Gateway Customer Solutions, LLC v. GC Services Limited Partnership

Filing 50

ORDER - The plaintiff's Motion for Summary Judgment (Filing No. 26 ) is denied. The defendant's Counter-Motion for Summary Judgment (Filing No. 38 ) is granted. Pursuant to Fed. R. Civ. P. 58, a separate judgment will be entered on this date in accordance with this Order. The defendant's Motion to Proceed Without a Resident Attorney (Filing No. 47 ) is denied as moot. Ordered by Magistrate Judge Thomas D. Thalken. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

GATEWAY CUSTOMER
SOLUTIONS, LLC, a Nebraska
Limited Liability Company,

8:14CV353

Plaintiff,
ORDER
vs.
GC SERVICES LIMITED
PARTNERSHIP, a Delaware Limited
Partnership,
Defendant.
This matter is before the court on plaintiff’s, Gateway Customer Solutions, LLC
(Gateway), Motion for Summary Judgment (Filing No. 26), and defendant’s, GC Services
Limited Partnership (GC Services), Counter-Motion for Summary Judgment (Filing No.
38).1 Gateway filed a brief (Filing No. 28) and indices of evidence (Filing Nos. 27 and 29)
in support of the motion. GC Services filed a response (Filing No. 34), brief (Filing No.
37),2 and indices of evidence (Filing Nos. 35 and 36) in support of its counter-motion and
in opposition to Gateway’s summary judgment motion. Gateway filed a brief (Filing No.
40) in reply. Thereafter, GC Services filed a brief (Filing No. 44) and index of evidence
(Filing No. 45) in reply.
GC Services also filed a Motion to Proceed Without a Resident Attorney (Filing No.
47).

Gateway filed a brief (Filing No. 48) and index of evidence (Filing No. 49) in

opposition to the motion.

INTRODUCTION
This case arises from the parties’ dispute whether GC Services is obligated to remit
commission payments to Gateway.

Gateway asks the court to declare GC Services

renewed an agreement with Mercedes-Benz Financial Services (MBFS), which would
entitle Gateway, who brokered GC Services’ initial relationship with MBFS, to continued
1

The parties consented to jurisdiction by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
See Filing No. 13 - Rule 26(f) Report ¶ H.
2
GC Services filed an identical brief (Filing No. 39) in support of its summary judgment motion. The court
will refer to GC Services’ response brief (Filing No. 37) when addressing GC Services’ arguments.

commission payments. GC Services denies Gateway is entitled to judgment or any other
relief requested.

GC Services argues it did not renew its agreement with MBFS but

instead entered into a new agreement with MBFS, thus ceasing GC Services’ obligation to
remit commission payments.

UNCONTROVERTED FACTS
The following facts are those stated in the parties’ briefs which have been admitted
or not properly resisted and those facts as supported by the record.

See NECivR

56.1(b)(1); Fed. R. Civ. P. 56(c)(1)(A) and (e)(2).

1.

Gateway is a Nebraska limited liability company located in Omaha,

Nebraska. See Filing No. 35-1 - Business Referral Agreement. Gateway is engaged in
the business of brokering business relationships. Id.
2.

GC Services is a Delaware limited liability partnership having its principal

place of business in Houston, Texas. Id. GC Services provides collection services. Id.;
see also Filing Nos. 36-1 and 36-3 - MBFS Agreements.
3.

On April 29, 2011, Gateway and GC Services entered into a Business

Referral Agreement. See Filing No. 35-1 - Business Referral Agreement.
4.

The Business Referral Agreement provided Gateway would solicit and refer

opportunities for collection services, customer care or similar customer contact
management services, and, if applicable, back-office services to GC Services. Id. ¶ 1.
5.

The Business Referral Agreement established GC Services would remit

commission payments to Gateway. Id. ¶ 4. Specifically,
[GC Services] will make commission payments to [Gateway]
calculated based on the [fees] actually received by [GC
Services] for the period of time as specified in the applicable
Addendum related to the services delivered by [GC Services] to
the Potential Client, which are referred by [Gateway] and
explicitly specified on an executed Addendum (or any amended
Addendum).
Id.
6.

