Hill Air of Gadsden, Inc. v. City of Gadsden

• Decision Date: 08 March 1985
• Citation: 467 So.2d 230
• Parties: HILL AIR OF GADSDEN, INC. v. The CITY OF GADSDEN, a municipal corporation. 83-1095.
• Court: Alabama Supreme Court

Page 230

467 So.2d 230

HILL AIR OF GADSDEN, INC. v. The CITY OF GADSDEN, a municipal corporation.

83-1095.

Supreme Court of Alabama.

March 8, 1985.

Rowan S. Bone and Edward Cunningham, Gadsden, for appellant.

Edward S. Allen and M. Stanford Blanton of Balch, Bingham, Baker, Ward Smith, Bowman & Thaggard, Birmingham, and Roger Kirby, Gadsden, for appellee.

BEATTY, Justice.

Appeal by defendant, Hill Air of Gadsden, Inc. (Hill), from summary judgment in favor of plaintiff, City of Gadsden (Gadsden), in the latter's unlawful detainer action. We reverse and remand.

The action was an outgrowth of a written lease agreement between the parties under which Hill agreed to operate a "fixed base operator facility" on property located at Gadsden's municipal airport. Paragraph 23(d) of the lease provides:

"(d) Flight instructions, charter service, air-taxi and aircraft rental shall be maintained in a first class manner by Lessee, and for these services Lessee shall have available a minimum of four aircraft, licensed by the FAA and sufficient licensed pilots to meet the public need. At least one of the four aircraft shall be twin engine and instrument equipped."

The lease contains a termination clause giving Gadsden the right to terminate the lease "by giving Lessee sixty (60) days advance notice upon or after the happening and during the continuance of":

"(g) The default by Lessee in the performance of any covenant or agreement required to be performed by Lessee herein and the failure of Lessee to remedy such default, or to take prompt action to remedy such default, within a period of sixty (60) days after receipt from City of notice to remedy the same."

On July 29, 1983, Gadsden notified Hill that the lease would be terminated if, within 60 days, Hill was not in compliance with paragraph 23(d). On November 4, 1983, Gadsden notified Hill that the lease was terminated on the grounds, among others, that:

"5. You have failed to have a twin-engine instrument-equipped aircraft available for charter or rental as required by Section 23(d) of the lease and Section 3-47 of the Code of Ordinances. You were previously notified of this by the July 29 letter from Mr. Beddingfield.

"6. You have failed to own four aircraft for charter or rental as required by Section 3-47 of the Code of Ordinances."

On January 18, 1984, Gadsden brought an action of unlawful detainer, Code of 1975, § 6-6-330, against Hill in the Etowah County District Court, which, following a hearing, entered an order giving Gadsden possession of the premises. Hill filed a notice of appeal to circuit court and filed a supersedeas bond, which was approved.

In due course, Gadsden moved for summary judgment. Hill responded and counterclaimed for damages.

Gadsden's summary judgment motion was based upon the transcript of the proceedings in the district court. The circuit court granted the motion for summary judgment against Hill, prefacing its order with these words:

"Plaintiff having moved the court for a summary judgment, and it appearing to the court that based on prior undisputed testimony there is no genuine issue as to the material fact of an insufficient number of air taxi and air charter aircraft and that there is no instrument rated twin engine aircraft, as required by the lease entered into by the parties, and that the plaintiff is entitled to a judgment as a matter of law...."

This appeal ensued.

On appeal, Hill argues that paragraph 23(d) is ambiguous, and gives this interpretation of it: (1) Hill was to supply four types of service for the public; (2) Hill was to have at least four licensed aircraft for these services; and (3) Hill was to have sufficient pilots to perform these services. It is undisputed that Hill owned four aircraft; however, Hill contends, paragraph 23(d) does not require that each of the four aircraft be individually licensed to provide all four of the specified services.

Gadsden, on the other hand, maintains that paragraph 23(d) is not ambiguous, and argues that the requirement of "four aircraft, licensed by the FAA" refers to "for these services," concluding with this argument:

"The only reasonable interpretation of this provision is that it refers to flight instruction, charter service, air-taxi and aircraft rental, separately and severally, and that all of the four aircraft are to be licensed and available for the four services. Similarly, it is clear that the twin-engine and instrument-equipped aircraft is required by the contract to be licensed for all of the four services.

"Secondly, if the contract were ambiguous, the undisputed evidence in the District Court, which was before the Circuit Court as the basis for the summary judgment motion, requires summary judgment because no genuine issue of material fact exists. The undisputed evidence presented in the District Court is that an FAA license is required for air-taxi and air charter service, but not for flight instruction and aircraft rental service. (See testimony of Allen C. Piney, R. 135, 143-45). Thus, the only conceivable interpretation of the term 'licensed by the FAA' in paragraph 23(d) is that the aircraft were to be licensed for air-taxi and charter service."

At the outset, we point out what we have said previously regarding ambiguity in the terms of a contract, where we wrote of an insurance policy:

"It is the province of the court, not the jury, after due consideration of the whole of the policy to determine if uncertainty and ambiguity exist in its terms. It is further the province of the court, not the jury, to construe a policy, even though ambiguous and unclear and not void for uncertainty, where its interpretation must come from the writing itself without the aid of evidence aliunde or facts in pais. Boykin v. Bank of Mobile, 72 Ala. 262 [1882]; Lutz v. Van Heynigen Brokerage Co., 199 Ala. 620, 75 So. 284 [1917]; Foster & Creighton Co. v. Box, 259 Ala. 474, 66 So.2d 746 [1953].

"It was said in Air Conditioning Engineers v. Small, 259 Ala. 171, 65 So.2d 698 [1953]:

" 'We think our cases mean that the court, and not the jury, will analyze and determine the meaning of a contract, whether verbal or written when its terms are clear and certain, and also ascertain whether or not it is ambiguous in the light of its...