                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-1506
                         ___________________________

                                    DocMagic, Inc.

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                   The Mortgage Partnership of America, L.L.C.

                        lllllllllllllllllllll Defendant - Appellee
                                       ____________

                      Appeal from United States District Court
                   for the Eastern District of Missouri - St. Louis
                                   ____________

                            Submitted: January 15, 2013
                             Filed: September 4, 2013
                                  ____________

Before BYE, MELLOY, and SMITH, Circuit Judges.
                           ____________

SMITH, Circuit Judge.

       DocMagic, Inc. ("DocMagic"), a California corporation, and Mortgage
Partnership of America, L.L.C. ("Lenders One"), a Missouri limited liability
company, entered into a service contract ("Agreement"), which included a provision
that should a dispute arise, the prevailing party would receive attorneys' fees, other
costs, and expenses. DocMagic filed various claims against Lenders One stemming
from the parties' Agreement, and Lenders One filed various counterclaims. Both
parties succeeded on some of their respective claims. Based on the amount of the
award and the number of claims it succeeded on, the district court1 found Lenders
One to be the prevailing party and awarded it attorneys' fees and costs. DocMagic
appeals, seeking reversal of the district court's prevailing-party determination. We
affirm.

                                  I. Background
       DocMagic is a "provider of mortgage loan document preparation software
used in the preparation of, among other things, pre-disclosures and closing
documents." Lenders One "provides mortgage products and services, related products
and services on a cooperative basis to [its] Members." In October 2008, DocMagic
and Lenders One entered into an agreement whereby Lenders One agreed to "supply
DocMagic with a list of all current Members" and "refer, market and promote"
DocMagic's products and services to Lenders One's Members.

      The Agreement between Lenders One and DocMagic stated in relevant part:

      18. Applicable law, Jurisdiction and Venue: For any legal action arising
      from or relating to this Agreement in any way, jurisdiction shall be
      vested solely in the state and federal courts located in the Eastern
      District of St. Louis, Missouri, and the validity, meaning and effect of
      this Agreement shall be determined in accordance with the laws of the
      State of Missouri without regard to principles of conflicts of laws.

      19. Attorneys' Fees: In the event of any dispute with respect to or
      relating to this Agreement in any way, the prevailing Party shall be
      entitled to reasonable legal fees and other costs and expenses incurred



      1
       The Honorable Mary Ann L. Medler, United States Magistrate Judge for the
Eastern District of Missouri.

                                        -2-
      in resolving such dispute, in addition to any other relief to which that
      Party may be entitled.

DocMagic filed suit against Lenders One, alleging claims for breach of contract,
breach of the duty of good faith and fair dealing, rescission, unjust enrichment,
tortious interference, and fraud in the inducement. DocMagic also sought a
declaratory judgment that it was not obligated to pay Lenders One a marketing fee.
Lenders One answered DocMagic's complaint, denying all of DocMagic's claims and
asserting certain affirmative defenses. It also asserted counterclaims against
DocMagic for breach of contract and unjust enrichment, and sought a declaratory
judgment that DocMagic was required to pay marketing fees to Lenders One "on all
DocMagic's revenues generated from sale of products and services to [Lenders One]
[m]embers, not just new DocMagic customers." Lenders One then moved for
summary judgment on its breach-of-contract counterclaim and on all of DocMagic's
claims. The district court denied summary judgment to Lenders One on its
counterclaims and all of DocMagic's claims, except that the court found as a matter
of law "that DocMagic was required to pay a ten[-]percent marketing fee for Products
and Services purchased by Lender[s] One's Members who were DocMagic's pre-
existing customers." DocMagic, Inc. v. Mortgage P'ship of Am., L.L.C., No.
4:09CV1779MLM, 2011 WL 2462196, at *4 (E.D. Mo. June 17, 2011).

       Following the court's summary-judgment order, the case proceeded to trial on
the remaining claims. The jury found in favor of Lenders One on DocMagic's claims
for (1) breach of the Agreement; (2) evading the spirit of the Agreement; (3) denying
DocMagic the expected benefit of the Agreement; (4) misrepresentation regarding
marketing and promoting DocMagic's products; and (5) misrepresentation that
DocMagic would get a majority of the 20,000 loans closed per month. The jury found
in favor of DocMagic on its claim that Lenders One refused to allow DocMagic to
attend a conference but awarded zero dollars. It also ruled for DocMagic on its claim



                                        -3-
against Lenders One for fraud in the inducement. On that claim, the jury awarded
DocMagic $243,000.

