual of Omaha Ins. Co., 170 F.3d 860, 862 (8th Cir. 1999). GM is
entitled to judgment as a matter of law “only if there was insufficient evidence to
support the jury verdict.” Id. We view all facts and resolve all conflicts in favor of
RMT in making this determination, giving it the benefit of all reasonable inferences.
See Varner v. National Super Markets, Inc., 94 F.3d 1209, 1212 (8th Cir. 1996). If the
evidence is such that no reasonable juror could have inferred an intent to abandon the
contracts, however, GM is entitled to judgment as a matter of law and we must reverse.
See id.

      Because our jurisdiction is premised on diversity, we apply state substantive law
to RMT’s claim. See Zunamon v. Brown, 418 F.2d 883, 889 (8th Cir. 1969) (citing
Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)). The district court correctly

                                          -5-
concluded that Michigan law controls under the choice-of-law provision agreed to by
the parties in the contracts. See Moses v. Union Pac. R.R., 64 F.3d 413, 418 (8th Cir.
1995) (holding that district courts must apply the choice-of-law rules of forum states);
Consolidated Fin. Inv., Inc. v. Manion, 948 S.W.2d 222, 224 (Mo. Ct. App. 1997)
(stating that Missouri courts defer to parties’ contractual choice-of-law provisions).

       “The abandonment of a contract is a matter of intention to be ascertained from
the facts and circumstances surrounding the transaction from which the abandonment
is claimed to have resulted.” Dault v. Schulte, 187 N.W.2d 914, 915 (Mich. Ct. App.
1971) (quoting 17 Am. Jur. 2d Contracts § 484 (now 17A Am. Jur. 2d Contracts § 543
(1991))). A party displays an intent to abandon if it “positively and absolutely refuses
to perform the conditions of the contract, such as a failure to make payments due,
accompanied by other circumstances, or where by [its] conduct [it] clearly shows an
intention to abandon the contract.” Collins v. Collins, 83 N.W.2d 213, 216-17 (Mich.
1957) (internal quotations omitted). Abandonment must be mutual, however; if one
party continues to perform under the contract after the other party exhibits an intent to
abandon, there has been no abandonment. See 17A Am. Jur. 2d Contracts § 543; see
also S. S. Silberblatt, Inc. v. Seaboard Sur. Co., 417 F.2d 1043, 1054-55 (8th Cir.
1969) (holding that abandonment requires mutual consent of the parties); Dault, 187
N.W.2d at 915-16 (finding that the parties abandoned the contract because one party
ordered work not contemplated in the contract and the other party “acquiesced” by
performing the non-contractual work rather than performing under the contract).

      In support of the verdict, RMT argues that GM exhibited an intent to abandon
the contracts by ordering too many changes, using emergency field orders when it
should have used bulletins, and abusing the negotiation process to intentionally delay
payment of field orders and leverage RMT into accepting less for its work. We address
each argument in turn.




                                          -6-
                                          A.

        RMT contends that an intent to abandon the contracts can be inferred from GM’s
excessive and untimely use of emergency field orders. According to RMT, it “was
forced, by use of an economic hammer, to acquiesce to GM’s abandonment, not only
to its detriment but to its actual destruction.” Appellee’s Br. at 16. At trial, RMT’s
construction consultant Michael Callahan testified that change orders that raise project
costs by more than ten percent are typically considered unreasonable in the
construction industry. See Trial Tr. at 1253-56. In addition, Callahan stated that the
timing of GM’s field orders harmed RMT. See id. at 1257.

       RMT failed, however, to demonstrate that GM’s use of field orders evinced an
intent to abandon the contracts. To the contrary, because the contracts included
change-order clauses, GM acted in conformance with the terms of the contracts in
issuing field orders. The Michigan cases cited by RMT that find implied abandonment
are distinguishable because they did not involve contracts that included such clauses.
See Dault, 187 N.W.2d at 915; H.O. Brackney & Son v. Ryniewicz, 78 N.W.2d 127,
130 (Mich. 1956); Fenner v. Bolema Constr. Co., 47 N.W.2d 662, 664 (Mich. 1951).

