Afton Energy, Inc. v. Idaho Power Co.

JOHNSON, Justice.

This is a contract case involving the interpretation of portions of a Power Sales Agreement (the Agreement) between Afton Energy, Inc. (Afton) and Idaho Power Company (Idaho Power). We decline addressing whether res judicata or collateral estoppel is applicable to a decision of the Public *334Utilities Commission (PUC) interpreting the Agreement, but do address whether the trial court was correct in granting summary judgment against Afton on its claims for violation of this state’s antitrust laws.

We conclude that the decision of the PUC did not foreclose the trial court’s interpretation of the Agreement, but we interpret the portions of the Agreement that are at issue differently than the trial court did. We also hold that a violation of this state’s antitrust laws cannot be predicated on an alleged conspiracy of a corporation, its officers, directors, and agents.

I.

THE BACKGROUND AND PRIOR PROCEEDINGS.

The background of this case begins with three prior decisions of this Court. Afton Energy, Inc. v. Idaho Power Co., 107 Idaho 781, 693 P.2d 427 (1984) (Afton I/III); Afton Energy, Inc. v. Idaho Power Co., 111 Idaho 925, 729 P.2d 400 (1986) (Afton IV); and Afton Energy, Inc. v. Idaho Power Co., 114 Idaho 852, 761 P.2d 1204 (1988) (Afton V).

In Afton I/III, the Court upheld the PUC’s order directing Idaho Power to enter into the Agreement pursuant to the Public Utility Regulatory Policies Act of 1978 (PURPA). The Agreement was for a term of thirty-five years and required Afton to sell Idaho Power all “firm energy” and “dispatchable capacity” produced at Afton’s wood-fired cogeneration facility. Firm energy is electricity and is measured in kilowatt-hours. Dispatchable capacity is the ability of a facility to deliver electricity and is measured in kilowatts.

By the Agreement, Afton agreed to provide Idaho Power not less than 50,471,239 kilowatt-hours of firm energy and 8,864 kilowatts of dispatchable capacity each year.

During the first year of Afton’s operation under the Agreement — March 1, 1984, through February 28, 1985 — Afton provided 19,440,000 kilowatt-hours of firm energy and 3,414 kilowatts of dispatchable capacity. This was approximately thirty-nine percent of the firm energy and dispatchable capacity called for by the Agreement. The Agreement required Idaho Power to pay Afton for the amount of firm energy Afton actually delivered to Idaho Power during the year. The Agreement also required Idaho Power to pay for the entire amount of dispatchable capacity — 8,864 kilowatts — that Afton agreed, but failed to provide during the first year.

Appendix B to the Agreement provided:

