Iberlin v. TCI Cablevision of Wyoming, Inc.

• Decision Date: 25 June 1993
• Docket Number: No. 92-118,92-118
• Citation: 855 P.2d 716
• Parties: Simon J. IBERLIN; Michael L. Standish; and Paul G. Jarvis, Appellants (Plaintiffs), v. TCI CABLEVISION OF WYOMING, INC., a Wyoming corporation, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 716

855 P.2d 716

Simon J. IBERLIN; Michael L. Standish; and Paul G. Jarvis, Appellants (Plaintiffs), v. TCI CABLEVISION OF WYOMING, INC., a Wyoming corporation, Appellee (Defendant).

No. 92-118.

Supreme Court of Wyoming.

June 25, 1993.

Dennis M. Kirven, Kirven & Kirven, P.C., Buffalo, Kim D. Cannon and Kate M. Fox, Burgess, Davis & Cannon, Sheridan and Cheynne, for appellants.

John R. Perry, Goddard, Perry & Vogel, Buffalo, Robert E. Youle and Amy L. Benson, Williams, Youle & Koenigs, P.C., Denver, CO, for appellee.

Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.

THOMAS, Justice.

The controversy in this case is whether the billing practices and collection procedures of TCI Cablevision of Wyoming, Inc. (TCI) constitute the extension of credit and involve the imposition of a credit service charge within the provisions of WYO. STAT. §§ 40-14-101 to -702 (1977 & Supp.1992), the Wyoming Uniform Consumer Credit Code (WUCCC). The trial court entered summary judgment in favor of TCI, ruling that the billing practices of TCI did not constitute an extension of credit and that the $3 or $2 late fee charged to a subscriber when the bill for services due on the first of the month was not paid by the nineteenth day of the month did not constitute a credit service charge. In short, the district court held the billing system and collection practices adopted by TCI did not come within the WUCCC. A collateral issue was raised with respect to equitable estoppel incorporating the contention that, by advising the administrator of the WUCCC it did extend credit, TCI was foreclosed from asserting its billing practices and collection procedures did not come within the WUCCC. The district court ruled that the doctrine of equitable estoppel did not pertain with respect to TCI. We are in complete accord with the rulings of the district court. The summary judgment entered by the trial court is affirmed.

The appellants, individual subscribers to services from TCI (subscribers), set forth the issues in their brief in this way:

A. Does TCI's consumer billing system subject it to the Wyoming Uniform Consumer Credit Code?

1. Does TCI extend credit to it customers?

2. Is TCI's late fee a credit service charge or finance charge?

B. Is TCI estopped from changing its position that its consumer billing system is subject to the Wyoming Uniform Consumer Credit Code?

TCI articulates the issues in this way:

1. Whether the District Court correctly found that TCI Cablevision of Wyoming, Inc.'s ("TCI of Wyoming") late payment charge is not subject to the provisions of the Wyoming Uniform Consumer Credit Code ("WCCC")?

A. Whether the District Court correctly found that TCI of Wyoming does not extend credit to its subscribers where TCI of Wyoming bills in advance of service and takes prompt steps to terminate service once a subscriber's payments are delinquent?

B. Whether the District Court correctly found that TCI of Wyoming's late payment charge is not a finance change under the WCCC but instead a default charge for actual unanticipated late payment?

C. Whether the District Court correctly found that the WCCC should not be expanded by the Court to include transactions by "unregulated public utilities" regardless of the nature of the transaction?

II. Whether the District Court correctly found that TCI of Wyoming is not quasi estopped from denying that it engages in consumer credit transactions under the WCCC?

TCI provides cable television services to a number of communities in Wyoming, including Cheyenne, Laramie, Gillette, Buffalo, Newcastle, Wright, Moorcroft, Upton, Lander, Riverton, Cody, Thermopolis, Powell, Greybull, Worland, and Basin. In July of 1988, TCI acquired the system that serves Buffalo, where the subscribers who brought this action reside. TCI bills its subscribers in advance for the services it furnishes. The business methods used by TCI result in subscribers receiving a bill on about the twenty-second day of each month for the services to be furnished the following month. This means the subscribers are billed about one week prior to the first date of service for which the charge is assessed. Each bill to a subscriber states it is due "on receipt." If that bill has not been paid by the next billing date, about the nineteenth day of each month, TCI considers the account to be delinquent and assesses a $2 late charge on all balances exceeding $9.99. ¹ The subscriber is informed at the time the late charge is assessed, and that service will be disconnected unless the bill is paid in full. TCI does not permit its subscribers to pay their accounts in installments.

