Court of Appeals of Tennessee.

Leroy JACKSON, Jr.

v.

PURDY BROTHERS TRUCKING CO., INC., et al.

 

No. E2011–00119–COA–R3–CV.

Sept. 21, 2011 Session.

Oct. 12, 2011.

 

Appeal from the Circuit Court for Knox County, No. 2–72–09 Harold Wimberly, Jr., Judge.

Stanley F. LaDuke, Knoxville, Tennessee, for the appellant, Leroy Jackson, Jr.

 

Dana C. Holloway, Tonya R. Willis, and Ryan C. Dreke, Knoxville, Tennessee, for the appellees, Purdy Brothers Trucking Co., Inc., f/d/b/a Purdy Brothers Trucking, Loudon County Trucking f/d/b/a Purdy Brothers Trucking, and Blair B. Greene.

 

JOHN W. McCLARTY, J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR., and D. MICHAEL SWINEY, JJ., joined.

 

OPINION

JOHN W. McCLARTY, J.

This appeal arises from a tractor-trailer (“truck”) collision involving two professional drivers, Leroy Jackson, Jr., who was driving as an owner operator for USA Trucking, and Blair B. Greene, who was employed by Purdy Brothers Trucking Company, Incorporated (“PBTCI”) and Loudon County Trucking (“LCT”), both formerly doing business as Purdy Brothers Trucking (“PBT”). Mr. Jackson’s truck was repossessed shortly after it was repaired, and he filed suit against Mr. Greene, PBTCI, and LCT (collectively “Trucking Company”) for property damage, loss of income, lost equity in his truck, incidental expenses, and punitive damages. Trucking Company filed a motion for partial summary judgment. The trial court granted the motion, in part, holding that Trucking Company was not liable for the lost equity in the truck but that the case could proceed on the remaining issues. Trucking Company made an offer of judgment, which was accepted by Mr. Jackson and set forth in the court’s final order. Mr. Jackson appeals, contending that the court erred in granting partial summary judgment. We dismiss the appeal because Mr. Jackson accepted the offer of judgment without reserving the right to appeal.

 

Trucking Company also asserted that Mr. Greene was employed by LCT, which was not formerly doing business as PBT and that Mr. Greene was operating a trailer owned by LCT and a tractor owned by PBTCI and leased to LCT. Other than acknowledging this distinction, we will not resolve this factual issue because it is not pertinent to this appeal.

 

I. BACKGROUND

Mr. Jackson resided in Minnesota but would frequently travel through Tennessee while driving for USA Trucking as an owner-operator. Thus, while USA Trucking paid for his license, registration, and permits, he owned his truck, which he was purchasing pursuant to an installment contract from Russ Darrow Leasing, Incorporated (“Russ Darrow”). On the day of the accident, he had picked up his truck in Memphis, Tennessee and was driving to New York when he stopped at a truck stop in Knoxville, Tennessee. As he was driving around the station, he encountered Mr. Greene, who was attempting to turn around. He stopped and allowed Mr. Greene to complete the turn. Mr. Greene subsequently crashed into the front area of Mr. Jackson’s truck, resulting in repairs in excess of $13,000. Mr. Jackson called the police, reported the incident, had his truck towed to a repair shop, and took a bus home to Minnesota. He was unable to work while his truck was being repaired. Approximately one month later, he returned to Tennessee and attempted to pick up his truck from the repair shop. When he arrived, he was told that he could not have his truck because Russ Darrow was going to repossess it. Approximately one week later, USA Trucking hired him as a company driver.

 

Mr. Jackson filed suit against Trucking Company, alleging that they were liable for his loss of income, the damage to his truck, the lost equity in his truck, and incidental expenses relating to the accident and repossession of the truck. He explained that as a result of the accident and his corresponding loss of income, his truck was repossessed because he was no longer able to submit his monthly payments. Trucking Company responded that Mr. Jackson’s failure to maintain his payments pursuant to his installment contract and the resulting repossession of the truck acted as an intervening and superseding cause, absolving them from liability for any loss relating to the repossession of the truck. Accordingly, Trucking Company filed a motion for partial summary judgment, arguing that they were entitled to judgment as a matter of law regarding the following losses related to the repossession of the truck: the loss of income relating to the repossession, the lost equity in the truck itself, and the repossession costs. Trucking Company alleged that the repairs were completed in less than ten days and that Russ Darrow repossessed the truck because Mr. Jackson had defaulted on his payments prior to the accident. Mr. Jackson asserted that he was unable to retrieve his truck until after the insurance company had submitted the payment for the repairs, less the deductible. He said that he had an agreement with Russ Darrow regarding his payments, that he was compliant with that agreement, and that after the accident and his corresponding loss of income, he was unable to make the agreed payments. He argued that factual issues remained regarding Trucking Company’s liability and that those issues should be submitted for jury determination.

 

He also filed suit against Russ Darrow for conversion of personal property. This suit was settled. Additionally, Mr. Jackson eventually recovered the expenses relating to the repossession of his truck from Russ Darrow and no longer sought damages relating to those expenses from Trucking Company.

