*1 TELEPHONE COMPANY A99A2089. LANGE et al. STANDARD

et al. Blackburn, Presiding Judge. regarding alleged overcharging In this class action suit for tele- Machinery, Lange, Lange services, Deborah A. J. communications appeal Inc., and Marcia L. Rheinschilds from the trial court’s order Company, Sprint dismissing Telephone their suit Standard Corporation, Communications, L.P., MCI Telecommunications Telecommunications, follow, For that we BellSouth Inc. reasons affirm the trial court’s dismissal. (1) action, In their class violations of: asserted allegedly charged § OCGA 46-2-25.1 because defendants for tele- (2) phone county calls between two within the same allegedly charged § because defendants for tele- phone calls between two within sixteen miles of one plaintiffs’ complaint alleged grounds specifi- another. The that their (OCGA cally 25.2)” included “For A First 46-2-25.1; Cause of Action 46-2- (OCGA 46-2-90).” and “For A Second Cause Of Action granting In its order dismiss, defendants’ motion to the trial court concluded: [OCGA § 46-2-25.2]

that neither statute 46-2-25.1 nor any imposes providers obligations duties or on telecommunications prohibits engaging any or the same from act thereby creating private cause of action for their violations impose gov- Instead, of the same. said statutes duties on and ern the conduct of the Public Service Commission. addition,

In the trial court further found that the failed to explaining: set forth a valid cause of action under OCGA provides “any company OCGA 46-2-90 under the (which) [PSC] does, done, causes to be or permits any prohibited, to be done forbidden, which is or (which) unlawful, declared to be or fails to do act which required by damage, either a law of this state or an order of the [PSC] injury loss, . . . shall be liable . . . for all or thereby caused therefrom” in an action to brought jurisdic- competent recover the same court of [p]laintiffs However, tion. .. have failed to cite to [defendants pro- affirmative act undertaken which is [p]laintiffs hibited, forbidden, addition, unlawful. [defendants failed to cite failure of the to do an act by Georgia of them law or an order of the PSC. plaintiffs erroneously appeal, that the trial In this contend by (1) reasoning faulty concluding and that it erred court’s impose any OCGA 46-2-25.1 and 46-2-25.2 did not duties or obli- gations upon providers, telecommunication a violation of which (2) give § 46-2-90; rise to a cause of action under OCGA proved [was] facts that could “that there *2 appellants’ claims which would entitle them to relief.” provides: § 46-2-90

1. OCGA any company If does, under the of the commission permits done, to be or done unlawful,

causes be prohibited, forbidden, is or declared to or fails to be by do act which either law of this state or company commission, an order of the such shall be liable thereby persons damage, injury loss, to the affected for all or thereby caused or An therefrom. action to recover damage, injury may brought loss, for such or competent jurisdiction person. such In case of recovery, jury if the finds that such act or failure to act was attorney’s willful, it fix fee, a reasonable which shall be part taxed and collected as of the costs of the case. Plaintiffs assert the defendants’ violations of OCGA bring §§ 46-2-25.1 and 46-2-25.2 this case within the ambit of OCGA statutes, however, 46-2-90. These are directed at the conduct of the providers. PSC, not telecommunications provides: (a) (b) Except provided as in subsection of this Code sec- approve any tion, . . the. commission shall not rate sched- long-distance charge ule which authorizes a. for calls telephones county. between two within the same Where two telephone companies operate county, or more each in the same company provide county-wide calling shall local telephones from pany within the area served the other com- companies county. or in the . . . (b) approved pursuant All rate schedules to this Code section be modified at the discretion of the commission upon good showing geographic, economic, sufficient technological infeasibility by telephone company. or (c) approved pursuant All rate schedules to this Code [various factors]. section shall take into account (d) implement plan [to The commission shall . . . expand calling]. toll-free (e) Any plan implement county-wide calling local subject approval shall be to the of the commission. . . . (f) The commission shall authorized to consider and adopt regulation. alternative forms of ..

(g) Nothing interpreted in this Code section shall be amending, modifying, repealing Code Section relating rate-making power gener- to the of the commission ally companies. special provisions concerning clearly Because this statute is directed at PSC, the conduct of the rely upon cannot it to demonstrate that the telecommunica- performed “prohibited, tions defendants forbidden, act that was meaning declared to be unlawful” within the of OCGA 46-2-90. language 2. The of OCGA 46-2-25.2 also demonstrates that it is provid- directed at the conduct of the not telecommunications ers. It states:

(a) goal provide It is the of this Code section to for toll calling free between two where the central offices serving such are within 16 miles of each other. (b) (e) Except provided in subsection of this Code sec- *3 [PSC] approve any tion, . . . the shall not new rate schedule long-distance charge which authorizes a for calls between telephones serving two where the central such offices tele- phones are within 16 miles of each other. ' (c) (e) Except provided in subsection of this Code sec- approved by [PSC] tion, . . rate schedules the . . . shall long-distance amended so as to reduce one-half the charge for calls between two where the central serving offices other. such are within 16 miles of each (d) July [PSC] On 1, 1993, or before the shall conduct hearings accept and evidence. . . . (e) approved pursuant All rate schedules to this Code upon [PSC] section a be modified at the discretion of the

good showing geographic, and sufficient economic, technological infeasibility by telephone company. (f) approved pursuant All rate schedules to this Code following. section shall take into account the . . .