The Term/Termination Clause in the Business Referral Agreement provided:
This [Business Referral] Agreement shall be effective for one
(1) year from its effective date and may be renewed for
2

additional annual periods upon the written agreement of each
party. This [Business Referral] Agreement may be terminated
by [GC Services] upon thirty (30) days written notice for
convenience. Notwithstanding the foregoing, [Gateway] shall
receive commissions for the time period specified in any
executed Addendum. Either party may terminate this [Business
Referral] Agreement, any Addendum individually, or all
Addendums for cause for breach by the other party of any
material provision of this Agreement, provided that written
notice of such alleged breach has been given to the breaching
party, and such breach has not been cured within fifteen (15)
days, if such breach is capable of being cured, after receipt of
the notice. If this [Business Referral] Agreement or any or all
Addendum(s) is terminated by [GC Services] for breach by
[Gateway], such termination shall include any commission
payment obligations for commissions otherwise due on and
after the date of the breach.
Id. ¶ 12.
7.

On May 20, 2011, Gateway and GC Services entered into Addendum A to

the Business Referral Agreement (the 2011 Addendum).

See Filing No. 35-4 - 2011

Addendum.
8.

The 2011 Addendum established MBFS might contract for GC Services’

customer call center services, Gateway would receive from GC Services a brokerage fee
of five percent (5%) of the fees GC Services received from MBFS, if certain conditions
were met, and, under the “Terms of Fee Payment,” Gateway would receive the brokerage
fee for “[t]he duration of an awarded contract and any renewals pursuant thereto.” Id.
9.

On August 1, 2011, GC Services and MBFS entered into an agreement (the

2011 MBFS Agreement). See Filing No. 36-1 - 2011 MBFS Agreement.
10.

The 2011 MBFS Agreement provided:
[The 2011 Agreement] is for a period of three (3) years (“Initial
Term”) and shall continue upon the same terms and conditions
as set forth herein for additional successive one-year periods
(“Renewal Terms”) until termination of same is requested by
written notice from either party to the other at least ninety (90)
days in advance of the termination of any Initial or Renewal
Term period, as applicable.

Id.

3

11.

On January 11, 2012, Gateway and GC Services executed an amendment to

the 2011 Addendum. See Filing No. 27-1 Ex. C - Addendum.3

Both parties signed the

Addendum. Id.
12.

The Addendum amended the brokerage fee to four percent (4%), but

maintained the “Terms of Fee Payment” as “[t]he duration of an awarded contract and any
renewals pursuant thereto.” Id.
13.

While the term of the Business Referral Agreement, according to its

language, expired April 29, 2012, and no party agreed, in writing, to extend the term, GC
Services continued remitting commission payments to Gateway. See Filing No. 35-1 Business Referral Agreement; Filing No. 35-3 - Michael Jones (Jones) Aff. ¶ 3.
14.

On January 29, 2013, GC Services emailed Gateway with a notice of

termination. See Filing No. 35-5 - Jan. 29, 2013, Email. The email attached “termination
notices for each of the Business Referral Agreement, Professional Services Agreement
and the SOW No. 1 to the Professional Services Agreement each effective February 28,
2013.” Id.4
15.

The Notice of Termination for the Business Referral Agreement provides:
Pursuant to the Section 12, “Term/Termination,” of the
Business Referral Agreement between Gateway Customer
Solutions, LLC and GC Services Limited Partnership Dated
April 29, 2011 (“Agreement”), the Agreement may be
terminated by Agency upon thirty (30) days written notice for
convenience. Please accept this letter as formal notice that GC
Services is terminating the Agreement for convenience
effective February 28, 2013.

See Filing No. 35-2 - Notice of Termination.
16.

