Appellant-Sowell instituted legal proceedings against appellee-Douglas County Electric Membership Corporation (hereinafter "EMC”), seeking damages allegedly attributable to appellee’s actions in terminating electric service to appellant. This appeal is from the grant of summary judgment in favor of EMC as to two of three counts of appellant’s complaint. For the reasons which follow, we affirm.
1. In essence, Count 3 of appellant’s complaint alleged that EMC, a public service corporation, had voluntarily, wantonly, and intentionally breached its public duty to accord appellant respectful treatment and to protect appellant from the misconduct of its employees. See,
e.g., Brown v. Colonial Stores, Inc.,
A. On appeal, appellant has chosen to denominate Count 3 as a claim seeking recovery for "intentional
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infliction of emotional distress.” We note, however, that the pleadings as framed in the complaint and as developed by the evidence and legal arguments in the trial court indicate that Count 3 represents a claim for tortious misconduct. Because the pleadings, as developed by the evidence and arguments, did not adequately afford notice that the intentional infliction of emotional distress was being relied on as a basis of appellant’s claim, that theory cannot be advanced on appeal as the claim embodied in Count 3.
Gerald v. Ameron Automotive Centers,
B. The trial court granted summary judgment on the ground that appellee’s conduct toward appellant did not support an action for tortious misconduct. We agree with the trial court.
Evidence presented in opposition to and in support of the motion for summary judgment established that appellee, upon discovering that the meter at appellant’s residence had been tampered with a second time, exercised the right under its contract with appellant to disconnect appellant’s electric power without notice; and that when appellant telephoned EMC concerning the disruption of service, EMC’s agent accused appellant of having tampered with the meter and informed appellant that meter tampering was a criminal offense. The agent further informed appellant that power would not be restored until he paid the costs resulting from the tampering and that appellant could either make the payment or do without electrical service. Appellant averred that he had not tampered with the meter on the premises and that he had no knowledge of anyone else tampering with the meter.
Based on the evidence presented, we conclude that appellant has failed to raise an issuable claim for tortious misconduct.
Jordan v. J. C. Penney Co.,
2. Count 2 of appellant’s complaint sets forth a claim
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seeking recovery from appellee-corporation for slander and demanding reimbursement for certain funds paid to appellee as a precondition to restoration of electrical service. Appellant concedes, as he must, that summary judgment was proper as to the slander claim because publication was lacking. See, e.g.,
King v. Masson,
The undisputed facts show that the meter located on appellant’s premises had been tampered with on two occasions and that fees were assessed pursuant to a contract clause which, as a precondition to continued electrical service, provided that costs due to tampering be assessed against the consumer living at the residence where the meter was located. As to similar contract provisions, see generally 19 ALR3d 1227. As appellant’s Culpability for tampering is irrelevant insofar as the contract is concerned, questions relating to whether appellant participated in or had knowledge of the tampering do not involve genuine issues of material fact precluding summary judgment.
Sandison v. Harry Norman Realtors,
3. By way of cross appeal, EMC urges that the trial court erred in denying EMC’s motion for summary judgment as to Count 1 of appellant’s complaint.
Basically, Count 1 asserted that appellee had wrongfully terminated electrical service to appellant without notice, without justification, and without affording appellant an opportunity for a hearing prior to the termination of electrical service. Count 1 further alleged that the disruption of power forced appellant to vacate the premises and that this forced absence prevented appellant from discovering a fire on the premises. As a consequence of appellee’s actions, plaintiff
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sought actual damages allegedly flowing from the discontinuance of electrical service, and punitive damages for appellee’s failure to afford appellant a hearing prior to the termination of electrical service. As Count 1 is still pending below and interlocutory procedures were not followed, we are without jurisdictional power to review the denial of summary judgment as to this count.
American Mut. Fire Ins. Co. v. Cotton States Mut. Ins. Co.,
Judgment affirmed in Case No. 57314. Cross appeal dismissed in Case No. 57315.