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Gunkel v. Secure One

December 6, 2006

E. MARIE GUNKEL, PLAINTIFF,
v.
SECURE ONE, INC., ADT SECURITY SERVICES, INC., AND ANDERSON, CRENSHAW & ASSOCIATES, L.L.C., DEFENDANTS.



The opinion of the court was delivered by: Thomas W. Phillips United States District Judge

(Phillips/Guyton)

MEMORANDUM AND ORDER

The plaintiff initiated the instant lawsuit based on wrongful collection activities, unfair and deceptive practices, and breach of contract. Defendant ADT Security Services, Inc. has filed a motion for summary judgment [Doc. 19] claiming that it is entitled to judgment on all issues as a matter of law. The plaintiff has responded in opposition. For the reasons that follow, defendant's motion [Doc. 19] is DENIED.

I. Summary of the Facts

As the law requires, all disputed facts and inferences are resolved most favorably for the plaintiff. The Court merely provides an abridged summary of facts for the purposes of this opinion.

On July 28, 2003, E. Marie Gunkel states that she entered into an agreement for alarm services with ADT Security Services, Inc. ("ADT") and Secure One, Inc. ("Secure One"), the authorized dealer of ADT. Plaintiff asserts that ADT and Secure One began wrongfully drafting the sum of $98.97 per month from her checking account. Apparently, this sum was to be drafted on a quarterly basis, rather than a monthly basis. Further, Ms. Gunkel alleges that Secure One and ADT at some point wrongfully engaged defendant Anderson Crenshaw & Associates ("Anderson Crenshaw"), a purported collection agency located in Dallas, Texas, to unlawfully collect additional monies from the plaintiff. Not only does the plaintiff assert that the defendants improperly sought to collect money that was not owed, but also that ADT and Secure One employed an agency that was not licensed to collect the alleged unpaid monies in the state of Tennessee.*fn1

Ms. Gunkel filed this action on February 15, 2005 against Secure One, ADT, and Anderson Crenshaw. Ms. Gunkel alleges that the aforementioned acts of Secure One and ADT are in violation of the Tennessee Collection Services Act ("TCSA"), as set forth in Tenn. Code Ann. § 62-20-101, et seq.; that the aforementioned acts violate the Tennessee Consumer Protection Act ("TCPA"), as set forth in Tenn. Code Ann. § 47-18-101, et seq.; that the aforementioned acts constitute a breach of contract; and that the aforementioned actions warrant the imposition of punitive damages.

In its motion for summary judgment, ADT contends that it did not contract with Ms. Gunkel; that it did not have the responsibility to debit Ms. Gunkel's bank account; that it did not in fact debit Ms. Gunkel's bank account; that plaintiff cannot prove her case under the TCPA; and that damages, including punitive damages, should not be awarded. Moreover, ADT states that Anderson Crenshaw does not represent ADT and that all correspondence from Anderson Crenshaw states that Anderson Crenshaw represents Secure One. Therefore, ADT states that it is entitled to judgment as a matter of law on all issues. In response, plaintiff presents evidence that Secure One is ADT's agent with express and/or apparent authority. Plaintiff argues that ADT, through its authorized dealer/agent Secure One, entered into a contract with plaintiff, over-billed plaintiff, debited payments from plaintiff's account in excess of the amount authorized by contract, and placed plaintiff's account with a collection agency in violation of Tennessee law.

In particular, plaintiff states that ADT sent her promotional materials on its letterhead offering an incentive and rebate for home security monitoring services. ADT provided the alarm services agreement for use in its authorized dealer program that was used by Secure One and subsequently executed by the plaintiff. ADT's agreement form states that the "ADT Authorized Dealer Program is an approved program of ADT Security Services, Inc." Also, plaintiff argues that the terms and conditions information sheet incorporates the alarm service agreement and identifies the contracting party as "ADT." Moreover, the terms and conditions information sheet states that ADT is the entity that, in certain circumstances, "will continue to charge your account;" has the "right to discontinue this payment plan without notice;" and requires notification to ADT regarding change of account information. The terms and conditions information sheet also provides a customer service department phone number, which is an ADT automated hotline.

Additionally, the payment authorization sheet only authorized ADT to debit the plaintiff's account, stating as follows: "I authorized ADT Security Services, Inc. and the financial institution or referenced credit card named above to electronically debit my bank account or charge my credit card." The authorization states that "[t]his document is incorporated into and made part of the Alarm Services Agreement." Both the plaintiff and the authorized dealer, Security One, signed this authorization. As part of the record, it also appears that Kari Hoekzema, ADT's representative, signed an affidavit stating that she reviewed and approved the contract between the parties.

As to collection practices, it appears that Anderson Crenshaw assumed that it was working for ADT, as well as Security One, as indicated in its answer to plaintiff's amended complaint at ¶ 41. In particular, Anderson Crenshaw states that "Secure One and ADT engaged Anderson to attempt collection of monies owed from Plaintiff." Furthermore, it appears from Ms. Hoekzema's affidavit that ADT had some part in collection. Ms. Hoekzema was responsible for reviewing "collection efforts on a regular basis."

Plaintiff also discusses the rebate that was allegedly promised to her through ADT's promotional materials. Ms. Gunkel argues that, although Ms. Hoekzema states that ADT reviewed the alarm services contract, ADT did not discount her contract using the rebate. The plaintiff states that this practice is unfair and deceptive.

Defendant ADT filed no reply to the plaintiff's arguments ...


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