On January 31, 2013, Gateway “acknowledge[d] receipt of the termination

notice for SOW 1 of our Professional Services Agreement dated March 23, 2012, effective
Feb 28, 2013.” See Filing No. 35-5 - Jan. 31, 2013, Email.5

3

Although there are two addendums in this case, the amended addendum is the operative addendum,
which the court will simply refer to as the Addendum.
4
The court notes the only termination notice provided to this court for review, and apparently relevant, is the
notice referencing the Business Referral Agreement and found in Filing No. 35-2.
5
Gateway’s email does not acknowledge receipt of the Notice of Termination for the Business Referral
Agreement, but Gateway does not dispute the Business Referral Agreement was terminated. See Filing No.
40 - Gateway’s Reply p. 4
4

17.

Close to the end of the 2011 MBFS Agreement, while GC Services and

MBFS discussed whether to renew or extend the 2011 MBFS Agreement or enter into a
new agreement, GC Services and MBFS entered into two short extensions of the 2011
MBFS Agreement. See Filing No. 35-3 - Jones Aff. ¶ 5.
18.

On August 1, 2014, GC Services and MBFS executed a new agreement (the

2014 MBFS Agreement). See Filing No. 36-3 - 2014 MBFS Agreement.
19.

The 2014 MBFS Agreement recites it “supersedes and replaces” the 2011

MBFS Agreement. Id.
20.

The 2014 MBFS Agreement also provides: “This [2014 MBFS] Agreement is

for a period of three (3) years (‘Initial Term’) beginning on the Effective Date, and may be
extended as mutually agreed to by the parties.” Id.6
21.

On September 22, 2014, GC Services sent a letter to Gateway concerning

the expiration of the 2011 MBFS Agreement. See Filing No. 35-6 - Sept. 22, 2014, Letter.
The letter provides:
Pursuant to the Terms of Fee Payment section of Addendum A,
as amended, to the Business Referral Agreement Between
Gateway . . . and GC Services . . . dated April 29, 2011, which
was terminated effective February 28, 2013, the duration of the
fee payments extended through an awarded contract with
MBFS and any renewals thereof. The [2011 MBFS Agreement]
has not been renewed beyond September 30, 2014.
Accordingly, there shall be no additional fee payments
subsequent to the fee payment for September 2014.
Id.
22.

On September 29, 2014, Gateway responded to GC Services stating “[i]t is

our understanding that the outsource relationship with MBFS has been renewed and that
GC Services will continue to operate the program on behalf of MBFS beyond Sept[ember]
30, 2014. As such, that would meet the requirement of ‘any renewals pursuant thereto’
under Addendum A.” See Filing No. 35-7 - Sept. 29, 2014, Email.
23.

On September 29, 2014, GC Services replied:

6

GC Services attached two versions of the 2014 MBFS Agreement. See Filing Nos. 36-2 - Ex. G and 36-3 Ex. K. One of the attachments, Ex. G, is not signed by both GC Services and MBFS. The other attachment,
Ex. K, is signed by both parties. At one point, GC Services quotes language from the 2014 MBFS
Agreement, but cites to Ex. G, although the quote is from Ex. K. See Filing No. 37 - Response p. 19. In a
footnote, GC Services notes a prior draft had different language, which is consistent with Ex. G. Id. The
court will cite to Ex. K (Filing No. 36-3) as the operative 2014 MBFS Agreement.
5

You are correct that we currently continue to perform services
for MBFS, however we have negotiated a new agreement at
the expiration of the original agreement and our services will no
longer be performed pursuant to that contract or pursuant to
any renewal options pursuant to that contract. Accordingly our
payment obligations under Addendum A will cease as of
September 30, 2014.
See Filing No. 27-1 Ex. F - Sept. 29, 2014, Email.

STANDARD OF REVIEW
“Summary judgment is appropriate when, construing the evidence most favorably to
the nonmoving party, there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” Crozier v. Wint, 736 F.3d 1134, 1136 (8th Cir.
2013) (citing Fed. R. Civ. P. 56(c)).

