RINNAI AMERICA CORPORATION v. RECYCLING INC (2026)

These cross-appeals concern a contract between Rinnai America Corporation, a manufacturer of tankless water heaters, and M&M Waste, Inc. (the predecessor-in-interest to appellee/cross-appellant M&M Recycling, Inc.), a scrap metal recycling company. Under that contract, M&M would retrieve and recycle scrap metal from Rinnai's plants and pay Rinnai a percentage of the scrap metal's market value. A dispute arose about which party was required to furnish bins for collecting the scrap metal at the plants, and Rinnai ultimately began working with a different recycling company, even though the parties’ contract contained an exclusivity provision.

Rinnai sued M&M under various contract and tort theories, alleging that M&M had breached a contractual obligation to furnish Rinnai with collection bins, had falsely represented to Rinnai that it would furnish bins and other equipment, and had failed to pay money due to Rinnai for some of the scrap metal it had collected. M&M denied that the contract required it to furnish bins to Rinnai, and it brought several counterclaims against Rinnai, including a claim for breach of contract. M&M moved for partial summary judgment on some of the claims and counterclaims, and the trial court granted M&M's motion in part and denied it in part, leading to these cross-appeals.¹

A threshold question affects the claims in both cross-appeals: whether M&M had an obligation under the parties’ contract to furnish collection bins for Rinnai. We hold that, as a matter of law, the contract did not require M&M to provide bins.

In Case No. A25A1777, Rinnai appeals from the trial court's grant of partial summary judgment to M&M on M&M's breach-of-contract counterclaim. We affirm, because it is undisputed that Rinnai breached an exclusivity provision in the party's contract and it follows from our conclusion that M&M had no obligation to furnish bins that Rinnai's defenses to M&M's counterclaim are meritless.

In Case No. A25A1778, M&M appeals from the trial court's denial of its motion for partial summary judgment on Rinnai's claim for breach of contract based on M&M's failure to furnish collection bins. Because we hold that M&M was not required to furnish bins, M&M was entitled to partial summary judgment on that claim and we reverse the trial court's ruling as to it.

Also in Case No. A25A1778, M&M appeals from the trial court's denial of its motion for partial summary judgment on Rinnai's alternative claims for quantum meruit and unjust enrichment for scrap metal for which M&M failed to compensate Rinnai. M&M was entitled to partial summary judgment on those claims, because the parties’ contract is enforceable and addresses the compensation issue. So we reverse as to that ruling as well.²

1. Facts and procedural history

On appeal from a ruling on a motion for summary judgment, we conduct a de novo review, “view[ing] the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.” Johnson Street Props. v. Clure, 302 Ga. 51, 52(1), 805 S.E.2d 60 (2017) (citation and punctuation omitted). The parties do not dispute some of the material facts in this case, but they strongly dispute other material facts. Viewed in nonmovant Rinnai's favor, the evidence shows the following.

In January 2022, Rinnai entered into discussions with M&M about M&M providing scrap metal recycling services for two of Rinnai's plants in Georgia. The contemplated service involved M&M retrieving scrap metal from the plants and paying Rinnai an amount (referred to as a “rebate”) based on the market value of the metal at the time of retrieval.

During negotiations, M&M recommended that Rinnai use metal bins to collect the scrap metal, rather than the plastic bins preferred by Rinnai's management. Nevertheless, Rinnai chose to use plastic bins, believing they would inflict less damage on the plant floors. M&M declined to furnish plastic bins, but agreed to provide a forklift attachment to support the use of the plastic bins in collecting the scrap metal. M&M also agreed to provide Rinnai with a scale.

On March 14, 2022, the parties entered into a recycling service agreement (“the contract”). It was M&M's standardized form contract and listed Rinnai as the “Customer.” The contract began with the following pre-printed statement: “M&M Waste, Inc. agrees to provide the following service and equipment at the frequency of collection indicated. Customer agrees to accept this service at the prices indicated on the schedule of charges provided below subject to and in accordance with the terms and conditions specified in the Service Agreement below.”

Immediately beneath that statement, the contract provided space for the parties to write in the specifications of their agreement. First, it set forth a chart with two sections, titled “EQUIPMENT/CONTAINER REQUIREMENTS” and “SCHEDULE OF CHARGES.” In the section concerning the schedule of charges the parties did not insert any information.