If payment has not been received by the forty-fifth day after the first day of the service period, TCI places the subscriber on its disconnect list, and a work order is issued pursuant to which a TCI employee is directed to go to the subscriber's house and disconnect the service. When the employee makes that visit, an attempt is made to collect the unpaid balance of the account but, if payment is not received, the cable service is disconnected. If payment is not made, the disconnection will ordinarily be accomplished between forty-five and sixty days after the first date on which payment for the service was due. At that time, a final bill is prepared and sent to the subscriber and, if payment is not received within forty-five days after service is disconnected the account is turned over to a collection agency.

This action was instituted by subscribers to the Buffalo cable television system operated by TCI. Each of these subscribers uses the cable service for personal household purposes. According to the allegations and materials provided in connection with the summary judgment proceedings, each of the subscribers has been assessed a late payment charge by TCI and has paid it. None of them has ever had the cable services disconnected.

The action was filed as a class action suit by the subscribers on April 30, 1990. The complaint alleged that TCI extended credit to the subscribers and violated the provisions of the WUCCC when it failed to disclose the terms of the extension of credit as required by the statute. The subscribers allege the late payment charge was a credit service charge or a delinquency charge also subject to the WUCCC, and it exceeded the maximum allowable under the statute. Liquidated damages were sought pursuant to the complaint of not less than $100 for each transaction of every member of the class, together with a penalty in an amount ten times the alleged excess charges. TCI, in its answer, asserted that the late payment charges it assessed were not subject to the provisions of the WUCCC. The parties agreed to a stay of the determination of the subscribers' motion for class certification pending the ruling by the trial court as to whether the late payment charge assessed by TCI was subject to the WUCCC.

The parties then filed cross-motions for summary judgment, and the district court entered a summary judgment in favor of TCI. In its ruling, the district court held that TCI does not extend credit to its subscribers when it bills them in advance for services and then takes steps to promptly terminate service when an account becomes delinquent. The district court further ruled that the TCI late payment charge is not a finance charge subject to the WUCCC because the charge does not depend upon the time the bill remains unpaid and is imposed for actual unanticipated late payments. The court rejected the arguments submitted by the subscribers that the provisions of the WUCCC should be extended to cover all unregulated public utilities and that TCI was estopped from denying it engages in consumer credit transactions because of filings made with the administrator of the WUCCC indicating it did extend credit. The appeal is taken from the order granting summary judgment to TCI.

The fundamental purpose of a summary judgment is to eliminate the expense and burden of trial when only questions of law are involved. Coones v. F.D.I.C., 848 P.2d 783 (Wyo.1993); Elmore v. Van Horn, 844 P.2d 1078 (Wyo.1992) (citing Powder River Oil Co. v. Powder River Petroleum Corp., 830 P.2d 403 (Wyo.1992)); Stauffer Chem. Co. v. Curry, 778 P.2d 1083 (Wyo.1989); Fiscus v. Atlantic Richfield Co., 773 P.2d 158 (Wyo.1989); Johnson v. Soulis, 542 P.2d 867 (Wyo.1975). A summary judgment is appropriate when the only issue is the resolution of a question of law based upon a settled set of facts. Guggenmos v. Tom Searl-Frank McCue, Inc., 481 P.2d 48 (Wyo.1971). When we review a summary judgment, we assume the same posture as the trial court. The same materials are before us, and we follow the same standards. The party seeking the summary judgment must carry the burden of establishing the absence of any genuine issue of material fact and also demonstrating that judgment is appropriate as a matter of law. We examine the record from the vantage point most favorable to the party opposing the motion, affording to that party every favorable inference that may be drawn from the facts. See, e.g., Arrow Constr. Co., Inc. v. Camp, 827 P.2d 378 (Wyo.1992); Jones v. Chevron U.S.A., Inc., 718 P.2d 890 (Wyo.1986); Noonan v. Texaco, Inc., 713 P.2d 160 (Wyo.1986).

In this context, we discover that summary judgment routinely has been entered by other courts when the issue presented is whether a late payment charge is subject to the provisions of the Uniform Consumer Credit Code (1968 Act adopted by Wyoming in 1971) (UCCC) and the federal Truth in Lending Act, 15 U.S.C. §§ 1601, et seq. (TILA), which are substantially the same as the WUCCC. See, e.g., Vega v. First Fed. Sav. & Loan Ass'n of Detroit, 622 F.2d 918 (6th Cir.1980); Bright v. Ball Memorial Hosp. Ass'n, Inc., 616 F.2d 328 (7th Cir.1980); Garland v. Mobil Oil Corp., 340 F.Supp. 1095 (N.D.Ill.1972); Staples v. Jenkins Builders, Inc., 447 So.2d 779 (Ala.Civ.App.1984); Rogers Mortuary, Inc. v. White, 92 N.M. 691, 594...