Cost Recovery Services LLC v. Alltel Communications Inc. , 259 F. App'x 223 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 13, 2007
No. 07-11355
THOMAS K. KAHN
CLERK
D. C. Docket Nos. 02-00131 CV-1-MMP & 01-00058-CV-1-M
COST RECOVERY SERVICES LLC,
a Florida Limited Liability Company,
Plaintiff-Appellant,
versus
ALLTEL COMMUNICATIONS INC., a Delaware
corporation authorized to do business in the State
of Florida,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Florida
(December 13, 2007)
Before DUBINA and KRAVITCH, Circuit Judges, and COOGLER,* District
Judge.
_____________________
*Honorable L. Scott Coogler, United States District Judge for the Northern District of Alabama,
sitting by designation.
PER CURIAM:
Appellant Cost Recovery Services LLC (“CRS”) appeals two judgments
entered by the district court stemming from two breach of contract claims that
were consolidated. First, CRS appeals the grant of judgment in favor of Appellee
Alltel Communications, Inc. (“Alltel”) regarding the claims raised in the first
breach of contract action (“CRS I”). Second, CRS appeals the grant of summary
judgment in favor of Alltel regarding the claims raised in the second breach of
contract action (“CRS II”).
For the reasons that follow, we affirm in part, reverse in part and remand for
further proceedings.
BACKGROUND
On March 7, 2000, CRS and Alltel entered into an agreement titled
“Telephone Cost Recovery Agreement” (“the Agreement”), under which CRS
would conduct audits of bills Alltel received from various vendors. CRS would
“seek funds and/or credits for billing errors” and create “Future Savings Plans” in
which it would identify ways to create future savings for Alltel. Alltel would
compensate CRS for this service on a contingent fee basis, based on the refunds or
savings to Alltel.
2
In December 2000, AT&T issued credits to Alltel on two accounts. Alltel
did not pay CRS for these credits because it asserted that the two accounts were
expressly excluded by the Agreement. The contract itself provided a space for the
parties to write in accounts that were to be excluded from the scope of the audit;
however, this space was left blank. In refusing to pay CRS, Alltel said that it had
highlighted these accounts as being excluded on a spreadsheet it had given CRS
during the March 7 meeting.
CRS then brought suit against Alltel for breach of contract for failure to pay
compensation for the two accounts. During the course of discovery, CRS learned
that AT&T had issued credits on ten other accounts. CRS then moved to amend
its complaint to include these additional credits, arguing that they fell within the
scope of the Agreement and thus CRS was entitled to compensation for them.
Because the district court denied CRS’s motion to amend its complaint, CRS then
filed a second complaint alleging breach of contract for those additional ten
accounts (CRS II). More than a year after the second complaint was filed, CRS
filed a motion to consolidate the two cases, which the district court granted.
After the close of discovery, Alltel moved for summary judgment on the
claims asserted by CRS in CRS II. The court granted the motion for summary
judgment and later held a 2-day bench trial on the remaining CRS I claims. After
3
trial, the district court entered judgment in favor of Alltel on the CRS I claims,
finding that the two accounts were excluded from the Agreement.
ISSUES
1. Whether the parol evidence rule bars consideration of a spreadsheet
listing accounts to be excluded from the Agreement.
2. Whether res judicata applies to bar CRS’s second complaint.
3. Whether the district court erred in interpreting the contract.
4. Whether there was a genuine issue of material fact regarding the “other
nine accounts” in CRS II.
5. Whether there was a genuine issue of material fact regarding the “176
account” in CRS II.
6. Whether the district court should have excluded a new theory and new
evidence asserted for the first time in Alltel’s reply brief supporting summary
judgment and, if not, whether there was a genuine issue of material fact as to this
theory.
STANDARDS OF REVIEW
The interpretation of an unambiguous contract is a question of law, which
this court reviews de novo. Carriers Container Council, Inc. v. Mobile S.S.
