*

Honorable Harry W. Wellford, Senior U.S. Circuit Judge for

the Sixth Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-6906.

Troy HOPKINS, individually and on behalf of all BP/Gulf dealers

in Alabama, Herbert Sharpe, individually and on behalf of all

BP/Gulf dealers in Alabama, John Mann, individually and on behalf

of all BP/Gulf dealers in Alabama, Plaintiffs-Appellees,

Robert Shaw, individually and on behalf of all BP/Gulf dealers in

Alabama, Sherry Shaw, individually and on behalf of all BP/Gulf

dealers in Alabama, Tom Pool, individually and on behalf of all

BP/Gulf dealers and Exxon dealers in Alabama, Terry Palamotos,

individually and on behalf of all BP/Gulf dealers and Exxon dealers

in Alabama, Plaintiffs,

v.

BP OIL, INC., Defendant-Appellant,

Exxon Corporation, Chevron USA, Inc., Defendants.

April 26, 1996.

Appeal from the United States District Court for the Middle

District of Alabama. (No. CV-88-V-1055-N), Robert E. Varner, Judge.

Before TJOFLAT, Chief Judge, COX, Circuit Judge, and WELLFORD*

,

Senior Circuit Judge.

PER CURIAM:

BP Oil, Inc. ("BP") sells gasoline to gasoline station

operators for them to re-sell to the public. In this diversity

case, three gasoline station operators (the "dealers") sued BP

under Alabama law for breach of contract and breach of statutory

obligation, among other claims. The dealers alleged that, by

billing them based on gross gallons of gasoline rather than based

on temperature-compensated gallons of gasoline, BP breached the

parties' contracts and its obligation under User Regulation 3.5
 1

During the relevant time period, U.R. 3.5 read:

UR.3.5. TEMPERATURE COMPENSATION-WHOLESALE.

("U.R. 3.5") of National Bureau of Standards Handbook 44. A jury

returned a verdict for the dealers on each of their claims. BP

appeals, and we reverse the judgment entered on those verdicts.

I. FACTS

BP began operating in Alabama on February 1, 1985, when it

acquired certain Gulf facilities in Alabama and assumed Gulf

contracts to supply gasoline to Gulf-brand gas stations in Alabama.

The dealers were operators of Gulf-brand gas stations in Alabama

who began buying gasoline from BP when it assumed Gulf's contracts.

The dealers eventually executed renewal contracts with BP.

Gasoline's volume varies according to its temperature. Volume

expands as temperature rises; volume contracts as temperature

falls. To account for gasoline consistently despite fluctuating

temperatures, the American Petroleum Institute, a private trade

organization, has established a voluntary standard of temperature

compensation. Temperature compensation involves adjusting the

actual volume of gasoline at a particular temperature to what its

volume would be at 60 degrees Fahrenheit.

The Alabama Department of Weights and Measures has adopted

National Bureau of Standards Handbook 44 and it was in effect

during the relevant time period. U.R. 3.5 of Handbook 44 requires

that any written invoice based on a reading of a wholesale

measuring device equipped with an "automatic temperature

compensator" show that the gasoline delivered has been adjusted to

the volume at 60°F.1 An "automatic temperature compensator"
UR.3.5.1. USE OF AUTOMATIC TEMPERATURE COMPENSATORS.—If

a wholesale device is equipped with an automatic

temperature compensator, this shall be connected,

operable, and in use at all times. Such automatic

temperature compensator may not be removed, nor may a

compensated device be replaced with an uncompensated

device, without the written approval of the weights and

measures authority having jurisdiction over the device.

UR.3.5.2. WRITTEN INVOICES.—Any written invoice based

on a reading of a wholesale device that is equipped

with an automatic temperature compensator shall have

shown thereon that the volume delivered has been

adjusted to the volume at 60°F.

National Bureau of Standards Handbook 44, § 3.30 (1985). 

 2

The invoices to commercial and industrial accounts and

jobbers showed the number of temperature-compensated gallons as

well. This number is calculated by multiplying the temperature

of the gasoline by its specific gravity, and multiplying that

product by the number of gross gallons. Thus, from the

information on their invoices, the dealers could have calculated

the number of temperature-compensated gallons delivered. 

physically adjusts the volume of gasoline dispensed to equal the

gallon amount that would be dispensed if the gasoline's temperature

were 60°F.

