Tucker v. Cullman-Jefferson Counties Gas Dist.

• Decision Date: 09 May 2003
• Citation: 864 So.2d 317
• Parties: John Michael TUCKER v. CULLMAN-JEFFERSON COUNTIES GAS DISTRICT.
• Court: Alabama Supreme Court

864 So.2d 317

John Michael TUCKER v. CULLMAN-JEFFERSON COUNTIES GAS DISTRICT.

1011530.

Supreme Court of Alabama.

May 9, 2003.

Tom Dutton and Michael A. Bradley of Pittman, Hooks, Dutton, Kirby & Hellums, P.C., Birmingham, for appellant.

James W. Porter II and Benjamin S. Goldman of Porter, Porter & Hassinger, P.C., Birmingham, for appellee.

HARWOOD, Justice.

On July 10, 2000, John Michael Tucker sued the Cullman-Jefferson Counties Gas District ("the District"), the entity that provides natural gas to his home. As amended, Tucker's complaint presented claims of fraud, breach of contract, "and/or other wrongful conduct." The action was brought as a class action pursuant to Rule 23, Ala. R. Civ. P. The proposed class consisted of those persons who, since May 1995, had purchased natural gas services from the District pursuant to a service contract with the District; had relied on alleged misrepresentations of fact concerning the District's billing practices; and had been damaged by an alleged breach by the District of the terms of its service contract with them.

On July 24, 2001, the District, pursuant to Rule 12(b)(6), Ala. R. Civ. P., filed a motion to dismiss Tucker's claims; Tucker opposed the motion. After various filings by the parties, the trial court, by a notation on the case action summary sheet, granted the District's motion to dismiss as to the fraud claim, but reserved consideration of the motion to dismiss as to the breach-of-contract claim.¹ Subsequently, the District filed a motion for a summary judgment. Following further submissions and briefing by the parties, the trial court entered a summary judgment for the District, without stating a rationale. Tucker appealed.

In his brief to this Court Tucker argues and cites authority only with respect to the summary judgment on his breach-of-contract claim; he never expresses disagreement with the dismissal of his fraud claim or the summary judgment as to his claim alleging "other wrongful conduct." Apparently, he has elected not to pursue those claims. "When an appellant fails to properly argue an issue, that issue is waived and will not be considered. Boshell v. Keith, 418 So.2d 89 (Ala.1982)." Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996). "An appeals court will consider only those issues properly delineated as such, and no matter will be considered on appeal unless presented and argued in brief. Ex parte Riley, 464 So.2d 92 (Ala.1985)." Braxton v. Stewart, 539 So.2d 284, 286 (Ala.Civ.App.1988). Accordingly, we treat the fraud claim and the claim alleging "other wrongful conduct" as having been abandoned by Tucker, and we affirm the judgments as to those claims. Thus, we address only the propriety of the summary judgment on the breach-of-contract claim.

The record shows that on January 4, 1995, Tucker signed an "Application for Gas Service" ("the application") provided by the District. The application states, in relevant part: "The undersigned hereby makes application for gas service at the above address and agrees to pay for said service measured by the District's meter according to the rate applicable.... The applicant agrees that this Application is subject to the District's Rules and Regulations, a copy of which is attached and that these Rules and Regulations are part of this agreement...." Those "Rules and Regulations" ("the rules") state, in pertinent part:

"2. All charges for gas service are due and payable at the office or collection agencies of the [District], during business hours, on or before the discount date shown on the bill. Bills paid after this date will not be entitled to the 10% discount, but will pay the gross amount shown on the bill. ...

"....

"8.(c) Consumer agrees that gas shall be purchased under the applicable rate...."

(Emphasis added.) In a separately issued document entitled "Cullman-Jefferson Counties Gas District Rate Schedules" ("the schedules"),² which the District provided Tucker, the District set out the rates it charges for natural gas based upon the amount of gas consumed. A paragraph at the bottom of the schedules states:

"PAYMENT: Bills for services rendered hereunder are payable within ten days from the date and if not paid within such period become delinquent and subject to charges set forth in the attached Rules and Regulations. Payments made after ten days from due date shall be greater by ten percent (10%)."

(Emphasis added.)

Each month, the District distributes uniform bills to its customers for payment for the natural gas services it has supplied. The front of each bill contains sections that specify, in sequence, the "Net Amount Due $ _____," the "Due/Discount Date _____," and the "After Discount Date $ _____," as well as other information not relevant to this case. On the back of each bill appears the statement, "AMOUNTS PAID AFTER THE `DUE/DISCOUNT DATE' SHOWN WILL NOT BE ENTITLED TO 10% DISCOUNT."³ (Capitalization in original.) The method the District used to calculate the "Net Amount Due" was discussed in an affidavit of Mike McContha, the president of Computer Network, Inc., who oversaw the design of the utility management service, a computer billing program used by the District since 1992. He explained that the net amount due is derived by taking the pretax charge for the natural gas — determined by multiplying the amount of gas consumed by the applicable gas rate as provided by the schedules — and adding a four percent utility tax.

As stated in his complaint, Tucker contends that "[o]n all occasions, [he] paid to [the District] the `net amount due,' as represented on the monthly billing statement," and that "[o]n all occasions, [he] paid said amount prior to the `due discount date,' specified on said statement, in order to receive the 10% discount represented by [the District]." However, he says he never received a 10% discount, but he did avoid having to pay a penalty.

On appeal, Tucker contends that genuine issues of material fact exist as to (1) whether the District in fact offered a 10% discount for early payment of its gas bills; (2) whether the 10% penalty charged for late payment is legally permissible; and (3) whether the 10% penalty, if legally permissible, is reasonable.

Our review of a summary judgment is de novo.

"In reviewing the disposition of a motion for summary judgment, `we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,' Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was `entitled to a judgment as a matter of law.' Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is `substantial' if it is of `such weight and quality that fairminded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990)."

Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).

The District argues that its gas bills are not part of the contract entered into between it and a natural gas customer because they are not named in the application as materials forming "a part of this agreement," as are the rules. Nevertheless, the "bills" are referred to in the rules as implementing materials, particularly with respect to the fact that all charges are due and payable "on or before the discount date shown on the bill." Therefore, we conclude that the District has chosen to make the gas bills a part of the documents that make up the contract between it and its customers. For example, the schedules, on which the District heavily relies, also are not named as a contract document in the application but are alluded to only indirectly by the reference to the customer's obligation to pay "according to the rate applicable." Accordingly, the "contract" entered into by Tucker and the District includes the application, the rules, the schedules, and the monthly bills; thus, we deem it proper to consider those documents collectively to determine if an ambiguity was created.

Tucker first contends that a genuine issue of material fact exists as to whether the District in fact offered its customers a 10% discount in return for early payment of their gas bills. In that regard he argues that the language contained in the rules regarding "the 10% discount" is at least ambiguous, even when read in the context of the application, the schedules, and the monthly bill sent to the customer, and thus presents a question to be determined by the jury. The District argues that there is no ambiguity in the contract that would present a jury question. Specifically, the District argues that it informed Tucker "[i]n at least three separate places" that he would have to pay the "applicable rate": "in 1.) the Contract contained on the [application], 2.) in the [rules], and 3.) in the [schedules] themselves." The District also contends that on each bill it sent to Tucker it itemized the charges for gas service for the applicable billing period, the applicable taxes, and any additional charges such as late fees, and it further contends that only in the event Tucker failed to pay his gas bill by the "Due/Discount Date" would additional charges apply. The District points out that also listed on the gas bill was a...