(g) Any telephone company seeking any por- to recover expenses tion of its or lost toll revenues from the implementation plan of the . . . contained this Code sec- hardship. tion shall demonstrate its financial . . . (h) Nothing interpreted in this Code section shall be amending, modifying, repealing Code Section power generally [PSC]

relating rate-making of the the provisions concerning special com- and panies. rely plaintiffs upon § sec- 46-2-25.1, cannot this Code

As with OCGA tion to state § a claim under OCGA 46-2-90. Finally, erred dis- contend that the trial court

3. missing finding that there was no of facts their case state support However, of their class action. because could be appellants’ wholly law, claims are untenable as a matter of trial properly ruled. Generally, pursuant should be dismissed to OCGA (b) (6) failure to a claim which relief can be 9-11-12 granted only appears plaintiff “it to a that the when proved entitled to no relief under state of facts which could be (Punctuation omitted.) Vaughan [or her] v. of his claim.” (1984). Vaughan, Otherwise, 76, the claim proceed, pertaining should be allowed to as all doubts to a motion City Quetgles dismiss resolved in the nonmovant’s favor. must be Columbus, 264 Ga. 708 plaintiffs’ Here, all of claims are based on violations of compa- OCGA 46-2-25.1 and 46-2-25.2 the telecommunications apply above, nies. As discussed provide these statutes to the PSC and for relief basis various telecommunications companies argue action, involved herein. In first cause of

that defendants violated the mandates of OCGA 46-2-25.1 contending independent 46-2-25.2, that these statutes create an plaintiffs attempt action, cause of In their action. second cause aegis bootstrap their first cause of action under the of OCGA 46-2- Merely stating they 90. believed defendants were plaintiffs again argue “[defendants PSC, permitted illegal charging telephone caused or . . . service in vio- However, lation of OCGA 46-2-25.2.” clearly are because these statutes directed at the conduct of the rely plaintiffs cannot on them to demonstrate that the telecommuni- performed “prohibited, forbidden, cations defendants an act that *4 meaning or declared to be unlawful” within of OCGA 46-2-90. the plaintiffs’ complaint Moreover, the never the states that defend- any regulation thereby engaged ants violated PSC and in “unlawful plaintiffs’ complaint totally Furthermore, conduct” of devoid of claims would fall into the PSC’s kind. the is any allegations by PSC, and, such, of action the resolution, as OCGA empowers § 46-2-90 the commission to entertain consumer com- plaints public Co., about utilities. Carr 263 Ga. 771 v. Southern 357) (1994).

305 only wholly untenable, the plaintiffs’ claims are Therefore, liability alleged companies’ claimed the source §§ 46-2-25.2, which and by plaintiffs 46-2-25.1 a of OCGA is violation plaintiffs have failed applicable defendants, and to these not are No 46-2-90. under OCGA “unlawful conduct” assert legal plaintiffs proposed by insuffi- alter the can of facts state ciency 46-2- OCGA these defendants of their claims complaint. in their as raised 25.1, 46-2-25.2 or 46-2-90 attempt Contrary to revive dissent, cannot now to the complaint arguments sufficiency legal in their framed raising possibility some the PSC issued the mere comply. not The did which the defendants reason with order existence of some appear the record and not such order does not complaint. in the complaint a Act motion to dismiss Civil Practice Under the granted upon may be which relief for failure state claim complaint granted in the not unless averments should entitled would not be with disclose to relief under sup- proven in of facts that could be state port of the claim.

