Appellate Case: 23-3089 Document: 010111099759 Date Filed: 08/23/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 23, 2024 _________________________________ Christopher M. Wolpert Clerk of Court TRU MOBILITY, INC.,
Plaintiff - Appellant,
v. Nos. 23-3089; 23-3142 (D.C. No. 5:21-CV-04071-JAR) BRIGGS AUTO GROUP, INC., (D. Kan.)
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HOLMES, Chief Judge, MATHESON, and EID, Circuit Judges. _________________________________
Briggs Auto Group, Inc., a car dealership, contracted with Tru Mobility, Inc., a
telecommunications service provider, for a 36-month term of service. Tru Mobility later
sued Briggs for breach, alleging premature contract termination. The district court
granted summary judgment and attorney fees and costs to Briggs.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-3089 Document: 010111099759 Date Filed: 08/23/2024 Page: 2
I. BACKGROUND
A. Factual History1
On January 10, 2017, Briggs signed Contracts A, B, and C (“the Contracts”), to
purchase telecommunications services for 36 months and paid Tru Mobility for
equipment and first month’s service. On September 10, 2019, Briggs sent Tru Mobility a
notice, which expressed a “desire to cancel” so the Contracts would not automatically
renew. App., Vol. 1 at 232.
B. The Contracts
The Contracts concerned different types and costs of service but were otherwise
identical. See id. at 210-31.2 Each incorporated an “Addendum to Contracts for Briggs
Automotive Group” (“the Addendum”) and Tru Mobility’s Standard Terms and
Conditions (“STC”). Id. at 216-19; id. at 221-31. We summarize their key provisions as
follows.3
1 We draw the facts from the parties’ pretrial order stipulation of facts and the parties’ statement of uncontroverted material facts at summary judgment. See App., Vol. 1 at 97-98, 113-26, 210-31; App., Vol. 2 at 248-49. 2 Contract A was for mobile, shared data, tablet, and record services, App., Vol. 1 at 210-11; Contract B for network and colocation services, id. at 212-13; and Contract C for voice, additional record, “CRM Integration,” call center, and notes services, id. at 214-15. 3 “The law is well established that two or more documents executed by the same parties, at or near the same time, and concerning the same transaction or subject matter are generally construed together as a single contract.” Wilson v. Terwillinger, 140 So. 3d 1122, 1124 (Fla. Dist. Ct. App. 2014) (quotations omitted) (discussing an addendum to a contract).
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Contract Term and Commencement Date
The Contracts all stated: “The term of this agreement is for 36 months.”
Id. at 210, 212, 214. The STC said the term begins on the “Commencement Date,”
defined as “the first day of the first bill cycle in which TruMobility bills monthly
recurring charges or usage charges.” Id. at 221. The Contracts did not define “bill
cycle.” See id. at 210-31.
Contract Execution Payment
The Addendum provided for a payment at contract execution (“the contract
execution payment”): “Upon contract execution, equipment and first month[’]s charges
are due and payable to TruMobility.” Id. at 218.
Invoicing
The Addendum also provided that after the contract execution payment, “[n]o
additional invoices will be submitted until the service at each location is up and live.
Invoices will be issued as each location is activated.” Id.
A provision in the STC further said: “TruMobility may begin invoicing [Briggs]
in full for non-recurring and recurring charges on the later of (1) the date the Products or
Services are installed and made available; or (2) the first day of the first bill cycle after
the Effective Date.” Id. at 222. The “‘Effective Date’ is the date of the Agreement.”
Id. at 221.
Monthly Charges
The Contracts split charges into a “Monthly Recurring Total” and a “Non
Recurring Total.” Id. at 211, 213, 215. The Monthly Recurring Total was the sum of all
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monthly charges for various services. See id. It included charges for services that would
be incurred each month, such as mobile phone plans, internet access, and call recording.
Id. By contrast, the Non Recurring Total included one-time charges, such as equipment
purchases, activation charges, and shipping costs. See id.
Each contract stated that Briggs “agrees to . . . Minimum Monthly Charges.”
