*1 170 ENERGY ELLISON et al. v. SOUTHSTAR
A09A0701. SERVICES, LLC. 750)
(679 SE2d Judge. MlKELL, (“plaintiffs”) filed this B. Bresler H. Ellison and Susan against Charles Georgia Energy Services, LLC Southstar class action d/b/a (“GNG”), selling company engaged in the business Natural Gas alleged sought gas Plaintiffs to recover retail customers. natural overpayments existing Plaintiffs customers. made to GNG its existing beginning GNG its that, October asserted provi- permitted under the amount in excess of that customers an Deregulation Competition and Act Gas sions of the Natural Act”).1 for failure to state a moved to dismiss the action “Gas (b) (6), grounds pursuant that 9-11-12 by claim plaintiffs’ to OCGA In doctrine.2 claims were barred citing doctrine, the a three-sentence order appealed. granted Plaintiffs motion to dismiss. trial court GNG’s voluntary payment doctrine does not we conclude that Because apply presented here, we reverse. under the circumstances a claim should be “A dismiss for failure to state motion to certainty complaint granted only with shows plaintiff state of facts that be entitled to relief under would not ruling support proven When on a motion of the claim.”3 could be favorably pleadings most dismiss, are to be construed to party “all regarding pleadings such must them, and all doubts who filed filing party’s We review de novo the trial favor.”4 be resolved ruling motion to dismiss.5 court’s on a pleadings6 that, at all times standard, show
Under this gas GNG, marketer within the action, this a natural relevant to (13) meaning Act, sold natural 46-4-152 of the Gas of OCGA including plaintiffs. the Gas Act and the consumers, Under retail Georgia promulgated by regulations Public Service Commission (the “Commission”) thereto, the Commission does not 1 seq. OCGA 46-4-150 et 2 § 13-1-13. 3 (410 (Citations omitted.) Davenport, App. 176 Nat. Ins. Co. v. 201 Ga. Lincoln Life (2) (480 370) (1991). (1997); Flake, 498, 501 SE2d Brown Accord Anderson v. 267 Ga. SE2d 16) (2005). (625 Dorsey, App. 276 Ga. SE2d v. omitted.) (Punctuation Anderson, Brown, supra. supra at 852. Accord and footnote (2) (602 333) (2004). Campbell, App. SE2d Common Cause/Ga. Brown, supra. Accord order, reviewing properly considered exhibits attached the trial court’s we have Dev., Properties incorporated pleadings. Hendon v. Cinema 644) (2005). Gadson, Anderson, supra; Brown v. Accord (3) (654 SE2d *2 regulate price gas;7 at which a however, marketer sells each required marketer is to file each month with the Commission a description of the “standard fixed offer” and the “standard variable gas price offer”8 under which it sells consumers,9 natural and the by published price.10 billed published the marketer must not exceed the The per commodity”
offer must include the “cost therm for the charge.”11 as well as “the marketer customer service (the “Origi- 2006, Until December GNG’s Variable Market Plan Plan”) pricing plan provided nal was the standard variable by Original GNG, consumers and were enrolled in this Plan Monthly all times material to this action.12As reflected in GNG’s (the Form”) Pricing “Monthly Marketer Form filed with the Com- September mission13for customers enrolled in Original charge price per Plan a customer service and a $5.95 (hence per-therm price $1,149. every therm of fluctuated month plan”). September term, “variable As to bills for months after plaintiffs allege overcharged Original that GNG its Plan charge customers both as to the customer service and as to the per-therm price.
