First Bank & Trust v. Firstar Info , 276 F.3d 317 ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1757
FIRST BANK & TRUST, formerly known as
FIRST BANK & TRUST OF EVANSTON, BURLING
BANK, CAMBRIDGE BANK OF LAKE ZURICH, et al.,
Plaintiffs-Appellants,
v.
FIRSTAR INFORMATION SERVICES, CORPORATION,
a dissolved Wisconsin corporation, and
FIRSTAR CORPORATION, a Wisconsin corporation,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 2972--John W. Darrah, Judge.
ARGUED OCTOBER 22, 2001--DECIDED December 31, 2001
Before FLAUM, Chief Judge, RIPPLE and
WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. Between 1994 and
1998, First Bank & Trust and ten other
banks/1 (collectively "Banks") sepa-
rately contracted to purchase data
processing services from Firstar
Corporation and its former affiliate,
Firstar Information Services Corporation
(collectively "Firstar"). Prior to the
expiration of the agreements, however,
Firstar decided to cease its data
processing operations and to terminate
all services to the Banks. Upon receiving
notice of these intentions, the Banks
filed these breach of contract claims
against Firstar in Illinois state court.
After removal of the case to the federal
system, the district court entered
summary judgment for Firstar. The court
concluded that the terms of the
agreements unambiguously authorized
Firstar’s actions so long as Firstar gave
the Banks proper notice of the
termination of services. For the reasons
set forth in the following opinion, we
reverse the judgment of the district
court and remand the case for further
proceedings consistent with this opinion.
I
BACKGROUND
A. Facts
Each of the Banks is an independent
financial institution with branches in
the state of Illinois. Firstar
Corporation and its former affiliate,
Firstar Information Services,/2 offered
data processing services to banks.
Because developing and maintaining an in-
house data processing system often proves
costly for financial institutions such as
the Banks, they frequently turn to
outside vendors such as Firstar for their
data processing needs.
From 1994 through 1998, each of the
Banks separately contracted to purchase
multiple data processing services from
Firstar. Although each Bank independently
negotiated its agreement with Firstar,
the contracts contained nearly identical
provisions. In particular, each contract
contained clauses that addressed the
termination or modification of the
agreement. Section 2 of each contract
provided:
This Agreement may be terminated at the
end of the term set forth above, provided
that Customer gives Firstar at least ***
days’ prior written notice. . . . This
Agreement may also be terminated by a
non-defaulting party in the case of an
event of default hereunder./3
R.14, Ex.D.
Each agreement also contained Section 7-
-a provision entitled "Systems
Modification." Although the precise
language of Section 7 varied among the
contracts, each agreement stated in
pertinent part:
Firstar may modify, amend or replace any
Service or any element of its systems at
any time when Firstar deems that such is
appropriate or necessary. Firstar may
terminate providing any Service upon
[180/270/360] days’ prior written notice
to Customer and may terminate any Service
immediately upon any action by any
regulatory agency, legislative body or
court having jurisdiction over Firstar or
Customer which Firstar deems to have an
adverse material effect on such Service
or requires termination of such
Service./4
R.14, Ex.D. In eight of the agreements,
Section 7 further provided:
In the event Firstar terminates providing
one of the "Core Services" . . . that is
used by the Customer, and Firstar fails
to replace such a Core Service, prior to
termination of said Core Service, with a
substitute product of comparable feature,
function and pricing, Customer may
terminate this Agreement without being in
default . . . ./5
R.14, Ex.D. For several months, the Banks
and Firstar operated under the terms of
these agreements without incident.
In October 1998, Firstar informed the
Banks that it intended to cease its data
processing operations due to its
impending merger with Star Bank. Firstar
offered to provide the Banks with
services until June 30, 2000. The first
of the agreements between the Banks and
Firstar was not scheduled to expire until
July 31, 2001.
B. District Court Proceedings
1.
