           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           August 28, 2009

                                       No. 08-50241                    Charles R. Fulbruge III
                                                                               Clerk

WAYNE SPECHT

                                           Plaintiff - Appellee
v.

MAXIMUS INC

                                           Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 1:07-CV-192


Before JONES, Chief Judge, and STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Maximus, Inc. appeals the district court’s grant of summary judgment in
favor of Wayne Specht on his breach of contract claim. Maximus contends that
the court erred in granting summary judgment on an issue not raised by the
parties, that fact questions exist regarding whether it waived a condition
precedent to contract enforcement, and that the court misinterpreted the
contract term at issue. Because we conclude that genuine issues of fact exist



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                       No. 08-50241

precluding summary judgment, we REVERSE and REMAND for further proceedings.
                                    I. BACKGROUND
       In 2003, Wayne Specht began working as a State Marketing Executive for
Maximus, Inc. in one of its business marketing divisions called the Capital Cities
Group. Specht’s primary job was to identify and develop business opportunities
for Maximus with the Texas state government. Specht received a base salary for
his work and could additionally receive a commission on certain opportunities
he created. The Capital Cities commission plan was outlined in “Goal Letters”
that were part of Specht’s annual performance review. Specht’s 2004 and 2005
Goal Letters each stated, “NO commission payments will be made without the
approval of the appropriate division(s) and/or group(s) using the ‘Opportunity
Approval Request.’” 1
       In February and March 2004, Specht identified an opportunity for
Maximus with the Texas Health and Human Services Commission. Specht
prepared an Opportunity Approval Request (“OAR”) for this potential project.
The OAR was submitted on a standard company form.                          Thereon, Specht
described the opportunity as follows:


       1
         More fully, the 2005 Goal Letter, which was virtually identical to the 2004 description
of the commission plan, provided this:

The commission plan is defined as follows for all opportunities that you pursue with the
approval/concurrence of the appropriate division(s) and/or group(s):

#      Commission rate/factor is 1.25%
#      Commissions are paid on MAXIMUS labor/services and software
#      Commissions are paid quarterly based on cash receipts
#      NO commission payments will be made without the approval of the appropriate
       division(s) and/or group(s) using the “Opportunity Approval Request”
#      NO commission payments will be made if you decide to voluntarily leave MAXIMUS
       or transfer outside the Corporate Marketing organization (All commission payments
       will stop at that time.)
#      Commission payments associated with a given contract will NOT exceed $300K



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      The Texas Health and Human Services Commission (HHSC) shall
      establish at least one but not more than four call centers for the
      purposes of determining and certifying or recertifying a person’s
      eligibility and need for services related to the State’s Medicaid, Food
      Stamps, TANF, and Long-term Care. The commission will also
      establish automated tools to support on-line screening, application,
      and eligibility in coordination with the Texas Integrated Eligibility
      Redesign System (TIERS).
The OAR further stated that the capture team would be comprised of Health
Services – Health Systems as the “[l]ead division” and that “[o]ther divisions
that may be involved” included “Human Services – Human Services Operations
(Eligibility Determination / Call Center expertise), Technical Services –
Technology Support.” The OAR listed Specht’s “projected role” in pursuing the
opportunity as “Capture Plan manager, strategy and solution development,
teaming partners lead, proposal development.” Finally, the OAR form contained
the following preprinted note below the designated space for approval
signatures: “By indicating your approval, you are agreeing to pursue the subject
opportunity. You are also acknowledging your willingness to pay commissions
in accordance with the Capital Cities compensation plan if a contract is
awarded.”
      Jack Ginsburg, the Vice President of Corporate Marketing and Business
Development and Specht’s direct supervisor, signed the form, as did John Lau,
the President of the Health Services – Health Systems division. Maximus
pursed the opportunity, which became known as the “Texas Integrated
Eligibility and Enrollment” project (“Texas IEE”). Specht continued to work on
the project. Maximus decided to partner with Accenture LLP. Maximus and
Accenture eventually signed a five-year contract with the Texas Health and
Human Services Commission in June 2005.           Accenture would serve as the
primary contractor with the state, and Maximus would be the primary




