                        United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

                                    No. 96-2763
                                   ____________
Metropolitan Life Insurance                       *
Company, a New York corporation,           *
                                           *
            Plaintiff/ Appellant,          *
                                           *
            v.                             *              Appeal from the United
                                                          States
                                           *              District Court for the
                                                          District
Golden Triangle, a general                 *              of Minnesota.
partnership; Golden Triangle                      *
Partners II, a general partnership;               *
Hamilton Associates, a general                    *
partnership; Bluffs West                          *
Partnership, a general partnership;               *
Bradley A. Hoyt; Steven B. Hoyt;                      *
Bruce K. Hoyt; and Michelle L.             *
Hoyt,                                             *
                                           *
            Defendants/ Appellees.                *

                         Submitted:       March 14, 1997
                              Filed:       July 29, 1997


Before MAGILL,1 MURPHY, Circuit Judges, and GOLDBERG,2 Judge.

GOLDBERG, Judge.




      1
       The Honorable Frank J. Magill was an active judge at the time that this case
was submitted and assumed senior status on April 1, 1997, before the opinion was
filed.
      2
       The Honorable Richard W. Goldberg, Judge, United States Court of
International Trade, sitting by designation.
      Following a nearly two-week trial, a jury found that although the
defendants-appellees (“Hoyt”) breached a contract with plaintiff-appellant
Metropolitan Life Insurance Company (“Met Life”),        Met Life had not
suffered any damages. Met Life now appeals, but challenges neither the
jury's verdict nor the sufficiency of the evidence supporting it. Met Life
instead disputes the district court's order denying its pretrial motion for
summary judgement.3    Met Life argues that if the district court had
properly confined its analysis to the plain language of the contracts at
issue, it would have granted summary judgment in favor of Met Life and
awarded damages accordingly. Because we conclude that Met Life cannot
challenge the denial of summary judgment after a full trial on the merits
of its claim, we affirm the judgment below.

I.   Background

      In 1990 and 1991, Hoyt borrowed funds from Met Life to develop
commercial real estate. The loans were secured, in part, by a mortgage on
certain developed commercial properties (“Group III Properties”). In 1993,
Hoyt defaulted on these loans.       Met Life then initiated foreclosure
proceedings, and Hoyt responded by filing for bankruptcy.

      In late 1993 and early 1994, Hoyt began to negotiate the sale of some
of its properties, including the Group III Properties, with a Real Estate
Investment Trust (“REIT”). Yet the REIT was unwilling to purchase them
unless Hoyt and Met Life entered into a settlement agreement because the
Group III Properties were the subject of an ongoing insolvency proceeding.
These negotiations resulted in two agreements, the first between Hoyt and
the REIT for the sale of the Group III Properties, and the second between
Hoyt and Met Life. Only the second is relevant here.




      3
        The Honorable Paul A. Magnuson, Chief Judge, United States District Court
for the District of Minnesota.
                                       -2-
      Under the agreement between Hoyt and Met Life, Met Life was to
deliver to Hoyt certain documents that would allow Hoyt to convey the Group
III Properties to the REIT unencumbered, in exchange for the “purchase
price” of the Group III Properties. The contract defined purchase price
as $15.5 million “(or such greater sum as is paid by the Purchaser for the
Property) . . . .” Appellant's Br. App. at A-28 (Hoyt/Met Life Group III
Properties' Agreement). The contract also prohibited Hoyt from entering
into an agreement to sell other property with terms that made that sale
either directly or indirectly contingent on the closing of the agreement
between Hoyt and Met Life.

      At the same time, Hoyt entered into a second agreement with the REIT
involving the sale of other property owned by Hoyt, unrelated to the Group
III Properties (“Group II Properties”). This agreement provided, inter
alia, that if the sale of the Group III Properties to the REIT failed to
close, then the purchase price for the Group II Properties was to be
reduced by $2.5 million in order to compensate the REIT for diminished
“value, utility and competitive presence.” Appellant's Br. App. at A-166
(Hoyt/REIT Group II Properties' Agreement of Purchase and Sale).

      Met Life later discovered the contract for the sale of the Group II
Properties and demanded that Hoyt pay it the $2.5 million, arguing that the
amount represented additional compensation paid by the REIT to Hoyt for the
Group III Properties. When Hoyt refused to pay it the money, Met Life
filed this suit, alleging both breach of contract and misrepresentation.