APPENDIX “B”
ADJUSTMENT OF CAPACITY PAYMENTS IN THE
EVENT OF TERMINATION OR REDUCTION
B-l GENERAL PROVISIONS
(A) This Appendix shall be applicable in the event there is a Contract Termination or a Capacity Sale Reduction
(B) The parties agree that the amount of the payment which [Idaho Power] is to make to [Afton] for Capacity is based on the agreed value to [Idaho Power] of [Afton’s] performance of its obligation to provide Dispatchable Capacity during the Term of the Agreement. The parties further agree that in the event [Idaho Power] does not receive such full performance by reason of a Contract Termination or a Capacity Sale Reduction, (1) [Idaho Power] shall be deemed damaged by reason thereof, (2) it would be impracticable or extremely difficult to fix the actual damages to [Idaho Power] resulting therefrom, (3) the reductions, offsets and refund payments as provided in this Appendix, as applicable, are in the nature of adjustments in Capacity prices and liquidated damages, and not a penalty, and are a reasonable endeavor by the parties to estimate a fair compensation for the reasonable losses that would result from such termination or reduction.
(C) [Afton] shall be invoiced by [Idaho Power] for all refund payments due under this Appendix and shall pay such amounts to [Idaho Power] within thirty (30) days after the invoice date.
*335(D) [Idaho Power] shall have the right to offset any amount due it against any present or future payments due [Afton]. B-2 TERMINATION OR REDUCTION DUE TO rAFTON'Sl FAILURE TO PERFORM
Except in the event of Force Majeure as defined in Article VIII of this Agreement, if [Afton] fails to provide the amount of energy and Capacity specified in Article III, such failure shall be grounds for Contract Termination or a Capacity Sale Reduction in accordance with the following:
(A) [Idaho Power] may immediately suspend or reduce the Capacity payments to [Afton] for a probationary period not to exceed twelve (12) months. Such reduction or suspension of payments will be calculated so that [Idaho Power] will recover the total amount of the overpayments made to [Afton] in equal monthly amounts over the term of the probationary period. All such amounts recovered by reduction or suspension will be retained by [Idaho Power].
(1) If, during the probationary period [Afton] meets or satisfies [Idaho Power] that it can meet its obligation to supply Capacity, [Idaho Power] shall, following the probationary period, reinstate the Capacity payment.
(2) If [Afton] fails to satisfy its obligation to supply Capacity during the probationary period, [Idaho Power] may permanently derate the Capacity appropriately or terminate the Capacity purchases if no Capacity is supplied during the probationary period.
(B) In the event of a Capacity Termination [Afton] shall refund to [Idaho Power] an amount equal to seventy-five percent (75%) of the difference between the Capacity payments already paid by [Idaho Power] (based on the original term of the Agreement) and the total Capacity payments which would have been paid if the Capacity Price had been based on the period from the Operation Date to the actual date of termination.
(C) If at any time, based on appropriate tests, studies or prior performance, [Idaho Power] determines that [Afton] will be unable to provide the agreed-upon Capacity, [Idaho Power] may immediately reduce the Capacity or terminate Capacity purchases.
(D) REPLACEMENT POWER
If, as a result of any of the events specifically defined as exceptions to Force Majeure in Article VIII [labor disputes, failure of other power companies to transfer Afton’s power, and lack of fuel for Afton’s facility], [Afton] will be unable to meet its obligation to provide the Capacity, [Afton] will notify [Idaho Power] and [Idaho Power] may purchase power from another source to replace the power [Afton] had agreed to provide. Such replacement power will, for purposes of satisfying [Afton’s] Capacity obligation, be deemed to have been delivered by [Afton]. [Afton] will reimburse [Idaho Power] for the difference, if any, between the amount which [Idaho Power] would have paid to [Afton] and the actual cost of the replacement power, including losses, wheeling and load factoring. [Idaho Power] will bill [Afton] monthly for the reimbursement amount. Unless otherwise agreed, [Idaho Power] will not be obligated to attempt to procure replacement power for a period longer than six months. In no event will [Idaho Power] pay [Afton] for Capacity not actually provided by [Afton].
(E) The foregoing remedies are not exclusive and [Idaho Power] reserves all rights it may have against [Afton] as a result of [Afton’s] failure to perform this Agreement.

On February 1, 1985, one month before the end of the first year of Afton’s performance under the Agreement, Idaho Power sent Afton a letter, which included the following statements:

Based on the facility’s performance to date, it is now clear that Afton will not provide the energy and capacity it agreed to provide. Therefore, pursuant to the terms of the Agreement, it is [Idaho Power’s] intention to reduce the monthly payments to be made Afton.
*336This adjustment to the payment will be in accordance with paragraph B-2(A) of Appendix B to the Agreement. Under that section, [Idaho Power] is electing to place Afton on probation for a twelvemonth period commencing March 1, 1985. During this probationary period, payments to Afton will be reduced to correspond to the average kilowatts actually provided during the March 1, 1984 to March 1, 1985 period and to recover, in twelve equal monthly deductions, the total amount of overpayments made to Afton during the March 1,1984 to March 1, 1985 period.

Afton and Idaho Power tried unsuccessfully for several weeks to resolve how to deal with Afton’s failure to provide all the firm energy and dispatchable capacity required by the Agreement during the first year of Afton’s operation. Finally, on May 6, 1985, Idaho Power paid Afton for the first month of Afton’s operation during the second year. Idaho Power paid Afton for the firm energy Afton delivered in March 1985, plus a reduced payment for dispatch-able capacity as specified in Appendix B-2(A) of the Agreement, compensating Afton for the average monthly amount of dispatchable capacity Afton provided during the first year. From the total of these amounts, Idaho Power deducted one-twelfth of the overpayment Idaho Power made to Afton for dispatchable capacity during the first year. Idaho Power explained the calculation of this payment in a schedule that accompanied the letter transmitting the payment:

Calculation of March 1985 payment including reduced capacity payment and prior period overpayment recoveries.
Capacity Payment (3,414 Kw X $350.00/Kw/Yr)/12 = $ 99,575.00
Energy Payment (3,686,000 Kwh X 22.65 Mills/Kwh) = 83,487.90
Overpayment Recoveries (12 month recovery period) (169,479.06)
Net Payment $ 13,583.84

During the remainder of Afton’s second year of operation, Idaho Power continued to pay Afton according to similar calculations.

In the spring of 1985, Afton applied to the PUC for an order clarifying Afton’s obligation to repay capacity overpayments made by Idaho Power to Afton pursuant to the Agreement. The PUC denied Afton’s application.