Until February 1, 1988, BP billed the dealers and other

Alabama retailers based on the number of gross gallons delivered.

In addition to the number of gross gallons, BP's invoices to the

dealers showed the gasoline's temperature when dispensed at BP's

terminal, as well as its specific gravity. BP was able to record

this information on its invoices because the loading line at its

terminal was equipped with a temperature probe. The gasoline's

temperature was sent automatically by computer to Cleveland, where

BP processed the invoices. The invoices then were printed out at

the selling terminal. 2

 The contracts between the dealers and BP

did not define "gallon." However, each dealer testified that he
understood that he was receiving gross gallons of gasoline from BP,

just as he had received gross gallons from Gulf.

In July of 1985, dealer Hopkins's accountant discovered an

inventory shortage and informed Hopkins that the shortage probably

was due to variations in temperature and gross billing. Hopkins

wrote to BP requesting billing on a temperature-adjusted basis.

The local BP representative told Hopkins that shortages and

overages even out over the course of a year. After Hopkins wrote

another letter requesting temperature-compensated billing, BP

responded that it did not sell gasoline to dealers on a

temperature-adjusted basis and that it would continue to bill

Hopkins based on gross gallons.

II. PROCEDURAL BACKGROUND

The dealers sued BP for breach of contract, breach of

statutory obligation, and fraudulent suppression under Alabama law.

Dealer Hopkins also sued BP for affirmative misrepresentation under

Alabama law.

In their complaint, the dealers alleged that the dispensing

equipment at BP's terminal was "equipped with automatic temperature

compensating devices to measure the volume of motor fuel sold in an

adjusted volume (as would have been dispensed at 60°F)." (Compl.

at ¶ 13.) In its answer, BP stated: "BP is without sufficient

information, knowledge or belief to admit or deny the allegations

... and, therefore, denies same. BP denies, in any event, that the

dispensing equipment for sales to plaintiff is at the BP terminal."

(Answer at ¶ 13.)

The dealers further alleged in their complaint that BP "had
invoiced ... according to volumes of gasoline measured at the

ambient temperature at the terminal and had refused to temperature

compensate the motor fuel sold." (Compl. at ¶ 16.) These billing

practices allegedly violated Handbook 44. In addition, they

allegedly violated the parties' contract "by charging them for a

gallon of motor fuel when a gallon was not actually delivered when

measured in accordance with said user regulations." (Compl. at ¶

17.) The dealers alleged that they were overcharged from February

1, 1985, to February 1, 1988. (Compl. at ¶ 18.) BP denied these

further allegations. (Answer at ¶ 16.)

The district court entered a scheduling order setting final

deadlines for witness exchange and designation of experts. After

holding a pretrial conference, the district court entered a

pretrial order. Though the pretrial order purported to detail each

party's contentions, the dealers did not explicitly contend in the

order that BP had or used an "automatic temperature compensator,"

nor did BP explicitly contend that it did not have or use an

"automatic temperature compensator."

Before trial, BP filed a motion in limine to preclude the

dealers from introducing extra-contractual evidence as to the

meaning of the term "gallon" in the contracts between BP and the

dealers, contending that "gallon" is unambiguous. The district

court denied BP's motion.

Ten days before trial, BP moved to add a new witness, Steve

Gandee, to its witness list. Conceding that Gandee was identified

after the district court's deadline for witness exchange, BP

represented that Gandee was a substitute for a seriously ill
witness who could not attend trial. Over the dealers' objection,

the district court allowed BP to add Gandee to its witness list.

The dealers deposed Gandee on the Friday before the Monday on

which trial began. They learned at the deposition that BP disputed

that it had "a device equipped with an automatic temperature

compensator" within the meaning of U.R. 3.5. The dealers moved to

exclude Gandee's testimony, contending that BP had not disputed, in

its answer, briefs, or other pretrial contentions, that it had an

"automatic temperature compensator." Thus, they argued, BP was

unfairly changing its theory of the case on the eve of trial. The

district court agreed, refusing to allow Gandee or any other BP

witness to testify at trial that BP did not have an "automatic

temperature compensator."

The Director of the Alabama Department of Weights and Measures

was permitted to testify at trial as to his interpretation of U.R.

3.5. He opined that U.R. 3.5 requires invoices to show the

temperature-compensated amount of gasoline sold if dispensed

through a device equipped with an "automatic temperature

compensator." Presented with hypotheticals purporting to describe

BP's dispensing equipment, he opined that BP had a device equipped

with an "automatic temperature compensator."