      Positing that the language of the Group II Properties' sales and
purchase agreement “plainly and expressly” provided that the $2.5 million
was to compensate Hoyt for the sale of the Group III Properties, Met Life
then moved for summary judgment on its breach of contract claims. Pl.'s
Reply Mem. Supp. Mot. Summ. J. at 2. Hoyt opposed the motion, arguing that
the $2.5 million was not intended to be consideration for the Group III
Properties, but was intended instead to provide




                                    -3-
assurance to the REIT that Hoyt would diligently pursue a settlement agreement
with Met Life.4 On November 2, 1995, the district court issued an order denying
the motion for summary judgment because it found that key contract terms were
susceptible to more than one interpretation, and thus were ambiguous.
Accordingly, it set the case for trial, and the jury ultimately found that,
although Hoyt had breached its contract with Met Life, Met Life had not
suffered any damages as a result of the breach.
      Significantly, Met Life never renewed the argument it set forth in its
summary judgment motion by moving for judgment as a matter of law either at the
close of evidence or after the jury's verdict. Indeed, when Hoyt moved for
judgement as a matter of law after Met Life had presented its evidence, Met
Life opposed the motion, arguing that “[there was] a jury question on the
meaning of the relevant clauses in the Met/Hoyt agreement, and on the objective
intentions of the parties as to the meaning of those clauses. If the jury
thinks they are ambiguous, then we have a jury question as well as to what the
purpose was of [the $2.5 million provision] in the Group II agreement.”
Partial Tr. Civil Jury Trial Proceedings at 5 (May 17, 1996) (Jon Hopeman
appearing for Met Life). Met Life now asks us to review de novo the district
court’s decision to deny its motion for summary judgement.5 For the following
reasons,




         4
          According to Hoyt, if the agreement with Met Life failed to close then the REIT, which
  was planning to make an initial public offering, would have been unable to include the Group III
  Properties in its list of assets. As a result, the REIT would have been forced to refile the
  necessary forms with the Securities Exchange Commission, and to prepare new financial
  schedules, proforma projections of income, and underwriting agreements, thus incurring
  considerable costs and delaying the offering. Appellees' Br. at 6.
         5
           In its Notice of Appeal, Metropolitan also appeals from the final judgement entered in this
  action on May 29, 1996. However, we limit our discussion to the trial court's denial of
  Metropolitan's motion for summary judgment because Metropolitan failed to file a motion for
  judgment as a matter of law at the close of evidence, and it failed either to renew its motion for
  judgment as a matter of law, or to file a motion for a new trial within ten days after the trial court
  entered judgment. See Fed. R. Civ. P. 50(a), 50(b), 59(b). As a result, Metropolitan waived its
  right to appeal from the final judgment. See generally BE & K Constr. Co. v. United Bhd. of
  Carpenters & Joiners of America, AFL-CIO, 90 F.3d 1318, 1325 (8th Cir. 1996); Pulla v. Amoco
  Oil Co., 72 F.3d 648, 655-56 (8th Cir. 1996); Hubbard v. White, 755 F.2d 692, 695-96 (8th Cir.
  1985); Krueger v. State Farm Mut. Auto. Ins. Co., 707 F.2d 312, 314-15 (8th Cir. 1983); Myers
  v. Norfolk Livestock Mkt., Inc., 699 F.2d 555, 558-59 (8th Cir. 1982).

                                                   -4-
we must decline its request.

                               II. Discussion

      In Johnson Int'l Co. v. Jackson Nat'l Life Ins. Co., 19 F.3d 431
(8th Cir. 1994), this Circuit directly addressed whether a denial of
summary judgment may be reviewed after a full trial on the merits. The
Johnson Int'l Co. court held that a “[a] ruling by a district court
denying summary judgment is interlocutory in nature and not appealable
after a full trial on the merits.” Id. at 434 (citations omitted). It
explained that:
      The final judgement from which an appeal lies is the judgment
      on the verdict. The judgment on the verdict, in turn, is
      based not on the pretrial filings [to support summary
      judgment] under Federal Rule of Civil Procedure 56(c), but on
      the evidence adduced at trial.

     . . . The primary question on summary judgment is whether
     there exists a genuine issue of material fact as to the
     elements of the party’s claim. Once the summary judgment
     motion is denied and the case proceeds to trial, however, the
     question of whether a party has met its burden must be
     answered with reference to the evidence and the record as a
     whole rather than by looking to the pretrial submissions
     alone. The district court’s judgment on the verdict after a
     full trial on the merits thus supersedes the earlier summary
     judgment proceedings.