On April 15, 1986, Afton and Idaho Power signed an amendment to the Agreement (the Amendment) providing for an extension of the probationary period. The Amendment stated that during Afton’s second year of operation — March 1, 1985, through February 28, 1986 — Afton provided 44,148,000 kilowatt-hours of firm energy and 7,753 kilowatts of dispatchable capacity-

Afton brought this lawsuit seeking to recover damages from Idaho Power based on several theories. Foremost among these theories was the allegation that Idaho Power breached the Agreement by exercising an illegal double recovery under both Appendix B-2(A) and Appendix B-2(C) of the Agreement: (1) Idaho Power withheld the amount it contends it overpaid Afton for dispatchable capacity during the first year of Afton’s operation, pursuant to Appendix B-2(A); and (2) Idaho Power reduced the amount of dispatchable capacity for which Idaho Power was obligated to pay Afton during the second year of Afton’s operation, pursuant to Appendix B-2(C).

Afton also alleged Idaho Power: (1) breached the covenant of good faith and fair dealing, (2) violated the PUC’s orders, (3) retained liquidated damages under the Agreement as an unconscionable penalty, (4) was quasi-estopped to retain the amounts it withheld from Afton, (5) tortiously interfered with Afton’s other con*337tracts, and (6) violated the Idaho antitrust laws.

Idaho Power moved to dismiss Afton’s claims on the ground that the PUC’s decision was res judicata. The trial court dismissed Afton’s claim that Idaho Power violated the PUC’s orders on the ground that the PUC had the primary jurisdiction to determine the alleged violations. The trial court denied Idaho Power’s motion to dismiss Afton’s other claims.

Subsequently, the trial court granted Idaho Power’s motions for summary judgment dismissing Afton’s other claims, but denied Idaho Power costs, attorney fees, and prejudgment interest.

Afton appealed the dismissal of its claims. Idaho Power cross-appealed the denial of its motion to dismiss and the denial of costs, attorney fees, and prejudgment interest.

II.

THE PUC DID NOT PURPORT TO HAVE JURISDICTION TO INTERPRET THE AGREEMENT.

Idaho Power asserts that Afton’s contract claims are barred because the PUC ruled that the Agreement authorized Idaho Power to invoke the remedies provided in Appendix B-2(A) and Appendix B-2(C) simultaneously. We reject this contention, because the PUC did not purport to have jurisdiction to interpret the Agreement.

In its decision discussing the issue, the PUC stated:

Afton’s pleading is essentially a request for reformation of its contract with Idaho Power. Although the subject matter concerns public utility law and policy, questions of contract interpretation and enforcement are normally the sole province of the courts. See Lemhi Telephone Company v. Mountain States Telephone and Telegraph Co., 98 Idaho 692, 571 P.2d 758 (1977). Nevertheless, in this case both parties urge us to accept jurisdiction in order to determine whether Afton's proposal is in the public interest. Under these circumstances we have assumed arguendo that the Commission has subject matter jurisdiction and proceeded to an evidentiary hearing on the complaint.

Later in its decision, the PUC found “that granting the relief requested by Afton would not be in the public interest even if this Commission has jurisdiction to enter such an order.”

We decline Idaho Power’s invitation to address whether the PUC had jurisdiction to interpret the Agreement, since the PUC itself did not purport to have jurisdiction to do so. The PUC merely accepted the request of both parties to interpret the Agreement. To that extent, the interpretation was only advisory, and we will not consider the question further.

III.

THE AGREEMENT DID NOT ALLOW IDAHO POWER BOTH TO RECOVER OVERPAYMENTS FOR DIS-PATCHABLE CAPACITY AND TO REDUCE THE DISPATCHABLE CAPACITY DURING THE PROBATIONARY PERIOD.

Afton asserts that the Agreement did not permit Idaho Power to declare a probationary period in order to recover overpayments for dispatchable capacity Idaho Power made during the first year of Afton’s operation, and simultaneously reduce the dispatchable capacity for Afton’s second year of operation. We agree.

Preliminarily, we reject two of Afton’s arguments. Afton contends that the Agreement did not authorize Idaho Power to invoke the remedies in Appendix B because: (1) Afton did not fail to provide the dispatchable capacity specified in the Agreement, or (2) the force majeure provision of the Agreement excused Afton’s failure.

In support of the first of these contentions, Afton relies on the definition of dispatchable capacity in the Agreement. This definition does not require Afton to provide dispatchable capacity during periods of “forced outage.” Forced outage is *338defined as “[a]ny outage caused by mechanical or electrical equipment failure that either fully or partially curtails the electrical output of [Afton’s facility].” Forced outage, however, does not release Afton from its obligation under the Agreement to provide 8,864 kilowatts of dispatchable capacity each year. It only releases Afton from any obligation to deliver dispatchable capacity during a period of forced outage. The requirement to provide the annual amount of dispatchable capacity remains.

