REVISED NOVEMBER 21, 2002

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-60727

CHRIS ALBRITTON CONSTRUCTION COMPANY, INC; CRUMBLEY PAPER COMPANY INC; MARCUS J. MARTIN, CPA; PEACHTREE BEND LLC,

Plaintiffs-Appellants,

VERSUS

PITNEY BOWES INC; PITNEY BOWES CREDIT CORPORATION; XYZ CORPORATION; JOHN DOES, John Does A-Z,

Defendants-Appellees.

Appeal from the United States District Court For the Southern District of Mississippi

September 18, 2002

Before DUHÉ, DeMOSS, and CLEMENT, Circuit Judges.

DUHÉ, Circuit Judge:

Plaintiffs-Appellants leased mail and metering equipment for

their offices from Defendants-Appellees Pitney Bowes Credit

Corporation and Pitney Bowes, Inc. (collectively “Pitney Bowes”).

Plaintiffs contend that Pitney Bowes and other unnamed defendants

have engaged in a scheme to defraud Plaintiffs, their customers.

Defendants allegedly misrepresented that Pitney Bowes would not

charge Plaintiffs for insurance covering the leased equipment without first requesting proof of the customer’s own insurance.

Defendants are further charged with failing to make such a request

and charging their customers a small but highly profitable

insurance premium utilizing the misleading label of “ValueMAX.”

Plaintiffs asserted claims under Mississippi law of breach of

contract, bad faith breach of contract, fraud and

misrepresentation, and under the federal civil RICO statute.

Defendants won a summary judgment dismissing each count. We

reluctantly affirm.

I.

We review dismissal on summary judgment de novo, applying the

same standard as the district court, viewing the evidence and the

justifiable inferences to be drawn therefrom in the light most

favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc.,

,

,

(1986).

The lease between the parties provides that Defendants may

place the equipment under their risk management program if the

customers, after request, fail to furnish proof of insurance:

You [lessee] shall, at your expense, provide and maintain protection against loss . . . to the Equipment . . . naming us as loss payee. Such protection and coverage (and written evidence thereof delivered to us at our request) shall be satisfactory to us, and may be provided under your own insurance policy. If you fail to provide such evidence, we will have the right, but no obligation to include the Equipment under our own risk management program . . . and to charge you a fee. This fee will be reflected on our Invoice or other notice to you . . . . The arrangements contemplated by this paragraph do not constitute insurance.

2 Defendants do not dispute their obligation to first request proof

of insurance before enrolling a customer in the risk management

program. Defendants’ affidavit provides that, as part of their

Lease Management System, Defendants automatically sent Plaintiffs

a computer-generated letter, requesting insurance information and

informing the lessee he would be charged a ValueMAX quarterly fee

if the information was not provided. Whenever the system generates

letters, it prints a report indicating that the computer printed

the letters, listing the addressee/lessees. The report indicates

that the computer printed ValueMAX letters for Plaintiffs. In the

regular course of business, the mail room places the ValueMAX

letters in window envelopes and mails them with correct postage.

Plaintiffs’ affidavit, however, denies that they received ValueMAX

letters or any request for insurance information, even though they

were charged a ValueMAX fee. Viewing the disputed fact favorably

to Plaintiff, we assume that Defendants did not send Plaintiffs

requests for proof of insurance before charging the fee.

II. Fraud & Misrepresentation

We first address Plaintiffs’ claims of fraud and

misrepresentation, as these claims affect other aspects of the

appeal. Plaintiffs’ principal grievance with respect to these

counts is that Defendants misrepresented that they would first

request proof of insurance before imposing the ValueMAX charge.

The district court dismissed the fraud and misrepresentation counts

upon finding no issue of material fact regarding a fraudulent

3 misrepresentation, an essential element of each of these counts.

We agree.

A breach of a promise of future action is not fraud unless it

is “made with the present intent not to perform.” Bank of Shaw v.

Posey,

(Miss. 1990). Here, Defendants’

promise was to request proof of insurance before enrolling a

customer in the risk management program. Therefore, an essential

element of a misrepresentation would be that this promise was made

when Defendants had no intention of requesting proof of insurance.