At the close of the dealers' evidence, and again at the close

of all the evidence, BP moved for judgment as a matter of law on

all claims. The district court denied the motion both times. The

jury returned a verdict for the dealers on each of their claims.

The jury awarded dealer Hopkins $100,000 in compensatory damages,

dealer Mann $150,000 in compensatory damages, and dealer Sharpe
$50,000 in compensatory damages. In addition, the jury awarded

each dealer $200,000 in punitive damages. The district court

denied BP's renewed motion for judgment as a matter of law. On

BP's motion for a new trial or remittitur, the compensatory damage

awards were reduced to $12,072.66 for Hopkins, $27,941.40 for Mann,

and $2,462.40 for Sharpe. The punitive damage awards, however,

were left intact.

III. ISSUES ON APPEAL

We address four issues on appeal. First, whether the term

"gallons" in the contracts between BP and the dealers is ambiguous.

Second, whether U.R. 3.5 requires billing based on

temperature-compensated gallons when gross gallons are delivered.

Third, whether, for purposes of the dealers' fraudulent suppression

claims, BP had an obligation to disclose the number of

temperature-compensated gallons delivered. Fourth, whether the

evidence was sufficient for a reasonable jury to conclude that

dealer Hopkins reasonably relied to his detriment on BP's alleged

affirmative misrepresentation.

IV. STANDARDS OF REVIEW

 Whether contract language is ambiguous is a question of law

reviewed de novo. Dunkin' Donuts of America, Inc. v. Minerva,

Inc., 956 F.2d 1566, 1573 (11th Cir.1992). The interpretation of

U.R. 3.5 is also a question of law reviewed de novo. See Bolam v.

Mobil Oil Corp., 893 F.2d 311, 312 (11th Cir.1990). We review de

novo the district court's denial of a motion for judgment as a

matter of law. Sherrin v. Northwestern Nat'l Life Ins. Co., 2 F.3d

373, 377 (11th Cir.1993). In determining whether the dealers
submitted substantial evidence to present a jury question, we

construe the evidence and permissible inferences in favor of the

dealers. Id.

V. DISCUSSION

A. The Contractual Term "Gallon" Is Not Ambiguous

 BP contends that it is entitled to judgment as a matter of

law on the dealers' breach of contract claims. BP argues that the

district court erred in allowing the jury to determine the meaning

of the contractual term "gallons." According to BP, "gallons" is

unambiguous and refers to gross gallons, not

temperature-compensated gallons. Thus, BP contends, it did not

breach its contracts with the dealers by billing for gross gallons.

The dealers respond that "gallons" is ambiguous because BP

itself used the term in two different ways: BP billed certain

customers on a temperature-compensated basis and billed the dealers

based on gross gallons. Moreover, they argue, Handbook 44

addresses temperature-compensated gallons, precluding a finding

that "gallon" unambiguously means a gross gallon. They further

argue that U.R. 3.5 constitutes an implied term of the contracts

and requires temperature-compensated billing. For these reasons,

they argue, the jury properly was allowed to determine whether BP

breached its contracts by billing for gross gallons.

We hold that the district court erred in permitting the jury

to determine the meaning of "gallons" in the contracts between BP

and the dealers. "Gallon" is not ambiguous. "Gallon" refers to a

gross gallon of gasoline. Thus, the contracts unambiguously did

not require BP to bill the dealers based on temperature-compensated
gallons. BP's failure to do so, therefore, was not a breach of

contract. The district court erred in denying BP's motion for

judgment as a matter of law on the breach of contract claims.

B. U.R. 3.5 Did Not Require Temperature-Compensated Billing

 BP contends that the district court erred in permitting the

jury to determine the meaning of U.R. 3.5. BP argues that the

meaning of U.R. 3.5 is a question of law. According to BP, the

Eleventh Circuit has interpreted U.R. 3.5, albeit as adopted in

Florida, to require neither temperature-compensated billing nor

disclosure of temperature-compensated gallons when billing is not

based on temperature-compensated gallons. BP further argues that,

even if U.R. 3.5 requires temperature-compensated billing, U.R. 3.5

did not apply to BP because BP did not have a device equipped with

an "automatic temperature compensator." The district court, BP

contends, abused its discretion in excluding BP's evidence that it

did not have an "automatic temperature compensator."