(Punctuation Meyer, emphasis supplied.) 249 omitted; Ledford (2) complaint The in the 407, 408 averments violation of OCGA 46-2- all revolve around the defendants’ direct question, apply statutes, 46-2-25.2, and without 25.1 mention is made of the defendants’ violation the PSC. No thereby making any claim for violation of order issued equally such, As state facts can OCGA 46-2-90 meritless. plaintiffs’ Also, life into claims. the dismissal this com- breathe complaint plaint preclude filing properly pled of a stat- ing a lawful claim. complaints allegations plaintiffs’ are

Thus, framed as a a claim which relief insufficient appropriately them. law, dismissed matter and Pope, Judgment J., Andrews, J., Johnson, J, P. P. C. affirmed. Eldridge Phipps, JJ, Barnes, J., 1 concurs as Divisions concur. as to Division 3. and dissents Barnes, dissenting. Judge, respectfully fully dissent to I in Divisions but concur which would establish facts could be Division 3 because specifically, § 46-2-90, violation of a Public valid claim under OCGA the defendants. Service Commission dismiss a Practice Act a motion to Under the Civil *5 306

for failure to state a claim which relief granted be granted should not be unless averments in the complaint disclose with would not be entitled state of that could in sup- relief facts the claim. port of (Citation omitted.) 407, and punctuation Meyer, v. 249 Ga. Ledford (2) (290 908) (1982).

408 SE2d undertaking When this we analysis, must remember of [Civil objective Act] Practice is to avoid technicali- require

ties and to a plain short statement of the claim that will give the defendant fair notice of what claim is and general indication of the type litigation involved; discovery process bears the burden of filling [the] details. (Citations omitted.) Clinic, Dillingham 302, v. Doctors 236 Ga.

(223 625) (1976). SE2d do “Complaints allege not have facts suffi- cient to set forth cause of action and are no longer to be construed most strongly against v. D pleader.” Assoc., Richter & M 228 Ga. (1) (187 253) (1972). 599, 604 SE2d Finally, it is no longer necessary for a to set complaint forth all the elements aof cause of action in survive motion to dismiss for failure to state a claim. 489) Eason, 139,140 Christner v. 146 Ga. (1978); App. Hill v. Lariscy, 699-700 App. case, this granted defendants’ motion to

dismiss, in part, because “[p]laintiffs have failed to to any cite failure Defendants do by Georgia them law or by an order of the PSC.” While the plaintiffs’ to point specific failure to a might PSC order fatal the summary context, it judgment does not warrant dismissal for failure to state a claim. The this case clearly asserted a claim under OCGA 46-2-90 that pro- vided the defendants with “fair notice what the claim is and a gen- eral indication of the type litigation involved.” Dillingham, supra. they The fact that an element of a cause of action under OCGA violation of a PSC order the defend- ants, does not the majority’s conclusion that failed state a claim. 30, 2000

Decided March Sitton, Sitton,

Clinton W. Claude M. for appellants. Smith, Russell, Gambrell & Wasmuth, Lisa C. Tripp, Edward H. Jr., Sutherland, Brennan, Lawrence, Asbill & J. Allegra Teresa W. Henry Roseborough, IV, Adams, C. James R. Steven J. Walker Thompson, appellees. LaBREC DAVIS. A99A2271. (534 SE2d Judge. Smith, discretionary appeal application LaBrec’s

We Kevin *6 legiti- petition granting to Jonathan Davis an of to consider mate birth as his had order raising been child, Denver, whom LaBrec had since the minor Notwithstanding of an order that own the existence son. legitimated child, Denver LaBrec’s misapplied legal petition. con- we find that the trial Because Davis’s trolling authority, apparently to effect of a failed consider prior legitimating son, failed and also the child as LaBrec’s judgment child, of we vacate consider the best interest opinion. findings with this remand for further consistent underlying litigation Davis, after Denver J. LaBrec’s arose The biological apparent LaBrec, father, father filed suit competing paternity Denver, claims to had ever known.1 The Denver child, court battle. a minor evolved into difficult contentious “had and Elizabeth Wolff been The evidence shows that LaBrec years relationship approximately prior to six in an intimate relationship shortly birth,” ended after Denver was that child’s May 17, child, LaBrec, born as Denver J. was 1995. born. This LaBrec raised present dispute, claims, that LaBrec was and Davis does appears name on the birth certif- at birth and that LaBrec’s Denver’s (b) (1) (failure Appeals See Rule icate as Denver’s father. Court appellant’s facts constitutes consent to to controvert statement statement). history instability. mother, Wolff, mental Some Denver’s has experienced psycholog- subsequent giving birth, Wolff serious time July attempted problems. 1996 while visit- ical After Wolff suicide Georgia. ing Missouri, with LaBrec returned Denver relatives sought legitimating court order Denver his LaBrec and obtained a July 15, 1996. In on son and LaBrec’s order was entered legitimate, petition affidavit, Wolff testified acknowl- biological edging father Denver. In natural and LaBrec as the legal August 1996, sole commenced court action obtain LaBrec response physical custody to LaBrec’s effort to of Denver. 24, 1999, guardian court-appointed litem in court on March child’s ad stated The child, nearly years old. met four had never who then Davis