 

The trial court granted, in part, the motion for partial summary judgment, holding that “there are no genuine issues of material fact in dispute as to whether [ Trucking Company] owed a legal duty to [Mr. Jackson] as a matter of law with regard[ ] to [Mr. Jackson’s] claim for lost equity value in [the] truck” but that “genuine issues of material fact [remained] on the issue of whether [ Trucking Company] owed a legal duty to [Mr. Jackson] with regard to [his] claim for loss of income.” Mr. Jackson sought permission from the trial court to appeal the grant of partial summary judgment. The trial court granted permission; however, this court denied permission. Trucking Company made an offer of judgment, allowing judgment in the amount of $5,500 to be rendered in Mr. Jackson’s favor. Mr. Jackson accepted the offer, and the offer was set forth in the trial court’s final order. Mr. Jackson filed a notice of appeal, and Trucking Company filed a motion to enforce the Rule 68 judgment. The trial court denied the motion, stating that the issue of whether Mr. Jackson’s acceptance of the offer barred his right to appeal was appropriate for appellate review. Trucking Company then filed a motion to dismiss the appeal, and this court denied the motion.

 

II. ISSUES

We consolidate and restate the issue raised by Mr. Jackson as follows:

 

A. Whether the trial court erred in granting partial summary judgment.

 

Trucking Company also raised issues for our consideration that we consolidate and restate as follows:

B. Whether Mr. Jackson waived his right to appeal because he accepted an offer of judgment without reserving the right to appeal.

 

C. Whether the trial court erred in denying summary judgment relating to Mr. Jackson’s claim for loss of income.

 

III. STANDARD OF REVIEW

On appeal, the factual findings of the trial court are accorded a presumption of correctness and will not be overturned unless the evidence preponderates against them. See Tenn. R.App. P. 13(d). The trial court’s conclusions of law are subject to a de novo review with no presumption of correctness.   Blackburn v. Blackburn, 270 S.W.3d 42, 47 (Tenn.2008); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993). Mixed questions of law and fact are reviewed de novo with no presumption of correctness; however, appellate courts have “great latitude to determine whether findings as to mixed questions of fact and law made by the trial court are sustained by probative evidence on appeal.” Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn.1995).

 

IV. DISCUSSION

As the threshold issue in this case, we must first determine whether Mr. Jackson waived his right to appeal by accepting the offer of judgment without reservation. Mr. Jackson asserts that the express terms of the offer did not reference a waiver of the right to appeal and that the language of the offer and corresponding judgment should be construed against the drafter. He claims that he never intended to waive his right to appeal the summary judgment issue and that such a waiver should not be presumed because recipients of an offer of judgment must either accept or reject the express terms of the offer. Trucking Company responds that by unequivocally accepting their offer of judgment, Mr. Jackson waived his right to appeal. Trucking Company asserts that this court lacks jurisdiction to consider the appeal because the Rule 68 judgment was conclusive on all matters in the case, leaving no issues to appeal. Trucking Company acknowledges that an appeal may lie from a Rule 68 judgment but contends that the right to appeal from these types of judgments must be specifically reserved.

 

Rule 68 of the Tennessee Rules of Civil Procedure provides,

 

At any time more than 10 days before the trial begins, a party defending against a claim may serve upon an adverse party an offer to allow judgment to be taken against the defending party for the money or property, or to the effect specified in the offer, with costs then accrued. Likewise a party prosecuting a claim may serve upon the adverse party an offer to allow judgment to be taken against that adverse party for the money or property or to the effect specified in the offer with costs then accrued. If within 10 days after service of the offer the adverse party serves written notice that the offer is accepted, either party may file the offer and notice of acceptance, together with proof of service thereon, with the court and thereupon judgment shall be rendered accordingly. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in the proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree shall pay all costs accruing after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer.

 

(Emphasis added). The rule was adopted from the Federal Rules of Civil Procedure. The rule’s intended purpose was to “promote settlements.”   Francois v. Willis, 205 S.W.3d 915, 917 (Tenn.Ct.App.2006).

 

Rule 68 judgments are akin to consent orders, which are “conclusive upon the consenting parties, and can neither be amended nor in any way varied without like consent; nor can it be reheard, appealed from or reviewed upon writ of error.” Nance v. Pankey, 880 S.W.2d 944, 946 (Tenn.Ct.App.1993). However, a party may appeal from a consent order upon a claim of lack of actual consent, fraud in its procurement, mistake, or lack of the court’s jurisdiction to enter the judgment. Swift & Co. v. United States, 276 U.S. 311, 323–24, 48 S.Ct. 311, 72 L.Ed. 587 (1928). “A judgment by consent is in substance a contract of record made by the parties and approved by the court.” 49 C.J.S Judgments § 227. The cardinal rule of contract interpretation is that the court “must attempt to ascertain and give effect to the intent of the parties.” Christenberry v. Tipton, 160 S.W.3d 487, 494 (Tenn.2005). In attempting to ascertain the intent of the parties, the court must examine the language of the contract, giving each word its usual, natural, and ordinary meaning. See Wilson v. Moore, 929 S.W.2d 367, 373 (Tenn.Ct.App.1996). The “court’s initial task in construing a contract is to determine whether the language of the contract is ambiguous.” Planters Gin Co. v. Fed. Compress & Warehouse Co., 78 S.W.3d 885, 889–90 (Tenn.2002). Where the language of a contract is clear and unambiguous, its literal meaning controls the outcome of the dispute. Id. at 890.

 

The Rule 68 offer of judgment in this case provided,

 

Come now [ Trucking Company], by and through their counsel of record, and offer to allow judgment to be taken against them in favor of [Mr. Jackson] in the amount of [$5,500], with regular court costs in this case only now accrued.

 

Pursuant to Rule 68 of the Tennessee Rules of Civil Procedure, if this [o]ffer of [j]udgment is not accepted within ten (10) days, it shall be deemed withdrawn and evidence thereof shall not be admissible except in a proceeding to determine costs. Notice is hereby given if the judgment finally obtained by [Mr. Jackson] is not more favorable than this offer, [ Trucking Company] will apply to the [c]ourt for an [o]rder requiring [Mr. Jackson] to pay all costs accrued in this litigation from the date of this offer, including discretionary costs in this lawsuit.