The section concerning equipment and container requirements had two subsections, titled “TYPE OF CONTAINER” and “FREQUENCY.” In the subsection concerning the type of container, the parties checked a column titled “OTHER” and left all other columns ³ blank. In the subsection concerning frequency, the parties checked a column titled “ON CALL.”

Finally, the chart included at the bottom a space titled “Description of service/equipment/special instructions[.]” In that space, the parties wrote: “M&M Waste, Inc. will pick up scrap metal for Rinnai with their bins. Rebate at market price during time of pick up.” The parties also included in that space information for calculating the amount of the rebate.

The contract then set forth a number of pre-printed terms and conditions. Those terms included a provision giving M&M “the exclusive right to collect and dispose of all of [Rinnai's] Scrap Metal ․ for a period of two (2) years” (the “exclusivity provision”) (emphasis in original). They included a provision stating:

This Service Agreement represents the entire understanding and agreement between the parties hereto and supersedes any and all prior agreements whether written or oral, that may exist between the parties. If any conflicts exist in this Service Agreement between terms, which are oral or written, and those that are typed hereon, the typed language shall govern.

They included provisions addressing termination of the contract for cause, liquidated damages, and indemnification. And they included several references to equipment belonging to M&M, such as a provision stating that, “[u]pon termination of this Service Agreement for any reason, M&M shall have the right to enter upon the Customer's property and remove any equipment furnished by M&M from Customer's premises at any time without notice.”

After the execution of the contract, M&M began retrieving scrap metal from Rinnai's plants for recycling. The metal was collected at the plants two or three times a week using plastic bins that Rinnai had purchased. Rinnai employees would load the plastic bins onto box trucks and M&M employees would transport the bins to M&M's facility, unload them, and return the bins to Rinnai.

The plastic bins performed poorly. M&M had not provided Rinnai with the forklift attachment that they had promised, and bins were returning from M&M in a damaged condition. The damaged plastic bins became unsafe to use, and at least twice Rinnai replaced them at its own expense.

Rinnai raised the issue of the damaged bins with M&M on several occasions, and in early 2023 the parties began to discuss switching to metal bins provided by M&M. During this period Rinnai continued to use its plastic bins to collect metal, the bins continued to get damaged, and M&M did not provide either a forklift attachment or metal bins.

On May 8, 2023, Rinnai sent M&M a demand letter, stating among other things that the parties’ contract required M&M to provide Rinnai with collection bins. M&M responded to the demand letter on May 25, 2023, disputing Rinnai's reading of the contract and stating that its obligation thereunder was to pick up scrap metal using bins provided by Rinnai.

On May 23, 2023, two days before M&M's response to Rinnai's demand letter, Rinnai began using a different recycling company to pick up scrap metal at one of the two plants covered by its contract with M&M. M&M continued to pick up metal at the other plant, but in June 2023 it stopped issuing rebate payments to Rinnai.

In September 2023, Rinnai informed M&M that it was terminating the contract. That month, Rinnai began using a different company to provide scrap metal recycling services at both of the plants covered by the contract with M&M. Later, in November 2023, Rinnai notified M&M that it would rescind its prior termination if, within 15 days, M&M provided metal bins and paid the outstanding rebate compensation owed to Rinnai.

M&M did not comply with Rinnai's demands, and Rinnai brought an action against M&M on November 29, 2023, asserting causes of action for: (1) breach of the parties’ contract by (a) failing to provide bins to Rinnai and (b) failing to pay rebates to Rinnai for some of the scrap metal that M&M picked up; alternatively to the contract claim, either (2) quantum meruit or (3) unjust enrichment in connection with the scrap metal that M&M took but did not pay for; and (4) negligent misrepresentation for falsely telling Rinnai that M&M would provide Rinnai either with a forklift attachment to use with the plastic bins or with steel bins.

M&M counterclaimed, asserting among other things that Rinnai had breached the parties’ contract, and sought summary judgment on its breach-of-contract counterclaim and on some of Rinnai's claims. In the order on appeal, the trial court granted partial summary judgment to M&M on its breach-of-contract counterclaim and denied summary judgment to M&M on Rinnai's claims. Both M&M and Rinnai appeal from that order.