       Lenders One prevailed on its counterclaims against DocMagic for (1) breach
of the Agreement by failing to give accurate monthly sales reports and (2) breach of
the Agreement for failing to pay the ten percent marketing fee and was awarded
$52,500 for the breach-of-the-contract claim. In summary, the jury found in favor of
DocMagic on only two of its seven claims, while it found in favor of Lenders One on
both of its counterclaims against DocMagic. Both parties moved for attorneys' fees,
expenses, and costs as the prevailing party, and the district court found that Lenders
One was the prevailing party. The court ordered DocMagic to pay Lenders One
$445,615 in attorneys' fees, $9,298.19 in expenses, and $3,188.90 in costs. DocMagic
had sought $458,986.50 in attorneys' fees and $56,072.95 in expenses and costs, and
$3,977.02 in taxable costs.

       In its post-trial memorandum opinion and order the district court construed the
attorneys' fees clause in the Agreement to be broad enough to include DocMagic's
fraud-in-the-inducement claim. DocMagic, Inc. v. Mortgage P'ship of Am., L.L.C.,
No. 4:09CV1779MLM, 2012 WL 263091, at *11 (E.D. Mo. Jan. 30, 2012). The court
then concluded that, under Missouri law, a trial court must award attorneys' fees to
the prevailing party should the contract between the parties include an attorneys' fees
provision. Id. (citing Schnucks Carrollton Corp. v. Bridgeton Health and Fitness Inc.,
884 S.W.2d 733, 739 (Mo. Ct. App. 1994)). To determine the prevailing party, the
district court looked to Ken Cucchi Constr., Inc. v. O'Keefe for the Missouri rule that
a "'prevailing party is the party prevailing on the main issue in dispute, even though
not necessarily to the extent of its original contention.'" 973 S.W.2d 520, 528 (Mo.
Ct. App. 1998). The court also noted that Missouri law "places just as much emphasis
[on] successfully defending claims as they do on successfully prosecuting them."
DocMagic, Inc., 2012 WL 263091, at *11.



                                         -4-
       The district court then observed that both sides recovered damages on their
contract claims, causing an offset of the damages awarded. Id. at *12. Adopting
Lenders One's view of the law, the court deemed it appropriate to consider the
relative amount of each side's award as a factor. Id. The court also considered "the
number of claims successfully prosecuted or defended, the amount of recovery in
proportion to damages sought[,] and . . . who prevailed on the [m]ain [i]ssues." Id.
(quotation omitted). The district court found that the breach of the Agreement was the
"main issue" in dispute. Id. at *11. The court pointed out that Lenders One, as the
defendant, prevailed by defeating five of DocMagic's seven claims on summary
judgment, and Lenders One prevailed on both of its own counterclaims at trial. Id.
DocMagic, on the other hand, prevailed on only two of its seven claims and received
damages on only one—the fraud-in-the-inducement claim. Id. The court further noted
that Lenders One recovered 58 percent of its claimed damages, whereas DocMagic2
recovered only seven percent of what it sought. Id. at *11 n.5. After weighing the
factors, the court concluded that "Lenders One is the prevailing party and shall
recover its attorneys fees pursuant to the Agreement." Id. at *12.

                                   II. Discussion
      On appeal, DocMagic contends that the district court erred in awarding Lenders
One attorneys' fees, expenses and costs and in declining to award attorneys' fees,
expenses, and costs. DocMagic raises four arguments on appeal. First, DocMagic
contends that the district court erred because "the parties' agreement requires a
determination that DocMagic was the prevailing party." Second, DocMagic argues
that Lenders One could not be the prevailing party because it was awarded
"$190,500.00 less than the total monetary judgment awarded to DocMagic." Third,
DocMagic avers that the district court should have awarded DocMagic its costs and


      2
      The district court noted that DocMagic had initially sought approximately
$4,000,000.00 on its fraud-in-the-inducement claim, whereas Lenders One sought
approximately $90,515.00.

                                         -5-
denied Lenders One the same because DocMagic was the prevailing party. Fourth,
DocMagic asserts that the district court "mischaracterized the extent to which Lenders
One successfully defended [itself against] DocMagic's claims, and even if DocMagic
was not a prevailing party, the district court should not have found Lenders One to
be the prevailing party."