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subcontractor. The total contract was for $899 million. Maximus reported $370
million as its portion of that award.
      Despite its ultimate success, Maximus declined to pay Specht any
commission on the project, asserting that Specht failed to get “the approval of
the appropriate division(s) and/or group(s),” a condition precedent for payment
of the commission. Maximus alleged that Specht failed to secure the required
approval signatures from all Maximus divisions or groups with profit or loss
responsibilities for the project. Maximus eventually eliminated Specht’s position
and terminated him.
      Specht then sued Maximus for $300,000, the maximum commission for
any single project. The district court granted summary judgment in favor of
Specht, concluding that Maximus waived any requirement that Specht obtain
additional approvals by pursuing the OAR as written and, alternatively, that
Specht had all necessary signatures on the form. Maximus filed motions for a
new trial and to stay enforcement of the judgment, arguing that the district
court had no power to enter summary judgment based on waiver, a ground not
raised by Specht. The district court denied both motions. Maximus timely
appealed.
                                II. DISCUSSION
      We submit a district court’s summary judgment ruling to de novo review,
applying the same standard as the district court.          Noble Energy, Inc. v.
Bituminous Cas. Co., 529 F.3d 642, 645 (5th Cir. 2008). Summary judgment is
proper when the “pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
“In evaluating the existence of a genuine issue of material fact, we review the
evidence and inferences drawn from that evidence in the light most favorable to



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                                  No. 08-50241

the non-moving party.”     Wade v. Hewlett-Packard Dev. Co. LP Short Term
Disability Plan, 493 F.3d 533, 537 (5th Cir. 2007).
A.    Waiver
      The district court granted summary judgment for Specht based on waiver,
holding that regardless of whether Specht received approval from the
appropriate divisions or groups, Maximus waived the requirement that he do so
“by its conduct in pursuing the OAR as written by Specht and using Specht’s
services in the subsequent negotiations to secure the contract.”       The court
explained that these actions were inconsistent with an intention to require
additional approvals as a prerequisite to commission payment. It therefore
waived the approvals. Moreover, the court determined that Maximus’s “silence
on the approval issue, coupled with its intentional pursuit of the Texas
Eligibility project, misled Specht to his detriment.” Maximus was therefore
required to pay Specht his commission.
      Maximus argues that the district court erred both procedurally and
substantively. First, Specht did not plead waiver before the district court. The
district court found waiver sua sponte without giving Maximus the required ten-
day notice. Second, even if the district court appropriately ruled on waiver,
genuine issues of material fact exist regarding whether Maximus waived its
right to additional approvals. We will examine each alleged error in turn.
      1. Procedural Error
      A district court may enter summary judgment sua sponte if it provides the
losing party with ten days’ notice to come forward with evidence in opposition.
Love v. Nat’l Med. Enters., 230 F.3d 765, 770–71 (5th Cir. 2000); Washington v.
Resolution Trust Corp., 68 F.3d 935, 939 (5th Cir. 1995). Although Rule 56’s ten-
day notice requirement is strictly interpreted, the failure to provide such notice
is reviewed for harmless error. Love, 230 F.3d at 771. The error “is harmless if
the nonmoving party admits that he has no additional evidence anyway or if

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. . . the appellate court evaluates all of the nonmoving party’s additional evidence
and finds no genuine issue of material fact.” Leatherman v. Tarrant County
Narcotics Intelligence & Coordination Unit, 28 F.3d 1388, 1398 (5th Cir. 1994).
      Maximus maintains that Specht never raised the issue of waiver in his
pleadings, and the district court improperly granted summary judgment on that
basis without giving Maximus the required ten days’ notice to submit an
opposition. Specht responds that he adequately raised the issue in his pleadings.
      To the extent the district court erred in failing to give Maximus ten days’
notice of its intent to enter summary judgment on the issue of waiver, such error
was harmless. After the court’s summary judgment decision, Maximus filed a
motion for a new trial in which it argued that the district court violated Rule 56’s
ten-day notice requirement and that genuine issues of material fact precluded
summary judgment on the basis of waiver. The district court then entered a
detailed order analyzing the waiver issue. It again held as a matter of law that
Maximus waived any condition precedent regarding additional approvals. The
court concluded that Maximus had raised no new arguments or evidence for
reconsideration of the waiver issue. Instead, Maximus simply reasserted its
arguments regarding the proper interpretation of the approval requirement.
      Inasmuch as Maximus received an opportunity to present the court with
arguments and evidence, any error resulting from the district court’s failure to
provide notice prior to its ruling was harmless. Geraghty & Miller, Inc. v.
Conoco Inc., 234 F.3d 917, 923 (5th Cir. 2000).
      2. Substantive Error
      Maximus alleges the district erred in granting summary judgment on the
basis of waiver because genuine issues of fact exist as to whether Maximus
waived the requirement that Specht obtain additional approvals.            Though
acknowledging that waiver is ordinarily a question of fact, the district court
concluded that there was no dispute as to the facts underlying this case: “the

