Martin v. Carolina Water Service, Inc.

• Decision Date: 30 January 1984
• Docket Number: No. 0056,0056
• Citation: 280 S.C. 235,312 S.E.2d 556
• Court: South Carolina Court of Appeals
• Parties: Jimmy L. MARTIN, Appellant, v. CAROLINA WATER SERVICE, INC., an Affiliate of Utilities, Inc., Respondent.

Page 556

312 S.E.2d 556

280 S.C. 235

Jimmy L. MARTIN, Appellant, v. CAROLINA WATER SERVICE, INC., an Affiliate of Utilities, Inc., Respondent.

No. 0056.

Court of Appeals of South Carolina.

Jan. 30, 1984.

Jean L. Perrin, of Rogers, Duncan, Fullwood & Perrin, and Jonathan R. Hendrix, of Walker & Hendrix, Lexington, for appellant.

George S. King, Jr., of Boyd, Knowlton, Tate & Finlay, Columbia, for respondent.

GOOLSBY, Judge:

The principal issue in this breach of contract action is whether an "expansion and modification fee" constitutes a "connection or tap-on fee" within the meaning of a contract between the appellant Jimmy L. Martin and the respondent Carolina Water Service, Inc. Judgment below was entered for Carolina Water Service and Martin appeals. We affirm.

Martin is a developer engaged in the construction and sale of residential housing. Prior to February, 1974, he was the sole owner of all the stock of Rainbow Sewer Corporation. Rainbow owned and operated the water and sewer systems in Glenn Village, a subdivision developed by Martin. In February, 1974, Martin contracted to sell his Rainbow stock to Utilities, Inc., the parent corporation of Carolina Water Service. After Martin transferred his stock to Utilities, Rainbow was merged into Carolina Water Service, a water and sewer utility serving a number of subdivisions throughout this state.

The contract between Martin and Utilities contains the following provision:

[Utilities] hereby agrees that [Carolina Water Service] will not charge or collect any water or sewer connection or tap-on fees from [Martin], developers or utility customers within [Glenn Village].

When the contract was made, the only fee the Public Service Commission (Commission) authorized Carolina Water Service to charge was a tap-on fee at the rate of approximately Five Hundred Dollars ($500) for each house connected to the water and sewer system.

Four years after Martin sold his stock to Utilities, the Commission authorized Carolina Water Service to charge a new fee called a "modification and expansion fee." This fee is Five Hundred Dollars ($500) for each house which attaches to the system, Three Hundred Dollars ($300) for water and Two Hundred Dollars ($200) for sewer service. This action resulted after Carolina Water Service began charging the new fee and sought to collect it from Martin. ¹

The lower court, by consent of the parties, referred the case to a special referee, E.B. ("Buzz") Purcell, Jr. The referee concluded that the new fee was not a "connection fee" and that no breach of contract occurred because of its levy. He found that the purpose of the "expansion and modification fee" was to enable the utility to acquire capital funds with which to construct facilities needed to bring it into compliance with various regulatory standards relating to safe drinking water and water treatment. The trial judge mirrored the conclusion of the referee.

Even though there are concurrent findings by the referee and circuit judge in favor of Carolina Water Service, the conclusion of the lower court was based entirely upon the terms of the contract. Cf., Hamrick v. Cooper River Lumber Co., 223 S.C. 119, 126, 74 S.E.2d 575 (1953). Where a contract, as here, has been reduced to writing and a question arises as to the intention of the parties, resort is first to be had to its language. Blakeley v. Rabon, 266 S.C. 68, 72, 221 S.E.2d 767 (1976). If the contract's language is clear and capable of legal construction, the language alone determines the force and effect of the instrument. Superior Auto Ins. Co. v. Maners, 261 S.C. 257, 199 S.E.2d 719 (1973); McPherson v. J.E. Sirrine & Co., 206 S.C. 183, 33 S.E.2d 501 (1945). Words employed by the contract are to be given their usual and ordinary meaning, except where it appears they were used in a different sense or have a technical meaning. Blakeley v. Rabon, supra; 17 Am.Jur.2d Contracts § 247 at 637-38 (1964). Also, where the agreement in question is a written contract, the intention of the parties must be inferred from the contents of the whole agreement and not from any one of its several parts. Thomas-McCain v. Siter, 268 S.C. 193, 232 S.E.2d 728 (1977).

Neither the referee nor the trial judge expressly found that the disputed provision of the contract at issue contained an ambiguity. In fact, the trial judge expressly resorted to the contract in reaching his conclusion that a "modification and expansion fee" is not a "connection or tap-on fee." We likewise find no ambiguity. We must determine, then, whether an "expansion and modification fee" is a "connection or tap-on fee" by giving effect to the contract's language and by examining the entire agreement.

As to the language of the provision quoted above, we note that neither the term "connection fee" nor the term "tap-on fee" is defined by the contract itself. We note too that the word "or" appears between the words "connection" and "tap-on." As used in its ordinary sense, the word "or" is a disjunctive particle that denotes an alternative [ State v. Pilot Life Ins. Co., 257 S.C. 383, 186 S.E.2d 262 (1972) ]; however, the word "or" may also be employed as a coordinate conjunction introducing a synonymous word or phrase or it may join different terms expressing the same idea or thing and it may be used as a particle to connect two words meaning the same thing. State v. Spindel, 24 N.J. 395, 132 A.2d 291 (1957).

The word "tap," as a verb, means, among other things, "to make a connection with (a ... main ...)." WEBSTER'S NEW WORLD DICTIONARY at 1454 (2d ed. 1976). The noun "connection" means "an act of connecting." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY at 481 (1976); cf. State v. Patterson, 95 S.C. 463, 79 S.E. 309 (1913).

The contract between the parties in Article II, Paragraph 16, makes reference to "connection fees" listed in an attached exhibit. The exhibit, which is an order from the Commission approving designated charges, refers to a "tap fee," a "tapping fee," and a "reconnect fee." According to the exhibit, the charge "[f]or larger water taps" is the "[c]ost of [t]ap plus 20%."

The ordinary meanings of the words "tap" and "connection" and the contract's use of the term "connection fees" to embrace both a "tap fee" and a "tapping fee" indicate to us that the parties intended that the particle "or" join two different terms which mean the same thing. We therefore hold that the terms "connection fee" and "tap-on fee," as used in the contract, are synonymous.

One, of course, is not obligated to pay any "tap" or "tap-on" fee until a tap into a system occurs; and as we infer from the exhibit mentioned above, each tap fee represents the cost associated with an initial water or sewer connection and not with the cost related to any subsequent reconnection. Indeed, nothing in the contract suggests that the term "connection or tap-on fee" refers to anything but the cost of attaching a property owner or other user to a water or sewer line. We conclude, then, that a "connection or tap-on fee" is a charge related to the cost of installation made by a utility for an original entry into a main service line. Cf. O'Brien v. Missouri Cities Water Co., 574 S.W.2d 13 (Mo.App.1978); cf. also S.C.Code of Laws, Regulations, 103-702, p 14 (1976) ("A ... charge related to the cost of installing the utility's service line from the main to the customer's premises.").

As to the principal...