       For its part, Lenders One argues that "there is only a single issue involved in
this appeal, to-wit: Did the District Court err in finding that Lenders One is the
prevailing party for purposes of an award of attorney's fees, expenses and costs?"

                                 A. Standard of Review
       As an initial matter, we address the appropriate standard of review. The parties
put forth competing views of our standard of review, each choosing a standard
favorable to their arguments. DocMagic seeks de novo review, while Lenders One
prefers an abuse-of-discretion standard. Both parties misstate aspects of the
applicable standard, which involves both factual and legal determinations by the
district court. Our cases are fairly clear on this issue. As we have previously stated:

      [W]e review de novo the legal question of whether a litigant is a
      prevailing party. See Pottgen v. Missouri State High Sch. Activities
      Ass'n, 103 F.3d 720, 723 (8th Cir. 1997); St. Louis Fire Fighters Ass'n
      v. St. Louis, 96 F.3d 323, 330 (8th Cir. 1996). Accord Church of
      Scientology v. City of Clearwater, 2 F.3d 1509, 1512–13 (11th Cir.1993)
      ("We review the factual findings underlying a district court's
      determination regarding 'prevailing party' status for clear error
      . . . . Whether the facts as found suffice to render the plaintiff a
      'prevailing party' is a legal question reviewed de novo."), cert. denied,
      513 U.S. 807, 115 S. Ct. 54, 130 L. Ed. 2d 13 (1994). In Association for
      Retarded Citizens v. Schafer, 83 F.3d 1008 (8th Cir.), cert. denied, 519
      U.S. 993, 117 S. Ct. 482, 136 L. Ed. 2d 376 (1996), we stated that we
      reviewed fee awards for an abuse of discretion, "or an error in
      implementing the governing legal standards." Id. at 1010 (quotation
      omitted). The Supreme Court has defined and applied the test for

                                         -6-
      prevailing party status in unmistakably legal terms: "[A] plaintiff
      'prevails' when actual relief on the merits of his claim materially alters
      the legal relationship between the parties by modifying the defendant's
      behavior in a way that directly benefits the plaintiff." Farrar v. Hobby,
      506 U.S. 103, 111–12, 113 S. Ct. 566, 573, 121 L. Ed. 2d 494 (1992).
      Thus, while abuse of discretion governs in reviewing fee awards, the
      question of prevailing party status, a statutory term, presents a legal
      issue for decision, which we review de novo.

Jenkins by Jenkins v. State of Mo., 127 F.3d 709, 713 (8th Cir. 1997).

       In sum, we review de novo the threshold and, in this case, decisive legal
question of which litigant is the prevailing party. We review for an abuse of
discretion the district court's actual award of fees and costs. Although Jenkins dealt
with a prevailing party under a statutory fee allocation scheme, unless otherwise
agreed, the same standard would apply for a prevailing-party determination in a
contractual context.

                                   B. Prevailing Party
       "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." Clean Uniform Co. St. Louis
v. Magic Touch Cleaning, Inc., 300 S.W.3d 602, 612 (Mo. Ct. App. 2009) (citing
Sheppard v. East, 192 S.W.3d 518, 523 (Mo. Ct. App. 2006). The critical issue in this
appeal is whether DocMagic or Lenders One is the prevailing party for purposes of
awarding attorneys' fees and costs under paragraph 19 of the Agreement.

       Paragraph 18 of the Agreement clearly states that "the validity, meaning and
effect of this Agreement shall be determined in accordance with the laws of the State
of Missouri." "Under Missouri law we must enforce a contract as written and
according to the plain meaning of the words in the contract when the contract is clear


                                         -7-
and unambiguous." Farmland Indus., Inc. v. Frazier-Parrott Commodities, 111 F.3d
588, 590 (8th Cir. 1997). Since the Agreement also clearly states that legal fees, other
costs, and expenses shall be awarded to the "prevailing [p]arty" but does not define
the term "prevailing [p]arty," this court must look to Missouri law for the
interpretation of this term. See Kan. City Life Ins. Co. v. Wells, 133 F.2d 224, 224 (8th
Cir. 1943). "A 'prevailing party' is one who obtains a judgment from the court,
regardless of the amount of damages." Brooke Drywall of Columbia, Inc. v. Bldg.
Constr. Enters., Inc., 361 S.W.3d 22, 27 (Mo. Ct. App. 2011) (citing Buckhannon Bd.
& Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 603
(2001)).