Id. (internal quotations omitted) (citations omitted) (footnote
omitted); accord Reich v. ConAgra, Inc., 987 F.2d 1357, 1362 n.6 (8th
Cir.1993) (citation omitted) (“A denial of summary judgment is not a
final order and is not appealable.”);   Bottineau Farmers Elevator v.
Woodward-Cylde Consultants, 963 F.2d 1064, 1069 n.5 (8th Cir. 1992)
(“Denial of summary judgment is not properly reviewable on appeal from a
final judgment entered after a full trial on the merits.”) (citing
Jarrett v. Epperly,




                                    -5-
896 F.2d 1013, 1016 & n.1 (6th Cir. 1990); Locricchio v. Legal Servs.
Corp., 833 F.2d 1352, 1359 (9th Cir. 1987); Glaros v. H.H. Robertson
Co., 797 F.2d 1564 (Fed. Cir. 1986)).

      Hence, under Johnson Int'l Co., its antecedents, and the facts of
this case, we are unable to review the denied summary judgment motion
because Met Life had a full and fair opportunity to litigate its
position before a jury. Met Life attempts to distance itself from
Johnson Int'l Co. by constructing a dichotomy between a decision to deny
a motion for summary judgment based on the sufficiency of the evidence,
and a decision based on an interpretation of substantive law.
Appellant's Reply Br. at 1. According to Met Life, in this Circuit, we
may review the former, but not the later. Id. at 3 (citing Aerotronics,
Inc. v. Pneumo Abex Corp., 62 F.3d 1053, 1059-60 (8th Cir. 1995); Gamma-
10 Plastics, Inc. v. American President Lines, Ltd., 32 F.3d 1244, 1248
(8th Cir. 1994); National Farmers Union Standard Ins. Co. v. Morgan, 966
F.2d 1250 (8th Cir. 1992) (“NFU”); and Foster v. Nat'l Union Fire Ins.
Co., 902 F.2d 1316, 1318 (8th Cir. 1990)). However, Met Life's argument
misses its mark.

      While in the cases that Met Life cites, the panel reviewed a
denied motion for summary judgment, none of the panels articulated the
analysis that Met Life advances here. Rather, in each of these cases,
the panel reviewed the denied motion without reaching the question of
whether its review was proper. In so doing, they merely stated the
correct standard of review for appellate review of granted motions for
summary judgment. See Aerotronics, 62 F.3d at 1059 (citing Commercial
Union Ins. Co. v. McKinnon, 10 F.3d 1352, 1354 (8th Cir. 1993)) (“[The
appellant] argues that the district court erred in denying its motion
for summary judgment . . . . We review the district court's grant of
summary judgment de novo.”); Gamma-10 Plastics, 32 F.3d at 1249 (citing
Cox v. Mid-American Dairymen, Inc., 13 F.3d 272, 274 (8th Cir. 1993))
(“In its cross-appeal APL seeks reversal of the district court's denial
of its motion for summary judgment . . . . [W]e consider that question
first,




                                   -6-
reviewing the district court's decision de novo.”); NFU, 966 F.2d at
1252 (citing Holloway v. Conger, 896 F.2d 1131, 1134 (8th Cir. 1990))
(“The Court of Appeals makes a de novo review of the denial of summary
judgment.”); Foster, 902 F.2d at 1317-18. Thus, we conclude that none
of these cases demand that we review the merits of Met Life's denied
summary judgment motion.6
      We further conclude that Met Life's proposed dichotomy, between a
summary judgment denied on factual grounds and one denied on legal
grounds, is both problematic and without merit. Since we do not require
a district court to delineate why it denied summary judgment, were we to
accept Met Life's proposed distinction, we would be required “to engage
in the dubious undertaking of determining the bases on which summary
judgment is denied and whether those bases are 'legal' or 'factual.'”7
Chesapeake Paper Prod. Co. v. Stone & Webster Eng'g Corp., 51 F.3d 1229,
1235 (4th Cir. 1995) (citing Wells v. Hico Indep. Sch. Dist., 736 F.2d
243, 251 n.9 (5th Cir. 1984)); accord Black, 22 F.3d at 571 n.5 (“[O]ur
ability to distinguish such 'factual' and 'legal' issues will be
hampered in instances (which are by no means rare) where the district
court gives no, or only very generalized, reasons for denying the
motion.”). Thus, Met Life asks us to adopt an “approach [that] would
require us to craft a new jurisprudence based on a series of dubious
distinctions between law and fact,” Black, 22 F.3d at 571 n.5,