Id. at 210, 212, 214. The amount listed for “Minimum Monthly Charges” was equal to
each contract’s Monthly Recurring Total. Id. at 210-11, 212-13, 214-15. Contract A
listed the Minimum Monthly Charges as $10,205.00, id. at 210, and the Monthly
Recurring Total as $10,205.00, id. at 211. The Minimum Monthly Charges and the
Monthly Recurring Total were $15,815.00 for Contract B, id. at 212-13, and $5,900.00
for Contract C, id. at 214-15. The Addendum defined minimum monthly charges for
Contracts A and C as “the total of the services” listed in each contract “which [Briggs]
requests and TruMobility places into service.” Id. at 216-17.
Contract Termination and Early Termination Fees
Once the 36-month term had run, the STC provided that the Contracts would
automatically renew “unless [Briggs] provides TruMobility with not less than ninety (90)
days written notice prior to the end of the then current Term.” Id. at 221. But if Briggs
ended the Contracts “before the end of the applicable Term,” it had to pay an early
termination fee. Id. at 227. The fee would be $1,000 if Briggs terminated the Contracts
before Tru Mobility activated services. Otherwise, the fee would be “all outstanding
nonrecurring fees” plus “100% of the Monthly Fees for each month remaining in the
initial term and any extensions or renewals.” Id.
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* * * *
In sum:
The 36-month term started on the Commencement Date. Id. at 221.
The Commencement Date was “the first day of the first bill cycle in which TruMobility bills monthly recurring charges or usage charges.” Id.
Charges were split into a Monthly Recurring Total and a Non Recurring Total. Id. at 211, 213, 215.
All monthly charges were part of the Monthly Recurring Total. Id.
Briggs agreed to purchase Minimum Monthly Charges, which were equal to the Monthly Recurring Total. Id. at 210-11, 212-13, 214-15.
At contract execution on January 10, 2017, Briggs would pay the “first month[’]s charges.” Id. at 218.
After that payment, Tru Mobility could submit additional invoices to Briggs only when it had installed equipment and activated services. Id.
As discussed below, the parties’ dispute turns on when the Contracts commenced.
Briggs contends the Commencement Date was January 10, 2017, when it executed the
Contracts and paid the first month’s charges. Tru Mobility argues that the contract
execution payment was an advance and that the Commencement Date occurred each time
it activated a service. We must therefore determine whether Briggs’s payment of the first
month’s charges triggered the 36-month term.
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C. Procedural History
Tru Mobility sued Briggs in Kansas state court. Briggs timely removed the case to
the United States District Court for the District of Kansas. Tru Mobility alleged breach
of contract, claiming that Briggs cancelled the Contracts before the 36-month term
expired and therefore owed Tru Mobility an early termination fee. Briggs answered and
filed five counterclaims, which it later dismissed.4
Briggs moved for summary judgment, arguing it did not breach the Contracts
because (1) the 36-month term commenced on January 10, 2017, and expired on
January 9, 2020; and (2) it provided written notice more than 90 days in advance to
ensure the Contracts would not renew.5
Tru Mobility responded that the 36-month term started on “the actual dates when
services began,” that it activated services to Briggs on different dates, and “[i]t was not
until June 2018 that . . . all contracted services commenced.” App., Vol. 2 at 252.6
4 Briggs’s dismissal of its counterclaims without prejudice raised concerns about finality and our appellate jurisdiction. See Heimann v. Snead, 133 F.3d 767, 769 (10th Cir. 1998) (per curiam) (counterclaims dismissed without prejudice may mean a judgment is not final). We ordered supplemental briefing on this issue. In response, the parties stipulated in district court to convert the dismissal to one with prejudice, which resolved our concerns. 5 On appeal, the parties agree that the Contracts were executed on January 10, 2017. Aplt. Br. at 5; Aplee. Br. at 13. 6 Although Tru Mobility argued that the 36-month term began on “the actual dates when services began,” App., Vol. 2 at 252, it has not identified those “dates” on appeal. Before the district court, Tru Mobility listed in its damages calculation (1) each service that it provided, (2) when it activated that service, and (3) how many months remained until that service had been active for 36 months. See id. at 282-83. Tru 6 Appellate Case: 23-3089 Document: 010111099759 Date Filed: 08/23/2024 Page: 7
It asserted that Briggs owed $398,485 in early termination fees, which it calculated by
(1) subtracting from 36 months how long each service had been active when Briggs said
the Contracts’ term ended, (2) multiplying the resulting number of months by the
monthly cost of that service, and (3) summing the totals for all services. See id.
at 251-52, 282-83.