 

The original [o]ffer of [j]udgment has been mailed to counsel for [Mr. Jackson]. It has not been filed with the [c]ourt. The offer is made purely to avoid the time and expense of a trial and not as an admission of liability.

 

The subsequently entered Rule 68 judgment evidencing the agreement between the parties provides,

Come now the parties, by and through their attorneys, and announce to the [c]ourt that an [o]ffer of [j]udgment was made by [ Trucking Company] and accepted by [Mr. Jackson], both of which have been filed with the [c]ourt and that an [o]rder of [f]inal disposition and entry of the [j]udgment is necessary. Moreover, the parties announce that the [j]udgment rendered in favor of [Mr. Jackson] has been satisfied by [ Trucking Company]. It is accordingly;

 

ORDERED, ADJUDGED AND DECREED that

 

1. The [j]udgment offered by [ Trucking Company] and accepted by [Mr. Jackson] in this cause be entered and that [j]udgment has been satisfied.

 

2. The court costs of this cause are adjudged against [ Trucking Company] for which execution may issue if necessary.

 

3. Each party shall bear their own discretionary costs.

 

(Emphasis added).

 

The terms of the offer and corresponding final order provided a clear resolution of the entirety of the case. Neither the offer of judgment nor the judgment evidencing the acceptance of the offer mentioned the grant of partial summary judgment or contained a reservation of the right to appeal. It is important to note that before Mr. Jackson accepted Trucking Company’s offer of judgment, he had already attempted to appeal from the grant of partial summary judgment pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. Thus, except as provided in Rule 54.02 of the Tennessee Rules of Civil Procedure, Mr. Jackson could not appeal from the court’s grant of partial summary judgment until a final order, disposing of all of the claims for relief, had been entered. Indeed, an appeal as of right is not available from an order that adjudicates fewer than all of the claims for relief. Tenn. R.App. P. 3(a). Mr. Jackson asserts that as evidenced by his notice of appeal, he is appealing the original grant of partial summary judgment, not the issues disposed of in the Rule 68 judgment.

 

While this court has not encountered this precise factual scenario, similar claims have been discussed in cases decided by other courts. Decisions from those courts while persuasive, are not controlling on this court. One such court held that orders and rulings filed before a party’s acceptance of a Federal Rule 68 offer of judgment “were merged with or [were] an integral part of the consent judgments, such that they [were] subject to the general rule of non-appealability.” Mock v. T.G. & Y Stores Co., 971 F.2d 522, 527 (10th Cir.1992). In Mock, the court noted that the “consent judgments dismissed the entire case of each plaintiff with absolutely no indication that particular claims would be appealed.” Id. Another court held that parties who accept the substance of a consent order waive their right to appeal unless they specifically reserve the right to appeal. See Taylor Brands, LLC v. GB II Corp., 627 F.3d 874, 878 (Fed.Cir.2010) (clarifying that when a party consents to the substance of an order, as opposed to merely consenting to the form of an order, that party has presumptively “waived its right to appeal-absent an express reservation of that right on the record”). In Taylor Brands, the court stated that “voluntarily agreeing to an adverse substantive outcome is an indication that the party has abandoned its underlying claims or defenses.” Id. at 878. The court ultimately held that the plaintiff had merely consented to the form of the final order in order to facilitate appellate review of the grant of summary judgment that disposed of the majority of his claims. Id. at 878–79.

 

While the judgment in this case was not entirely adverse to Mr. Jackson, he agreed to forego a trial in exchange for a sum of money, thereby releasing his claim against Trucking Company. Indeed, Mr. Jackson accepted the offer of judgment and corresponding award of $5,500 before submitting his acceptance of the offer to the court for the issuance of a Rule 68 judgment. Prior to the court’s filing of the judgment, both parties announced that Trucking Company had satisfied the judgment. The judgment provided no indication that Mr. Jackson would be appealing any of his particular claims. Additionally, pursuant to Rule 68 of the Tennessee Rules of Civil Procedure, Mr. Jackson could have reserved the right to appeal the summary judgment issue by rejecting the offer of judgment and submitting his own offer with a reservation of the right to appeal. The rule specifically provides that the denial of an offer does not preclude subsequent offers before trial and that the prosecuting party may serve an offer of judgment on the adverse party. Thus, we believe Mr. Jackson’s assertion that he was forced to accept or reject the terms of the offer in its entirety without any recourse or hope of reaching an agreement is unpersuasive. With these considerations in mind, we conclude that the prior orders merged with the final order evidencing the Rule 68 offer of judgment and that Mr. Jackson’s acceptance of that offer without reservation amounted to a waiver of the right to appeal the prior grant of partial summary judgment. Accordingly, we dismiss the appeal. Having dismissed the appeal, we will not address the remaining issues related to the appeal of the grant of partial summary judgment.

 

V. CONCLUSION

The appeal is dismissed, and the case is remanded for such further proceedings as may be necessary. Costs of the appeal are taxed to the appellant, Leroy Jackson, Jr.

Court of Appeal, First District, Division 3, California.

PACIFIC COAST CONTAINER, INC., Plaintiff, Cross-defendant, and Appellant,

v.

ZIM AMERICAN INTEGRATED SHIPPING SERVICES COMPANY, Inc., Defendant, Cross-complainant, and Respondent.

 

No. A128208.

(Alameda County Super Ct. No. RG07330657).

Oct. 24, 2011.

 

Michael Alfred Broad, Oakland, CA, for Plaintiff and Appellant.