Allegations charges. Although as to excessive customer service charge existing Original GNG continued to customers, Plan includ- ing plaintiffs, pre-existing charge customer $5.95, service this charge filings was not reflected in the $5.95 Commission GNG made with the September
after 2006. In and October November Monthly showing charge GNG filed Forms that the customer service Original stating for the $3.99, Plan was with a footnote (3) (“[t]he Comp. Regs. price gas Ga. R. & r. 515-7-3-.04 at which a marketer sells shall Commission”). regulated by not be 8 The price plan, “standard variable offer” is also known as the variable because default affirmatively plan those customers who do not select another are enlisted the standard variable offer. (14) (“[e]ach Comp. Regs. Ga. R. & r. 515-7-3-.04 marketer file shall at the Commission by month, [fifth] of the current the marketer’s standard fixed offer for residential customers”). customers and standard variable offer for residential (h) (“[t]he price gas gas See OCGA 46-4-160 for natural billed to a natural consumer published price beginning shall not exceed the marketer’s effective at the of the consumer’s (m) (“ billing cycle”); Comp. Regs. ‘[plublished price’ charge Ga. R. & r. 515-7-6-.01 means the gas, and, applicable, any separate assessed a marketer for a therm of natural if or additional charges capacity marketer Commission”); for interstate and customer service that are on file with the .. . (a) (5) (“[t]he Comp. Regs. competitive gas Ga. R. & r. 515-7-6-.02 retail natural charges published price service billed to a consumer not shall exceed the marketer’s in effect beginning billing cycle”). at the of the consumer’s (14) (“the Comp. Regs. R. & r. 515-7-3-.04 marketer’s . . . standard variable offer per commodity for residential customers .. . shall include the therm for the cost and . . . the ]”). charge, charges offer[ marketer customer service and other to be included in the Complaint 30, 2008, “Complaint”), In their Second Amended filed June Plaintiffs running present.” define the “Class Period” of this action as “from October Regs. Comp. See Ga. R. & r. 515-7-3-.04 range Charges from $3.99 for new customers
“Customer Service listed credit score.”14 The $3.99 based on $9.99 implied following, together, that for October taken footnote existing customers service November customer Original On the website of the had been reduced to $3.99. Plan prepared the Commission however, in the chart Commission, comparing variable offers for marketers’ standard the various *3 Original charge Plan service for GNG’s the customer October score,” credit based on described as “from $3.99 $9.99 was allege that no credit customers. Plaintiffs limitation to new without allege existing Plaintiffs further obtained on customers. scores were by complaining Original actively Plan customers misled that GNG telling on a service were based that their customer them they Starting though not. December score, even credit Monthly Original longer Form filed Plan on its no listed its GNG letter, in which it Instead, GNG filed a cover with the Commission. price per Original month, without therm for that set forth the Plan’s charge making any service to be assessed mention of the customer Original Plan. month under the for that price-per-therm charges. Allegations In December as to excessive default) (or offer, variable 2006, GNG introduced a new standard plan, only Select This called the Variable to new customers. available Plan Plan”), described the December “New was having Monthly as a customer service Form filed GNG per-therm ranging score, and a $9.99, based on credit from $3.99 (or “depending gas charge $1,359 check,” credit $1,429, on footnote). point according forward, above, noted from this As Original relegated letter Plan to cover disclosure as to GNG The cover letter filed for December filed with the Commission. (later price Original $1,369 per-therm for the Plan of stated a corrected to $1,399). plaintiffs under the continued to bill GNG though might Original offered a lower Plan, the New Plan have charge. per-therm charge did not customer service a lower provide plaintiffs Plan; the New notice of the establishment of with given opportunity plaintiffs Plan; in the New to enroll nor were Original plan, plaintiffs Plan, was no that their nor were advised price plan. longer GNG’s default variable gravamen the Gas action is that GNG violated Original plaintiffs by charging Plan than more under the Act In 1 of their under the New Plan. Count would have been alleged plaintiffs sought damages Complaint, violations of the for billing requirements forth in OCGA and notice set Gas Act’s 14 (Emphasis supplied.) (a) (h),
46-4-160 (5), R. & r. Comp. Regs. 515-7-6-.02 and Ga. (9) R. Comp. Regs. & r. 515-7-6-.02 notice of a (requiring marketer’s In changes “methodology”). plaintiffs Count sought general, exemplary, and treble for damages intentional violations of Act, the Gas under the Fair Business Practices Act of 1975 (imported (b)). into the Gas Act OCGA 46-4-160.5 In Count plaintiffs sought for breach of damages private duty15 under the Gas Act’s “bill (b) (9). for consumers” found in rights OCGA 46-4-151 Count seek refunds of the alleged overpayments procedures correcting “billing errors” found in OCGA 46-4-160.2 of the Gas Act.16 In Count assert a claim GNG for against unjust enrichment.