The district court granted summary judgment to Briggs. It said the contractual
language regarding “the start date of the 36-month term” was “unambiguous.” App.,
Vol. 3 at 529. The court noted contract execution was on January 10, 2017. Id. at 530. It
then based its decision on three contract provisions, id. at 529-30:
The Contracts’ “term begins on the Commencement Date.” App., Vol. 1 at 221.
The “Commencement Date is the first day of the first bill cycle in which TruMobility bills monthly recurring charges or usage charges.” Id.
“[F]irst month[’]s charges are due and payable to” Tru Mobility upon contract execution. Id. at 218.
The district court “f[ound] the clear and unambiguous meaning of these provisions
to be: (1) the contracts’ terms began on the ‘Commencement Date’; (2) the
Mobility then calculated its alleged damages by multiplying those additional months by the monthly cost of each service and totaling the amount for all the services. See id. Tru Mobility thus argued that each service had its own Commencement Date tied to when each was activated. See id. at 251-52, 282-83. The district court rejected this reading of the Contracts. We limit our review to this argument. To the extent Tru Mobility attempts to present an argument on appeal that it did not present in district court, it has waived that argument for failure to show plain error. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011). 7 Appellate Case: 23-3089 Document: 010111099759 Date Filed: 08/23/2024 Page: 8
‘Commencement Date’ is the first day that [Tru Mobility] billed [Briggs]; and
(3) [Tru Mobility]’s first bill to [Briggs] was on the day the contracts were executed.”
App., Vol. 3 at 530. It also said the Contracts foreclosed Tru Mobility’s argument that
the 36-month term was meant to run “from the date of activation of each individual
service.” Id. The court therefore concluded Briggs “did not terminate the contracts early
and, therefore, did not breach the contracts by failing to pay the early termination fees
[Tru Mobility] demanded.” Id. at 531.
The district court also awarded $137,401.52 in attorney fees and costs to Briggs.
Id. at 577-89. Tru Mobility timely appealed.7
II. DISCUSSION
Tru Mobility argues that the district court erred in granting summary judgment to
Briggs and in awarding attorney fees and costs. We disagree.
A. Summary Judgment
Legal Background
a. Standard of review
“We review contract disputes and grants of summary judgment to a defendant de
novo.” Monarch Casino & Resort, Inc. v. Affiliated FM Ins. Co., 85 F.4th 1034, 1038
(10th Cir. 2023). “[T]he court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). “If there is no genuine issue of material fact,
7 Tru Mobility appealed the summary judgment ruling in 23-3089 and the attorney fees and costs award in 23-3142. This court consolidated the appeals. 8 Appellate Case: 23-3089 Document: 010111099759 Date Filed: 08/23/2024 Page: 9
then the reviewing court must determine if the district court correctly applied the law.”
Timmons v. White, 314 F.3d 1229, 1232 (10th Cir. 2003).
b. Choice of law
“In a diversity action, we apply the substantive law of the forum state, including
its choice of law rules.” Pepsi-Cola Bottling Co. of Pittsburg v. PepsiCo, Inc., 431 F.3d
1241, 1255 (10th Cir. 2005), as amended on reh’g in part (Apr. 11, 2006). Here, Kansas
is the forum state and “Kansas choice of law rules honor an effective choice of law by
contracting parties.” Id.
The Contracts included a choice of law provision, stating they would “be governed
by the laws of the state of Florida.” App., Vol. 1 at 231. The parties agree this choice-of-
law provision governs. See Aplt. Br. at 25; Aplee. Br. at 6-7. We therefore apply Florida
law to this appeal. See McAuliffe v. Vail Corp., 69 F.4th 1130, 1143 (10th Cir. 2023).
To determine applicable Florida law, we look to “the most recent decisions of the
state’s highest court.” Wade v. EMCASCO Ins. Co., 483 F.3d 657, 665-66 (10th
Cir. 2007). If no controlling decision exists, we must “attempt to predict how the highest
court would interpret the issue,” Genzer v. James River Ins. Co., 934 F.3d 1156, 1164
(10th Cir. 2019) (quotations omitted), by considering sources such as the state’s appellate
court decisions and federal court decisions interpreting the forum state’s law, see Wade,
483 F.3d at 666.
c. Contract interpretation under Florida law
“Where the terms of a contract are clear and unambiguous, . . . the language itself
is the best evidence of the parties’ intent, and its plain meaning controls.” Crawford v.