In April 2000, the Banks filed this
action against Firstar in Illinois state
court alleging that Firstar had breached
its agreements to provide them with data
processing services. Two of the Banks
also alleged that Firstar’s cessation of
services had violated provisions of the
Illinois Consumer Fraud Act. Invoking the
diversity jurisdiction of the federal
courts, Firstar removed the case to the
federal system.
Once before the district court, Firstar
moved for judgment on the pleadings as to
the breach of contract claims. Firstar
submitted that Section 7 expressly
permitted it to terminate all services to
the Banks prior to the expiration of the
contracts. This provision stated that
"Firstar may terminate providing any
Service upon . . . prior written notice
to Customer." R.14, Ex.D. According to
Firstar, "any" as used in this provision
unambiguously meant "all" or "every."
Read in this manner, Section 7 permitted
Firstar to terminate all services so long
as it provided the proper notice to the
Banks. None of the contracts required
more than 360 days’ notice to terminate
services. By giving the Banks roughly
two-years’ notice before the cessation of
services, Firstar argued that it had met
its contractual obligations and thus
could not be held liable for breach of
contract.
At the same time, the Banks moved for
partial summary judgment on the contract
claims. They contended that the district
court should not read Section 7 in such a
broad manner. The Banks submitted that
"any" meant "one" or "some." In addition,
the Banks argued that, if Firstar had
breached the agreements, this breach did
not activate a limitation of remedies
provision found in nine of the contracts.
2.
After considering the parties’
positions, the district court entered
summary judgment for Firstar./6 In
interpreting the contract, the district
court found Section 7 unambiguous.
Relying on Wisconsin case law, the court
concluded that "any," as used in Section
7, meant "without limit." Under this
view, the plain terms of the agreements
thus permitted Firstar to terminate as
many services as it deemed fit--
including all services--so long as it
gave proper notice to the Banks. Because
Firstar had satisfied the contracts’
notice requirements, the district court
concluded that the company had complied
with its obligations under the agreements
and thus could not be held liable for
breach of contract./7
II
DISCUSSION
A. Standard of Review
We review de novo the district court’s
grant of summary judgment. See Thomas v.
Pearle Vision, Inc., 251 F.3d 1132, 1136
(7th Cir. 2001). Summary judgment is
appropriate "if the pleadings,
depositions, answers to interrogatories,
and admissions on file, together with
affidavits, if any, show that there is no
genuine issue as to any material fact and
that the moving party is entitled to a
judgment as a matter of law." Fed. R.
Civ. P. 56(c); see Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). The
court’s function is not to weigh the
evidence but merely to determine if
"there is a genuine issue for trial."
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986). We must ask whether
"there are genuine factual issues that
can properly be resolved only by a finder
of fact because they may reasonably be
resolved in favor of either party." Id.
at 250. In assessing whether a genuine
issue of material fact exists, we must
construe all facts and draw all
reasonable inferences in the light most
favorable to the nonmoving party. See id.
at 255; Basith v. Cook County, 241 F.3d
919, 926 (7th Cir. 2001).
B. Principles of Contract Interpretation
Before turning to the language of the
contract, we set forth the principles
that will guide our inquiry. This court
has stated that "interpretation of an
unambiguous contract is a question of
law." Bechtold v. Physicians Health Plan
of N. Ind., Inc., 19 F.3d 322, 325 (7th
Cir. 1994) (citing Ryan v. Chromalloy Am.
Corp., 877 F.2d 598, 602 (7th Cir.
1989)); see also Lakeshore Commercial
Fin. Corp. v. Drobac, 319 N.W.2d 839, 843
(Wis. 1982). Wisconsin’s law of
contracts,/8 which governs this dispute,
is well-settled. When interpreting an
agreement, the court’s objective "is to
ascertain the true intentions of the
parties as expressed by the contractual
language." State ex rel.