The trial court granted GNG’s motion to dismiss for failure to claim, state a based on the Thus, doctrine.
issue before this Court is whether the voluntary payment doctrine *4 to bar operates recovery of made payments by plaintiffs to GNG invoices, to if GNG’s GNG violated the in Gas Act the issuing invoices.
The voluntary payment doctrine is codified at OCGA 13-1-13: of claims Payments made of the law or through ignorance where all the facts are known and there is no misplaced artifice, confidence and no or fraudulent deception, practice used the other party are deemed and cannot be recovered unless made under an and immediate urgent therefor or necessity to release or from person property detention or to an prevent immediate seizure of or person a at the property. Filing protest time does not the rule change prescribed this Code section.
“The party seeking recover made bears the burden of payments that the showing voluntary payment doctrine does' not Even apply.”17 if the plaintiff facts, does not have actual of all of the knowledge doctrine will still bar where the had constructive recovery plaintiff (“[w]hen requires person §§ perform 51-1-6 See OCGA the law a an act another, doing may injure although benefit of another or to refrain from an act which no cause terms, given express injured party may legal of action duty is recover for the breach of such damage thereby”); (“[pjrivate may if he suffers 51-1-8 from duties arise statute or from contract, express implied. private duty, accompanied relations created The violation of a action”). by damage, give right shall a that, provides overpayment OCGA 46-4-160.2 if a customer makes an- error, billing “automatically immediately” provide marketer due to a the customer with either the marketer must overpayment. a a credit or refund of the 17(Citation omitted.) Montgomery County Sharpe, v.
knowledge of the material facts.18 error, contend that In related enumerations
1. three applied voluntary payment to bar claims should not be doctrine agree. Act. We violations of the Gas based on regulations promulgated thereunder form Gas Act and the legislative highly Because the scheme. technical and convoluted a liberally clearly purpose remedial,19 be con- it should is Gas Act’s voluntary payment purpose, light remedial In of its strued.20 by gas applied consumers to to bar actions should not be doctrine overpayments marketer. made to recover provided private right light action of civil Further, in that v. Act,21 Gas we conclude 46-4-160.5 of the Oxford analogous by plaintiffs, the case at hand is more Shuman,22 cited Telescripps Fitzgerald ,23 Cable Comm. v. Shaw Indus. than Water &c. upon by Cotton,25relied GNG. Welsh,24 Co. taxpayer sought under a statute a tax refund Oxford,
In a providing specifically This refused to for such an action.26 Court ground apply case, doctrine doctrine) (such general as the that a statute providing specific apply for a statute statute should not refund) provided expressly taxpayer’s for a refund of the suit for overpayment.27 are in irreconcilable that, note where statutes We general prevail specific statute, absent conflict, will over a “a statute any contrary legislative intent, to resolve incon indication of (a) (4), legisla sistency 46-4-151 them.”28 OCGA between *5 18 (2) (472 92) (1996) &c., (plaintiff App. 221 Ga. 611 SE2d v. Med-Cor Health Cotton [his] to determine the truth” order to that “a valid reason existed for failure must show omitted). doctrine) (citation punctuation application and avoid of the 19 (“The (a) (4) protecting Assembly § [t]hat finds . .. General See OCGA 46-4-151 competition important on market based is the most natural consumers in this new reliance article”). any with this decisions to be made in accordance factor to consider 20 (1) (559 Co., App. Dept. 253 Ga. 554 SE2d