                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 06-2428
JOHN M. FLOYD & ASSOCIATES INCORPORATED,
                                            Plaintiff-Appellant,
                               v.

STAR FINANCIAL BANK,
                                           Defendant-Appellee.
                         ____________
           Appeal from the United States District Court
    for the Northern District of Indiana, Fort Wayne Division.
         No. 01 C 355—Theresa L. Springmann, Judge.
                         ____________
    ARGUED JANUARY 19, 2007—DECIDED JUNE 7, 2007
                   ____________


 Before RIPPLE, KANNE, and SYKES, Circuit Judges.
  KANNE, Circuit Judge. This diversity case comes to us
after the district court entered partial summary judgment
in favor of the defendant. The plaintiff appeals. For the
reasons set forth below, we affirm.


                      I. BACKGROUND
  Because we are reviewing entry of summary judgment in
favor of the defendant, we will construe the facts in favor
of the plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). John M. Floyd & Associates is a consult-
ing firm that provides services to banks. Early in 2000,
2                                             No. 06-2428

Floyd entered into an agreement with Star Financial
Bank. The agreement proposed four phases of the engage-
ment. In the “analysis” phase, Floyd would analyze cur-
rent operations at the bank and come up with recommen-
dations and a plan to implement the changes. During the
“presentation” phase, Floyd would meet with Star to
determine which recommendations Star would like to
pursue. During the third phase, which Floyd’s proposal
referred to as the “installation” phase, Floyd would
coordinate and assist in the installation of approved
changes and install monitoring processes to track how the
changes were working. In the final “follow-up” phase,
Floyd consultants would meet with Star to review the
results and fine-tune any implemented changes.
  The parties now dispute whether Star was obligated to
pay for two changes that Floyd recommended. First, Floyd
recommended that the bank initiate an overdraft privilege
program. Under such a program, instead of returning
overdrawn checks unpaid, the bank would honor many of
those checks and would charge customers a fee for the
privilege of overdrawing their account. Second, Floyd
recommended that Star sell its portfolio of credit card
accounts to a major national credit card issuer.
  Star asked Floyd not to implement either of these
ideas. But eventually the bank installed similar programs
either on their own or through another vendor. Shortly
after Floyd made the “presentation” phase on the over-
draft protection, Star contacted a company called Stratis
Technologies to install overdraft protection. Stratis had
been pursuing Star since the prior year. According to
Floyd, Stratis implemented substantially the same type
of program that Floyd had offered to implement, but
was willing to do it for roughly one fifth of what Floyd
intended to charge Star. Star also implemented Floyd’s
recommendation to sell its consumer credit card portfolio,
but used a different vendor for that sale. Star had been in
intermittent contact with a company called Kessler
No. 06-2428                                               3

Financial Services for about four years before Floyd’s
consulting work began. Kessler acted as an agent for
MBNA, then a large national bank with extensive credit
card portfolios, in trying to acquire the types of credit
accounts that Floyd recommended Star should sell. About
a month before Floyd moved to the presentation phase on
the credit card sale recommendation, Star had re-opened
contacts with Kessler and had raised the topic of selling
Star’s credit card assets to MBNA.
  Floyd’s proposal to Star had set the compensation to be
contingent on savings from Floyd’s recommendations. The
cost to Star would be “one-third of the first-year’s pre-tax
earnings that are the results of [Floyd’s] recommenda-
tions plus out-of-pocket expenses.” R. 1 Ex. A p. 2. The
contract also provided that “[t]he bank will have the final
decision as to the installation of recommendations and only
approved and installed recommendations will be used to
quantify earnings.” Id. The parties agree that Floyd did
not install or follow-up on either of these recommendations
because Star went elsewhere. When Star implemented the
types of programs that Floyd had recommended, Floyd
sued Star for the contingent fees that Star would have
owed if Star had used Floyd for those two changes. After
discovery, both parties moved for summary judgment on
the question of breach of contract. The district court
granted Star’s motion for summary judgment. There were
other claims between the parties that eventually went to
trial, but those are not before us on this appeal. The only
issue presented for review is whether summary judgment
in favor of Star was appropriate on the facts recounted
above.