       The parties have identified two different analytical approaches for determining
a prevailing party under Missouri law. The first approach—"main-issue
analysis"—turns on which party is "the party prevailing on the main issue in dispute,
even though not necessarily to the extent of its original contention." Ken Cucchi
Constr., 973 S.W. 2d at 528 (citing Birdsong v. Bydalek, 953 S.W.2d 103, 124 (Mo.
Ct. App. 1997)). The second approach—"net-prevailing-party analysis"—essentially
arithmetically calculates which party received "'the most points'" and "'at the end of
the contest [declares] [it] the winner.'" Weitz Co. v. MH Washington, 631 F.3d 510
(8th Cir. 2011) (quoting Ozias v. Haley, 125 S.W. 556, 557 (Mo. Ct. App. 1910)).
The net-prevailing-party analysis, as construed by DocMagic, would turn on who got
the most money in the case. However, neither Weitz or Ozias seem to limit the "points
scored" to dollars awarded.

       Ozias involved a fraud action by the plaintiff against the defendant related to
a business transaction. 125 S.W. at 556. The plaintiff sued for $7,500. Id. The
defendant counterclaimed for $2,000 in damages. Id. After trial, the jury awarded
plaintiff $1,250 in damages in the fraud case, but it also awarded the defendant the
full $2,000 for his counterclaim. Id. In an appeal by the plaintiff to require the lower
court to re-compute the costs taxed, the Missouri Court of Appeals declined to do so.

                                          -8-
Id. The court construed the applicable Missouri statute,3 which entitled a "'plaintiff
[who] recover[s] any damages [to] . . . recover his costs.'" Id. at 557 (quoting Mo.
Rev. Stat. § 1552 (1899)). The court concluded that no costs should be taxed to the
defendant "[s]ince the net result of the trial of the case was a judgment for defendant
. . . unless the statute gives plaintiff the right to recover his costs." Id. The court then
interpreted the statute to give the trial court discretion to tax costs for the plaintiff
only if the plaintiff wins the verdict—not the judgment. Id. The court went on to
distinguish other statutes and concluded that the plaintiff was not entitled to costs
because the statute gave the court no discretion to award them where the plaintiff
suffered a judgment "on the whole case" despite prevailing as to certain issues. Id.

       The court in Weitz was tasked with identifying the prevailing party to
determine if attorneys' fees were recoverable under the Missouri Prompt Payment
statute in a complex commercial case where both sides claimed some success. 631
F.3d at 528. Following trial, the jury awarded the plaintiff $981,976 against the
defendant. The defendant, in turn, received a jury award of $285,400 on its
counterclaim. Id. at 516. We determined that the plaintiff "was the prevailing party
against [the defendant] under Missouri law, because it was the net prevailing party."
Id. at 530. In affirming the district court, this court cited Ozias approvingly for the
proposition that the prevailing party is the party in whose favor the verdict compels
a judgment. Id. The court concluded there was no abuse of discretion in awarding
attorneys' fees under the statute. Id.

       Curiously, both the main-issue approach and net-prevailing-party approach
trace their lineage to Ozias. See Birdsong, 953 S.W. 2d at 124. In Birdsong, following
complex litigation flowing from a real estate deal, the trial court awarded a defendant


       3
        "In all actions not founded on contract the damages claimed in the petition
shall determine the jurisdiction of the court, and if the plaintiff recover any damages
he shall recover his costs." Mo. Rev. Stat. § 1552 (1899).

                                            -9-
its attorneys' fees as a prevailing party. Id. The defendant successfully defended a
breach of contract claim despite the plaintiff's success in achieving an order of
specific performance. Id. In declaring a prevailing party for purposes of assignment
of attorneys' fees under the contract the trial court took the totality of the litigation
into account including the defendant's success against the breach of contract claims.
Id. The Missouri Court of Appeals approved the approach and noted that the trial
court's decision to award attorneys' fees to its designated prevailing party should be
affirmed "whether the phrase 'prevailing party' is measured by the BLACK'S LAW
DICTIONARY definition[—the main-issue approach—]or is analyzed under
Ozias"—the net-prevailing-party approach. Id. at 124–25.