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                                 No. 08-50241

actions Maximus admits to taking with regard to Specht’s OAR are
fundamentally inconsistent with asserting further approvals as a condition
precedent to paying his commission on that OAR.”
      We look to Texas substantive law in deciding this contract dispute. Bexar
County Hosp. Dist. v. Factory Mut. Ins. Co., 475 F.3d 274, 276 (5th Cir. 2007).
Texas law defines waiver as “an intentional relinquishment of a known right or
intentional conduct inconsistent with claiming that right.” Sun Exploration &
Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex. 1987).
      Waiver is largely a matter of intent, and for implied waiver to be
      found through a party’s actions, intent must be clearly
      demonstrated by the surrounding facts and circumstances. There
      can be no waiver of a right if the person sought to be charged with
      waiver says or does nothing inconsistent with an intent to rely upon
      such right.
Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003) (per curiam) (internal
citations omitted).   Thus, “while waiver may sometimes be established by
conduct, that conduct must be unequivocally inconsistent with claiming a known
right.” Van Indep. Sch. Dist. v. McCarty, 165 S.W.3d 351, 353 (Tex. 2005).
Moreover, “waiver by implication should not be inferred contrary to the intention
of the party whose rights would be injuriously affected thereby, unless the
opposite party has been misled to his or her prejudice.” Barua v. County of
Dallas, 100 S.W.3d 629, 634 (Tex. App.—Texarkana 2003, pet. denied). “Waiver
is ordinarily a question of fact, but when the surrounding facts and
circumstances are undisputed, . . . the question becomes one of law.” Jernigan,
111 S.W.3d at 156.
      Maximus contends that none of its actions were inconsistent with its right
to require additional approvals.    Specht submits, however, that Maximus’s
conduct – in proceeding with the Texas IEE project as proposed in his OAR and
using his services in subsequent negotiations to secure the contract, without



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                                       No. 08-50241

indicating to him that the OAR was deficient – was inconsistent with an intent
to require further approvals.           Specht argues that Maximus should have
presented any objections to the OAR at the “opportunity approval” stage so that
he could have resolved the problem prior to Maximus’s further pursuit of the
project. Specht points out that Maximus’s CEO, Lynn Davenport, sent an e-mail
commending Specht for his efforts on the project. Additionally, Ginsburg sent
an e-mail to David Casey, the President of Maximus’s Corporate Marketing
Division, stating, “[o]pportunity approval requests have been submitted,
reviewed and approved for a number of campaigns. The most notable of which
are the Texas Eligibility, Michigan Eligibility and Michigan MMIS.”2
       Maximus acknowledges this conduct but construes it differently. Because
state marketing executives, such as Specht, often worked on projects for which
they were not entitled to a commission, “Specht’s involvement with the Texas
IEE project would not indicate to the various divisions and groups having profit
and loss responsibility for that project” that Specht was seeking a commission
for his work. Under this interpretation, the divisions’ decisions to proceed with
the project and Specht’s involvement with the project would not be inconsistent
with Maximus’s intent to deny Specht the commission.
       There is no dispute of fact that Maximus had a right to require additional
approvals as a precondition to the payment of his commission. Starting from
that fact, there is some basis to conclude that Maximus’s pursuit of the Texas
IEE project was not unequivocally inconsistent with its intent to exercise its

       2
         Specht further argues that Ginsburg sent him a number of monthly reports indicating
that the OAR for the Texas IEE project had been “Approved.” However, these reports were
attached to Specht’s response to the motion for a new trial, which was filed after the district
court ruled on the motion. As such, these reports were not before the district court at the time
of its ruling, and they are not subject to our review. See Martin’s Herend Imps., Inc. v.
Diamond & Gem Trading U.S. of Am. Co., 195 F.3d 765, 774 (5th Cir. 1999) (“When we
consider an appeal of a summary judgment, our review is confined to an examination of
materials before the lower court at the time the ruling was made; subsequent materials are
irrelevant.” (internal quotation marks and citations omitted)).