 

William Dahill Carey, Kaye, Rose & Partners, San Diego, CA, Bradley Michael Rose, Frank C. Brucculeri, Kaye, Rose & Partners, LLP, Los Angeles, CA, for Defendant and Respondent.

 

McGUINESS, P.J.

Pacific Coast Container, Inc., appeals from a judgment, filed on February 11, 2010, which, in pertinent part, awarded the sum of $1,395 to Zim American Integrated Shipping Services Company, Inc., on its cross-complaint. We affirm.

 

FACTUAL AND PROCEDURAL BACKGROUND

 

The facts are taken, in part, from the trial court’s statement of decision, and the testimony and exhibits admitted at the bench trial. We construe any disputed facts in the light most favorable to Zim as the prevailing party at trial.

 

Pacific Coast Container, Inc. (PCC) is a certificated motor carrier. Zim American Integrated Shipping Services Company, Inc. (Zim) is a vessel-owning ocean common carrier. For several years, PCC has hauled Zim-owned containers from the marine terminals in Oakland to shipping customers. The parties operated pursuant to (a) the Uniform Intermodal Interchange and Facilities Access Agreement (UIIA), a standard form contract in the industry for international marine cargo trade and motor carrier interchange, and (b) a related carrier-specific addendum (Zim Addendum). Pursuant to UIIA, Zim granted PCC possession of Zim-owned equipment for the sole purpose of completing an “[i]nterchange of equipment” for a certain number of days in return for PCC’s agreement to pay per diem charges for the retention of the equipment beyond the agreed return date. UIIA’s Section E “Equipment Use”, subsection 6, provided, in pertinent part: “a. Interchange of equipment is on a compensation basis. Provider may permit some period of uncompensated use and thereafter impose use charges, as set forth in its Addendum. [¶] b. Motor Carrier shall be responsible for use and/or storage charges set forth in the Addenda. [¶] c. Provider shall invoice Motor Carrier for use and/or storage charges within sixty (60) days from the date on which Equipment was returned to Provider by Motor Carrier. [¶] … [¶] e. Provider shall provide the Motor Carrier documentation as is reasonably necessary to support its invoice. [¶] f. Motor Carrier shall respond in writing to Provider’s invoices within thirty (30) days, documenting with appropriate evidence its disagreement with any of Provider’s invoices it believes to be incorrect. [¶] g. Motor Carrier will participate in good faith in Provider’s established method of dispute resolution, as set forth in its Addendum.”

 

At trial, Zim’s Vice President West Coast, Philip Wright, explained that Zim collected per diem charges because it needed the equipment back to use for other opportunities, and it did not want importers to use the equipment as a warehouse. The per diem charges were “a revenue stream,” of a punitive nature because Zim was not in the business of leasing equipment to its clients, and it cost Zim money to have its containers and equipment out of circulation. Research showed that by reducing the turn around time of equipment by just one day, Zim could save a million dollars per year.

 

The Zim Addendum sets forth the motor carrier’s additional responsibilities and liabilities, a table of per diem charges, the computation of per diem charges for use of the equipment beyond the agreed return date, and a dispute resolution process concerning invoices. In pertinent part, Section 2 “Motor Carrier Responsibility and Liability” provided in paragraph E that “[t]he Motor Carrier may not transfer possession of the interchanged equipment to any other carrier without the express written authorization of Zim or its agent, and in any event, the Motor Carrier shall always remain primarily responsible for all provisions in the Agreement and this Addendum, including any penalties or charges which may accrue on the equipment.” Section 8, “Dispute Resolution”, provided: “Before litigation is instituted, Motor Carrier shall advise Zim in writing of any disputed items on Zim’s invoices within 30 days of the receipt of such invoice(s). Zim will undertake to reconcile such disputed items within 30 days of receipt of Motor Carrier’s notice and will either provide verification of the charges as invoiced or will issue a credit to the Motor Carrier’s account for any amount not properly invoiced. Such disputes do not constitute valid grounds for withholding or delaying payments of undisputed charges as required by the Terms of this Agreement. In the event that charges have been verified by Zim and are again rejected and disputed by the Motor Carrier for whatever reasons, Zim and Motor Carrier reserve their rights and remedies under the law regarding payment of such charges.”

 

By September 2006, PCC was delinquent in paying several of Zim’s invoices for per diem charges. PCC disputed some of the invoices on the ground it had no record of moving the equipment listed in the invoices. Although Zim provided documentation supporting its invoices, PCC contended the documents were insufficient to support the invoices. When PCC continued to refuse to pay the invoices, Zim precluded or “shut out” PCC from hauling Zim-owned equipment from the Port of Oakland. Through negotiations and the payment of some, but not all, of the delinquent invoices, Zim lifted its shut out of PCC in early November 2006.

 

On June 13, 2007, PCC filed a complaint against Zim seeking recovery of compensatory and punitive damages, interest, costs, and reasonable attorney fees, for, among other things, breach of UIIA. The complaint was premised on Zim’s alleged failure to provide sufficient documentation verifying the delinquent invoices and Zim’s shut out of PCC while the dispute resolution process was ongoing.

 

Zim filed a cross-complaint seeking to recover monetary damages, interest, costs, and reasonable attorney fees, for breach of UIIA, an account stated, and an open book account. The cross-complaint was premised on PCC’s failure to pay all delinquent invoices even though Zim had verified the per diem charges and lifted its shut out of PCC from the Port of Oakland.