       Nonetheless, RMT maintains that GM abused the change-order provisions by
ordering changes outside the scope of the original contracts. RMT relies on cases from
jurisdictions that have expanded the abandonment doctrine to cases involving contracts
containing change-order clauses. See Peter Kiewit Sons’ Co. v. Summit Constr. Co.,
422 F.2d 242, 254-55 (8th Cir. 1969) (applying South Dakota law); C. Norman
Peterson Co. v. Container Corp. of Am., 218 Cal. Rptr. 592, 598 (Cal. Ct. App. 1985);
Bogert Constr. Co. v. Lakebrink, 404 S.W.2d 779, 782 (Mo. Ct. App. 1966); Schwartz
v. Shelby Constr. Co., 338 S.W.2d 781, 788-91 (Mo. 1960). The abandonment
doctrine has not been so expanded under Michigan law, and we will not expand an
equitable state law doctrine such as implied abandonment beyond the clear dictates of
state case law. See, e.g., Agrigenetics, Inc. v. Rose, 62 F.3d 268, 270-71 (8th Cir.

                                          -7-
1995) (refusing to apply an equitable doctrine in a diversity case because the state
courts had not recognized it); McIlheran v. Lincoln Nat’l Life Ins. Co., 31 F.3d 709,
711 (8th Cir. 1994) (same); cf. Adams Pub. Sch. Dist. v. Asbestos Corp., 7 F.3d 717,
719 (8th Cir. 1993) (applying an equitable doctrine even though the state courts had not
recognized it because the federal interest was “sufficiently strong”).

       Even if it were held that excessive or untimely change orders could support a
finding of implied abandonment under Michigan law, the evidence does not support
such a finding in this case. The cases relied on by RMT involved far more egregious
facts. In Schwartz, changes were ordered nearly every day, including major structural
changes, and only once was a change order issued as required by the contract. See 338
S.W.2d at 788-89. In Bogert, there was no binding contract from the beginning
because the parties left material plans and specifications open for negotiation. See 404
S.W.2d at 781. Furthermore, the owner made extensive and frequent changes to the
plans without following contractual change-order procedures. See id. at 780-81. In C.
Norman Peterson “hundreds of changes” were ordered without following contractual
change-order procedures. See 218 Cal. Rptr. at 599.

       Here, changes were contemplated from the beginning of the projects because
RMT placed the bids based on general rather than customized drawings. Further, GM
consistently followed the contractual procedure for ordering changes. Accordingly, the
changes did not go beyond the scope of the contracts. See Uhle v. Tarlton Corp., 938
S.W.2d 594, 597-99 (Mo. Ct. App. 1997) (finding no implied abandonment as a matter
of law because the contract contemplated changes and the parties followed contractual
change-order procedures); Oliver L. Taetz, Inc. v. Groff, 253 S.W.2d 824, 828 (Mo.
1953) (same).

      In addition, RMT did not acquiesce in any attempt to abandon because it
believed the field order work was part of the contracts. Patrick Perry, RMT’s vice
president of sales and estimating, acknowledged that accepting bids based on general

                                          -8-
drawings was “inherently risky” because changes were always required in order to
customize the conveyor systems for each plant. See Trial Tr. at 1198-1200. Arthur
Bond, RMT’s vice president of system integration on the Shreveport project, testified
that “typically, in the course of a project, there are extras.” Id. at 2095. Bond also
stated that RMT knew about the need for changes and specifically requested “any and
all additional work that might be available.” Id. at 2120. According to Bond, RMT
placed attractive bids by using low profit margins and then recouped profits by doing
extra field order work that allowed for higher margins. See id. at 2095-97; see also
GM 1638 § 46.2, Appellant’s Appx. at 204 (allowing overhead and profit in the
payment of field orders). Unlike bulletins, which were competitively bid, RMT was
guaranteed to receive the emergency field order work. Accordingly, RMT may have
actually benefitted from GM’s use of field orders.

                                          B.

       Nor was there sufficient evidence to support RMT’s theory that GM exhibited
an intent to abandon the contracts by using emergency field orders in non-emergency
situations. An “emergency” is “an unforeseen combination of circumstances or the
resulting state that calls for immediate action,” “a pressing need,” or “a usually
distressing event or condition that can often be anticipated or prepared for but seldom
exactly foreseen.” Webster’s Third New Int’l Dictionary (1986). RMT does not cite
a different definition that is customary in the construction industry. Nor does the
evidence suggest that this definition was not met when GM issued emergency field
orders in this case. To the contrary, Mark Murray, RMT’s vice president of sales and
engineering on the Bowling Green project, testified that the forty-two change orders on
that project was not an unusually high number, “[e]specially since we were the only
conveyor contractor on the project.” Trial Tr. at 2277-78.




                                          -9-
                                           C.