“Summary Judgment is not disfavored and is

designed for every action.” Briscoe v. Cnty. of St. Louis, 690 F.3d 1004, 1011 n.2 (8th
Cir. 2012) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011)
(en banc)) (internal quotations omitted). In reviewing a motion for summary judgment, the
court will view “all facts and mak[e] all reasonable inferences favorable to the nonmovant.”
Gen. Mills Operations, LLC v. Five Star Custom Foods, Ltd., 703 F.3d 1104, 1107 (8th
Cir. 2013).

“[W]here the nonmoving party will bear the burden of proof at trial on a

dispositive issue . . . Rule 56(e) permits a proper summary judgment motion to be opposed
by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings
themselves.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The moving party need
not negate the nonmoving party’s claims by showing “the absence of a genuine issue of
material fact.” Id. at 325. Instead, “the burden on the moving party may be discharged by
‘showing’ . . . that there is an absence of evidence to support the nonmoving party’s case.”
Id.
In response to the movant’s showing, the nonmoving party’s burden is to produce
specific facts demonstrating “‘a genuine issue of material fact’ such that [its] claim should
proceed to trial.” Nitro Distrib., Inc. v. Alticor, Inc., 565 F.3d 417, 422 (8th Cir. 2009)
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
The nonmoving party “must do more than simply show that there is some metaphysical
doubt as to the material facts, and must come forward with specific facts showing that
6

there is a genuine issue for trial.” Briscoe, 690 F.3d at 1011 (quoting Torgerson, 643
F.3d at 1042) (internal quotations omitted). “‘[T]he mere existence of some alleged factual
dispute between the parties’” will not defeat an otherwise properly supported motion for
summary judgment. Quinn v. St. Louis Cty., 653 F.3d 745, 751 (8th Cir. 2011) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A dispute over a fact is
“material” only if its resolution might affect the outcome of the lawsuit under the substantive
law. Anderson, 477 U.S. at 248. A dispute over a fact is “genuine” if “the evidence is
such that a reasonable jury could return a verdict for the non-moving party.” Id.
In other words, in deciding “a motion for summary judgment, facts must be viewed
in the light most favorable to the nonmoving party only if there is a genuine dispute as to
those facts.” Guimaraes v. SuperValu, Inc., 674 F.3d 962, 972 (8th Cir. 2012) (quoting
Torgerson, 643 F.3d at 1042) (internal quotations omitted). Otherwise, where the court
finds that “the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party,” there is no “genuine issue for trial” and summary judgment is
appropriate. Torgerson, 643 F.3d at 1042 (quoting Ricci v. DeStefano, 557 U.S. 557,
586 (2009)) (internal quotations omitted).

CHOICE OF LAW
The Business Referral Agreement provides “[t]his Agreement shall be construed
and interpreted in all respects under the laws of the State of Delaware without regard to
any conflicts of law provisions.” See Filing No. 35-1 - Business Referral Agreement ¶ 23.
Consistent with the express language of the Business Referral Agreement, the parties
agree Delaware law applies to this action.

See Filing No. 28 - Brief; Filing No. 37 -

Response.

ANALYSIS
The principle dispute here is whether GC Services’ 2014 MBFS Agreement renews
the 2011 MBFS Agreement.

If the 2014 MBFS Agreement renews the 2011 MBFS

Agreement, GC Services owes Gateway commission payments under the Addendum, if
enforceable. If the 2014 MBFS Agreement supersedes and replaces the 2011 MBFS
Agreement, GC Services does not owe Gateway commission payments.
7

Delaware “has adopted traditional principles of contract interpretation.” ConAgra
Foods, Inc. v. Lexington Ins. Co., 21 A.3d 62, 68 (Del. 2011). “One [traditional] principle
[of contract interpretation] is to give effect to the plain meaning of a contract’s terms and
provisions when the contract is clear and unambiguous.” Id. at 68-69. Whether a contract
or contractual term is ambiguous is a question of law for the court to decide. See O’Brien
v. Progressive N. Ins. Co., 785 A.2d 281, 286 (Del. 2001); see also Rhone-Poulenc
Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1195 (Del. 1992); Citadel
Holding Corp. v. Roven, 603 A.2d 818, 822 (Del. 1992) (“The determination of ambiguity
lies within the sole province of the court.”). “Where . . . the plain language of a contract is
unambiguous i.e., fairly or reasonably susceptible to only one interpretation, [courts]
construe the contract in accordance with that plain meaning and will not resort to extrinsic
evidence to determine the parties’ intentions.”