 

At a bench trial, the parties presented both testimonial and documentary evidence relating to their pleadings. At issue here is that portion of the trial concerning Zim’s request for PCC’s payment of Invoice No. DA 149450 for the use of container ZCSU2323276. On May 25, 2006, PCC picked up the Zim-owned container from Marine Terminals at the Port of Oakland. On June 1, 2006, PCC sent a “Steamship/Outside Carrier Trucker Equipment Interchange Release” preprinted form to AB Trucking. By signing the release, AB Trucking agreed as follows: “We, the undersigned, accept full and complete responsibility for the payments of any and all per diem charges which may accrue against the equipment listed above, from the date of pick up from the original terminal by PCC, Inc. or it[s] agents. We, the undersigned, agree to pay all billing costs resulting from the per diem charges and any other related charges accrued against the equipment listed above. We, the undersigned, after interchange out from PCC, Inc. accept full and complete responsibility for any liability and damage to this equipment while it is in our possession. We, the undersigned, to provide PCC, Inc. a copy of the in-gate interchange equipment back to steamship terminal via fax immediately upon receipt.” AB Trucking’s employee signed the release form and faxed it back to PCC.

 

PCC then faxed the release form to Zim. A portion of the PCC release form read: “PCC Inc. requests your permission to effect an equipment interchange to AB Trucking for the above mentioned container. PCC, Inc. will not be held responsible for any per diem charges occurring from originating pier once you have a signed trucker responsibility form, and will not be responsible for any equipment damage or liability occurring after this container and chassis are interchanged.” This portion of PCC’s release form was signed by Zim’s “AVP of Operations,” Michael Cress, and was dated June 1, 2006. After Cress signed the release form, Zim faxed the release form back to PCC. Rosa Deanda, PCC’s business unit manager, testified that PCC did not send Zim a form titled, “trucker responsibility form.” She further conceded that while PCC and its employee’s name “Sharon” appeared on the release form, there was no PCC signature on the release form. After receipt of Zim’s authorization, on June 2, 2006, PCC allowed AB Trucking to take possession of the container for delivery to its customer. On June 9, 2006, AB Trucking picked up the empty container from its customer, and returned the container to Marine Terminals on June 16, 2006.

 

On July 3, 2006, within 60 days of the return of the container, Zim sent an invoice to AB Trucking seeking payment for per diem charges for the retention of the container for 15 days beyond the agreed return date in the aggregate sum of $1,395. The invoice indicated the container had been taken out on May 25, 2006 and returned on June 16, 2006. AB Trucking’s owner testified that he did not pay the invoice because the firm was “incorrectly billed” for the charges. The invoice reflected that AB Trucking had taken possession of the container on May 25, 2006, while AB Trucking actually took possession on June 2, 2006. AB Trucking sent a written dispute to Zim, but Zim never responded to the dispute.

 

When AB Trucking failed to pay the invoice, Zim sent Invoice No. DA 149450 for the same per diem charges to PCC on October 18, 2006. PCC did not pay the invoice. In a letter dated November 2, 2006, PCC complained that Invoice No. DA 149450 had been sent during the parties’ dispute about other delinquent invoices. Additionally, the new invoice sought payment for per diem charges from May 25th through June 16th, even though the equipment had been “interchanged to” AB Trucking on June 1, 2006, with Zim’s authorization. PCC also presented evidence that it had first received the invoice by facsimile on October 26, 2006, which was more than 60 days after the container had been returned by AB Trucking.

 

The trial court issued an amended statement of decision, granting judgment in favor of Zim on PCC’s complaint, and granting judgment in favor of Zim on its cross-complaint in the sum of $1,395, plus costs. As to PCC’s complaint, the trial court found, in pertinent part, that Zim had not breached UIIA. As to Zim’s cross-complaint, the trial court found that PCC was responsible for Invoice No. DA 149450 in the sum of $1,395.

 

Addressing PCC’s complaint, the trial court stated, in pertinent part: “The Zim Addendum required PCC to dispute items on Zim’s invoices within 30 days of PCC’s receipt of said invoice(s). If PCC did not dispute items, PCC was obligated to pay all items invoiced by Zim within 30 days of receipt of said invoice(s). The Court finds that PCC did not dispute or pay the following [nine] invoices within 30 days of receipt…. Since these nine invoices were the basis for the shut out on October 4, 2006, Zim’s shut out of PCC was authorized under the UIIA. [¶] On October 10, 2006, PCC paid seven of the nine foregoing invoices excluding invoice nos. DA 146256 and DA 146257. PCC remained shut out until November 3, 2006, because it continued to refuse payment on [invoice nos.] DA 146256 and DA 146257. These invoices had not been paid or disputed within 30 days of receipt, so Zim did not breach the UIIA.” The trial court also found that “PCC was using the dispute resolution process contained in the UIIA and the Zim Addendum regarding invoice nos. DA 146256 and DA 146257 at the time of the shutout. The Court notes that even though PCC disputed those invoices after the expiration of the 30–day time period specified in the Zim Addendum[,] Zim nevertheless undertook to reconcile them. [¶] However, seven of the nine invoices used as the basis for the shutout were not disputed at the time of the shutout and were subsequently paid by PCC…. Since PCC withheld and delayed payment on undisputed invoices, the shutout was authorized by the UIIA…. [¶] … Zim’s invoices used as the basis for PCC’s shutout were not disputed by PCC and were more than 30 days delinquent at the time of the shutout. Therefore, Zim could shut PCC out.”