                      II. ANALYSIS
  This is a question that requires us to interpret the
contract between Floyd and Star. The parties agree that
4                                               No. 06-2428

Indiana law controls. Under Indiana law, “[w]hen the
terms of a contract are clear and unambiguous, those
terms are conclusive, and the court will not construe the
contract or look at extrinsic evidence but rather will simply
apply the contract provisions.” Forty-One Assoc., LLC v.
Bluefield Assoc., L.P., 809 N.E.2d 422, 427 (Ind. Ct. App.
2004) (citing Stout v. Kokomo Manor Apartments,
677 N.E.2d 1060, 1064 (Ind. Ct. App. 1997)). Floyd argues
that the contract requires that Star pay for any recom-
mendation that Floyd made, even if Star hired somebody
else to implement it or made the changes internally,
without the help of a consultant or other contractor. Star
argues that the contract only obligates it to pay for
changes if Floyd recommends and installs them (or
coordinates the installation). Although the terms of the
contract make it clear that final payment would not be
made until about a year after the changes were installed,
the parties are basically disputing when the obligation to
pay for a recommendation arose under the contract.
  To interpret the contract in the way that Floyd asks us
to would require that we add terms to the contract that
are not contained within the four corners of the document.
We are unwilling to do this. The contract does not envi-
sion that Star would pay for ideas, but rather for action. In
the paragraph entitled “Payment,” Floyd’s proposal states
that the bank would “have the final decision” on any
recommendation and “only approved and installed recom-
mendations” would be used to quantify earnings. R. 1 Ex.
A p. 2. This is clear language that the obligation to pay did
not arise after analysis or presentation of recommenda-
tions, but only after a change was installed. By the very
terms of the contract, installation required that Floyd
would “coordinate and assist in installation of approved
changes [and] design and install monitoring and report-
ing mechanisms. . . .” Id. p. 5. The language here is
unambiguous: the obligation to pay could not arise until a
change was installed.
No. 06-2428                                                5

  Floyd argues that by reading the installation clause in
the contract this way the district court erred by treating
Floyd’s installation obligations as a condition precedent
instead of a condition subsequent. Appellant’s Br. at 24-25.
Under Indiana law, there is a presumption against condi-
tions precedent. Floyd cites to Scott-Reitz Ltd. v. Rein
Warsaw Assoc., 658 N.E.2d 98, 103 (Ind. Ct. App. 1995) to
support this argument. We recognize, however, that the
term “condition precedent” carries multiple meanings, and
can refer to a condition precedent to the formation of a
contract, or a condition precedent to an obligation that
arises under an already existing contract. See JOHN D.
CALAMARI & JOSEPH M. PERILLO, CONTRACTS § 11-5 (2003).
Floyd urges us to read the stated obligations in the
installation phase as being a condition subsequent: that is,
that failure to perform those actions renders the contract
void. Floyd’s argument is that we should not read the list
of required actions in the installation phase as being
necessary for the obligation to pay to arise, but rather that
a failure to perform those tasks would void an already
existing obligation to pay. There is, of course, a third
interpretation: that the language is not at all conditional,
but was one of a series of interlocked promises that the
parties made to each other. See id. § 11-09 (“[I]n this area
it is clear that the courts, in a doubtful case prefer the
interpretation that particular language is language of
promise rather than language of condition.”). Nevertheless,
discussion of whether the term should be considered a
condition precedent or subsequent simply begs the ques-
tion of whether the obligation to pay arises if somebody
other than Floyd makes the installation of the recom-
mended changes.
  We come back to the language of the contract, which sets
the measure of the payment at one-third of the benefit of
the recommendations that are “accepted and installed.”
But installed by whom? Floyd’s request for payment might
6                                                 No. 06-2428