BLGH Holdings LLC v. enXco LFG

Holding, LLC, 41 A.3d 410, 414 (Del. 2012). “The parties’ steadfast disagreement over
interpretation will not, alone, render the contract ambiguous.” Roven, 603 A.2d at 822;
see also Rhone-Poulenc, 616 A.2d at 1196. “[C]reating an ambiguity where none exists
could, in effect, create a new contract with rights, liabilities and duties to which the parties
had not assented.” Lorillard Tobacco Co. v. Am. Legacy Found., 903 A.2d 728, 739
(Del. 2006) (citation omitted).
When a court “may reasonably ascribe multiple and different interpretations to a
contract, [the court] will find that the contract is ambiguous.” Osborn ex rel. Osborn v.
Kemp, 991 A.2d 1153, 1160 (Del. 2010). “If a contract is ambiguous, [courts] will apply
the doctrine of contra proferentem against the drafting party and interpret the contract in
favor of the non-drafting party.” Roven, 603 A.2d at 822. In cases involving questions of
contract interpretation,
Summary judgment may still be appropriate, however, if the
moving party’s record is not prima facie rebutted so as to create
material issues of fact. . . . [A] court will grant summary
judgment under either of two scenarios: when the contract in
question is unambiguous, or when the extrinsic evidence in the
record fails to create a triable issue of material fact and
judgment as a matter of law is appropriate.
Buyse v. Colonial Sec. Serv., Inc., No. CIV.A. N10C-08012JRS, 2012 WL 3025843, at *2
(Del. Super. July 19, 2012) (internal quotation marks and citations omitted).
8

Generally, Gateway argues this court should not permit GC Services to reap the
benefits of its bargain without paying Gateway.

See Filing No. 28 - Gateway Brief.

Gateway contends GC Services’ payment obligations continue under the Business
Referral Agreement because GC Services renewed or extended the 2011 MBFS
Agreement. Id. 8-14.7 Gateway argues GC Services did not negotiate a new contract with
MBFS but merely copied, with some exceptions, the 2011 MBFS Agreement into the 2014
MBFS Agreement. Id.; compare Filing No. 36-1 - 2011 MBFS Agreement with Filing No.
36-3 - 2014 MBFS Agreement (including the same misspelling of “responsibility” in Article
XXII).

Therefore, Gateway argues GC Services remains obligated to pay Gateway

commission payments. Id.
In response, and in support of GC Services’ own summary judgment motion, GC
Services asserts Gateway should not be paid for doing absolutely nothing in connection
with negotiating the 2014 MBFS Agreement. See Filing No. 37 - Response. GC Services
argues the Business Referral Agreement does not entitle Gateway to commission
payments because, although the Business Renewal Agreement terminated based on its
own written term of one year, on April 29, 2012, GC Services terminated the Business
Renewal Agreement on February 28, 2013, which Gateway acknowledged. Id. at 11-16;
see also Filing No. 35-2 - Notice of Termination; Filing No. 35-5 - Acknowledgment.
Additionally, GC Services argues the 2014 MBFS Agreement did not renew or extend the
2011 MBFS Agreement but is a new contract that supersedes and replaces the 2011
MBFS Agreement. Id. at 17-21. GC Services contends if it wanted to renew or extend the
2011 MBFS Agreement with MBFS, which it did twice with two short extensions, the
parties would have executed such an extension. Id. (citing Filing No. 35-3 - Jones Aff. ¶ 5
(explaining two short extensions were executed)). Assuming the court looks beyond the
2014 MBFS Agreement’s terms it “supersedes and replaces” the 2011 MBFS Agreement,
GC Services contends the court cannot grant summary judgment for Gateway because
any question MBFS and GC Services intended anything other than what was stated in the
2014 MBFS Agreement is a question of fact for the jury to decide. Id.
In reply, Gateway reasserts no reasonable jury could find the 2014 MBFS
Agreement was not a renewal of the 2011 MBFS agreement.
7