Plaintiffs have shown no issue of fact regarding Defendants’

intent to send the letters at the time they entered the contract

with Plaintiffs. Without evidence of present intent not to

perform, a promise of future conduct will not, as a matter of law,

support a claim of misrepresentation. Bank of Shaw,

.

Plaintiffs point out additional evidence in an attempt to

suggest an issue bearing on fraud or material misrepresentation.

For example, Defendants’ sales personnel do not mention insurance

or ValueMAX in their sales pitch or at the time a lease is

executed. The lease does not use the term “ValueMAX” or call the

program “insurance.” The name ValueMAX appears on the invoice and

does not indicate that it is insurance. The ValueMAX charges are

small enough to avoid detection. A ValueMAX charge does not appear

on the first invoice which is the one most likely to be checked by

the customer.

4 Acknowledging these facts as true suggests no omission,

affirmative concealment, or misrepresentation of fact which later

turned out to be true. The word ValueMAX on the invoice is not a

representation of fact at all. We find no fraud or fraudulent

concealment in use of the label “ValueMAX” or “ValueMAX Advantage,”

in view of the disclosures made.1 The quarterly charges ranged

from $14 to $30 for these Plaintiffs. A customer is generally

billed after Pitney Bowes allows time for a response to the

ValueMAX program letter. The size and timing of the charges do not

suggest any fraud.

Plaintiffs also contend that Defendants’ failure to request

the proof of insurance was a material omission. The Defendants’

evidence of their Lease Management System demonstrating their

intention to send the letters to every new lessee remains

unrefuted. Without evidence suggesting intention to mislead,

Plaintiffs lack a key element of their burden of proof, even for

1 On the back of the invoices, ValueMAX is defined as “equipment damage/loss coverage fee.” Each invoice provides a separate toll free number for ValueMAX. The lease language calls the program a “risk management program” for which the lessee will be charged a fee if no proof of insurance is forthcoming upon request. Plaintiffs also complain that the introductory letter to lessees is misleading in failing to call the ValueMAX program “insurance.” The letter introduces ValueMAX as a “program that satisfies your lease obligation to provide us with evidence of insurance coverage against loss, damage, theft or destruction to our equipment.” The letter repeatedly makes clear that ValueMAX is an alternative to providing proof of insurance coverage for the leased equipment under the lessee’s own policy. Assuming for the moment that Plaintiffs received such a letter, we find no misleading omission in the letter’s failure to denominate ValueMAX “insurance.”

5 fraudulent omission. Davidson v. Rogers,

(Miss. 1988) (omission or concealment can constitute a

misrepresentation if defendant took some affirmative action with

design or intent to prevent discovery of facts giving rise to fraud

claim). The claims for fraud and misrepresentation were properly

dismissed on this summary judgment evidence.

III. Breach of contract

The district court held that Plaintiffs’ breach of contract

claim is defeated by the voluntary payment doctrine. Applying this

doctrine assumes, in Plaintiffs’ favor, that they do not owe the

ValueMAX fee because they never received a request for proof of

insurance.

A voluntary payment is

a payment made, without compulsion or fraud, and without any mistake of fact, of a demand which the payor does not owe, and which is not enforceable against him, instead of invoking the remedy or defense which the law affords against such demand, and when there has been no agreement between the parties at the time of payment, that any excess will be repaid.

McLean v. Love,

,

(1934) (citation

omitted). The payment histories for the Plaintiffs’ leases show

they were current with their Pitney Bowes’ accounts, including all

amounts charged in connection with the ValueMAX program.

If the Plaintiffs voluntarily paid for something they did not

owe, the voluntary payments cannot be recovered.

“The general

principle is that, where the party with full knowledge, actual or

6 imputed, of the facts, there being no duress, fraud or extortion,

voluntarily pays money on a demand, although not enforceable

against him, he cannot recover it back.” Graham McNeil Co. v.

Scarborough,

(Miss. 1924).

Plaintiffs have imputed knowledge of Pitney Bowes’ risk

management program, because they are charged with the duty to read

the lease they sign, even the fine print. The purpose of the

voluntary payment doctrine is to preclude courts from “‘being

occupied in undoing the arrangements of parties, which they have

voluntarily made, and into which they have not been drawn by fraud

or accident, or by any excusable ignorance of their legal rights

and liabilities.’"