Assoc., Inc., 896 F.2d 1330, 1337 (11th Cir.1990). A district court’s determination
4
that a contract is ambiguous is also reviewed de novo. Id. “If a district court
determines that a contract is ambiguous and resorts to parol evidence in order to
determine the intent of the parties, the court’s determination of the parties’ intent
is one of fact and is subject to clearly erroneous review in this Court.” Id.
“Questions of law raised by the application of res judicata are reviewed de
novo.” In re Atlanta Retail, Inc., 456 F.3d 1277, 1284 (11th Cir. 2006).
This court reviews a district courts grant of summary judgment de novo,
applying the same legal standard used by the district court and reviewing all facts
and inferences in a light most favorable to the nonmoving party. Optimum
Technologies, Inc. v. Henkel Consumer Adhesives, Inc., 496 F.3d 1231, 1241 (11th
Cir. 2007). Summary judgment is appropriate where “there is no genuine issue as
to any material fact and . . . the moving party is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(c). A genuine issue of material fact exists when “the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505
(1986).
A district court’s decision whether to exclude affidavits filed in support of a
motion for summary judgment is reviewed by this court for an abuse of discretion.
Young v. City of Palm Bay, Fla., 358 F.3d 859, 860, 863-64 (11th Cir. 2004).
5
DISCUSSION
After reviewing the record, reading the parties’ briefs, and having the
benefit of oral argument, we first conclude that the parol evidence rule applies in
this case to bar consideration of the spreadsheet with the accounts that were to be
excluded. The contract is clear and unambiguous. The parties provided a space to
write in accounts that were excluded. This space was left blank. No mention of
any spreadsheet was ever made in the contract. Because the parties had an
opportunity to exclude accounts by writing them in the space provided, but chose
not to, it is unambiguous that no accounts were to be excluded from the audit.
See, e.g., McCaleb v. Nat’l Bank of Commerce of Pine Bluff, 752 S.W.2d 54, 58
(Ark. Ct. App. 1988) (finding that a guaranty agreement which left blank the space
for limiting liability to a certain dollar amount was not ambiguous because the
parties had the opportunity to fill in the blank); Walton v. Datry, 363 S.E.2d 295,
300 (Ga. Ct. App. 1987) (applying the parol evidence rule after finding that the
failure to fill in a blank stating a maximum cost for roofing services meant that
there was no maximum amount); Schwarting v. Schwarting, 310 N.W.2d 738, 741
(N.D. 1981) (finding that because the contract provided space to list
encumbrances, and no encumbrances were listed, the intention of the parties to
6
convey free of encumbrances was clear and “c[ould] not be said to be
ambiguous”).
Moreover, under Florida law, which controls this case, “if a contract
provision is ‘clear and unambiguous,’ a court may not consider extrinsic or ‘parol’
evidence to change the plain meaning set forth in the contract.” Jenkins v. Eckerd
Corp., 913 So. 2d 43, 52 (Fla. Dist. Ct. App. 2005). A word or phrase is
ambiguous “only when it is of uncertain meaning, and may be fairly understood in
more ways than one.” Friedman v. Va. Metal Prods. Corp., 56 So. 2d 515, 517
(Fla. 1952). Thus, we are compelled to reverse the district court on this issue and
remand this case to determine whether, and to what extent, CRS is entitled to
compensation for the credits on the two CRS I accounts.
Because we conclude from the record that the district court properly
interpreted the contracts’s compensation provision and properly determined that
res judicata does not bar CRS’s second complaint, we affirm the court’s
disposition of those issues. Finally, however, we conclude that the district court
erred in granting summary judgment. Alltell advanced two theories supporting
summary judgment: the first in its motion for summary judgment and the second in
its reply brief supporting summary judgment. Because the district court simply
said that CRS did not create a genuine issue of material fact as to whether the
7
credits were the results of a billing error, it is unclear to us which theory the
district court found persuasive. However, we conclude that under either theory,
summary judgment is inappropriate because CRS presented a genuine issue of
material fact as to the first theory and because CRS was not given a meaningful
opportunity to respond to the second theory.
For the above-stated reasons, we affirm the judgments in part, reverse in
part, and remand this case for further proceedings consistent with this opinion.
AFFIRMED in part, REVERSED in part, and REMANDED.
8