2. Citations to physical precedent

Before turning to the errors enumerated in these cross-appeals, we point out that several authorities cited in the appellate briefs in this case are non-binding physical precedent. E.g., Tolson Firm v. Sistrunk, 338 Ga. App. 25, 789 S.E.2d 265 (2016) (physical precedent only); Watson v. Sierra Contracting Corp., 226 Ga. App. 21, 485 S.E.2d 563 (1997) (physical precedent only); Stowers v. Hall, 159 Ga. App. 501, 283 S.E.2d 714 (1981) (physical precedent only); Brumby v. Smith & Plaster Co., 123 Ga. App. 443, 181 S.E.2d 303 (1971) (physical precedent only).

Citations to physical precedent generally are unhelpful unless they are identified as such and a persuasive argument is made that we should follow them. We take this opportunity to remind counsel, as well as the bar, of our rules regarding physical precedent.

Prior to August 1, 2020: If an appeal was decided by a division of this Court, a published opinion in which all three panel judges fully concur is binding precedent. An opinion is physical precedent only (citeable as persuasive, but not binding, authority), however, with respect to any portion of the published opinion in which any of the panel judges concur in the judgment only, concur specially without a statement of agreement with all that is said in the majority, or dissent.

Ct. App. Rule 33.2(a)(2).

3. As a matter of law, the parties’ contract did not require M&M to furnish bins to Rinnai

Central to the parties’ dispute is whether their contract required M&M to provide Rinnai with steel bins for collecting scrap metal. Generally, the construction of a contract is a legal question for the trial court that we review de novo. OCGA § 13-2-1; Unified Gov't of Athens-Clarke County v. Stiles Apts., 295 Ga. 829, 832(1), 764 S.E.2d 403 (2014). Although the parties correctly point out that the trial court's summary judgment order contains inconsistencies — the trial court found the contract ambiguous on the issue of M&M's obligation to provide bins in denying partial summary judgment to M&M on Rinnai's breach-of-contract claim but unambiguous on the same issue in granting partial summary judgment to M&M on its breach-of-contract counterclaim — those inconsistencies do not affect our de novo review. See AMAC Two v. Web, Ltd., 370 Ga. App. 119, 120(1), 894 S.E.2d 414 (2023) (holding that we are not required to defer to the trial court's legal analysis in construing a contract).

“The cardinal rule of [contract] construction is to ascertain the intention of the parties.” OCGA § 13-2-3. This

involves three steps․ First, the trial court must decide whether the language [of the contract] is clear and unambiguous. If it is, the court simply enforces the contract according to its terms․ Next, if the contract is ambiguous in some respect, the court must apply the rules of contract construction to resolve the ambiguity. Finally, if the ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury.

City of Baldwin v. Woodard & Curran, Inc., 293 Ga. 19, 30(3), 743 S.E.2d 381 (2013) (citation omitted).

Looking first to the language of the contract, we conclude that it is ambiguous with regard to whether M&M had an obligation to provide collection bins to Rinnai. As detailed above, the contract imposes a duty upon M&M “to provide the following service and equipment at the frequency of collection indicated.” But the terms typewritten into the chart immediately following that statement of obligation do not unambiguously state that M&M would furnish bins. The parties selected “OTHER” to describe M&M's “EQUIPMENT/CONTAINER REQUIREMENTS” and then explained, “M&M Waste, Inc. will pick up scrap metal for Rinnai with their bins.” (Emphasis supplied.)

The proper antecedent for the word “their” in this sentence is unclear. The sentence could reasonably be read to mean that “M&M Waste, Inc. will pick up scrap metal for Rinnai with [M&M's] bins.” This would be consistent with other terms in the form contract, discussed above, which contemplate that M&M might provide equipment to Rinnai. But the sentence could just as reasonably be read to mean that “M&M Waste, Inc. will pick up scrap metal for Rinnai with [Rinnai's] bins.” This would be consistent with the parties’ failure to indicate on the chart that M&M would provide any particular type or quantity of container, instead selecting the category “OTHER.”

“[C]ontractual provisions are ambiguous when they are susceptible to more than one meaning, even if such meaning is logical and reasonable. Indeed, a contract is ambiguous if the words leave the intent of the parties in question — i.e., that intent is uncertain, unclear, or is open to various interpretations.” Goldeagle Ventures v. Covington Specialty Ins. Co., 349 Ga. App. 446, 449, 825 S.E.2d 881 (2019) (citation and punctuation omitted). Because the phrase “their bins” is open to various interpretations and could refer to M&M's bins or to Rinnai's bins, the language of the contract is ambiguous. See Tachdjian v. Phillips, 256 Ga. App. 166, 169, 568 S.E.2d 64 (2002) (“A word or phrase is ambiguous when it is of uncertain meaning and may be fairly understood in more ways than one.”).