The court’s citation to the parties’ briefs coincides with the CM/ECF pagination.
9

See Filing No. 40 -

Gateway’s Reply. Gateway contends the Addendum entitles it to continued commission
payments. Id. at 4-7. Gateway clarifies the “only scenario whereby ‘termination shall
include any commission payment’ was if GC Services terminated the [Business Referral
Agreement] for breach by Gateway.” Id. at 5. Gateway contends there is no allegation of
a breach and the “Terms of Fee Payment” in the Addendum, which provides for continued
payment of the commission, is clear and unambiguous. Id. at 5-6. Gateway asserts the
intent of MBFS and GC Services in executing the 2014 MBFS Agreement is irrelevant
because GC Services is obligated to pay the commission for any renewal of the 2011
MBFS Agreement and the 2014 MBFS Agreement qualifies as a renewal. Id. at 7.
In a final reply, GC Services argues the undisputed record shows the 2014 MBFS
Agreement was not an extension or renewal of the 2011 MBFS Agreement, but was
instead a wholly new agreement. See Filing No. 44 - GC Services’ Reply. GC Services
asserts the Addendum, which does not constitute a contract under Delaware law due to its
silence as to termination, does not afford Gateway its sought-after commission. Id. at 3.
Regardless, GC Services contends the Addendum was terminated and should not be
allowed to exist in perpetuity. Id. at 9-11. Lastly, GC Services argues if any ambiguities
exist in the Addendum, such ambiguities must be construed against the drafter, Gateway.
Id. at 8-9.
The parties agree the Business Referral Agreement was terminated February 28,
2013. See Filing No. 35-2 - Notice of Termination; Filing No. 35-5 - Acknowledgment;
Filing No. 40 - Gateway’s Reply p. 4; Filings Nos. 37 and 44 - Gateway’s Briefs.
Therefore, the Business Referral Agreement is not the basis for Gateway’s relief, as
originally argued in Gateway’s opening brief. Instead, Gateway contends the Addendum
provides for its relief. Therefore, two issues remain: A) Does the Addendum remain
enforceable? and B) If the Addendum is enforceable, was the 2014 MBFS Agreement a
renewal of the 2011 MBFS Agreement within the scope of the Addendum?

A.

The Addendum
The undisputed evidence shows “[n]otwithstanding the [termination of the

Business Referral Agreement], [Gateway] shall receive commissions for the time period
specified in any executed Addendum.” See Filing No. 35-1 - Business Referral Agreement
10

¶ 12 (emphasis added). The parties specifically contracted for the Addendum to survive
the termination of the Business Referral Agreement, unless a party breached the
agreement. In fact, GC Services’ conduct shows it understood the Addendum survived the
Business Referral Agreement’s termination as GC Services continued to remit commission
payments following the agreement’s termination. See Filing No. 35-3 - Jones Aff. ¶ 3.
Additionally, there is no evidence a breach precipitated termination of the Business
Referral Agreement or the Addendum and the parties have not argued a breach occurred.
Therefore, termination of the Business Referral Agreement did not terminate the
Addendum’s enforceability.
Furthermore, GC Services’ September 29, 2014, email to Gateway did not
terminate the Addendum’s enforceability.

Although GC Services stated its obligations

under the Addendum ceased as of September 30, 2014, neither the Business Referral
Agreement nor the Addendum allow for termination in such a manner.