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Barker, 64 So. 3d 1246, 1255 (Fla. 2011) (quotations omitted); see also MDS (Can.) Inc.
v. Rad Source Techs., Inc., 143 So. 3d 881, 890-91 (Fla. 2014). “[A] true ambiguity does
not exist in a contract merely because the contract can possibly be interpreted in more
than one manner.” Pial Holdings, LTD v. Riverfront Plaza, LLC, 379 So. 3d 547, 551
(Fla. Dist. Ct. App. 2024) (alterations and quotations omitted).
When interpreting a contractual term, we first examine “the context of the contract
as a whole to determine whether the parties agreed to give [the term] a meaning other
than the one ascribed to it in general usage.” Parrish v. State Farm Fla. Ins. Co., 356 So.
3d 771, 774 (Fla. 2023); see also Garcia Granados Quinones v. Swiss Bank Corp.
(Overseas), S.A., 509 So. 2d 273, 275 (Fla. 1987). “[W]here one interpretation . . . would
be absurd and another would be consistent with reason and probability, we will interpret
the contract in the rational manner.” Pial Holdings, 379 So.3d at 551. Further, we give
effect to all contract provisions if “reasonably” possible to do so. City of Homestead v.
Johnson, 760 So. 2d 80, 84 (Fla. 2000) (quotations omitted).
Analysis
We conclude that the 36-month term began on January 10, 2017, when the
Contracts were executed. Because Briggs gave proper notice that it did not want the
Contracts to renew, the Contracts expired in January 2020—36 months after they were
executed. Briggs did not terminate the Contracts prematurely and did not breach. The
district court properly granted summary judgment.
The parties agree the Contracts are “unambiguous.” Aplt. Reply Br. at 17; Aplee.
Br. at 5; Oral Arg., No. 23-3089, at 9:15–9:25 (Tru Mobility’s counsel: “I think all
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parties agree with the district court on that; that [the Contracts] [are] not ambiguous.”).
Thus, “the language” of the Contracts “is the best evidence of the parties’ intent, and its
plain meaning controls.” Crawford, 64 So. 3d at 1255 (quotations omitted).
The parties also agree “the Term beg[an] on the Commencement Date,” App.,
Vol. 1 at 221, which the STC defined as “the first day of the bill cycle in which
TruMobility bills monthly recurring charges or usage charges,” id. (emphasis added).8
But the parties dispute when that occurred. Aplt. Br. at 22-36; Aplee. Br. at 15-21. We
agree with Briggs and the district court that the Commencement Date was January 10,
2017, the day the parties executed the Contracts. As we explain below, under the
Contracts, the first month’s charges were monthly recurring charges.
Contracts A, B, and C each listed the services and products that Tru Mobility
would provide and the corresponding dollar amounts that Briggs would pay. Each charge
was assigned to one of two payment categories: the Monthly Recurring Total or the Non
Recurring Total. App., Vol. 1 at 211, 213, 215. Because the Monthly Recurring Total
was the total of all the charges that would recur each month, such as internet access or
phone service, all monthly charges were part of the Monthly Recurring Total. See id.
Any charge that was part of the Monthly Recurring Total was therefore a monthly
8 The district court said that Tru Mobility “billed” Briggs for the contract execution payment and that Tru Mobility’s “first bill to [Briggs] was on the day the contracts were executed.” App., Vol. 3 at 530. Tru Mobility does not dispute this statement, nor could it: Tru Mobility must have provided Briggs a list of charges for Briggs to know what it needed to pay for the contract execution payment. See Bill, Black’s Law Dictionary (12th ed. 2024) (“An itemized list of charges.”).
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recurring charge. The Non Recurring Total was the total of one-time charges, such as
equipment. See id.
Thus, just as the equipment charge that Briggs paid at contract execution must
have been part of the Non Recurring Total payment category, the first month’s charges
must have been part of the Monthly Recurring Total. The first month’s charges due at
contract execution were therefore monthly recurring charges. Briggs’s contract execution
payment on January 10, 2017, satisfied the Commencement Date definition and triggered
the 36-month term.