                                               8
                                 No. 08-50241

right to the approvals.     For example, there was some evidence that state
marketing executives might work on a project for which they would not receive
a commission.    Thus, requiring Specht’s participation in the bidding and
acquisition process did not clearly establish Maximus’s intent to waive the
requirements for Specht’s receipt of a commission.        Likewise, the e-mail
thanking Specht for his work on the campaign is not inconsistent with
Maximus’s intent to require all approvals prior to expressions of gratitude being
turned into a commission.
      A closer question arises from Ginsburg’s e-mail to Casey, which indicated
that Specht’s OAR had been “submitted, reviewed and approved.” This e-mail
was part of a chain of internal e-mails between Ginsburg and Casey.
Specifically, Ginsburg’s e-mail was in response to one from Casey in which Casey
indicated that the parties involved needed “to discuss what triggers the
commission payment and the appropriate amount.” In addition to stating that
OARs for a number of campaigns, including Specht’s, had been “submitted,
reviewed and approved,” Ginsburg’s e-mail provided Casey with some
information regarding the Capital Cities Group’s commission plan and indicated
that the matter still needed to be discussed in “more detail.”
      In interpreting whether that e-mail resolves the waiver point, we find
Ginsburg’s supplemental declaration also to be relevant. Ginsburg stated that
state marketing executives “were first required to obtain my approval as their
supervisor before approaching the Responsible Divisions and Groups.           By
signifying my approval on the OAR, I was only acting as their supervisor. I did
not have any authority to approve an OAR on behalf of any Responsible
Divisions and Groups.” Considering the context of the e-mail and Ginsburg’s
testimony, it is not clear what Ginsburg meant when he said Specht’s OAR had
been “submitted, reviewed and approved.” One reasonable interpretation is that



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                                  No. 08-50241

Ginsburg was referring only to his own approval. Another is that Ginsburg was
making a representation that all appropriate approvals had been obtained.
      Ginsburg’s meaning is unclear and disputed.
      Ginsburg’s e-mail and the factual circumstances surrounding it, including
Maximus’s continued pursuit of the Texas IEE project, are sufficient to create
a fact question regarding whether Maximus waived any precondition to the
payment of Specht’s commission. But there is just a fact question. The district
court erred in granting summary judgment in favor of Specht on this issue.
B.    Breach
      Though originally ruling on waiver, the district court also found that
approval by two Maximus executives, one being the Vice President of Corporate
Marketing and Business Development for the Capital Cities Group and the other
the President of Maximus’s Health Services – Health Systems Division, was
“approval from all ‘appropriate division(s) and/or group(s).’” The court rejected
as unreasonable Maximus’s argument that “appropriate division(s) and/or
group(s)” meant “‘each subdivision of Maximus that might ultimately sustain
profit and loss from the Texas project.’”
      In construing a written agreement, a court’s primary concern “is to
ascertain the true intentions of the parties as expressed in the instrument.”
J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). The court must
initially decide “whether it is possible to enforce the contract as written, without
resort to parol evidence.” Id.
      If a written contract is so worded that it can be given a definite or
      certain legal meaning, then it is not ambiguous. Parol evidence is
      not admissible for the purpose of creating an ambiguity.
            If, however, the language of a policy or contract is subject to
      two or more reasonable interpretations, it is ambiguous. Whether
      a contract is ambiguous is a question of law for the court to decide
      by looking at the contract as a whole in light of the circumstances
      present when the contract was entered. Only where a contract is


                                        10
                                   No. 08-50241

      first determined to be ambiguous may the courts consider the
      parties’ interpretation and admit extraneous evidence to determine
      the true meaning of the instrument.
Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517,
520 (Tex. 1995) (internal citations omitted).
      Our question is whether the “appropriate division(s) and/or group(s)”
provision is ambiguous such that a fact issue was created regarding the intended
meaning of this language.        Neither Maximus nor Specht claims that the
approval requirement is ambiguous.          They do, however, offer different
interpretations of what the parties intended that provision to mean.
      Maximus maintains that “appropriate” approval means “approval from all
of the divisions and groups that would be responsible for a portion of the profit
or loss” for a particular project. For the Texas IEE project, approvals were
required from the following: Corporate Marketing-Business Development-
Capital Cities, Health Systems Division, Workforce Services Division, Health
Services Group, Human Services Group, President, and Chief Operating Officer.
Maximus explains that its interpretation is reasonable because Specht’s
commission would be paid by the divisions and groups involved and would affect
their budgets for the project.
      Maximus further contends that there is nothing within the four corners
of the Goal Letters from which the court can determine the intended meaning
of “appropriate division(s) and/or group(s).” Therefore, parol evidence must be
examined to construe the provision. For support, Maximus cites a case in which
this court held, as a matter of law, that the phrase “appropriate work force” was
ambiguous because nothing in the consent decree in which it was contained shed
light on the intended meaning of the adjective “appropriate.” Dean v. City of
Shreveport, 438 F.3d 448, 461 (5th Cir. 2006). Finally, Maximus argues that
consideration of parol evidence is proper because the Goal Letters summarizing