Journal/Sentinel, Inc. v. Pleva, 456
N.W.2d 359, 362 (Wis. 1990). In doing so,
the court must first consider the plain
language of the agreement. See Bank of
Barron v. Gieseke, 485 N.W.2d 426, 432
(Wis. Ct. App. 1992). Unless a term is
expressly defined in the contract, words
and phrases must be given their plain and
ordinary meaning. See Meyer v. U.S. Fire
Ins. Co., 582 N.W.2d 40, 41 (Wis. Ct.
App. 1998). Words and phrases cannot be
considered in isolation; rather, the
court must consider the contract as a
whole to provide each provision with the
meaning intended by the parties. See
Campion v. Montgomery Elevator Co., 493
N.W.2d 244, 249 (Wis. Ct. App. 1992). If
this inquiry indicates that the contract
is unambiguous, the court must give
effect to the agreement as written. See
Borchardt v. Wilk, 456 N.W.2d 653, 656
(Wis. Ct. App. 1990).
However, a contract contains ambiguities
when "it is reasonably and fairly
susceptible to more than one
construction." Dieter v. Chrysler Corp.,
610 N.W.2d 832, 836 (Wis. 2000).
Generally, if a contract is ambiguous and
the parties resort to extrinsic evidence
to explain the agreement, construction of
the document becomes a fact question. See
Lakeshore Commercial Fin. Corp., 319
N.W.2d at 843. However, if the undisputed
facts permit only a single inference, the
court may resolve the contract’s meaning
without resort to a jury. To the extent
ambiguities exist, a court construes them
strongly against the party who drafted
the contract. See Strong v. Shawano
Canning Co., 109 N.W.2d 355, 357 (Wis.
1961). However, even when applying this
latter rule, the court "must reject a
construction resulting in unfair or
unreasonable results." Borchardt, 456
N.W.2d at 657.
C. Interpretation of the Contract
1.
We must address the meaning of the
following provision contained in each of
the agreements between Firstar and the
Banks:
SYSTEMS MODIFICATION. Firstar may modify,
amend or replace any Service or any
element of its systems at any time when
Firstar deems that such is appropriate or
necessary. Firstar may terminate
providing any Service upon [180/270/360]
days’ prior written notice to Customer
and may terminate any Service immediately
upon any action by any regulatory agency,
legislative body or court having
jurisdiction over Firstar or Customer
which Firstar deems to have an adverse
material effect on such Service or
requires termination of such Service.
R.14, Ex.D.
The district court determined that this
provision unambiguously permitted Firstar
to terminate all of its services to the
Banks upon proper notice. The Banks
submit that Section 7 has a narrower
meaning. First, they urge this court to
interpret the phrase "any Service" to
mean "one Service" or "single Service."
Under the Banks’ construction of the
contracts, Firstar could have terminated
only one service without breaching the
agreements. In the alternative, they
suggest that Section 7 permitted Firstar
to terminate some services, "but [only]
to the extent that the basic purpose of
the agreement is not clearly frustrated."
Appellants’ Br. at 18. Firstar’s position
tracks the rationale of the district
court’s opinion.
2.
Several considerations support the
district court’s interpretation of
Section 7. Because the agreements do not
define "any," we must assign the word its
plain and ordinary meaning. In doing so,
we may resort to a dictionary definition.
See Coutts v. Wis. Ret. Bd., 547 N.W.2d
821, 826 (Wis. Ct. App. 1996). As Firstar
aptly notes, definitions of "any" include
"one or more," "every" and "all." See
Webster’s Third New International
Dictionary 97 (1991). Inclusion of these
definitions support the view that Section
7 permits the termination of "all
Services."
Wisconsin law, which governs the
contracts, lends further support to this
interpretation of "any." In Coutts v.