We are not persuaded by Rinnai's arguments that the rules of contract construction resolve the ambiguity in its favor. First, “[t]he rules of grammatical construction usually govern” when construing a contract, OCGA § 13-2-2(6), and Rinnai proposes that we look to a rule governing prepositional phrases: “A preposition and its object — usually the word directly following it — comprise a prepositional phrase. These phrases function as modifiers — adjectives or adverbs.” Fuel Automation Station v. Energera Inc., 119 F.4th 1214, 1230 (IV) (10th Cir. 2024) (citations omitted). Rinnai asserts that, under this rule, the phrase “with their bins” describes how M&M will pick up the metal, compelling a conclusion that M&M will use its own bins, not Rinnai's bins. But the rule proposed by Rinnai does not resolve the problem of the ambiguous antecedent: whether the word “their” in the phrase “with their bins” refers to the closer antecedent, “Rinnai,” or the more remote antecedent, “M&M.” Another grammatical rule, the “last antecedent rule,” addresses this question and supports a construction that the word “their” in the phrase “their bins” refers to the antecedent immediately preceding it, “Rinnai,” rather than the more remote antecedent, “M&M.” See Deal v. Coleman, 294 Ga. 170, 174(1)(a), 751 S.E.2d 337 (2013) (“Referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent.” (citation and punctuation omitted)).

Rinnai also points to the rule that “[t]he construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part[.]” OCGA § 13-2-2(4). It argues that construing the contract to provide that it, rather than M&M, would furnish the bins renders some of its provisions meaningless, specifically the preprinted terms referring to M&M's equipment. See Schwartz v. Schwartz, 275 Ga. 107, 109(2), 561 S.E.2d 96 (2002) (“it is axiomatic that whenever possible, a contract should not be construed in a manner that renders any portion of it meaningless”). But such a construction would not render meaningless the preprinted references to M&M's equipment, because it is undisputed that M&M did provide some equipment to Rinnai, namely a scale. Moreover, the typewritten portions of the form contract govern over the preprinted portions, both under OCGA § 13-2-2(7) (“When a contract is partly printed and partly written, the latter part is entitled to the most consideration[.]”), and under a specific term of the contract. And as discussed above, the preprinted references to M&M's equipment may be harmonized with an interpretation of the typewritten terms to provide that under this particular contract bins would be furnished by the customer, Rinnai.

Even if the rules of construction do not resolve the ambiguity in the contract, we “look to parol evidence to explain ambiguities and the parties’ intent when they entered into the [contract].” AMAC Two, 370 Ga. App. at 124(1), 894 S.E.2d 414. See OCGA § 24-3-3(b) (“Parol evidence shall be admissible to explain all ambiguities, both latent and patent.”); Coppedge v. Coppedge, 298 Ga. 494, 498(1) n.3, 783 SE2d 94 (2016) (“if the contract contains an ambiguity that cannot be resolved through the rules of construction, the court may look outside of the written terms of the contract and consider parol evidence” (citation and punctuation omitted)). In doing so, we may consider the parties’ acts and conduct before the dispute arose. See City of Baldwin, 293 Ga. at 30-31(3), 743 S.E.2d 381 (holding that to the extent a contract was ambiguous, the way the parties treated that issue before the dispute arose would resolve the ambiguity); Head v. Scanlin, 258 Ga. 212, 214(1), 367 S.E.2d 546 (1988) (“The construction placed upon a contract by the parties thereto, as shown by their acts and conduct, is entitled to much weight and may be conclusive upon them.” (citation and punctuation omitted)).

The undisputed evidence regarding the acts and conduct of M&M and Rinnai in the period before Rinnai issued the demand letter supports a reading of the phrase “with their bins” to mean “with Rinnai’s bins.” There is no dispute that during the parties’ contract negotiations, Rinnai declined to use the steel bins recommended by M&M and stated that it would use its own plastic bins instead. Likewise, there is no dispute that Rinnai in fact used its own plastic bins for over a year after the parties executed the contract, and bought new bins to replace damaged bins on more than one occasion. Rinnai did not ask M&M to furnish it with metal bins until the spring of 2023, shortly before it sent the demand letter stating its position that the contract required M&M to furnish the bins. Indeed, one of Rinnai's 30(b)(6) witnesses testified that in early 2023 Rinnai was under the impression that it had to replace its own bins.

