Taminco NV v. Gulf Power Company

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 3, 2009
No. 08-16668 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00135-CV-3-RS-EMT
TAMINCO NV,
Plaintiff-Appellant,
versus
GULF POWER COMPANY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(April 3, 2009)
Before CARNES, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Taminco appeals the summary judgment in favor of Gulf Power Company.
The district court concluded that Taminco was obligated, as a matter of law, to pay
Gulf Power monthly a congeneration service charge. We affirm.
I. BACKGROUND
The dispute between Taminco and Gulf Power arises from their cogeneration
and energy services agreement. Taminco is a Belgian corporation that is a
successor in interest to the original party to the agreement, Air Products Chemicals,
Inc. Taminco operates a chemical manufacturing facility in Pace, Florida, that
purchases electricity from Gulf Power. Gulf Power is a utility company that
generates and transmits electricity to northwest Florida.
In 1997, Gulf Power and Air Products executed a cogeneration and energy
services agreement to allow Gulf Power to construct a cogeneration facility on the
grounds of Air Products. The cogeneration facility uses three combustion turbines
powered by natural gas to produce electric energy and thermal energy, which could
be harnessed to produce steam. The arrangement between Gulf Power and Air
Products was mutually beneficial: Air Products received electric and thermal
energy, and Gulf Power generated additional electricity and could sell to third
parties, subject to the first right held by Air Products, any unused thermal energy.
The agreement contained reciprocal duties. The agreement required Air
Products to purchase “all of [its] requirements for electricity for at least the first 30
2
megawatts of actual electric demand” from Gulf Power. Air Products also was
required to provide natural gas to “operate the Cogeneration Facility.” “In return
for” the natural gas “and payment of [a] Cogeneration Services Charge,” Air
Products was “entitled to the first right to all thermal energy output” to “produc[e]
steam for [its] use or other disposal[,]” and the “option to provide additional
volumes of natural gas to the Cogeneration Facility . . . to increase the amount of
steam . . . for [its] use or other disposal.” In 2006, Air Products assigned its
interest in the agreement to Taminco.
In January 2008, Taminco notified Gulf Power that it no longer wanted to
exercise its first right to all thermal energy and intended to terminate payment of
the cogeneration services charge. Gulf Power responded that Taminco was
obligated to pay the charge for the term of the agreement.
Taminco filed a complaint for a declaratory judgment that it was not
obligated to pay Gulf Power the cogeneration services charge. Taminco alleged
that payment of the charge was “optional at [its] discretion.” Both Taminco and
Gulf Power moved for summary judgment and alleged that the unambiguous
language of the agreement supported their respective positions.
The district court granted summary judgment in favor of Gulf Power. The
district court ruled that Taminco could decline to exercise its first right to thermal
3
energy, but it did not have the right to terminate its payment of the cogeneration
services charge. The district court based its decision on four provisions of the
agreement: article 8.1, which stated that the charge was “determined monthly”;
article 15, which provided that the agreement was “in full force and effect” for
twenty years; article 3.9, which delineated what circumstances allowed Taminco to
terminate the agreement; and article 10, which excluded from the definition of
force majeure “changes in the . . . operations.”
II. STANDARDS OF REVIEW
We review the grant of a motion for summary judgment de novo and view
the evidence in the light most favorable to the party that opposes the motion.
Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1230 (11th Cir.
2006). Summary judgment should be entered where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c).
III. DISCUSSION
Taminco argues that the district court misinterpreted the cogeneration and
energy services agreement. Taminco contends that the plain language of the
agreement establishes that it is not obligated to pay Gulf Power the cogeneration
service charge. We disagree.
4
Under Florida law, which the parties agree applies to this appeal, a court
determines the meaning of a contract based on “a general view of the whole
writing, with all of its parts being compared, used, and construed, each with
reference to the others.” Paddock v. Bay Concrete Indus., Inc., 154 So. 2d 313,
315 (Fla. Dist. Ct. App. 1963). The language of those provisions “‘must be given
[their] plain meaning.’” Waksman Enters., Inc. v. Oregon Props., Inc., 862 So. 2d
35, 40 (Fla. Dist. Ct. App. 2003) (quoting Interfirst Fed. Sav. Bank v. Burke, 672
So. 2d 90, 92 (Fla. Dist. Ct. App. 1996)). “It is not within the power of a court to
make a contract for the parties, and an unambiguous agreement must be enforced
in accordance with its terms.” Paddock, 154 So. 2d at 316.
The cogeneration and energy services agreement granted to Taminco a right
of first refusal. Taminco refers interchangeably to the right as one of first refusal
and as an option, but there is a marked difference between the two rights. See
Steinberg v. Sachs, 837 So. 2d 503, 505 (Fla. Dist. Ct. App. 2003) (distinguishing
between a right of first refusal and an option); Coastal Bay Golf Club, Inc. v.
Holbein, 231 So. 2d 854, 857 (Fla. Dist. Ct. App. 1970) (same). An option is an
offer made irrevocable based on some consideration and when extended must be
accepted and performed within the time specified and according to the terms of the
offer. 25 Richard A. Lord, Williston on Contracts, § 67.85 (4th ed. 2002). A right
5
of first refusal is conditioned on the decision of the offeror to sell and “has no
binding effect” until the good or service becomes available, at which point the
offeror must extend to the offeree the first opportunity to purchase. Id.
Gulf Power extended to Taminco a continuous right of first refusal of
thermal energy produced by the cogeneration facility. Taminco’s right to first
refusal is based on its supply of natural gas to the facility and the payment of the
cogeneration services charge. Although Taminco can accept or decline to exercise
its right of first refusal, the agreement establishes that the precondition to pay the
charge is mandatory.
The agreement requires Taminco to make a monthly payment comprised of
the charge reduced by available credits based on five provisions of the agreement:
article 8.1, which defines the charge; article 2.2, which outlines Taminco’s rights
for payment of the charge; article 8.5, which discusses the separation of insurance
from the “monthly CSC”; and articles 3.8 and 7.4, which allow adjustments to the
charge. Taminco argues that two provisions, articles 8.1 and 2.2, establish that
payment of the charge is optional, but that argument is inconsistent with the plain
language of the agreement. Taminco relies on language in article 2.2 that grants it
the “first right to all thermal energy output of the combustion turbines” for
payment of the charge, but Taminco disregards that the right of first refusal and
6
payment of the charge are tied to an ongoing duty to “supply . . . fuel required to
operate the Cogeneration Facility.” Taminco argues that article 8.1 conditions “the
first right to all thermal energy output from the Cogeneration Facility” on payment
of the charge, but Taminco glosses over language that the charge is “determined
monthly for each month” according to a formula and in an amount that “shall not
be less than zero.” Article 7.4 grants Taminco an adjustment to the charge
“otherwise applicable for that month pursuant to section 8.1” for sales by Gulf
Power to third parties. Article 8.5 “unbundles” from the charge the cost of
insurance to minimize and stabilize Taminco’s “monthly expense.” If the
cogeneration facility fails to produce sufficient thermal energy, Taminco is entitled
under article 3.8 to a “retroactive adjustment to the cumulative [charge] paid” and a
“refund[]” for overpayment.
IV. CONCLUSION
The summary judgment in favor of Gulf Power is AFFIRMED.
7