       In the instant case, Lenders One successfully defended against DocMagic's
claims regarding (1) breach of the Agreement; (2) evading the spirit of the
Agreement; (3) denying the expected benefit of the Agreement; (4) misrepresentation
regarding marketing and promotion of DocMagic's products; and (5)
misrepresentation that DocMagic would get a majority of the 20,000 loans closed per
month. Lenders One also succeeded on its counterclaims against DocMagic for (1)
breach of the Agreement by failing to give accurate monthly sales reports and (2)
breach of the Agreement for failing to pay the ten-percent marketing fee. The district
court awarded Lenders One $90,515.00 on its counterclaim for breach of contract;
$445,615.00 in attorneys' fees; $9,298.19 in expenses; and $3,188.90 for costs. The
court also denied DocMagic's motion for new trial, alternative motion for additur, and
motion for bill of costs.

      In the aggregate, DocMagic had limited success on its claims that (1) Lenders
One refused to allow DocMagic to attend a conference and (2) Lenders One
committed fraud in the inducement. As the district court noted, DocMagic had
"claimed approximately $4,000,000.00 in damages" but received $515,059.45 for the
misrepresentation. DocMagic, Inc., 2012 WL 263091, at *11 n.5.



                                          -10-
        The district court opted for a "main-issue" approach and concluded that both
the "relative amount of the award" and the "number of claims successfully prosecuted
or defended" are important factors in determining who prevails on the main issue. Id.
at *12. On review, we do not believe it necessary for us to resolve the tension in
Missouri cases between the main-issue and net-prevailing-party approaches. Like the
court in Birdsong, we hold that "the trial court did not err in concluding that [Lenders
One] was the 'prevailing party' as between it and [DocMagic] . . . [regardless of]
whether the phrase 'prevailing party' is measured by the [main-issue or net-prevailing-
party analysis]." See 953 S.W.2d at 124–25. The district court's memorandum opinion
and order disposing of all post-trial motions listing the relief granted and denied
shows that the court considered the totality of the case and reasonably determined
"the" prevailing party for purposes of the parties' contract. We are not convinced to
alter the court's order on appeal. Because we conclude that the district court did not
err in designating Lenders One as the prevailing party, we need not address
DocMagic's remaining issues.4

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.




      4
       DocMagic also argues for the first time on appeal that main-issue analysis to
determine the prevailing party should not be utilized in a case with a broad attorneys'
fees provision, such as the instant case. DocMagic asserts that even applying main-
issue analysis, its fraud-in-the-inducement judgment was directly related to the
Agreement. It asserts that disputes regarding the Agreement also included
"negotiations immediately prior to the execution of the Agreement." DocMagic
argues that the district court erred in finding that the main issue in the case was
breach of the Agreement and that fraud in the inducement was not a main issue.
Because this assignment of error is raised for the first time on appeal we decline to
address it. Murphy v. Aurora Loan Servs., LLC, 699 F.3d 1027, 1033 n.4 (8th Cir.
2012).

                                         -11-
BYE, Circuit Judge, dissenting.

      In my view, a provision for attorneys' fees in a commercial contract is generally
intended not to reward the "winner" of a case, but to compensate a wronged party for
having to resort to litigation to enforce its contractual rights. I am deeply troubled by
the invocation of such a contract provision by a party found by a jury to have
breached another portion of the same contract. Moreover, where both parties have
engaged in mutual wrongdoing, I cannot believe the parties would have intended such
a provision to reward the greater wrongdoer.

      The majority avers that under either analytical approach—main-issue or net-
prevailing-party—Lenders One emerges victorious; it successfully litigated more
claims and recouped a higher percentage of claimed damages. As the majority
acknowledges, however, the net-prevailing-party approach recognizes the party which
received "the most points" as the prevailing party. See Weitz Co. v. MH Washington,
631 F.3d 510, 530-31 (8th Cir. 2011). Traditionally—and, notably, in the case of
Weitz—this language has been read to refer to the party receiving the larger jury
award. See Weitz Co. v. MH Washington, No. 09-311, Order Granting Mot. Atty's
Fees Sep. 2, 2009 ("In the present case, a contract action, Weitz'[s] verdict against
TDG was for $223,813 while TDG's verdict against Weitz was for $88,508, thus
Weitz is the prevailing party."); Solter v. P.M. Place Stores, Co., Inc., 748 S.W.2d
919, 923 (Mo. Ct. App. 1988) ("Each party prevailed on certain issues in this case and
each party lost on certain issues. The net result, however, was a money judgment to
respondent's favor.").