Wisconsin Retirement Board, 547 N.W.2d
821 (Wis. Ct. App. 1996), the Wisconsin
court of appeals addressed the meaning of
the phrase "any worker’s compensation
benefit payable." Coutts, 547 N.W.2d at
825. The court concluded that "’any’ is
generally understood to mean every." Id.
at 826. Similarly, in State v. Timmerman,
542 N.W.2d 221, 224 (Wis. Ct. App. 1995),
the Wisconsin court of appeals had to
interpret a parole provision that
permitted an inmate "the privilege of
leaving the jail . . . for any of the
following purposes . . . ." Timmerman,
542 N.W.2d at 224 (emphasis in original).
A trial court had held that the provision
permitted an inmate’s release for only
one of the purposes enumerated in the
statute. See id. at 223. The appellate
court rejected this position, noting that
the legislature had selected "the broader
word ’any’" as opposed to the word "one."
Id. at 224. Through use of the word
"any," the legislature vested the trial
court with discretion to "grant release
either for one or several of the
purposes" set forth in the statute. See
id. at 225.
 The interpretations of "any" set forth
in Coutts and Timmerman would not strip
Section 7 of coherency. The Coutts and
Timmerman definitions seem to reflect the
parties’ intentions to give Firstar some
discretion in modifying the services it
provided the Banks. Section 7 states:
Firstar may modify, amend or replace any
Service or any element of its systems at
any time when Firstar deems that such is
appropriate or necessary. Firstar may
terminate providing any Service upon
[180/270/360] days’ prior written notice
to Customer and may terminate any Service
immediately upon any action by any
regulatory agency, legislative body or
court having jurisdiction over Firstar or
Customer which Firstar deems to have an
adverse material effect on such service
or requires termination of such Service.
R.14, Ex.D. Interpreting "any" to mean
"all" would permit Firstar to modify
every service in the event of
technological improvements or a systems
upgrade. At the same time, Section 7
indicates that the parties sought to
provide Firstar with flexibility in the
event regulators ordered it to halt
operations. Under the Coutts and
Timmerman understanding of "any," Firstar
would retain this flexibility in the face
of regulatory action.
Considering these factors, a reasonable
person could conclude that the parties
intended "any," as used in Section 7 of
the agreements, to mean "all." Attaching
this meaning to "any," Section 7 would
have permitted Firstar’s cessation of
services to the Banks provided it gave
them proper notice. Upon reviewing the
record, it is evident that Firstar
complied with the notice requirements set
forth in all of the contracts. As such,
under this reading of the agreements,
Firstar could not be held liable for
breach of contract; it complied with the
terms of the agreements.
3.
The above interpretation, however, does
not constitute the only plausible reading
of the contracts. The meaning of a
contract cannot be derived from words and
phrases considered in isolation. To the
contrary, the intention of the parties is
ascertained from a consideration of all
of an agreement’s provisions. When
considering the contracts in their
entirety, a reasonable person could
conclude that Section 7 permits
termination of some, but not all,
services to the Banks.
The agreements do not contain a
termination clause per se. When
identifying events or conditions that
would permit complete termination of the
agreements, the parties use a precise set
of words. For instance, Section 2 of each
accord details a party’s ability to
terminate the contract. Specifically,
this provision, entitled "Terms," states:
This Agreement may be terminated at the
end of the term set forth above, provided
that Customer gives Firstar at least ***
days’ prior written notice. . . . This
Agreement may also be terminated by a
non-defaulting party in the case of an
event of default hereunder.
R.14, Ex.D. Similarly, a portion of
Section 7 not in dispute in this case
provides:
In the event Firstar terminates providing
one of the "Core Services" . . . that is
used by the Customer, and Firstar fails
to replace such a Core Service, prior to
termination of said Core Service, with a
substitute product of comparable feature,
function and pricing, Customer may
terminate this Agreement without being in
default . . . ./9
R.14, Ex.D. Thus, when identifying a
parties’ ability to terminate the
contract, Firstar and the Banks use a
precise set of words--"terminate this
Agreement."
