John M. Floyd & Associates, Inc. v. First Florida Credit Union

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-11662 ELEVENTH CIRCUIT
OCTOBER 3, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D.C. Docket No. 3:09-cv-00168-MCR
JOHN M. FLOYD & ASSOCIATES, INC.,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant,
versus
FIRST FLORIDA CREDIT UNION,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 3, 2011)
Before CARNES, BARKETT, and FAY, Circuit Judges.
PER CURIAM:
John M. Floyd & Associates, Inc. (JMFA) appeals the district court’s grant
of summary judgment in favor of defendant First Florida Credit Union. JMFA
contends that the district court erred when it found that First Florida had not
breached its contract with JMFA.
I.
On December 29, 2005, First Florida entered into a contract with JMFA, a
financial consulting firm, to use an overdraft fee program developed by JMFA.
First Florida agreed to pay JMFA 14% of any increased profits resulting from the
program beginning in June 2006 and lasting for 24 months. The “Confidentiality”
provision of that contract stated:
The contents of this proposal should be treated as confidential material
between John M. Floyd & Associates and First Florida Credit Union.
We agree that neither John M. Floyd & Associates nor any of our
employees or contractors will use or disclose any data about First
Florida Credit Union as a result of this consulting engagement that is not
published call report information, without prior written consent from
First Florida Credit Union. We understand that we may use the data in
our database as long as there is no reference to First Florida Credit
Union. First Florida Credit Union agrees that they will not share any
recommendations or materials from this study with anyone not affiliated
with First Florida Credit Union. If any recommendations or materials
or software are shared or adopted either in their original or modified
form by other member institutions, companies or affiliated financial
institutions of First Florida Credit Union or its holding company, or if
First Florida Credit Union either acquires or is acquired by another
financial institution, then First Florida Credit Union agrees to
compensate John M. Floyd & Associates on the same terms as stated in
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the proposal agreement. This provision shall survive the termination of
this agreement.
(emphasis added). In January 2007 First Florida merged with another financial
institution, with First Florida being the surviving financial institution. First
Florida continued paying JMFA until July 2009, the full 24-month term it had
agreed to in the contract.
After the last payment of that term was made, JMFA filed a lawsuit
claiming that First Florida had breached the parties’ contract. It argued that when
First Florida merged with the other financial institution the contract automatically
extended another 24 months from the date of the merger. Specifically, JMFA
argued that because “[First Florida] agree[d] to compensate [JMFA] on the same
terms as stated in the proposal agreement” if First Florida ever acquired another
financial institution that meant the contract automatically renewed for another 24
months “on the same terms” as the original contract. Thus JMFA asserted that
when First Florida stopped paying at the end of the 24 months in June 2009 it
breached the contract.
First Florida moved for summary judgment. Rejecting JMFA’s
interpretation of the contract, the district court reasoned that “[t]he Confidentiality
provision does not state anything about different or extended billing periods or
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how compensation is calculated after a merger except to note that [First Florida]
agrees to compensate [JMFA] ‘on the same terms as stated in this proposal
agreement.’” The court concluded that JMFA’s interpretation would impose new
contractual rights and obligations, which was contrary to the plain meaning of
“same terms.” Thus JMFA’s interpretation was unreasonable.
The district court agreed with First Florida’s interpretation that the “same
terms” only required First Florida to continue, after the merger, to pay JMFA 14%
of the increased non-interest income for the original 24-month period. Because
First Florida had made the required 24 monthly payments, the court found it had
not breached the contract and granted its motion for summary judgment.
This is JMFA’s appeal. It argues that there are two reasonable
interpretations of the confidentiality provision, making the provision ambiguous.
It concedes that First Florida’s interpretation of the contract is reasonable, but it
argues that its interpretation is reasonable as well.
II.
“We review de novo the threshold question of whether a contract is
ambiguous.” Frulla v. CRA Holdings, Inc., 543 F.3d 1247, 1252 (11th Cir. 2008).
Under Florida law,1 “[w]hen a contract is ambiguous, an issue of fact is created
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Under the terms of the contract, Florida law governs.
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that cannot be resolved by summary judgment.” Talbott v. First Bank Fla., 59 So.
3d 243, 244 (Fla. 4th DCA 2011). Interpretation of an unambiguous contract,
however, is a question of law which can be resolved on summary judgment. See
PNC Bank, N.A. v. Progressive Emp’r Servs. II, 55 So. 3d 655, 658 (Fla. 4th DCA
2011) (“[C]onstruction of a contract is a question of law which an appellate court
may consider de novo provided the language is clear and unambiguous . . . .”
(quotation marks omitted)).
“A contract is ambiguous where it is ‘susceptible to two different
interpretations, each one of which is reasonably inferred from the terms of the
contract.’” Frulla, 543 F.3d at 1252 (quoting Commercial Capital Res., LLC v.
Giovanetti, 955 So. 2d 1151, 1153 (Fla. 3d DCA 2007)). Thus ambiguity arises
when there are two reasonable interpretations of a contract. See id. The district
court held, and JMFA concedes in its briefs to this Court, that First Florida’s
interpretation was reasonable. JMFA argues that the Confidentiality provision can
also reasonably mean that First Florida owed it 24 additional months of payments
beginning on the date of the merger. We disagree.
When interpreting contracts under Florida law, we give words their plain
meaning. Golf Scoring Sys. Unlimited, Inc. v. Remedio, 877 So. 2d 827, 829 (Fla.
4th DCA 2004) (“Words should be given their natural meaning or the meaning
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most commonly understood . . . .” (quotation marks omitted)). The relevant words
here are “compensate [JMFA] on the same terms.” What JMFA argues would
require this Court to decide that “the same terms” doesn’t mean “the same terms”
at all.
The interpretation JMFA champions would require inserting words into the
Confidentiality provision. It would rewrite the provision to state that First Florida
was required to “compensate [JMFA] for an additional 24 months on the same
terms.” But that language is not there. An interpretation is not reasonable if it
requires rewriting the contract to add language that a party omitted and in order to
impose an obligation on the other party that was not in the original bargain. See
Ferreira v. Home Depot/Sedgwick CMS, 12 So. 3d 866, 868 (Fla. 1st DCA 2009)
(“[I]t is never the role of a trial court to rewrite a contract to make it more
reasonable for one of the parties.”); Hill v. Deering Bay Marina Ass’n, Inc., 985
So. 2d 1162, 1166 (Fla. 3d DCA 2008) (“As this and many other courts have
stated, courts do not rewrite contracts.”); BMW of N. Am., Inc. v. Krathen, 471
So. 2d 585, 587 (Fla. 4th DCA 1985) (“[W]here a contract is silent as to a
particular matter, courts should not, under the guise of construction, impose on
parties contractual rights and duties which they themselves omitted.”). Because
JMFA’s interpretation is unreasonable, it does not establish that there is an
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ambiguity in the contract. See Frulla, 543 F.3d at 1252. Without ambiguity there
was no genuine issue of material fact, and the district court did not err by granting
summary judgment on JMFA’s breach of contract claim.
AFFIRMED.
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