                                                                      [DO NOT PUBLISH]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