Tru Mobility’s counterarguments are not persuasive.9
First, Tru Mobility argues the contract execution payment was only an “advance
of the first month’s fee,” not a “‘monthly recurring charge.’” Aplt. Br. at 23. It points to
the Addendum, which stated that after the contract execution payment, “[n]o additional
invoices will be submitted until the service at each location is up and live” and that
additional invoices “will be issued as each location is activated.” Id. at 34-35 (quoting
App., Vol. 1 at 218). Tru Mobility contends that because the contract execution payment
of “first month’s charges” was a one-time payment, it was not a recurring payment as part
of a bill cycle. Aplt. Reply Br. at 9 (quotations omitted). The payment therefore did not
trigger the start of the 36-month term. Aplt. Br. at 23-24; see also Aplt. Reply Br. at 2-3.
The dissent takes a similar position. Dissent at 1-2.
9 Tru Mobility did not develop the following counterarguments as part of its commencement-at-service argument in district court. But read generously, they are sufficiently related to that argument for our consideration here.
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This argument ignores the Contracts’ use of the term Monthly Recurring Total to
describe one of two categories of charges. As explained above, the monthly charges,
including the contract execution payment for the first month, were part of the Monthly
Recurring Total. App., Vol. 1 at 211, 213, 215. Even if the first month’s payment was
an advance, it was still a payment for recurring monthly charges that Briggs would incur
in a future month. Thus, when Briggs paid the “first month[’]s charges” on January 10,
2017, see id. at 218, it paid “monthly recurring charges,” see id. at 221.
Second, Tru Mobility argues the contract execution payment “plainly was not part
of the bill cycle in which Tru Mobility bills monthly recurring charges.” Aplt. Br.
at 23-24 (alterations and quotations omitted). But, as explained above, the first month’s
charges were monthly recurring charges billed (or invoiced) to Briggs. This aligns with
the Addendum’s statement that after the contract execution payment, Tru Mobility cannot
submit “additional invoices . . . until the service at each location is up and live.” App.,
Vol. 1 at 218 (emphasis added). The Contracts never defined “bill cycle,” and
Tru Mobility fails to explain how the first month’s payment of monthly recurring charges
could be made in response to a bill but not be part of a bill cycle.
Third, Tru Mobility argues that if the contract execution payment triggered the
Commencement Date, the 36-month term would be “meaningless” because Tru Mobility
“could never recoup” the full value of the Contracts, which Tru Mobility defines as
36-months’ worth of the Minimum Monthly Charges, set at $10,205 a month for Contract
A, $15,815 for Contract B, and $5,900 for Contract C. Aplt. Br. at 33, 35-36. Because
the STC stated that Tru Mobility cannot “begin invoicing [Briggs] in full for non-
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recurring and recurring charges . . . [until after] the Products or Services are installed and
made available,” App., Vol. 1 at 222, Tru Mobility argues it would not receive 36 months
of payment of Minimum Monthly Charges if the Commencement Date preceded
equipment installation and service activation.10
This argument fails because Tru Mobility wrongly assumes the 36-month term
entitled it to a set revenue amount—calculated by multiplying the Minimum Monthly
Charges by 36. Contracts A and C both noted the “minimum monthly” charges could
change based on the services Tru Mobility had actually activated. See id. at 216-17.
Briggs thus had no obligation to purchase the full Monthly Minimum Charges for 36
months. The Contracts also stated that Tru Mobility could invoice Briggs “in full for . . .
recurring charges” once “the Products and Services are installed and made available.”
Id. at 222 (emphasis added).
Finally, tying the Commencement Date to each commencement of service, as
Tru Mobility proposes, runs counter to a reasonable understanding of the parties’ intent
and would potentially render the Contracts “absurd.” See Pial Holdings, 379 So. 3d
10 The dissent invokes the STC’s language permitting Tru Mobility to invoice “in full for . . . recurring charges” once “the Products and Services are installed and made available.” Dissent at 1-2 (quoting App., Vol. 1 at 222). Thus, the dissent says, “recurring charges may commence no earlier than after the activation of services.” Id. But the STC defined the Commencement Date as “the first day of the first bill cycle in which TruMobility bills monthly recurring charges or usage charges”—not when True Mobility could bill monthly recurring charges in full. App., Vol. 1 at 221. Under the Addendum, “Upon contract execution,” the “first month[’]s charges” were “due and payable to TruMobility.” Id. at 218. And as discussed above, the first month’s charges were monthly recurring charges, whether or not they were the full amount that eventually could be charged. 14 Appellate Case: 23-3089 Document: 010111099759 Date Filed: 08/23/2024 Page: 15
at 551. Under Tru Mobility’s reading, the Commencement Date would differ, depending
on the timing of equipment installation and service activation. And if services within the
same contract went live at different times for different products and locations, the same
contract could have multiple 36-month terms.