still be valid if the contract provides that Star would pay
for installed recommendations, even if Floyd was not
involved in the installation. It makes sense that consul-
tants might choose to enter a contract that provides for
reimbursement for their ideas even if somebody else
actually installs the recommendation. It could be that a
consultant puts so much effort into arriving at the recom-
mendations that the lion’s share of the work has been done
by that point. This is, at its heart, Floyd’s argument here:
“Floyd conferred a substantial benefit on Star through
its thorough analysis and its persuasive recommenda-
tion . . . .” Appellant’s Br. at 46. In such a case, even if the
measure of payment is determined by looking at the
savings after the fact, parties might agree that the obliga-
tion to pay arises when the recommendation is made.
  For example, Floyd could have written into the contract
that Star would be obligated to pay Floyd for any recom-
mendation that was installed within twenty-four months
of their engagement, even if somebody other than Floyd
performed the installation. But Floyd did not write that
term into the proposal it sent to Star, so it is not part of
the contract between the two parties. We note that Floyd
submitted supplemental authority to the court under FED.
R. APP. P. 28(j) regarding a contract that Floyd had drafted
with a different bank which did include a term that
more specifically spelled out the bank’s obligation to pay
for recommendations implemented within a set time
period after the engagement, even if the change was
originally rejected. See John M. Floyd & Assoc., Inc. v.
Ocean City Home Sav. Bank, 206 F. App’x 129 (3d Cir.
2006).
  Floyd also could have written an exclusivity clause into
the contract and required that Star refrain from using
another banking consultant to implement any change that
Floyd recommended for some time period after the engage-
ment. But Floyd did not write that clause into the con-
No. 06-2428                                                 7

tract either. To give the contract the meaning that Floyd
urges would even require that Star pay Floyd for recom-
mendations that other consultants might have made as
long as they were also among the recommendations
that Floyd included in its list. By Floyd’s logic, if Star had
hired two sets of consultants with contracts that were
identical to the contract that Floyd drafted, and if each
consultant had made the exact same recommendations
that Floyd made, Star would have been obligated to pay
both consultants, even if a third party actually did the
work installing the overdraft system. This seems to be
well beyond the “plain and usual meaning” of the words
used in the contract. Dempsey v. Carter, 797 N.E.2d 268,
273 (Ind. Ct. App. 2003); 6 IND. LAW ENCYCL. CONT. § 64.
  Floyd is stuck with the language of the contract as it is
written, and the language is clear. The contract terms,
as drafted by Floyd, gave two powerful options to the
bank. The bank received a right to unilaterally remove
certain projects from the compensation formula and there
were no limits on Star’s ability to shop around for better
deals from other providers. Taken together, this language
shifted the burden of risk onto Floyd that some of its up-
front work would not result in compensation. We have
mentioned, in passing, some of the clauses that Floyd could
have inserted to protect that compensation interest. But
Floyd did not insert any of that language. Failing to bind
Star to pay for Floyd’s work earlier in the engagement
might have been slipshod contract drafting, but a slipshod
contract is not necessarily an ambiguous contract. We are
left to enforce the contract as we find it—a contract that
left Star free to pick and choose which recommendations to
adopt and free to shop for a more competitive quote from
other consultants and service providers.
8                                            No. 06-2428

                   III. CONCLUSION
  The terms of the contract between Floyd and Star are
unambiguous. The agreement does not require that Star
exclusively consult with Floyd, and the contract does not
require that Star pay for the preliminary ideas that Floyd
presented. The district court was correct that Star did
not breach its contract with Floyd when it used other
vendors to implement the overdraft policy and sell its
credit card portfolio. Accordingly, the judgment of the
district court is AFFIRMED.

A true Copy:
      Teste:

                      ________________________________
                      Clerk of the United States Court of
                        Appeals for the Seventh Circuit




                  USCA-02-C-0072—6-7-07