The location of the contested phrase,
"may terminate providing any Service,"
arguably belies the notion that these
words permit unilateral termination of
the contracts. The phrase is located in
the middle of Section 7--a provision
entitled "Systems Modification."
Ordinarily, "modification" means "the act
or action of changing something without
fundamentally altering it." Webster’s
Third New International Dictionary 1452
(1991). The word does not suggest the
ability to terminate the agreements.
Indeed, as we have noted earlier, at
other places in the contracts, Firstar
and the Banks used precise phrases to
indicate a party’s ability to terminate
the contract. By contrast, the phrase
which Firstar contends permits it to
terminate the agreement-- "Firstar may
terminate providing any Service"--is far
less precise than the language in Section
2. A reasonable person could conclude
that it is incongruous that such
imprecise language, buried in the middle
of Section 7, would authorize the
complete cessation of services to the
Banks. The words "may terminate any
Service" could be read plausibly to
permit the termination of some, but not
all, services.
Wisconsin case law does not contradict
necessarily this interpretation of the
agreements. Although Coutts and Timmerman
suggest that "any" may mean "every" in
certain contexts, they are not
dispositive in construing the contracts
before us. Coutts’ discussion of "any" is
perfunctory; the opinion dealt primarily
with the meaning of the word "payable" as
used in a statute. In addition, quoting
Black’s Law Dictionary, Timmerman
recognized that "any" has a variety of
meanings including: "some," "one or
more," "an indefinite number," "either,"
"every," and "all." See Timmerman, 542
N.W.2d at 224. Thus, Timmerman implicitly
recognized that "any" may mean "some"
depending upon the context in which the
word is used. Neither Coutts nor
Timmerman compel necessarily the
conclusion that "any" means "all" as used
in these agreements.
Based on the foregoing, a reasonable
person could conclude that the parties
did not intend for the phrase "may
terminate providing any Service" to
permit the complete cessation of all
services. In particular, the agreements
use precise language to signal the
parties’ ability to terminate the
contracts. This language was plainly
absent from Section 7. Moreover, the
title of Section 7--"Systems
Modification"--may indicate plausibly
that the parties designed this provision
for a limited purpose--allowing Firstar
to alter but not cease services./10
Under this construction of the
agreements, Section 7 only authorizes
Firstar to halt some, but not all,
services.
4.
Although we conclude that these latter
interpretations are plausible, we cannot
accept the Banks’ contention that "any"
meant "one" in the context of these
agreements. Under the Banks’ reading,
Firstar could only modify or terminate a
single service during the life of the
agreements. Limiting the word in this
manner renders Section 7 nonsensical. For
instance, Firstar would breach the
agreement if it updated the data
processing services on two occasions dur
ing the term of a contract. It is
difficult to believe that the parties
would intend for this provision to have
such a circumscribed meaning. In their
brief to this court, the Banks appear to
concede this point. They stated that
"[i]t is true, as noted by the District
Court, that a reading of Section 7
reveals that the parties intended Section
7 to allow [Firstar] broad discretion in
their provision of Services." Appellants’
Br. at 19. Simply put, the parties did
not intend for Section 7 to have such a
limited meaning. As such, we reject the
Banks’ argument that Section 7 only
allowed Firstar to terminate a single
service during the life of the contracts.
5.
After considering the text of the
agreements, we conclude that the
contracts are susceptible to reasonable
alternate interpretations thereby
rendering them ambiguous. Although we
cannot accept the proposition that
Section 7 only permitted the termination
of a single service, beyond that point,
reasonable people could differ concerning
the precise scope of the phrase "may
terminate providing any Service." It is
plausible to read this provision to
permit the termination of all services.
At the same time, the location of the
phrase, along with other factors, would
permit a reasonable person to conclude
that Firstar only could terminate a range
of services but not all services. Because
a resort to extrinsic evidence is
warranted to resolve these ambiguities,
resolution of this case on summary
judgment is inappropriate. Moreover, the
trier of fact, not this court, must
resolve the conflicting interpretations
of the agreement. Because the contracts
are ambiguous, we remand the case to
afford both parties the opportunity to
submit extrinsic evidence to explain, but
not contradict, the meaning of Section
7./11 See, e.g., Craigs, Inc. v. Gen.