 

As to Zim’s cross-complaint, the trial court stated, in pertinent part: “After weighing all the evidence, the Court finds that PCC was responsible for container ZCSU2323276 (Invoice No. DA 149450) until its Trucker Equipment Interchange Release had been signed by both parties…. The Trucker Equipment Interchange Release was never signed by PCC. Further, the Trucker Equipment Interchange Release was not effective until PCC provided Zim with a ‘ trucker responsibility form.’ No such document was ever provided to Zim. PCC is therefore responsible for the charges reflected on Invoice No. DA 149450 for container ZCSU2323276. The Court’s finding is not altered by the language in UIIA, Section E(6)(c) [], which does not provide a sanction for non-compliance.”

 

UIIA, section E, subsection (6)(c), provided: “Provider shall invoice Motor Carrier for use and/or storage charges within sixty (60) days from the date on which Equipment was returned to Provider by Motor Carrier.”

 

After entry of judgment in favor of Zim on both the complaint and cross-complaint, PCC filed a timely notice of appeal.

 

DISCUSSION

On appeal PCC challenges only that portion of the judgment on Zim’s cross-complaint awarding Zim the sum of $1,395 as payment for Invoice No. DA 149450. In seeking to set aside that portion of the judgment, PCC makes no arguments addressing the trial court’s findings that PCC remained primarily responsible for the per diem charges reflected in Invoice No. DA 149450, and that PCC’s release form was not effective to relieve PCC of its liability for payment of the accrued per diem charges reflected in the invoice. PCC attacks only the trial court’s finding that Zim’s right to payment of Invoice No. DA 149450 was not “effected by” its noncompliance with the contractual obligation to send an invoice within 60 days of the return of the equipment (invoice provision) because the invoice provision did not include a sanction for noncompliance. As we now discuss, we conclude PCC’s various arguments challenging the trial court’s ruling do not require reversal.

 

PCC initially contends the trial court erred by failing to determine whether Maryland or California law applied to resolve the parties’ dispute. The UIIA governing the parties’ 2006 dispute provided: “The laws of the state of Maryland, the location at the principal place of business of the Intermodal Association of North America shall govern the validity, construction, enforcement and interpretation of this Agreement without regard to conflicts of law principles.”  In its posttrial brief, PCC raised the issue as to which state law (Maryland or California) should be applied to the parties’ dispute. The trial court did not explicitly rule on the matter apparently because PCC took the position at trial that the law on contract interpretation is the same in each state. Although PCC argues California law should be used to resolve this appeal, we agree with the parties that a conflict of law analysis is not necessary as the applicable law is the same in California and Maryland.

 

Despite UIIA’s provision regarding the law governing contract interpretation, this litigation was properly pursued in California, pursuant to another UIIA provision that allows an action to enforce or interpret the agreement regarding the monetary obligations between the parties by reason of equipment usage charges to be brought “at the situs of the transaction giving rise to the requested damages.”

 

In the absence of extrinsic evidence, the interpretation of a contract is a question of law for this court under de novo review. ( Verdier v. Verdier (1955) 133 Cal.App.2d 325, 333; Sy–Lene of Washington, Inc. v. Starwood Urban Retail II, LLC (2003) 376 Md. 157, 163 [829 A.2d 540, 544] [under Maryland law, “[t]he interpretation of a contract … is a question of law, subject to de novo review”].) According to PCC, the trial court “should have interpreted the UIIA provision according to a reasonable interpretation, based on the objective intent of the parties evidenced by the words of the contract itself, not based on the absence of words that otherwise would expressly provide for a ‘sanction’ for Zim’s failure to comply with the [invoice provision].” PCC also argues that “the contractual obligation imposed on Zim by the UIIA, to invoice PCC within 60 days after return of equipment, should not disappear merely because the court noted that the text of the section imposing that obligation lacks reference to a ‘penalty.’ “ Based on our independent review, we conclude the trial court correctly ruled that UIIA’s invoice provision had no bearing on the parties’ rights and obligations regarding the payment of Invoice No. DA 149450.

 

Our analysis is based on UIIA, effective June 2, 2005, and Zim Addendum, effective February 1, 2005, and revised February 6, 2006, which documents were admitted into evidence as Defendant’s Exhibit A. At the trial held in 2009, PCC did not dispute that its relationship with Zim was governed by Defendant’s Exhibit A, and presumably proffered no other contractual documents. However, in its opening brief, PCC informs us that in 2008 UIIA’s invoice provision had been modified to read: “If motor carrier is not invoiced within the established time frame, the right of the Provider to recover any associated charges will be lost.” PCC concedes that neither party asked the trial court to consider whether the 2008 amendment should be applied retroactively to the parties’ dispute regarding an invoice that was sent in October 2006. Because PCC presents no substantive appellate argument on the matter, we do not further address and express no opinion regarding any retroactive effect of the amendment. Nor do we express any opinion on the effect of the amendment on any current disputes between the parties.

 

Generally, in interpreting contracts, the court’s “paramount consideration is the intention of the contracting parties,” which is to be “ascertained from the words used, after taking into consideration the entire contract and the circumstances under which it was made. [Citations.] [¶] … [¶] … [I]t is not a court’s prerogative to alter it, to rewrite its clear terms, or to make a new contract for the parties. [Citations.] Courts will not add a term to a contract about which the agreement is silent. [Citations.]” ( Moss Dev. Co. v. Geary (1974) 41 Cal.App.3d 1, 9; see Fultz v. Shaffer (1996) 111 Md.App. 278, 298 [681 A.2d 568, 578] [Maryland law in accord].)