       In support of its assertion that Lenders One may be declared the prevailing
party under the net-prevailing-party approach, the majority asserts that "neither Weitz
or Ozias seem to limit the 'points scored' to dollars awarded." Ante at 8. I disagree.
Ozias v. Haley concludes as follows:



                                          -12-
      Our analysis of the statutes convinces us that the proper rule to be
      applied in this case is that stated in the following excerpt from the
      Cyclopedia of Law & Procedure, vol. 11, p. 31: "Where a set-off or
      counterclaim has been filed and allowed, wholly or in part, the party in
      whose favor final judgment is rendered will be entitled to costs in the
      absence of some special statutory provision changing the general rule
      which gives costs to the prevailing party. In other words, plaintiff is
      entitled to costs if he has judgment for an amount in excess of the set-off
      or counterclaim allowed. By parity of reasoning, if the amount allowed
      as set-off or counterclaim exceeds the amount allowed on plaintiff's
      demand, defendant is entitled to costs."

125 S.W. 556, 557 (Mo. Ct. App. 1910) (emphasis added). In my view, Ozias
explicitly embraces a monetary appraisal when employing the net-prevailing-party
approach. Accordingly, I believe under this approach, we must recognize DocMagic
as the prevailing party, and thus, each party can credibly invoke Missouri precedent
to claim prevailing-party status.

       Our court settled a nearly identical dispute in Walton General Contractors,
Inc./Malco Steel, Inc. v. Chicago Forming, Inc., in which a contractor and
subcontractor each claimed entitlement to attorneys' fees under a construction
agreement. 111 F.3d 1376 (8th Cir. 1997). A jury returned verdicts in favor of each
party, finding (1) the contractor liable for $352,408 in damages to the subcontractor
and (2) the subcontractor liable for $233,629 in damages to the contractor. Id. at
1380. The parties' agreement entitled the "prevailing party" to recover attorneys' fees,
costs, and expenses. Id. at 1381. Applying Missouri law, the magistrate judge
"declined to find either party a 'prevailing party' and enforce an attorneys' fee clause
in the contract both parties saw fit to breach." Id. at 1384 (internal quotation
omitted). On appeal, the contractor argued it had prevailed on the "significant" issues
of the litigation, while the subcontractor argued its larger damage award rendered it
the prevailing party under a "net judgment rule." Id. Our court affirmed the non-
award, concluding "the parties intended the attorneys' fees provision of the

                                         -13-
subcontract to provide an additional remedy for a nonbreaching party." Id. at 1385
(emphasis added).

       Our determination in Walton that a non-award of attorneys' fees did not amount
to an abuse of discretion does not, without more, compel the conclusion that the
district court's award of attorneys' fees here amounts to an abuse of discretion. The
tie-breaker, so to speak, sounds in equity. The $243,000 awarded to DocMagic
represents two related, but distinct concepts: (1) the amount of losses suffered by
DocMagic, which necessarily translates into (2) the total damage found to have been
inflicted upon DocMagic by Lenders One. Thus, while $243,000 constitutes a small
percentage of the total losses sought by DocMagic, it also reflects Lenders One's
infliction of nearly six times the damage ultimately attributed to DocMagic by the
jury. What the district court and majority fail to acknowledge is that, despite
successfully litigating more claims, Lenders One also perpetrated the greater wrong
against DocMagic.

        Where contract language is ambiguous, the court is charged with the task of
crafting an interpretation consistent with the parties' intent. See Grantham v.
Rockhurst Univ., 563 S.W.2d 147, 150 (Mo. Ct. App. 1978) ("In construing
ambiguous contracts the objective is to ascertain and render effective the mutual
intent of the parties."). Where, as here, it is clear both parties have engaged in
wrongdoing, I cannot believe the parties intended their agreement to reward the
greater wrongdoer. Thus, imposing upon DocMagic nearly one million dollars in
combined attorneys' fees for having perpetrated a total of $52,500 in damages—when
DocMagic itself suffered a $243,000 loss at the hands of Lenders One—seems legally
unfounded and logically untenable. Utilizing our rationale from Walton, I would
name neither party in this case the prevailing party and leave each to pay its own
litigation expenses.

      For the foregoing reasons, I respectfully dissent.
                      ______________________________
                                        -14-