In support of its second contention, Afton points out that Appendix B-2 protects Afton from termination or a reduction of capacity if its failure to perform was the result of force majeure. The Agreement defines force majeure as “unforeseeable causes beyond the reasonable control of and without the fault or negligence of the party claiming Force Majeure,” with certain specified exclusions. An event of force majeure excuses both parties from whatever performance the force majeure affects. The Agreement requires the nonperforming party to give the other party written notice describing the particulars of the force majeure as soon as reasonably possible after the occurrence of the force majeure.

Afton contends that it gave notice of force majeure to Idaho Power two times during the first year of operation. Afton gave the first of these notices in a letter written in May 1984. This letter amounts to no more than a reassurance that Afton expected to fulfill the first-year requirements of the Agreement despite some early problems with Afton’s delivery of the dis-patchable capacity.

Afton gave the second of its purported force majeure notices to Idaho Power in a letter dated February 26, 1985 — only two days before the end of Afton’s first year of operation and more than three weeks after Idaho Power notified Afton of the establishment of a probationary period. The letter referred to “unforeseen engineering problems” and suggested various ways of dealing with Afton’s failure to provide the required amount of dispatchable capacity during the first year of operation. The letter did not invoke the force majeure provision of the Agreement and cannot reasonably be construed as the notice of force majeure required by the Agreement.

We move on then to an interpretation of the Agreement to determine whether Idaho Power properly invoked the provisions of both Appendix B-2(A) and B-2(C) at the same time. The interpretation of an unambiguous contract is a question of law, and the ambiguity question is subject to our free review. St. Clair v. Krueger, 115 Idaho 702, 704-05, 769 P.2d 579, 581-82 (1989). We conclude, as the trial court did, that the provisions of the Agreement at issue here are not ambiguous. We, however, interpret these portions of the Agreement differently than the trial court did.

As we read the Agreement, Appendix B-2(A) authorized Idaho Power to reduce the payments to Afton for a probationary period not to exceed twelve months in order to recover the overpayments for dispatchable capacity made to Afton during the first year of Afton’s operation. In its letter of February 1, 1985, Idaho Power declared its intention to treat the second year of Afton’s operation as a probationary period for this purpose.

If Afton met or satisfied Idaho Power that Afton could meet its obligation to supply dispatchable capacity during the probationary period, Appendix B-2(A)(1) required Idaho Power to reinstate the payments for dispatchable capacity following the probationary period. Appendix B-2(A)(2) entitled Idaho Power to “permanently derate” the dispatchable capacity (and permanently reduce capacity payments) if Afton failed to satisfy its obligations to supply dispatch-able capacity during the probationary period. Idaho Power could also stop the purchases if Afton supplied no dispatchable capacity during the probationary period.

These provisions create a consistent system for dealing with Afton’s failure to provide the amount of firm energy and dis-patchable capacity specified in the Agreement. During the probationary period, Idaho Power would recover the amount of its overpayment for dispatchable capacity during Afton’s first year of operation. If Afton failed to supply the dispatchable capacity specified in the Agreement during the probationary period, Idaho Power could *339permanently reduce or stop future payments for dispatchable capacity.

If Idaho Power permanently reduced its future payments for dispatchable capacity following the probationary period, Idaho Power agreed under Appendix B-l(B) that the reductions were not a penalty, but merely adjustments in the price for dis-patchable capacity as a fair compensation for Idaho Power’s losses. If Idaho Power terminated its future payments for dis-patchable capacity following the probationary period, Appendix B-2(B) required Afton to make a refund to Idaho Power.

Idaho Power argues that Appendix B-2(C) permitted Idaho Power to reduce or terminate purchases of dispatchable capacity “at any time” if the other prerequisites of B-2(C) are fulfilled. Idaho Power claims the right to make this further reduction or termination even during a probationary period. This reading of Appendix B would destroy the meaning of Appendix B-2(A), which provides Idaho Power with the option to “immediately suspend or reduce” dispatchable capacity payments to Afton “for a probationary period not to exceed twelve (12) months.”