The Contracts contained no language suggesting the parties intended a multiplicity
of commencement dates. Instead, the STC referred to the “Commencement Date,” not
multiple dates, App., Vol. 1 at 221, and the Contracts referred to a single 36-month
“term,” not multiple 36-month terms, id. at 210, 212, 214. An Addendum provision
stated that “[a]ny new or future executed contracts will terminate on the same date as the
original contracts,” indicating the parties’ intent for the Contracts’ 36-month term to
commence, and therefore end, on the same date. Id. at 217; see also id. at 97.11 If the
Contracts allowed for multiple Commencement Dates, a future executed contract could
not terminate on the same date as the original contracts because the original contracts
would terminate at different times. Only Briggs’s reading allows us to give full effect to
11 The provision further stated: “If a product or service is added [that] does not terminate at the same time [as the original contracts,] Briggs will acknowledge the same at the time of that contract signing.” App., Vol. 1 at 217. Contrary to the dissent’s argument that this provision “contemplate[d] that contract termination dates may not always align,” Dissent at 4, it instead evinced that “new or future executed contracts” may have termination dates that do not always align with those in the original Contracts, not that termination dates in the original Contracts may differ, App., Vol. 1 at 217. As the dissent acknowledges, new or future contracts must “note the discrepancy” if this occurs. Dissent at 4. None of the original Contracts “note[d] [a] discrepancy” in termination date. Id. This provision therefore supports that the Contracts terminated on the same date.
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and “create harmony” between all contract provisions. City of Homestead, 760 So. 2d
at 84.
Because Briggs paid “monthly recurring charges” at contract execution, the
Commencement Date was January 10, 2017. We affirm the district court’s grant of
summary judgment.
B. Attorney Fees and Costs
The Contracts included the following provision: “The prevailing party in any
litigation and/or arbitration arising from or related to this Agreement shall be entitled to
recover from the non-prevailing party all reasonable attorneys’ fees and costs incurred in
the litigation and/or arbitration.” App., Vol. 1 at 231.
Tru Mobility argues the district court erroneously granted Briggs attorney fees and
costs because Briggs should not have been the prevailing party below. Aplt. Br. at 38;
Aplt. Reply Br. at 18. It does not dispute that the Contracts entitle the prevailing party to
attorney fees and costs or otherwise challenge the award. Because we affirm the district
court’s grant of summary judgment, Briggs remains the prevailing party. We thus affirm
the district court’s grant of attorney fees and costs.
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III. CONCLUSION
We affirm the district court’s grant of summary judgment and its award of
attorney fees and costs.
Entered for the Court
Scott M. Matheson, Jr. Circuit Judge
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Nos. 23-3089; 23-3142, Tru Mobility v. Briggs Auto Group
EID, J., dissenting.
The majority reasons that the contract execution payment was the first monthly
recurring charge because “the first month’s charges could have been part of only the
Monthly Recurring Total.” Maj. Op. at 12. But another part of the contract, the Standard
Terms and Conditions (“STC”), plainly defines when recurring charges may
commence—after the activation of services. We need not engage in the majority’s chain
of inferences to deduce the meaning of the “first month’s charge” due at contract
execution because the STC already informs us that the payment is not a recurring charge.
I respectfully dissent.
Applying Florida law here,1 we must enforce the contract pursuant to its plain
language when the contract is “clear and unambiguous.” Hahamovitch v. Hahamovitch,
174 So. 3d 983, 986 (Fla. 2015). We give words their plain meaning and “rely upon the
rule of construction requiring courts to read provisions of a contract harmoniously in
order to give effects to all portions thereof.” City of Homestead v. Johnson, 760 So. 2d
80, 84 (Fla. 2000).
The STC states that “TruMobility may begin invoicing Customer in full for non-
recurring and recurring charges on the later of (1) the date the Products or Services are
installed and made available; or (2) the first day of the bill cycle after the Effective Date.”