 

Pertinent to our analysis is consideration of the well-established law regarding forfeitures applicable in both California and Maryland. ( McNeece v. Wood (1928) 204 Cal. 280, 283–248; Hartford Fire Ins. Co. v. Himelfarb (1999) 355 Md. 671, 682 [736 A.2d 295, 301]; Harris v. Wye Tree Experts, Inc. (1975) 273 Md. 454, 458 [330 A.2d 189, 191] (Harris ).) As explained by our Supreme Court in McNeece v. Wood, supra: “ ‘A condition involving a forfeiture must be strictly interpreted against the party for whose benefit it is created’ ( [Civ.Code, § 1442] ). Examination of the cases in this state shows that our courts have not hesitated to give this rule of interpretation full application. ‘Forfeitures, as such, are not favored by the courts, and are never enforced if they are couched in ambiguous terms’ [citation]. ‘A forfeiture can be enforced only when there is such a breach shown as it was the clear and manifest intention of the parties to provide for’ [citation]. ‘The burden is upon the party claiming the forfeiture to show that such was the unmistakable intention of the instrument. If the agreement can be reasonably interpreted so as to avoid the forfeiture, it is our duty to do so’ [citation].” ( 204 Cal. 280 at pp. 283–284; Harris, supra, 330 A.2d at p. 191] [under Maryland law “reading [of a contract] which produces a forfeiture will not be favored”].) Additionally, Civil Code section 1442 applies not only to the construction of a contract condition involving a forfeiture, but also to “a determination as to whether a [contract] creates such a condition in the first place,” which latter issue is before us on this appeal. ( Alamo School Dist. v. Jones (1960) 182 Cal.App.2d 180, 187.)

 

Contrary to PCC’s contention, UIIA and Zim Addendum are classic bilateral contracts, containing multiple promises by each party for “the interchange and use of [e]quipment in intermodal interchange service.” (See Davis v. Jacoby (1934) 1 Cal.2d 370, 378.) The essence of the parties’ agreement was PCC’s possession and use of Zim-owned equipment for “some period of uncompensated use,” and PCC’s obligation to pay per diem charges if the equipment was retained beyond the agreed return date. Our examination of the contracts (UIIA and Zim Addendum) does not disclose any intention of the parties that a breach of the time element in the invoice provision would constitute a forfeiture of Zim’s right to payment. The parties bargained for PCC’s payment of per diem charges for retention of the equipment beyond the agreed return date. PCC’s payment of per diem charges was not predicated on the issuance of an invoice within 60 days of the return of the equipment.

 

The trial court’s ruling that the invoice provision had no bearing on Zim’s right to collect payment of Invoice No. DA 149450 from PCC because the contract clause did not expressly include a sanction for noncompliance is supported by case law. Contrary to PCC’s argument, in considering whether Zim’s right to collect payment of the invoice was forfeited, the trial court followed well-settled case law requiring consideration of the fact that the contractual invoice provision does not include either a “penalty” ( Nelson v. Schoettgen (1934) 1 Cal.App.2d 418, 423) or “express language” ( Conolley v. Power (1924) 70 Cal.App. 70, 75) providing for forfeiture in the event of a late invoice. The trial court “correctly viewed” the element of time in the invoice provision “as a means to insure prompt” demand for payment of per diem charges “rather than as an indication that failure to perform at the time stipulated would result in an immediate termination and forfeiture” of Zim’s right to payment. ( Henck v. Lake Hemet Water Co. (1937) 9 Cal.2d 136, 144.)

 

Thus, by refusing to impose the severe penalty of declaring Zim’s right to payment forfeited for noncompliance with the time element of the invoice provision, the trial court correctly performed its duty to construe the contract “so as to avoid a forfeiture.” ( Nelson v. Schoettgen, supra, 1 Cal.App.2d at p. 423.) “This construction … is in harmony with the settled policy of the law not to enforce a forfeiture in the absence of a clear statement to that effect.” ( Universal Sales Corp. v. California Press Mfg. Co. (1942) 20 Cal.2d 751, 771.)

 

We note that PCC mentions in the fact portion of its opening brief that in response to the cross-complaint, it alleged that Zim waived its right to payment of per diem charges by failing to send an invoice to PCC within the time limits prescribed in UIIA. However, “ ‘ “[w]aiver always rests upon intent. Waiver is the intentional relinquishment of a known right after knowledge of the facts.” [Citations.] The burden, moreover, is on the party claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the matter to speculation, and “doubtful cases will be decided against a waiver.” ‘ [Citations].” ( DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 60; see Food Fair Stores, Inc. v. Blumberg (1964) 234 Md. 521, 531–532 [200 A.2d 166, 172] [party’s failure to formally demand rent payment in accordance with parties’ agreement was held not to constitute waiver of rent].) PCC cites no authority, and we have found none, that would support an argument that Zim’s act of sending an untimely invoice, standing alone, constitutes a waiver of its right to payment of the invoice as a matter of law. Because PCC presents no other argument regarding its waiver defense, we do not further address the issue.

 

Additionally, we need not consider the parties’ arguments addressing whether Zim proffered a valid excuse for its noncompliance with the time requirement in UIIA’s invoice provision because we are not required to determine whether Zim is entitled to “relief from express and unmistakable [contractual] language compelling a forfeiture.” ( Ballard v. MacCallum (1940) 15 Cal.2d 439, 444.) “The problem here is much simpler. We have two possible constructions, one of which leads to a forfeiture and the other avoids it. In such a case the policy and rule are settled, … in the interpretation of ordinary contracts … the construction which avoids forfeiture must be made if it is at all possible. [Citations.]” (Ibid.) Also, we agree with PCC that an analysis of the law regarding “time is of the essence” contractual provisions is not necessary to resolve this appeal.