Instead, the

Addendum’s enforceability ends when the underlying contract, which in this case is the
2011 MBFS Agreement, is terminated or not renewed. Thus, GC Services’ argument the
Addendum cannot remain valid and enforceable because it lacks a termination clause is
unconvincing. GC Services’ obligation to pay a brokerage fee under the Addendum does
not exist in perpetuity but its time of performance is fixed to the life of the underlying
contract and will cease at the conclusion “of an awarded contract and any renewals
pursuant thereto.” See Filing No. 27-1 - Addendum. Accordingly, there is no genuine
issue of material fact the Addendum’s validity extended beyond the Business Referral
Agreement’s termination.

B.

Renewal
The remaining issue the court must resolve is whether the 2014 MBFS Agreement

renewed the 2011 MBFS Agreement. As an initial matter, the court notes the parties
argued at length about the ambiguity, or lack thereof, of the term “renewal”; however, the
parties did not posit a definition of the term. The only attempt, other than contesting the
meaning and scope of renewal, to define the term was in Gateway’s opening brief wherein
it argues renewal includes “extensions.”

See Filing No. 28 - Gateway’s Brief p. 3.

Regardless, in construing the ordinary and plain meaning of a disputed term, the Supreme
11

Court of Delaware has used standard, nonlegal dictionaries as a guide.

See, e.g.,

Lorillard Tobacco, 903 A.2d at 741-42 (“When a term’s definition is not altered or has no
‘gloss’ in the [relevant] industry it should be construed in accordance with its ordinary
dictionary meaning.”) (internal quotation marks and citation omitted) (alteration in original).8
The court notes the Supreme Court of Delaware has used an online dictionary to define
terms. See, e.g., Villabona v. Delaware Real Estate Comm’n, 12 A.3d 1155 (Del. 2011)
(using the online Merriam-Webster Dictionary to define a term in a statute).
The court finds the term renewal is unambiguous and therefore the plain and
ordinary meaning of the term guides this court’s determination. The term renewal, even as
modified by “any,” is fairly and reasonably susceptible to only one interpretation. See
O’Brien, 785 A.2d at 288 (“[A] contract is only ambiguous when the provisions in
controversy are reasonably or fairly susceptible to different interpretations or may have two
or more different meanings.”). According to two standard, nonlegal dictionaries, renewal
means “the act of extending the period of time when something is effective or valid, the act
of renewing something, the state of being made new, fresh, or strong again, the state of
being renewed.”

Merriam-Webster Online Dictionary, 2015, http://www.merriam-

webster.com/dictionary/renewal (24 Mar. 2015); see also Oxford English Dictionary
Online, 2015, http://www.oed.com/view/Entry/162428?redirectedFrom=renewal#eid (24
Mar. 2015) (defining renewal as “[t]he action of renewing or re-establishing something, or
the state of being renewed; spec. (a) the action of extending the period of validity of a
lease, licence, etc.; (b) the action of resuming an activity after an interruption”).
In accordance with the above definition, the fairly and reasonably susceptible
interpretation of renewal is: extending the period of time something is effective or to make
new again. The court will not ascribe a different meaning to the term renewal solely
because the parties do not agree on the interpretation or scope of the term. See Lorillard
Tobacco, 903 A.2d at 739; Rhone-Poulenc, 616 A.2d at 1195-96. Moreover, the court
will not create an ambiguity where none exists and create a new contract with rights and
liabilities not assented to by the parties.

See Lorillard Tobacco, 903 A.2d at 739.

8

The Delaware Supreme Court referenced, for example, Webster’s Third New International Dictionary of the
English Language, The American Heritage Dictionary of the English Language, The New Oxford American
Dictionary, and The Random House Dictionary of the English Language. See Lorillard Tobacco, 903 A.2d
at 741-42.
12

Gateway had ample opportunity, in the Business Referral Agreement and Addendum, to
draft a provision to provide for the continued payment of its commission for any new or
renewed contract.9 Instead, the parties agreed to continue commission payments only if
GC Services renewed the awarded contract with MBFS.
For Gateway to be entitled to continued commission payments, the 2014 MBFS
Agreement must extend the period of time the 2011 MBFS Agreement is effective or make
new again the 2011 MBFS Agreement. The 2014 MBFS Agreement neither extended the
effective date nor made new again the 2011 MBFS Agreement.