The dealers respond that the testimony of the Director of the

Alabama Department of Weights and Measures is "[t]he official

interpretation of the Alabama regulation during the time period in

question," (Appellee's Br. at 20-21), and is entitled to deference.

They argue that the Eleventh Circuit case interpreting U.R. 3.5 in

Florida is distinguishable because that case did not involve a

company billing some customers on a temperature-compensated basis

while billing others on a gross-gallon basis. Finally, they argue

that the district court properly excluded the testimony of Gandee

and BP's other evidence that BP did not have a device equipped with

an "automatic temperature compensator."
 3

We reject the dealers' contention that the trial testimony

of an agency official constitutes the official interpretation of

a regulation and is entitled to deference from a court. 

 4In attempting to distinguish Bolam, the dealers argue that

U.R. 3.5 requires BP to bill the dealers based on

temperature-compensated gallons because it bills certain other

customers on that basis. This argument reflects a fundamental

misunderstanding of the purpose and meaning of U.R. 3.5. U.R.

3.5 is not concerned with billing consistency between different

types of customers. Rather, U.R. 3.5 ensures that each customer

is billed consistently. If a customer receives

temperature-compensated gallons, it must be billed for

temperature-compensated gallons; if it receives gross gallons,

it must be billed for gross gallons. 

The meaning of U.R. 3.5 is a question of law. Therefore, the

district court erred in allowing the jury to interpret U.R. 3.5.

Interpreting U.R. 3.5 de novo, we hold that U.R. 3.5 did not

require temperature-compensated billing under the undisputed facts

of this case. The district court erred in denying BP's motion for

judgment as a matter of law on the breach of statutory obligation

claims.

U.R. 3.5 requires temperature-compensated billing only if the

customer is billed for a temperature-compensated volume of

gasoline. Bolam, 893 F.2d at 314.3

 The purpose of U.R. 3.5 is to

require consistency in billing methods so oil companies do not

change methods when beneficial to them. Id.4 For example, U.R.

3.5 would prohibit a company from billing a customer for 1000 gross

gallons when it delivered 1000 temperature-compensated gallons;

the company would have to disclose that the delivered gallons were

temperature-compensated gallons.

BP did not deliver temperature-compensated gallons yet bill

for gross gallons. To the contrary, it is undisputed that BP

billed the dealers for the gross volume of gasoline delivered.
 5

This conclusion disposes of the dealers' argument in

support of their breach of contract claims that U.R. 3.5 was an

implied term in the contracts between BP and the dealers. Even

if U.R. 3.5 was an implied term, it did not require

temperature-compensated billing. 

 6Because we hold that U.R. 3.5 did not require BP to bill

the dealers on a temperature-compensated basis, regardless of

whether BP had an "automatic temperature compensator," we need

not address BP's contention that the district court erred in

excluding BP's evidence that it did not have an "automatic

temperature compensator." Without addressing the merits of this

contention, however, we express our disapproval of the pretrial

conduct of counsel for all parties relative to this issue.

Whether BP had an "automatic temperature compensator"

was a potentially dispositive issue as to all of the

dealers' claims. Nevertheless, the dealers' complaint

failed to explicitly allege that BP had an "automatic

temperature compensator," that is, a device that physically

adjusts the volume of gasoline dispensed to the volume that

would be dispensed at 60°F. BP's answer to the complaint

stated that it was "without sufficient information,

knowledge or belief" to answer as to what type of equipment

it had. (Answer at ¶ 13.) Similarly, the dealers'

contentions as set forth in the pretrial order do not

explicitly include the contention that BP had an "automatic

temperature compensator." Once again, in its statement of

contentions in the pretrial order, BP fails to say that its

equipment was not an "automatic temperature compensator."

The district court's decision to exclude BP's evidence

that its device was not an "automatic temperature

compensator" was based on its belief that BP had waited

until the eve of trial to dispute this issue. We express no

opinion on the propriety of this decision. 

