                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS               January 4, 2007
                          FOR THE FIFTH CIRCUIT
                                                                 Charles R. Fulbruge III
                           ))))))))))))))))))))))))))                    Clerk

                                 No. 05-20465

                           ))))))))))))))))))))))))))

MJCM, L.L.C.

                   Plaintiff-Appellant,

      versus

UNITED COMMUNITY BANKS, INC.
successor in interest to First Georgia Bank,

                   Defendant-Appellee.


               Appeal from the United States District Court
                    for the Southern District of Texas
                               No. H-04-1310



Before SMITH, BENAVIDES, and PRADO, Circuit Judges.

PER CURIAM:*

      Plaintiff-Appellant        MJCM,   L.L.C.   d/b/a   Pinnacle   Financial

Services (“Pinnacle”) appeals the district court’s order granting

the   motion    for    summary   judgment   of    Defendant-Appellee     United

Community Banks, Inc., the successor-in-interest to First Georgia

Bank (“FGB”).         Specifically, Pinnacle contends that the district

court erred in (1) finding that FGB experienced a change of control



      *
       Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT RULE
47.5.4.
in ownership that would trigger Section 11 of the contract between

Pinnacle and FGB; and (2) determining that the contractual phrase

“terminated for any reason” was ambiguous and did not apply to

terminations caused by a change of control in ownership.

     This appeal arises from a dispute regarding a contract for

services between Pinnacle and FGB.1    On August 27, 2002, FGB and

Pinnacle entered into a thirty-month contract that allowed FGB to

use Pinnacle’s proprietary “Overdraft Privilege Program,” which

allows banks to permit depositors to overdraft their accounts

without having their checks returned in exchange for a fee paid by

the depositor.

     Both sides performed under the contract until April 2003, when

FGB informed Pinnacle that FGB and its parent corporation were

undergoing mergers which constituted a “change in control” that

triggered termination of the agreement according to Section 11 of

the contract.2   FGB maintained that, under Section 11, it only owed


     1
       The parties do not dispute that Texas law governs the
contract.
     2
       Section 11 states:
     11. Assignment.
     This Assignment shall be binding upon and inure to the
     benefit of the parties hereto and their respective
     successors, legal representatives, and assigns where
     permitted by this Agreement; provided, however, that the
     Client shall not be entitled to assign this Agreement, or
     allow any person, entity or group, including its
     affiliates, [sic] use or have the benefit of the Program,
     the Services or the Software except for the entities
     disclosed on Exhibit D and if a change of control in
     ownership occurs, the Client will pay the fees described

                                  2
Pinnacle the fees described in Exhibit C of the contract, which

amounted to about $40,000.   Pinnacle countered that the catch-all

language “terminated for any reason” in Section 12 of the contract

included terminations due to a change of control and required

payment of additional amounts.3   Accordingly, Pinnacle argued that

FGB owed it $898,950, the total for payments due under Section 12.

     Pinnacle sued FGB alleging breach of contract and the parties

filed cross-motions for summary judgment.     Pinnacle appeals the

district court’s granting of a motion for summary judgment, so the




     in Exhibit C and this Agreement and all rights of the
     Client hereunder shall terminate. (Emphasis added in bold
     typeface).
     3
      Section 12 states:
     12. Term; Termination.
     The term of this Agreement shall be effective with
     execution of the Agreement and shall expire on the last
     day of the 30 month following the first full calendar
     month of Program implementation. This agreement shall
     also terminate as provided in Sections 1(a) or 3, upon
     the termination of either of the Licenses, or if Client
     breaches this Agreement and fails to cure such breach
     within thirty (30) days after Pinnacle gives notice of
     such breach.

     If this Agreement is terminated for any reason, Pinnacle
     shall be (a) entitled to retain a ten thousand dollar
     ($10,000) non-refundable retainer referenced on Exhibit
     C, (b) reimbursed for any cost or expenses incurred by
     Pinnacle through the date of termination, (c) if the
     parties have agreed upon a Baseline prior to termination
     hereof, paid by Client an amount equal to twenty-five
     percent (25%) of such baseline for each month remaining
     under this Agreement.    Termination of this Agreement
     shall not affect Section 12 or Sections 4, 5, 6, 7, 8, 9,
     14, 15 and 16. (Emphasis added).


                                  3
familiar standards apply. This court reviews a summary judgment de

novo, using the same standards applied by the district court.

Dallas County Hosp. Dist. v. Assocs. Health & Welfare Plan, 293 F.3d

282, 285 (5th Cir. 2002).

     After carefully reviewing all submissions by the parties and

the record in this case, we affirm for essentially the same reasons

stated by the district court.     The mergers between the various

banking institutions and holding companies in this case occasioned

a “change of control in ownership” that triggered the operation of

Section 11.   The phrase “terminated for any reason,” in the context

of Section 12, is ambiguous.     “Terminated for any reason” could

refer to any reason whatsoever or to the termination events listed

in the preceding paragraph. Further, applying Section 12 to Section

11 would render Section 11’s reference to Exhibit C superfluous.

Reading the contract as a whole, and giving meaning to all of the

contract’s provisions, we hold that a termination under Section 11

does not bring Section 12 into play. See Coker v. Coker, 650 S.W.2d

391, 393 (Tex. 1983) (holding that contracts should be read as a

whole with an effort to give effect to all contractual provisions).

In other words, Section 11 contains its own remedy, namely, payment

of the fees described in Exhibit C.

     For the reasons stated above, we AFFIRM the order of the

district court.

     AFFIRMED.


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