1 As the majority recognizes, Florida law governs this diversity contract dispute. Maj. Op. at 9. Appellate Case: 23-3089 Document: 010111099759 Date Filed: 08/23/2024 Page: 19
App’x Vol. 1 at 222. The language of the STC is plain—recurring charges may
commence no earlier than after the activation of services. It is thus of no consequence
whether the first month’s charge equaled the Monthly Recurring Total that Briggs would
pay in future. Because the payment occurred prior to the activation of services, it was by
definition non-recurrent.
The majority briefly acknowledges the STC but proceeds to render meaningless its
clear and unambiguous language. Maj. Op. at 13–14. Yet it is possible to reasonably
give effect to all provisions in the Contracts. The Contracts never state that the first
month’s charge is recurrent; I am more persuaded than the majority that the entire
agreement can be read in harmony while understanding that the charge was non-
recurrent.
In reaching its conclusion, the majority places great weight on the Contracts’ use
of the word “month” and “Monthly Recurring Total.” In the majority’s eyes, because the
first month’s charge is the same amount as the Monthly Recurring Total, and will later be
applied toward a recurring billing cycle, the charge is recurring. 2 See Maj. Op. at 13.
At first glance the language “first months [sic] charges are due and payable” may indicate
that the payment is the first recurring payment—a month’s charge indicates that another
2 The majority also places emphasis on the “in full” language in the STC. Maj. Op. at 14 n.10. But the payment made upon execution of the Contracts was also a complete month’s payment. Because Briggs did not make a partial payment at contract execution or elsewhere, there is no indication that “in full” differentiates the payments. The “in full” language therefore does not render the execution payment the first recurring charge.
2 Appellate Case: 23-3089 Document: 010111099759 Date Filed: 08/23/2024 Page: 20
charge will occur next month, and a “monthly” payment is a payment that occurs at
twelve regular and repeated intervals per year. App’x Vol. 1 at 218. But this is not the
case for two reasons. First, the majority’s logic fails to account for the STC. Simply
because the first month’s charge would eventually be applied in a recurring billing cycle,
see Maj. Op. at 13, or because the charge equaled the Monthly Recurring Total, see id. at
12, does not obviously render the payment a recurring charge. In a world in which the
STC did not exist, I agree that the nature of the first payment would be open for debate.
But the STC provides a clear answer. Second, the same term in the Contracts that
provides for the contract execution payment specifies that no additional invoices will
issue until services are activated. Id. This limiting language indicates that the first
month’s charge may be non-recurring because there will be no other charges for an
indeterminate amount of time. The time until the second charge is contingent and
indeterminate.
The majority also correctly points out that had the Commencement Date occurred
each time Tru Mobility activated a service, the parties would have become entangled in a
web of dozens of different Commencement Dates, each with their own term expiration.
Maj. Op. at 15. The majority continues that “[t]he Contracts contain no language
indicating the parties intended a multiplicity of commencement dates,” id., and points to
language in the Contracts that “[a]ny new or future executed contracts will terminate on
the same date as the original contracts,” id. (citing App’x Vol. 1 at 217). The Contracts
may not contain language that indicates whether the parties contemplate multiple
3 Appellate Case: 23-3089 Document: 010111099759 Date Filed: 08/23/2024 Page: 21
commencement dates. But the Contracts do contain language that defines when recurring
payments could begin. Further, the Contracts provide that future products or services
may terminate at different times, in which case a future contract would note the
discrepancy. App’x Vol. 1 at 217. This provision contemplates that contract termination
dates may not always align.
It is “never the role” of the court to “in the guise of interpretation, relieve a
contracting party from the consequences of a bad bargain.” Famiglio v. Famiglio, 279
So. 3d 736, 740 (Fla. Dist. Ct. App. 2019) (internal citations and quotation marks
omitted). The majority’s opinion relieves Briggs from the consequences of a bad bargain
at the expense of the plain language of the parties’ agreement. Accordingly, I would
reverse the district court’s grant of summary judgment and remand for further
proceedings. I would also remand the second case in this consolidated appeal, No. 23-
3142, which concerns the attorneys’ fees and costs. Because Briggs should not have
prevailed on summary judgment, it should not have been awarded attorneys’ fees and
costs. I respectfully dissent.