Thus, U.R. 3.5 did not require BP to show on its invoices the

number of gallons that would have been delivered if they had been

temperature-compensated.5

 BP therefore did not breach any

statutory obligation in only showing the number of gross gallons

delivered.6

C. BP Had No Duty To Disclose For Purposes Of The Dealers'

Fraudulent Suppression Claims

BP contends that the district court erred in denying its

motion for judgment as a matter of law on the dealers' fraudulent
 7

Nor did BP have an obligation to communicate based on its

superior knowledge of either U.R. 3.5, how other customers were

billed, or the significance of temperature compensation. The

dealers' contention that such knowledge gave rise to a duty to

disclose temperature-adjusted gallons is meritless. 

suppression claims. BP argues that it had no obligation to

communicate any material fact under Ala.Code § 6-5-102 (1993)

because U.R. 3.5 did not require it to disclose the number of

temperature-compensated gallons delivered to the dealers. The

dealers respond that U.R. 3.5, as well as BP's superior knowledge

of billing methods and requirements, imposed on BP a duty to

disclose temperature-compensated gallons.

A fraudulent suppression claim requires, inter alia, the

existence of an obligation to communicate. Ala.Code § 6-5-102

(1993). The dealers' fraudulent suppression claims are premised on

BP's alleged duty under U.R. 3.5 to bill on a

temperature-compensated basis. We have already held that U.R. 3.5

did not require temperature-compensated billing by BP.7

 Therefore,

BP had no obligation to communicate the number of

temperature-compensated gallons delivered to the dealers. The

dealers' fraudulent suppression claims fail as a matter of law.

D. The Evidence Was Insufficient For The Jury To Conclude That

Hopkins Reasonably Relied On BP's Alleged Affirmative

Misrepresentation

BP contends that the district court erred in denying its

motion for judgment as a matter of law on dealer Hopkins's

affirmative fraud claim. According to BP, its representative's

statement to Hopkins that inventory shortages even out over the

course of the year was not a misrepresentation of a material fact;

rather, it was an opinion as to a future event that, BP argues,
 8

We note that the complaint was of no use in our search of

the record for evidence of detrimental reliance, for it does not

allege affirmative misrepresentation at all, much less any

particulars as to how Hopkins relied on the misrepresentation. 

Nor does the pretrial order describe how Hopkins relied to his

detriment on BP's statement. Nor do the parties' briefs on

appeal suggest what Hopkins did or decided not to do in reliance

on BP's statement. Nevertheless, we have trudged through this

procedural bog in search of evidence of some kind of detrimental

reliance. 

turned out to be true. Moreover, BP argues, Hopkins's reliance on

the statement, if any, was unreasonable, and there was no proof

that Hopkins was injured as a proximate result of the statement.

The dealers respond that the fact that BP internally accounts for

the spread between temperature-compensated gallons and gross

gallons shows that BP knew that shortages did not even out. They

argue that the issue of the reasonableness of any reliance was for

the jury.

 An essential element of affirmative misrepresentation under

Alabama law is proof that plaintiff acted on or relied on the

misrepresentation to his detriment. Ala.Code § 6-5-101 (1993);

Taylor v. Moorman Mfg. Co., 475 So.2d 1187, 1189 (Ala.1985). The

reliance must be reasonable under the circumstances. Taylor, 475

So.2d at 1189. Our review of the record reveals that Hopkins did

not present any evidence that he reasonably relied to his detriment

on BP's statement that shortages even out over the course of a

year.8

After BP's statement, Hopkins wrote a second letter to BP

requesting temperature-compensated billing, complaining that his

problem with shortages was continuing. Thus, Hopkins did not

decide, based on BP's statement, that gross billing was
 9

BP also claims on appeal that the trial judge's conduct at

trial was unfair and prejudicial. In view of our resolution of

the other issues presented by BP on appeal, we need not address

this question. 

satisfactory and abandon further attempts to receive

temperature-compensated billing. He did not ask his accountant

whether BP's statement was accurate and shortages actually were

evening out. Hopkins did not testify that he renewed his contract

with BP based on his understanding that shortages even out, or that

he would not have renewed his contract if he had known that

shortages do not even out. He did not testify that he would have

changed his orders for gasoline but for BP's statement. Indeed,

Hopkins did not testify that he would have done anything

differently if BP had not made the allegedly false statement.

Because Hopkins presented no evidence from which a reasonable

jury could find that he detrimentally relied on BP's statement, the

district court erred in not granting BP's motion for judgment as a

matter of law on the affirmative misrepresentation claim.

VI. CONCLUSION

Because the district court erred in denying BP's motion for

judgment as a matter of law on all of the dealers' claims,9

 we

reverse the district court's judgment.

REVERSED and RENDERED.