 

As a premise for the argument that judgment in favor of Zim on its cross-complaint was unfair, PCC asks us to consider the trial court’s adverse findings against it on the complaint. According to PCC, the trial court improperly excused Zim’s breach of contract, but chose to sanction PCC for its breach of contract by upholding Zim’s right to shut out PCC because PCC failed to pay or dispute per diem charges within 30 days of receipt of the invoice. However, contrary to PCC’s contention, the trial court was not required to treat each party’s breach in the same manner. (See Fresno Canal & Irrigation Co. v. Perrin (1915) 170 Cal. 411, 416 [“Where the covenants of the respective parties are to be performed at different times they are held to be independent and the breach by one party of his covenant does not excuse the performance by the other of his covenant or relieve him of liability for damages for a breach thereof.”].) Because PCC does not present any other substantive arguments expressly challenging the trial court’s ruling in favor of Zim on PCC’s complaint, we do not consider whether the trial court correctly ruled in favor of Zim on PCC’s complaint. We hold only that PCC’s argument based on the trial court’s ruling in favor of Zim on the complaint does not require reversal of the judgment in favor of Zim on the cross-complaint.

 

We see no significance to PCC’s reliance on the legal maxim that “the first party who breaches a time requirement in a contract is barred from subsequently complaining of the other party’s breach of a time requirement in their contract.” Zim sought only to recover the amount of the accrued per diem charges reflected in Invoice No. DA 149450. Zim did not seek additional damages because PCC did not timely pay or dispute the invoice.

 

Nor do we see any merit to PCC’s suggestion, in effect, that the trial court should have treated this case as one concerning mutual defaults for which neither party may recover, as the court held in Westinghouse Electric Corp. v. Garrett Corp. (4th Cir.1979) 601 F.2d 155, 158. As we have discussed, the main purpose of the parties’ agreement was the interchange of equipment for which PCC was to pay per diem charges for the retention of equipment beyond the agreed return date. The time within which Zim was to send the invoice for per diem charges was incidental to the main purpose of the agreement. The trial court correctly ruled that Zim’s failure to submit a timely invoice did not constitute a breach that would trigger a forfeiture and thereby relieve PCC of its obligation to pay for the accrued per diem charges. (See also Karz v. Department of Professional & Vocational Standards (1936) 11 Cal.App.2d 554, 557 [“a person is not entitled to rescind or abandon a contract for an alleged breach of that contract when the breach does not go to the root of the consideration”]; Sachs v. Regal Sav. Bank (1998) 119 Md.App. 276, 283 [705 A.2d 1, 4] [under Maryland law “a breach of contract will be deemed material if it affects the purpose of the contract in an important or vital way”], aff’d sum nom. Regal Sav. Bank v. Sachs (1999) 352 Md. 356, 363 [722 A.2d 377, 380].) PCC’s reliance on Penn Oil Co. v. Triangle Petroleum & Gasoline Co. (1920) 136 Md. 559 [111 A. 482] (Penn Oil ), and Barker v. Borzone (1878) 48 Md. 474 (Barker ), is misplaced. Those cases concern a party’s right to terminate or rescind a contract based on an allegation that the element of time “ ‘goes to the root of the contract’ “ ( Barker, supra, 48 Md. at p. 489) or the “essence of the contract” ( Penn Oil, supra, 111 A. at p. 488).

 

Finally, PCC argues the judgment in favor of Zim on its cross-complaint should be reversed because Zim presented no evidence supporting its causes of action for relief based on an “account stated,” or an “open book account.” PCC’s argument is based on the premise that “Zim’s cross-complaint is based solely on an alleged ‘open book account,’ and an alleged ‘account stated,’ [and] not on an alleged failure to pay an invoice.” We conclude PCC’s argument is unavailing. “In defining the relief that may be awarded to a plaintiff where an answer in the action has been filed, [Code of Civil Procedure, section] 580 provides that the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issues. [Citation.]” (4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 32, p. 96.) “[T]he name of the action is of no consequence provided [a] plaintiff has stated sufficient facts to show a right of recovery.” ( Bartlett v. Federal Outfitting Co. (1933) 133 Cal.App. 747, 750; see also Sears v. Rule (1945) 27 Cal.2d 131, 148–149 [court rejected appellant’s argument that money judgment against him was improper because certain sums were included based on issues not raised by the pleadings].) Zim’s cross-complaint’s cause of action for breach of contract included allegations encompassing Zim’s claim for payment of Invoice No. DA 149450. Because the judgment may be sustained based on the cross-complaint’s breach of contract cause of action, we do not further address the parties’ arguments regarding the validity of claims for relief based on an account stated or an open book account.

 

Specifically, under the “First Claim for Relief (Breach of Contract),” Zim incorporated its allegations regarding the circumstances of the parties’ disputes regarding all outstanding invoices, including the one at issue on appeal. It was then alleged, in pertinent part, that “PCC has refused to and continues to refuse to pay its outstanding per diem charges, and has refused and continues to refuse to remedy its breach;” and “[a]s a proximate result of PCC’s breach, as explained above, Zim has been damaged.”

 

Because PCC has failed to demonstrate prejudicial error, or that a different result would be probable were the matter to be remanded to the trial court (Code Civ. Proc. § 475), we see no reason to set aside that portion of the judgment in favor of Zim on its cross-complaint.

 

In light of our determination, we do not address Zim’s argument that it would remain the prevailing party even if we reversed the judgment on its cross-complaint or remanded the matter to the trial court for further consideration.

 

DISPOSITION

The judgment filed on February 11, 2010 is affirmed. Defendant and cross-complainant Zim American Integrated Shipping Services Company, Inc., shall recover costs on appeal.

 

We concur: POLLAK and SIGGINS, JJ.