Ins. &c. v. St. Paul Fire &c. Ins. 21 right “[a]ny provides § retail customer who is 46-4-160.5 of civil action OCGA 46-4-160”; by any provision damaged of of Code Section a marketer’s violation (b) 46-4-160, regulations promulgated any or the declares violation of OCGA 46-4-160.5 thereunder, Georgia’s of Fair Business Practices Act. to be a violation 22 (126 522) (1962). App. SE2d 106 Ga. 73 23 (606 10) (2004). App. 270 Ga. 68 SE2d 640) (2000). (542 App. SE2d 247 Ga. 25 Supra. (2) (b). supra Oxford, at 77-78 (“the 823) (1969) (c). Smith, SE2d Id. at 79 See also Hawes law, remedy only always right [a tax] an available at common to sue for refund has been having right expressly recognized the defense of statute has been to remove effect of such 13-1-13]”) (citation omitted). predecessor voluntary payment [under the of OCGA omitted.) &c., (Citation, punctuation emphasis Hooks v. Cobb Center Pawn (6) (527 contrary specific give indicated, intent, ture has not a but a intent to protections provided by force to the consumer the Gas Act. upon by GNG, the cases relied applied recovery money paid, though
doctrine was to bar money collection of the violated a contract or a statute.29 In none of party seeking repayment rely upon cases, however, these did the specific statutory private right action, as here.30We conclude that controlling application these cases are not as to the plaintiffs’ doctrine to Gas Act claims the case at hand. argues
2. GNG that the information filed with the Commission together website, and available on the Commission’s with the plaintiffs’ provided bills, information contained in GNG all the plaintiffs they being information overcharged. needed to determine that were plaintiffs
However, we note that the bills GNG sent to filing score”; do not show a “credit nor does with the exactly particular Commission detail how a “credit score” would price per affect either the customer service therm. Therefore, at least as to the months for which the record before us filings Commission, contains GNG’s with the it is not clear how plaintiffs they could have determined what would have been parties appeal appear under the New Plan. Both to this to assume plaintiffs’ gas that bills under the New Plan would have been possible; is, determined under the lowest rates that qualified top would have for the “credit score.” But there is no support assumptions parties. evidence the record to If according system varied to an unrevealed of credit impossible scores, it would have been to find out what they really supposed paying. circumstances, to be Under these payments “voluntary” their would not have been within the mean- ing applies only of OCGA 13-1-13. That statute where “all the facts are known”31or could have been determined.32 reviewing ruling
3. In the trial court’s on GNG’s motion to plaintiffs’ complaint, express-no opinion dismiss we on the merits of claims, other than that are not barred *6 voluntary payment Specifically, opinion doctrine. we venture no as to “billing meaning whether a error” occurred within the of 29Fitzgerald, supra (barring recovery payments at 70-71 of in excess of contractual (1) obligations supplier); Telescripps, supra (barring under contract with electric at 285 fees, recovery payments penalty); for of late even where fees constituted an unenforceable (2) statute). Cotton, supra (barring recovery payments imposed at 612 of in contravention of a 1; 283; Fitzgerald, supra Telescripps, Cotton, supra supra n. at at 609. (1) 13-1-13; Telescripps, supra (recovery § See OCGA at 285 barred where customers law). paid ignorance fees of (1) Fitzgerald, supra (voluntary payment applied party at 70-71 doctrine bills). seeking repayment discrepancy had the means at hand to discover in electric changed § its “methodol- to whether GNG 46-4-160.2 or as OCGA Regs. meaning Comp.