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                                  No. 08-50241

the commission plan were not contracts. Rather, they were written summaries
of the parties’ oral compensation agreement. Thus, Maximus says that parol
evidence is needed to determine the entire scope of the parties’ agreement.
      The primary parol evidence Maximus offers is in Ginsburg’s declaration.
Specifically, Maximus points us to Ginsburg’s statement that he orally discussed
with Specht the requirement that he obtain approvals from all divisions or
groups that would share profit and loss responsibility for a project. Ginsburg
also declared that this understanding was communicated to Specht and other
state marketing executives through handouts he provided them. The handouts
stated: “The State Marketing Executive will be compensated for opportunities
that have been approved by the Divisions/ Groups/ SBU’s (as applicable).” In
addition to Ginsburg’s testimony, Maximus argues that Specht’s understanding
of the appropriate approval requirement is reflected on the OAR for the Texas
IEE project wherein Specht identified additional divisions that might be
involved with the opportunity, including Human Services – Human Services
Operations and Technical Services – Technology Support. Maximus also points
to the note at the bottom of the OAR stating that parties approving the form
were “acknowledging [their] willingness to pay commissions in accordance with
the Capital Cities compensation plan . . . .”
      Specht offers a different interpretation of the approval provision. Like the
district court, Specht submits that approval by the corporate marketing division
and the lead division on the project was “appropriate” approval within the
intended meaning of that term. Specht asserts that this is the only reasonable
interpretation of the agreement.       Maximus’s construction is said to be
unreasonable because a state marketing executive could not know at the
opportunity approval stage which divisions or groups would ultimately work on
an opportunity. With the Texas IEE project, for example, teaming arrangements
were anticipated in the OAR, and the groups or divisions involved with the

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                                        No. 08-50241

project would differ depending on which company Maximus picked as a partner
and whether Maximus took a lead role in the venture. Moreover, Maximus’s
organizational structure was in a state of flux during the bidding process for the
Texas IEE project. There were changes in the corporate hierarchy, and many
divisions or groups were re-organized as a result.
       Specht also objects to Maximus’s reliance on parol evidence.3 Specht
alleges that the Goal Letters were a contract between the parties. Because the
parties agree that the contract is not ambiguous, parol evidence is not
admissible.     Furthermore, even if parol evidence is admissible, Ginsburg’s
testimony is incompetent because there is no evidence regarding when Ginsburg
orally informed Specht that approvals were required from divisions with profit
or loss responsibilities for a project. And there is no evidence regarding when
Specht was given any commission plan handouts; it may have been after
Maximus secured the Texas IEE opportunity.
       We conclude that the approval provision is ambiguous, and its intended
meaning should have been submitted to a jury. Neither of the parties has
argued ambiguity, as both are urging to us their contrary versions of its
meaning. However, whether an agreement is ambiguous is a matter of law for
the court to decide. See Sage St. Assocs. v. Northdale Constr. Co., 863 S.W.2d
438, 445 (Tex. 1993) (“A court may conclude that a contract is ambiguous even
in the absence of such a pleading by either party.”); see also J.M. Davidson, Inc.,


       3
         Though rejecting Maximus’s use of parol evidence, Specht relies on parol evidence to
support his interpretation of the approval provision. Specht contends that his construction
is consistent with Maximus’s customary operating procedures: a state marketing executive
would give an OAR to Ginsburg who would then gather the signatures necessary for approval
of the project. That is what Specht claims happened here. He gave his OAR to Ginsburg who
signed it and forwarded it to Lau for his signature. Ginsburg did not obtain any additional
approvals because none were needed. This argument and the evidence upon which it relies
were first raised in Specht’s response to Maximus’s motion for a new trial. Again, such
evidence was not before the district court at the time of its ruling; it will not be considered as
part of our review. See Martin’s Herend Imps., Inc., 195 F.3d at 774.