(quoting 2 Elliott on Contracts 645 §

1391). The exceptions for fraud, accident, or excusable ignorance

do not negate the doctrine. No fraud is suggested by the summary

judgment evidence as discussed above.

Regarding mistake or accident, “[u]ncertainty about the facts,

irrespective of the reason for such uncertainty, is not the

equivalent of a mistake of fact.” See Mobile Telecomm. Techs.

Corp. v. Aetna Cas. & Sur. Co.,

(S.D. Miss.

1997). Plaintiffs received a bill including a ValueMAX fee,

plainly listed as a separate entry, not hidden or buried in a long

list of charges, and explained on the reverse; a toll-free number

was provided for inquiries. Plaintiffs could have easily found out

about ValueMAX before paying the fee. See Hunt v. Davis, 208 Miss

7 710,

(1950) (mistake of fact doctrine applies only

where party could not have ascertained the real facts by reasonable

diligence).

Regarding excusable ignorance, the voluntary payment doctrine

precludes courts from extending relief to those who have neglected

to take care of their interests and are “in predicaments which

ordinary care would have avoided.” McLean, at 362. Plaintiffs are

presumed to have known under the contract that they should not be

charged for a risk management program without having been first

asked to provide proof of insurance. They could have resisted the

demand based on the contract or based on the information on the

invoice. When, as here, the party paying “knows or ought to know

the facts” and does not avail himself of the means which the law

affords him to resist the demand, he has not taken due care.

McLean, at 362. None of the exceptions to the voluntary payment

doctrine having application to this case, we hold that Plaintiffs

cannot recover their voluntary payments.

IV. Bad Faith Breach of Contract

In a count asserting bad faith breach of contract, Plaintiffs

allege that Defendants’ charging them for insurance premiums under

the misleading label ValueMAX without notice constituted bad faith

breach of contract. We agree with the district court that this

claim, too, is defeated by the voluntary payment doctrine. Nothing

in Hill v. Telecom,

(N.D. Miss. 2000), relied upon

by Plaintiffs, persuades us to remand Plaintiffs’ claim for bad

8 faith breach of contract for trial. The voluntary payment doctrine

precludes us from extending relief to those who have neglected to

take care of their interests.

V. RICO

Plaintiffs also allege that Defendants violated the provisions

of the Racketeer Influenced and Corrupt Organizations Act,

(West 2000 and Supp. 2002), citing mail fraud

and wire fraud as predicate acts. Plaintiffs contend that even if

we dismiss their common-law fraud claim, the RICO claim should

stand, because the fraud required as a predicate act for RICO does

not require a misrepresentation of fact. This contention is

without merit. Both mail fraud and wire fraud require a scheme or

artifice to defraud which includes false or fraudulent pretenses,

representations or promises, requiring proof of intent to defraud.

(mail fraud), 1343 (wire fraud) (West 2000);

United States v. Keller,

(5th Cir. 1994) (wire

fraud); United States v. Kreimer,

(5th Cir.

1980)(mail fraud). As discussed above, Plaintiffs have presented

insufficient summary judgment evidence of Defendants’ intent to

defraud to create an issue of material fact.

Conclusion

Plaintiffs have not created any issue of material fact

regarding fraudulent intent; indeed the only evidence of intent

demonstrates that Defendants intended to mail the ValueMAX letters

9 and had in place an automatic computer program which would in the

ordinary course of business generate and mail such a letter for

each new customer. The lack of fraudulent intent defeats

Plaintiffs’ claims for fraud, misrepresentation and civil RICO.

The evidence further establishes that Plaintiffs voluntarily paid

for the ValueMAX program under circumstances where they could have

resisted the charges at the outset. Under these facts the

voluntary payment doctrine defeats Plaintiffs’ claims for breach of

contract and bad faith breach of contract. Finding no genuine

issue of material fact as to the Plaintiffs’ claims, we affirm the

summary judgment in favor of Defendants.2 Accordingly, the

judgment of the district court is

AFFIRMED.

2 Affirming the dismissal based on the summary judgment evidence, we do not reach Defendants’ argument about economic loss, presented as alternative grounds for dismissal.

10