The 2014 MBFS

Agreement specifically provides it “supersedes and replaces” the 2011 MBFS Agreement.
See Filing No. 36-3 - 2014 MBFS Agreement. Further, for example, the 2014 MBFS
Agreement has a different option to extend the term of the agreement. Compare Filing
No. 36-1 - 2011 MBFS Agreement ¶ 1 with Filing No. 36-3 - 2014 MBFS Agreement ¶ 1.
The uncontroverted evidence establishes the 2014 MBFS Agreement is not a renewal of
the 2011 MBFS Agreement, but is a separate, new agreement.
Importantly, Gateway has not presented any evidence contrary to the evidence the
2014 MBFS Agreement is a new agreement that supersedes and replaces the 2011 MBFS
Agreement. Gateway’s allegation MBFS and GC Services simply recited the parties were
superseding and replacing the 2011 MBFS Agreement in order to avoid GC Services’
obligation to pay a commission, is just that, an allegation unsupported by evidence.
Although the agreements use identical language in numerous provisions, that alone is
insufficient to contradict the language of the 2014 MBFS Agreement. Gateway has offered
inadequate support for its argument a new contract that copies provisions from a previous
contract is merely a renewal or extension of the previous contract.
Although unnecessary, a review of the parol evidence supports the court’s
determination the 2014 MBFS Agreement is not a renewal of the 2011 MBFS Agreement.
Mr. Jones, GC Services’ Executive Vice President and Chief Financial Officer, stated the
2014 MBFS Agreement is new agreement.

See Filing No. 35-3 - Jones Aff. ¶ 5.

Moreover, GC Services and MBFS’ conduct indicates the parties entered into a new
9

Even if the court concludes renewal is ambiguous and Gateway’s interpretation of the term is a reasonable
one, applying the doctrine of contra proferentem and interpreting the Addendum against the drafter,
Gateway, and in favor of GC Services, renewal is limited to the plain and ordinary meaning of the term, as
defined above. See Kemp, 991 A.2d at 1160 (“If a contract is ambiguous, we will apply the doctrine of
contra proferentem against the drafting party and interpret the contract in favor of the non-drafting party.”).
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agreement and not a renewal of the 2011 MBFS Agreement. GC Services and MBFS’ two
short extensions of the 2011 MBFS Agreement indicates the parties knew how to and were
more than capable of renewing the 2011 MBFS Agreement had the parties wanted to
renew the agreement for a longer period of time. See id. Instead, GC Services and MBFS
negotiated a new agreement, which included different terms, although some of the terms
were copied from the 2011 MBFS Agreement.
As a result, the Addendum’s use of the term renewal is unambiguous and there is
no genuine issue of material fact the 2014 MBFS Agreement is not a renewal of the 2011
MBFS Agreement. See GMG Capital Invs., LLC v. Athenian Venture Partners I, L.P.,
36 A.3d 776, 784 (Del. 2012) (stating summary judgment is appropriate in a dispute over
the proper interpretation of a contract when the language is unambiguous); Anderson,
477 U.S. at 248 (stating a dispute over a fact is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the non-moving party”). Consequently, because
the court finds the 2014 MBFS Agreement is not a renewal of the 2011 MBFS Agreement,
Gateway is not entitled to continued commission payments. Upon consideration,

IT IS ORDERED:
1.

The plaintiff’s Motion for Summary Judgment (Filing No. 26) is denied.

2.

The defendant’s Counter-Motion for Summary Judgment (Filing No. 38) is

granted.
3.

Pursuant to Fed. R. Civ. P. 58, a separate judgment will be entered on this

date in accordance with this Order.
4.

The defendant’s Motion to Proceed Without a Resident Attorney (Filing No.

47) is denied as moot.
Dated this 25th day of March, 2015.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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