      6
        This case does not require us to determine whether a denial of a summary
judgment motion on an issue preliminary to the merits can be reviewed after trial
where no motion for judgment as a matter of law has been made. Compare Johnson
Int'l Co., 19 F.3d at 434 (involving the merits of a claim) with Gamma-10 Plastics,
32 F.3d at 1249 (involving statute of limitations), NFU, 966 F.2d at 1252 (involving
collateral estoppel), and Foster, 902 F.2d at 1318 (involving standing).
      7
         It could also be argued that “[a]ll summary judgments are rulings of law in
the sense that they may not rest on the resolution of disputed facts. We recognize
this by our de novo standard of reviewing [granted] summary judgments.” Black v.
J.I. Case Co., 22 F.3d 568, 571 n.5 (5th Cir. 1994) (citations omitted). See
generally Cox, 13 F.3d at 274 (citation omitted) (stating that this Circuit reviews a
district order granting a motion for summary judgment); Holloway, 896 F.2d at 1134
(citation omitted) (same).
                                         -7-
inviting potentially confusing and inconsistent case law to benefit only
those summary judgment movants who have failed to abide by the Federal
Rules of Civil Procedure. We find such an approach to be unjustified
and decline to adopt it.
      Finally, we note that our decision here is in harmony with the
majority of the other circuits that have considered whether an appellate
court may review a pretrial denial of a motion for summary judgment
after a full trial and judgment on the merits. See, e.g., Lama v.
Borras, 16 F.3d 473, 476 n.5 (1st Cir. 1994) (citations omitted) (“The
[appellant's] attack on the denial of summary judgment has been
overtaken by subsequent events, namely a full-dress trial and an adverse
jury verdict. In these circumstances, we will not address the propriety
of the denial of summary judgment.”); Chesapeake Paper Prod. Co. v.
Stone & Webster Eng'g Corp., 51 F.3d 1229, 1237 (4th Cir. 1995)
(footnote omitted) (“[W]e follow the other Circuits and conclude that
this Court will not review, under any standard, the pretrial denial of a
motion for summary judgment after a full trial and final judgment on the
merits.”); Black v. J.I. Case Co., 22 F.3d 568, 569-70 (5th Cir. 1994)
(footnote omitted) (“We now conclude that this Court will not review the
pretrial denial of a motion for summary judgment where on the basis of a
subsequent full trial on the merits final judgment is entered adverse to
the movant.”); Jarrett v. Epperly, 896 F.2d 1013, 1016 (6th Cir. 1990)
(footnote omitted) (“We agree with the Ninth and Federal Circuits and
here hold that where summary judgment is denied and the movant
subsequently loses after a full trial on the merits, the denial of
summary judgment may not be appealed.”); Watson v. Amedco Steel, Inc.,
29 F.3d 274, 278 (7th Cir. 1994) (“Absent an extraordinary circumstance
. . . , we will not review the denial of a motion for summary judgment
once the district court has conducted a full trial on the merits of a
claim.”); Locricchio v. Legal Servs. Corp., 833 F.2d 1352, 1359 (9th
Cir. 1987) (“[W]e believe it would be . . . unjust to deprive a party of
a jury verdict after the evidence was fully presented, on the basis of
an appellate court’s review of whether the pleadings and affidavits at
the time of the summary judgment motion demonstrated the need for a
trial.”); Whalen v. Unit




                                   -8-
Rig, Inc., 974 F.2d 1248, 1250-51 (10th Cir. 1992) (footnote omitted)
(“[E]ven if summary judgment was erroneously denied, the proper redress
would not be through appeal of that denial but through subsequent
motions for judgment as a matter of law [] and appellate review of those
motions if they were denied.”); Glaros v. H. H. Robertson Co., 797 F.2d
1564, 1573 (Fed. Cir. 1986) (footnote omitted) (“[A] denial of summary
judgment is not properly reviewable on an appeal from the final judgment
entered after trial.”).

      Met Life has failed to convince us that we should ignore the
persuasive policy and prudential considerations advanced by the
aforementioned courts. In particular, we are concerned that our review
of an order denying a motion for summary judgment condones a litigation
strategy that disregards the Federal Rules of Civil Procedure 50(a) and
50(b), and 28 U.S.C. § 1292(b) (1994).8 See Black, 22 F.3d at 571. It
also unduly circumscribes the discretion of the district court to “deny
summary judgment in a case where there is a reason to believe that the
better course would be to proceed to a full trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986) (citation omitted); accord Black,
22 F.3d at 572. “Because the denial [of the summary judgment motion]
decided nothing but a need for trial and trial has occurred,” we now
adopt “the general and better view [] against review of summary judgment
denials on appeal from a final judgment entered after trial.” Glaros,
797 F.2d at 1573 n.14. Thus, we decline to review the district court's
denial of Met Life's motion for summary judgment, and accordingly,
affirm the judgment below.




      8
       Pursuant to 28 U.S.C. § 1292(b), when a party believes that a district court
erred when it denied the party's motion for summary judgment, the party may move
a court to certify the denial for interlocutory appeal. See Ricke v. Armco Inc., 92
F.3d 720 (8th Cir. 1996) (reviewing a denial of summary judgment on interlocutory
appeal).
                                        -9-
A true copy.

     Attest:

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




                            -10-