      RMT also claims that GM’s delay in paying field orders constituted an implied
abandonment. It introduced evidence that John Gilpin, GM’s project director at
Doraville, believed that there were excessive payment delays for field orders on that
project. See id. at 399-406. GM argues that the district court erred by admitting the
Doraville evidence to show that it intended to abandon the contracts.

        Because the parties had settled the Doraville claim prior to trial, the court
granted GM summary judgment on that claim. See Order of Feb. 13, 1998, at 11. It
found that three small claims relating to the Doraville project had not been settled,
however, and preserved those claims for trial. See id. (discussing field orders 17A, 53,
and 54). The court proceeded to admit all of RMT’s Doraville evidence at trial on the
ground that it showed a pattern of conduct under Fed. R. Evid. 406. See Pre-Trial
Conf. Tr. at 37-38 (RMT’s counsel arguing for admission of the evidence under Rule
406 because it showed a habit or custom); Trial Tr. at 3-4 (court reiterating at the start
of trial that all Doraville evidence would be admitted to show a routine practice by
GM). We conclude that the court erred in admitting this evidence, for the record shows
that the three claims related to Doraville had all been settled and formally added to the
contract more than one year prior to trial. See Trial Tr. at 774, 1910; see also Def. Ex.
4330 (depicting the settlement amounts and contract revision numbers for field orders
17A, 53, and 54).

       Even if it were held that the Doraville evidence was properly before the jury,
there would nonetheless be insufficient evidence of abandonment because RMT failed
to demonstrate that GM acted in a manner inconsistent with the terms of the contracts
in delaying payment on the field orders. The contracts did not require GM to pay for
emergency field order work immediately or within any specific amount of time. Rather,
they simply required GM to pay invoices by the 25th of the month following the month
in which they were formally approved. See GM 1638 § 44.14, Appellant’s Appx. at

                                          -10-
203. Scott Simkins, RMT’s accounts receivable manager, testified that GM
consistently abided by these payment terms. See Trial Tr. at 946-47. The only basis
for RMT’s claim, then, is that the lengthy negotiation process for approving invoices
was so excessive as to constitute an abandonment of the contracts.

       We find this argument unpersuasive. RMT acknowledged that some of the delay
in approving invoices could have been due to its own delay in submitting quotes to
GM. See id. at 897-98. In addition, Simkins stated that the jury exhibits depicting the
time required for payment of field orders failed to account for the thirty to sixty day
“normal time lag” for approving invoices. Id. at 895.

       Most importantly, the primary cause of the delay in payment was RMT’s own
failure to submit lien waivers from subcontractors. Simkins testified that on at least
three occasions RMT violated the contracts by failing to use the funds that GM had
provided to pay subcontractors. See id. at 944-45. As soon as RMT stopped paying
subcontractors, it was unable to send GM invoices because “there were no waivers of
lien.” Id. at 945. Under GM’s invoice-approval process, invoices that were not
accompanied by lien waivers were returned to RMT. Although this greatly increased
the time required for payment, the invoice-return policy was explicitly provided for in
the contracts, and RMT understood that lien waivers were required for payment under
the contracts and in the construction industry generally. See id. at 885-86. Thus, GM
was enforcing, rather than abandoning, the terms of the contracts in withholding
payments when RMT failed to provide lien waivers.

      Under Michigan law, courts are not to read out of contracts clauses that have
been freely negotiated and whose meaning is abundantly clear. See Whitaker v.
Citizens Ins. Co. of Am., 476 N.W.2d 161, 163 (Mich. Ct. App. 1991); General
Aviation, Inc. v. Cessna Aircraft Co., 915 F.2d 1038, 1041 (6th Cir. 1990) (applying
Michigan law). RMT was experienced in contract negotiation and had entered into
many contracts that contained change-order clauses. It could have avoided what it later

                                         -11-
characterized as resulting unfairness by negotiating a different method of payment on
field orders. For example, RMT could have insisted on a provision requiring GM to
pay for “impact costs” caused by emergency field orders. See Uhle, 938 S.W.2d at
599 (stating that contractors can avoid inequity by including contractual provisions that
cover additional expenses caused by emergency field orders).

       On the record before us, no reasonable juror could have found that GM intended
to abandon the contracts. Accordingly, GM was entitled to judgment as a matter of law
on Count II. The judgment is reversed, and the case is remanded for further
proceedings consistent with the views set forth in this opinion.3

      A true copy.

             Attest:

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




      3
        In light of our holding, GM’s motion to strike portions of RMT’s addendum and
brief is denied as moot.

                                          -12-