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                                 No. 08-50241

128 S.W.3d at 231. Here, we cannot give the approval provision a definite or
certain legal meaning because it is unclear what “appropriate” means with
respect to the required OAR approvals.
      We acknowledge that ambiguity requires two or more reasonable
interpretations.   Maximus’s interpretation certainly places a more onerous
burden on state marketing executives. Still, we cannot say that, as a matter of
law, Maximus’s construction is untenable or unreasonable.         Although all
Maximus divisions ultimately responsible for the Texas IEE project may not
have been known at the time the opportunity was first identified, approvals
could have been obtained from divisions and/or groups as their participation in
and responsibility for the project became known. Moreover, it is undisputed that
Specht did not even obtain approvals from all of the divisions and/or groups
identified in his OAR as likely to play a role in the Texas IEE opportunity.
Finally, as in Dean, the Goal Letters summarizing the parties’ agreement “shed[]
no light on what the adjective ‘appropriate’ means” in the context of the
commission plan. 438 F.3d at 461.
      As we cannot ascertain the true intentions of the parties from their
agreement as written, the approval provision is ambiguous. “When a contract
contains an ambiguity, the granting of a motion for summary judgment is
improper because the interpretation of the instrument becomes a fact issue.”
Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983). Accordingly, the district court
erred in ruling on this matter, which we remand to the province of the jury.
                             III. CONCLUSION
      We REVERSE the district court’s grant of summary judgment and
REMAND for further proceedings consistent with this opinion.




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                                  No. 08-50241

STEWART, Circuit Judge, concurring in part and dissenting in part:
      I agree with the majority opinion’s description of the flow of events in this
dispute between Maximus, Inc., and its former employee, Wayne Specht, as to
whether Maximus owed Specht $300,000 in commission compensation.
Specifically, the issue here is whether Specht fulfilled the requirements of the
applicable compensation contract when he filled out and circulated a form
regarding a business opportunity that he pursued–and eventually secured–for
Maximus. That business opportunity resulted in $370 million of revenue to
Maximus. Under the contract, if all conditions were met, Specht would have
been eligible for a $300,000 commission from Maximus. The crux of the dispute
is whether Specht secured “the approval of the appropriate division(s) and/or
group(s) using the ‘Opportunity Approval Request’” (“OAR”) for the project.
Specht did prepare and circulate an OAR, on the standard company form, which
identified the lead division for the anticipated project as “Health Services-Health
Systems” and listed additional divisions that “may be” involved. The form was
signed by Specht’s direct supervisor and the President of the Health Services
division. Neither suggested that any additional circulation or approvals were
needed, nor did they at any later time in the project’s development and success
for Maximus. Maximus refused to pay Specht and later eliminated his job
position and terminated him.
      The majority opinion addresses two alternative holdings on which the
district court’s grant of summary judgment in favor of Specht rested. First, it
addresses the district court’s conclusion that Maximus waived any objection to
the form of Specht’s OAR notice by its conduct in pursuing the opportunity. I
concur in the majority opinion’s determination that Maximus’s procedural
argument–that it was prejudiced by the district court raising waiver sua
sponte–was harmless.



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                                  No. 08-50241

      Next, the majority opinion addresses whether summary judgment was
appropriate on the basis that there was a breach of contract–i.e., that Specht had
complied with the contract regarding the OAR paperwork and that Maximus’s
refusal to pay Specht’s commission was a breach of contract. The majority
opinion concludes that the contract is ambiguous as to what approval from “all
appropriate division(s) and/group(s)” means and whether this condition was
fulfilled by Specht’s conduct. Neither party to the dispute contends that the
provision is ambiguous; they merely advance conflicting interpretations of the
phrase. Though the parties did not urge ambiguity, I acknowledge the court’s
plenary authority to decide this issue as a matter of law. The majority opinion
clearly describes these competing arguments and ultimately concludes that the
provision at issue is ambiguous as a matter of law, and that the question must
be submitted to a jury. I respectfully disagree with this holding. Essentially,
Maximus would require the employee to secure approval from any even
tangentially related division or group before pursing any project, guessing as to
what might in hindsight be an affected group. On the other hand, Specht argued
to the district court that his behavior conformed with a reasonable
interpretation–that by notifying the key groups that appeared most likely to be
centrally involved in the project at the initial stages of pursuing the opportunity,
he secured the approval of the “appropriate division(s) and/or groups” as
required by the contract. I agree with the district court’s summary judgment
determination that the contract is not ambiguous, that there are no disputed
material facts at issue, and that Specht’s offered interpretation presents “the
true intentions of the parties as expressed in the instrument,” R & P Enterprises
v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517 (Tex. 1980).
      For the foregoing reasons, I respectfully concur in part and dissent in part.




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