Under Appendix B-2(C), Idaho Power may reduce or terminate purchases of dis-patchable capacity “based on appropriate tests, studies or prior performance” that Afton “will be unable to provide the agreed-upon Capacity.” When Idaho Power opted to reduce its dispatchable capacity payments for Afton’s second year of operation, Idaho Power gave Afton the opportunity under Appendix B-2(A)(1) to meet or satisfy Idaho Power that Afton could meet its obligation to supply dispatchable capacity. If Afton did so, the Agreement obligated Idaho Power to reinstate the full dis-patchable capacity payments after the probationary period. It would be totally inconsistent with this provision to allow Idaho Power immediately to reduce or stop its dispatchable capacity payments under B-2(c) during the probationary period. The probationary period would be meaningless under Idaho Power’s interpretation.

Idaho Power argues that Appendix B-2(E) authorized Idaho Power both to recover overpayments by invoking Appendix B-2(A) and to reduce capacity purchases by invoking Appendix B-2(C). Appendix B-2(E) states that the remedies provided in appendix B “are not exclusive,” and that Idaho Power reserves all rights it might have against Afton as a result of Afton’s failure to perform under the Agreement. Idaho Power’s reliance on Appendix B-2(E) is misplaced.

Appendix B-2(E) addresses a different question than whether Idaho Power may invoke Appendix B-2(A) and Appendix B-2(C) simultaneously. Appendix B-2(E) speaks to Idaho Power’s employment of remedies other than those contained in Appendix B if Afton fails to perform under the Agreement. As stated in a leading annotation discussing whether a contractual remedy excludes other possible remedies:

The question frequently arises whether a particular remedy stipulated in a contract for its breach, such as the right to rescind the contract, or to retain payments made thereunder, or to repossess or return property sold, is exclusive of other remedies afforded by law.

Annotation, Contractual provision as to remedy as excluding other possible remedies, 84 A.L.R.2d 322, 323 (1962).

Although a contract providing a specific remedy for breach usually must be construed to determine whether the parties intended the contractual remedy to exclude other remedies provided by law, “[n]o question of construction arises where a contract, by its terms, provides that the contractual remedy shall, or shall not, be exclusive of other remedies.” Id. at 327. In this context, the purpose of Appendix B-2(E) is to declare that Idaho Power may exercise remedies outside the Agreement if Afton fails to perform.

IV.

A VIOLATION OF THE ANTITRUST LAWS MAY NOT BE PREDICATED ON AN ALLEGED CONSPIRACY BETWEEN A CORPORATION, ITS OFFICERS, DIRECTORS, AND AGENTS.

Afton asserts that the trial court incorrectly dismissed Afton’s claims that Idaho *340Power, its officers, directors, and agents conspired to violate I.C. §§ 48-101 (Combination in restraint of trade illegal) and -104 (Unfair competition illegal). We disagree, although for a more fundamental reason that those upon which the trial court based its decision.

The trial court based its dismissal of Afton’s antitrust claims on the resolution of Afton’s contract claims and on the “state action doctrine.” We find it unnecessary to address whether the trial court’s analysis was correct. We conclude that Afton’s antitrust claims fail because a conspiracy among Idaho Power, its officers, directors, and agents does not provide the predicate for a successful antitrust claim under the statutes of this state.

In Pope v. Intermountain Gas Co., 103 Idaho 217, 223, 646 P.2d 988, 994 (1982), the Court held that a conspiracy that violates this state’s antitrust laws requires independent entities capable of conspiring. In doing so, the Court noted that I.C. §§ 48-101 and -104 are patterned after §§ 1 and 7 of the federal Sherman Antitrust Act. Id. at 223 n. 11, 646 P.2d at 994 n. 11 (through a typographical error, the Court referred to I.C. § 48-104 as I.C. § 48-114 in footnote 11. See reference to I.C. § 48-104 in the text of the opinion and in footnote 12). In Pope, the Court stated: “In interpreting and applying our state laws on these subjects, it is clear that while federal decisions are not binding on this Court, they do offer persuasive guidance.” Id. at 223 n. 11, 646 P.2d at 994 n. 11.

In Chapman v. Rudd Paint & Varnish Co., 409 F.2d 635, 643 n. 9 (9th Cir.1969), the ninth circuit stated: “A corporation cannot conspire with its officers or agents to violate the antitrust laws.” See also Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71, 82 (9th Cir.1969) (different divisions of same company cannot conspire with each other). This principle logically extends to alleged conspiracies between a corporation and its directors, and precludes Afton’s antitrust claims.

V.

CONCLUSION.

We reverse the trial court’s summary judgment dismissing Afton’s claim against Idaho Power for breach of contract. We affirm the trial court’s summary judgment dismissing Afton’s antitrust claims. We find it unnecessary to consider the other issues presented on appeal.

We remand to the trial court for further proceedings consistent with this opinion.

We award costs, but not attorney fees, to Afton.

BISTLINE and McDEVITT, JJ., concur.