As discussed above, there is evidence that M&M told Rinnai it would provide a forklift attachment to make Rinnai's plastic bins more functional. But the contract is silent on the issue of a forklift attachment, and parol evidence cannot be used to add a term about a forklift attachment to the contract. See Atlanta Dev. Auth. v. Ansley Walk Condo. Ass'n, 350 Ga. App. 584, 588, 829 S.E.2d 858 (2019) (explaining that parol evidence may be used to explain an ambiguity in a contract but not to add to the contract). Moreover, any promises about a forklift attachment that were made before the execution of the contract were superseded by the contract's merger clause, see BDI Laguna Holdings v. Marsh, 301 Ga. App. 656, 661(1), 689 S.E.2d 39 (2009) (holding that a merger clause rendered the parties’ prior or subsequent oral communications on a contract term immaterial), and Rinnai has not argued that the parties later modified the contract to add an obligation regarding a forklift attachment.

In summary, although the language of the parties’ contract is ambiguous as to whether M&M had an obligation to furnish Rinnai with bins to collect scrap metal, we resolve that ambiguity to hold that as a matter of law the contract did not require M&M to furnish bins to Rinnai.

4. M&M was entitled to partial summary judgment on its breach-of-contract counterclaim (Case No. A25A1777)

The trial court held that M&M was entitled to partial summary judgment on its counterclaim that Rinnai breached the contractual provision giving M&M “the exclusive right to dispose of all of [Rinnai's] Scrap Metal” for a two-year period. (Emphasis omitted.) Rinnai does not dispute that it permitted other recycling companies to dispose of its scrap metal during that exclusivity period, but it argues under theories of rescission and anticipatory repudiation that it was excused from the exclusivity provision because M&M breached its contractual obligation to furnish Rinnai with bins. See generally OCGA § 13-4-62 (permitting a party to rescind a contract due to the other party's nonperformance in some circumstances); Coffee Butler Serv. v. Sacha, 258 Ga. 192, 193(1), 366 S.E.2d 672 (1988) (explaining that a party may “consider himself absolved from any future performance” under a bilateral contract of mutually dependent promises when the other party “absolutely refuses to perform and repudiates the contract prior to the time of his performance” (citation, punctuation, and emphasis omitted)).

As discussed above, M&M had no contractual obligation to furnish Rinnai with bins. Consequently, Rinnai's defenses to M&M's breach-of-contract counterclaim fail as a matter of law. We affirm that part of the trial court's order granting partial summary judgment to M&M on M&M's breach-of-contract counterclaim.

5. M&M was entitled to partial summary judgment on Rinnai's breach-of-contract claim (Case No. A25A1778)

In its claim for breach of contract against M&M, Rinnai asserted two breaches: (1) M&M's failure to furnish Rinnai with bins to collect scrap metal; and (2) M&M's failure to pay Rinnai rebates for scrap metal it collected between June and September 2023. M&M sought partial summary judgment as to only one of the claimed breaches: the claim that it breached an obligation to furnish bins.⁴ As discussed above, M&M had no such obligation, so we reverse that part of the trial court's order denying partial summary judgment to M&M on the portion of Rinnai's breach-of-contract claim concerning provision of bins.

6. M&M was entitled to partial summary judgment on Rinnai's claims for unjust enrichment and quantum meruit (Case No. A25A1778)

M&M argues that the trial court erred in denying it partial summary judgment on Rinnai's claims for unjust enrichment and quantum meruit. Rinnai asserted those claims as alternatives to its claim for breach of contract, arguing that it should be compensated for the scrap metal M&M collected between June and September 2023.