Elec. Capital Corp., 12 F.3d 686, 692
(7th Cir. 1993) (remanding to allow
parties to submit extrinsic evidence
concerning the meaning of an ambiguous
contract).
Conclusion
Because Section 7 is susceptible to
reasonable alternate interpretations, we
conclude that the agreements are
ambiguous thereby precluding summary
judgment. Accordingly, we reverse the
judgment of the district court and remand
this case for further proceedings. The
Banks may recover the costs of this
appeal.
REVERSED and REMANDED
FOOTNOTES
/1 The Banks include: Burling Bank, Cambridge Bank
of Lake Zurich, Community Bank-Elmhurst, Communi-
ty Bank-Wheaton/ Glen Ellyn, Illinois State Bank
of Lake in the Hills, Prairie Bank & Trust
Company, Private Bank & Trust Company, Village
Bank & Trust North Barrington, Northwest Suburban
Bancorp, Inc. and National Bank of Commerce. An
eleventh bank, Midwest Bank, voluntarily dis-
missed its suit against Firstar.
/2 Firstar Information Services was dissolved in
1998.
/3 This language comes from the agreement between
Firstar and First Bank & Trust.
/4 The contracts with the various Banks vary with
regard to the time period for notification.
/5 These terms are absent from the contracts of
Cambridge Bank, Private Bank and Community Bank
of Elmhurst.
/6 Although Firstar moved for judgment on the plead-
ings, the district court considered the motion to
be one for summary judgment. Specifically, the
Banks had filed a motion for summary judgment on
the same legal issues as contained in Firstar’s
motion for judgment on the pleadings. As such,
the district court concluded that Firstar’s
"motion is properly considered one for summary
judgment." R.27 at 2.
/7 The two banks that brought claims under the
Illinois Consumer Fraud Act voluntarily dismissed
those claims after the district court entered
summary judgment for Firstar on the breach of
contract claims.
/8 Each contract contains a choice of law provision
that states "[t]his agreement shall be governed
by the laws of the State of Wisconsin." R.14,
Ex.D. As the parties do not dispute this provi-
sion, we shall follow its terms.
/9 As we previously noted, this provision is absent
from the contracts of three of the Banks. See
supra note 5.
/10 It would be premature for us to decide precisely
how many services Firstar could terminate pursu-
ant to Section 7. We note, however, that Wiscon-
sin law recognizes that "[e]very contract implies
good faith and fair dealing between the parties
to it, and a duty of cooperation on the part of
the parties." Wis. Natural Gas Co. v. Gabe’s
Constr. Co., 582 N.W.2d 118, 121 (Wis. Ct. App.
1998) (quoting Bozzacchi v. O’Malley, 566 N.W.2d
494, 495 (Wis. Ct. App. 1997)). Although the
covenant does not override express terms of a
contract, "obligations under those [express]
terms must be performed subject to the implied
covenant." Wis. Natural Gas Co., 582 N.W.2d at
121. Simply put, this covenant serves to guide
construction of explicit terms of the agreement,
particularly when gaps exist in the contract. See
Baxter Healthcare Group Corp. v. OR Concepts,
Inc., 69 F.3d 785 (7th Cir. 1995) (applying
Illinois law). Thus, courts "use good faith as a
protection device to approximate terms not actu-
ally contained in the contract." Market St.
Assoc. Ltd. P’ship v. Frey, 21 F.3d 782, 786 (7th
Cir. 1994).
/11 The Banks also sought resolution of whether
Firstar’s conduct, if constituting a breach of
the agreements, would activate the limitation of
remedies provision contained in several of the
contracts. We do not address that issue at this
time.