ogy” r. 515-7-6-.02 of Ga. R. & within the Ellington, Judgment Johnson, J., J., Miller, J., P. and C. reversed. J., Adams, J., Andrews, J., Blackburn, dissent. P. P. and concur. Presiding Judge, dissenting. ANDREWS, policy protecting implement of the Gas Act’s In an effort to majority defense of volun- consumers, nullifies the natural tary payment, arising against under the 13-1-13, claims private right mentions, let of But the Act itself never Act’s action. any abrogates, Because our well- this or other defense. alone developed the defense of consumer class actions authorizes law of actually defense cases, and because that such plaintiffs’ respectfully I claims, dissent. bars these According majority, gist suit is that to the of this charged Original than would have “more under the Plan charged the second amended the New Plan.” But been complaint under might charged higher be a concedes that customers
itself Original Plan, under the under the New Plan than service depending also concede that their on their credit scores. Plaintiffs charges consistently applied billing to their reflected the statements any prices Original lower under the Plan and that accounts Georgia them on the Natural other customers were available to Gas website. considering majority the factitiousness of avoids private right by holding of law that the claims as a matter
actual action created OCGA 46-4-160.5 is in “irreconcilable conflict” commonplace But it is with the doctrine. derogation statutory Act are of the schemes such as Gas strictly be construed. “Where common law and must therefore gives right law, exist at common it must be statute which did not meaning language employed, strictly and not limited plain explicit beyond terms of the statute.” extended (Punctuation omitted.) Co., Nicholl Great Atlantic &c. nor Neither OCGA 46-4-160.5 purports abrogate any part law Act common other of the Gas Georgia statutory explained the Northern District of defense. As today, before us there is “no when it dismissed the same claims barring recovery actual conflict between the statute payments provision right private Act’s for a action” and the Gas improper pay allegedly have refused to because “could brought [OCGA] then suit under 46-4-160.5 *7 Energy damages a result.” Robbins v. SCANA suffered as (N.D. 2008). Marketing, No. 1-08-CV-640-BBM Ga. Case 177 voluntary payment This Court has authorized as a defense to opinions consumer class actions in cited and followed state and country. federal courts across the &c., Cotton v. Med-Cor Health (2) (472 92) (1996) App. (physical precedent 609, 221 Ga. 611 SE2d only) (affirming grant by hospital of motion to dismiss class action patients ground voluntary payment that the doctrine barred claims); plaintiffs’ Telescripps App. Welsh, Cable Co. 282, v. 247 Ga. (1) (542 640) (2000) (following reversing 284-287 SE2d Cotton and denial of motion to dismiss class action cable consumers on the ground claims). voluntary payment doctrine barred Appeals opinion
As the Missouri Court of
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2008 Mo.
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Halle Dev. v.Anne Arundel
Alexander, SE taxpayer’s denial of Revenue Commission’s demurrer action taxpayer made a tax income without *8 noting protest). prohibited argue from introduc- was do not that GNG
Plaintiffs ing chose to offer, and the fact that GNG variable a new standard “might than have” been lower with rates that entice new customers bills, which does not mean those “billing agreed accurately to, contained the terms reflected containing such as if the bills could be construed errors.” But even Act, defense of the Gas errors violation Telescripps apply. holds, in of a mistake of As the absence would still recovery “voluntary doctrine bars fact, the if (Emphasis supplied.) charges imposed a statute.” violation of (1), citing Telescripps, Cotton, 221 Ga. at 612. defense is available to GNG
Because the paid “without their natural bills case, and because this failing truth,” Ins. Co. for to ascertain the a valid reason Gulf Life 368) (1986), did the trial court Folsom, granted dismiss. I therefore dissent. GNG’s motion to not err when it Presiding Judge Blackburn I to state that am authorized join Judge in this dissent. Adams 2, 2009
Decided June Brockington Strickland, Strickland, Lewis,' Anne W. & Frank B. appellants. Lewis, Doss, Jason R. for Kimberly Steinberg,
Rogers Remar, Hardin, B. Jill E. & Robert Myers, appellee. L. OUTDOOR, INC. HOLMES v. CLEAR CHANNEL
A09A1117. (679 SE2d Presiding Judge.
BLACKBURN, Outdoor, recover Holmes, Jr., Clear Channel Inc. to Fred H. sued injury damages personal billboard caused when the catwalk on a collapsed Holmes while he from underneath owned Clear Channel replace poster preparing on the billboard. Based was language Holmes and Clear in a contract between of a waiver summary judgment predecessor, the trial court entered Channel’s appeals. agree judgment We Channel, which Holmes favor Clear with the trial court affirm. appearance of this case before this Court.
This is the second