Where an express contract exists, a party cannot recover under theories of unjust enrichment or quantum meruit. Kwickie/Flash Foods v. Lakeside Petroleum, 246 Ga. App. 729, 730, 541 S.E.2d 699 (2000). Summary judgment is appropriate on such claims when the parties have an enforceable contract that covers the issue in question. See High Tech Rail & Fence v. Cambridge Swinerton Builders, 363 Ga. App. 226, 231(2), 871 S.E.2d 73 (2022) (holding that summary judgment was appropriate on claims for unjust enrichment and quantum meruit where the parties had an enforceable contract); Cook Pecan Co. v. McDaniel, 344 Ga. App. 370, 373-74(2), 810 S.E.2d 186 (2018) (same). Cf. Shlapak v. Dau, 375 Ga. App. 760, 772(4)(e), 917 S.E.2d 767 (2025) (holding that the existence of an enforceable contract did not, as a matter of law, bar the plaintiff from making an alternative claim of unjust enrichment where “the parties dispute[d] the scope of their contractual obligations to each other”); Fed. Ins. Co. v. Westside Supply Co., 264 Ga. App. 240, 247-48(7) & (8), 590 S.E.2d 224 (2003) (holding that summary judgment was not appropriate where questions of fact existed as to the scope of the parties’ contract and whether it governed the actions constituting the alleged breach).

M&M does not argue that the contract was unenforceable, either generally or with regard to the specific provision requiring M&M to compensate Rinnai for scrap metal. And the only arguments that Rinnai makes about enforceability are the rescission and anticipatory repudiation arguments that we hold above to be meritless. Moreover, neither party disputes the scope of their obligations to each other under the rebate compensation provision.

Under these circumstances, an enforceable contract exists that covers the compensation issue. The issue of whether M&M owes anything to Rinnai for the scrap metal it collected between June and September 2023 may be addressed in the context of Rinnai's breach-of-contract claim for unpaid rebates and M&M's counterclaim for breach of the exclusivity provision.

Consequently, the trial court erred in denying M&M partial summary judgment on Rinnai's claims for unjust enrichment and quantum meruit, and we reverse that part of the trial court's order denying M&M partial summary judgment on those claims. Given this resolution, we need not engage with the parties’ in-depth arguments regarding this court's treatment of concepts such as a “failed contract” or a “failed contract claim.” See, e. g., Saks Mgmt. & Assocs. v. Sung, 356 Ga. App. 568, 578(3)(e), 849 S.E.2d 19 (2020) (holding that “the pleadings can be construed to assert the claim for unjust enrichment as an alternative theory of recovery for a failed contract” in a case in which the parties’ contract was unenforceable (emphasis supplied)); Tidikis v. Network for Med. Communications & Research, 274 Ga. App. 807, 811(2), 619 S.E.2d 481 (2005) (describing unjust enrichment as “an alternative theory of recovery if a contract claim fails” but finding no claim for unjust enrichment as a matter of law where the parties did not challenge the validity of the contract on the issue in question (emphasis supplied)).

Judgment affirmed in part in Case No. A25A1777 and reversed in part in Case No. A25A1778.

FOOTNOTES

1.   Oral argument was held in Case No. A25A1778 on August 14, 2025, and is archived on the court's website. See Court of Appeals of the State of Georgia, Oral Argument, Case No. A25A1778 (Aug. 14, 2025), available at https://vimeo.com/1111387739.

2.   We do not reach the trial court's other rulings on M&M's motion for partial summary judgment. The trial court denied summary judgment to M&M on Rinnai's claim for negligent misrepresentation, but M&M does not enumerate that ruling as error. The trial court also denied summary judgment to M&M on Rinnai's claim that M&M was liable to Rinnai for damage to the collection bins under an indemnification provision in the parties’ contract. M&M has not made any argument or cited any authority pertaining to the indemnification provision ruling, so even if the ruling falls within M&M's enumeration of error related to Rinnai's breach-of-contract claim, we deem any claim of error about it abandoned. See Court of Appeals Rule 25(d)(1) (“Any enumeration of error that is not supported in the brief by citation of authority or argument may be deemed abandoned.”).

3.   The other columns within the “TYPE OF CONTAINER” subsection were titled “QUANTITY,” “CAPACITY,” “OPEN,” “CLOSED,” “FRONT,” “REAR,” and “CABTERS.”

4.   As to the other claimed breach, M&M does not appear to dispute that it had a contractual obligation to pay rebates to Rinnai or that it did not pay Rinnai rebates for some of the metal it collected. Issues regarding the amount of those unpaid rebates and whether they should be set off against any amounts owed by Rinnai to M&M for Rinnai's breach of the exclusivity provision are not before us.

McFadden, Presiding Judge.

Hodges and Pipkin, JJ., concur.