Cazier v. Ga. Power Co.

• Decision Date: 16 November 2016
• Docket Number: A16A1313
• Citation: 339 Ga.App. 506,793 S.E.2d 668
• Parties: CAZIER et al. v. GEORGIA POWER COMPANY
• Court: Georgia Court of Appeals

339 Ga.App. 506

793 S.E.2d 668

CAZIER et al.

v.GEORGIA POWER COMPANY

A16A1313

Court of Appeals of Georgia.

November 16, 2016

Roy E. Barnes, James G. Richardson, John Frank Salter Jr., for Appellant.

William Middleton Droze, Atlanta, Robert Pursley Edwards Jr., Roger S. Reigner Jr., Atlanta, for Appellee.

Boggs, Judge.

This litigation first appeared before us in Georgia Power Co. v. Cazier , 321 Ga.App. 576, 740 S.E.2d 458 (2013) (" Cazier I "). Electric power customers brought an action against Georgia Power seeking certification as a class action and refunds for alleged overpayment of sales taxes and improper calculation of municipal franchise fees.¹ The trial court denied Georgia Power's motion to dismiss the action, and Georgia Power appealed. We held that petitioners could not pursue a direct action against Georgia Power for refund of sales taxes under OCGA § 48–2–35.1 (d) ("Refund of sales and use taxes; expedited refunds") or OCGA § 48–8–72 ("Overcollected sales or use tax"), and reversed the trial court's denial of Georgia Power's motion to dismiss with reference to those claims. Id. at 581, 582 (1) (2), 740 S.E.2d 458. We concluded, however, that petitioners' claim regarding the municipal franchise fees remained pending, as it was not a

challenge to the validity or reasonableness of any utility rate set by the commission, and instead there is simply a challenge to the method of calculating and collecting the said fee. As the trial court correctly found, the parties agree that the commission has exclusive authority to set just and reasonable rates and the complaint raises a wholly different issue.

(Punctuation omitted.) Id. at 583 (4), 740 S.E.2d 458. In addition, we declined to consider "whether the appellees' complaint may be amended to assert a claim founded on OCGA § 46–2–90 or as to the merits of such a claim." Id. at 583 (3), 740 S.E.2d 458.

The litigation returned to the superior court, and petitioners amended their complaint, retaining the claim regarding the franchise fee and adding a claim under OCGA § 46–2–90 ("Liability of companies subject to jurisdiction of commission generally ...") Georgia Power renewed and amended its earlier motion for summary judgment, asserting that petitioners failed to exhaust their administrative remedies before the Public Service Commission ("PSC"). The trial court dismissed the action in its entirety in a one-page order, stating that it lacked authority to rule on the merits because petitioners had failed to exhaust their administrative remedies before the PSC. It also denied the motion for class certification. For the reasons stated below, this was error, and we vacate the trial court's order and remand for further proceedings consistent with this opinion and our earlier opinion in Cazier I .²

1. We first address the trial court's conclusion that petitioners failed to exhaust their administrative remedies. Our Supreme Court "has consistently held that as long as there is an effective and available administrative remedy, a party is required to pursue that remedy before seeking equitable relief in superior court." (Citations and punctuation omitted.) Fulton County Taxpayers Foundation v. Ga. Public Svc. Comm. , 287 Ga. 876, 878–879 (2), 700 S.E.2d 554 (2010). In order to determine whether an "effective and available administrative remedy" exists, therefore, we must look at both the nature of petitioners' claim and the law under which they seek to proceed.³

Petitioners contend that the relevant PSC orders require Georgia Power to calculate municipal franchise fees as a stated percentage of "electricity usage revenue," "usage revenue," or "revenue." They do not complain of any PSC ruling or seek review of any commission action. Rather, they assert that Georgia Power has inflated the basis for calculating the franchise fees by including in its declaration of "revenue" certain "cost recovery items" which were not contemplated by the PSC orders. They further contend that this accounting practice by Georgia Power violates the applicable PSC orders and unlawfully overcharges customers for amounts not authorized by the PSC.

The Administrative Procedure Act governs judicial review of agency decisions, including those of the PSC. Ga. Power Co. v. Campaign for a Prosperous Ga. , 255 Ga. 253, 254 n.2, 336 S.E.2d 790 (1985). The relevant provision is OCGA § 50–13–19. Id. Subsection (a) states:

Any person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter. This Code section does not limit utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by law. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.

Id. Subsection (c) further provides that "no objection to any order or decision of any agency shall be considered by the court upon petition for review unless such objection has been urged before the agency."

This Code section, and the cases construing it, by their terms apply to persons who are "aggrieved by a final decision in a contested case" or who have an "objection to any order or decision" of the relevant agency. See id. at 257 (1), 336 S.E.2d 790 (OCGA § 50–13–19 (a)"requir[es] that all persons seeking review of a PSC or other agency decision must demonstrate their ‘aggrieved’ status in order to have standing to do so"); Fulton County Taxpayers , supra, 287 Ga. at 878 (2), 700 S.E.2d 554 (OCGA § 50–13–19 (a) requires that "a person must have exhausted all administrative remedies available within the agency and must be aggrieved by a final decision in a contested case." (Punctuation omitted.)) In other words, the administrative remedies contemplate an order or decision by the PSC in a contested case .

Here, in contrast, petitioners do not claim to be aggrieved by any action of the PSC, nor do they object to any decision or order of the commission. Instead, they contend that Georgia Power has violated the relevant orders of the PSC by failing to use the basis prescribed by the commission to calculate municipal franchise fees. As we noted in Cazier I, "there is no challenge to the validity or reasonableness of any utility rate set by the commission, and instead there is simply a challenge to the method of calculating and collecting the said fee." 321 Ga.App. at 583 (4), 740 S.E.2d 458.

In this appeal, petitioners assert that they are proceeding against Georgia Power under OCGA § 46–2–90, which authorizes legal action against companies under the jurisdiction of the PSC:

If any company under the jurisdiction of the commission does, causes to be done, or permits to be done any act which is prohibited, forbidden, or declared to be unlawful, or fails to do any act which is required either by a law of this state or by an order of the commission, such company shall be liable to the persons affected thereby for all loss, damage, or injury caused thereby or resulting therefrom. An action to recover for such loss, damage, or injury may be brought in any court of competent jurisdiction by any such person. In case of recovery, if the jury finds that such act or failure to act was willful, it may fix a reasonable attorney's fee, which shall be taxed and collected as part of the costs of the case.

Id.

This Code section stands in contrast to other provisions of Title 46, which expressly provide for administrative petitions or hearings. See, e. g., OCGA § 46–2–91 (PSC may impose penalties upon "[a]ny person, firm, or corporation" subject to its jurisdiction; judicial review only after commission holds hearing and renders decision); OCGA § 46–3–8 (PSC has "authority and jurisdiction" to approve transfer of service under Georgia Territorial Electric Service Act, see City of LaGrange v. Ga. Pub. Svc. Comm. , 296 Ga.App. 615, 675 S.E.2d 525 (2009) ); cf. OCGA § 49–4–153 (providing for administrative review of Board of Community Health decisions regarding Medicaid services, see Ga. Dept. of Behavioral Health v. United Cerebral Palsy of Ga., Inc. , 298 Ga. 779, 783 (1) (b), 784 S.E.2d 781 (2016) ).

OCGA § 46–2–90 does not contemplate any administrative proceedings before the PSC or the challenge of any order or decision by the commission, but rather authorizes an action to recover damages "in any court of competent jurisdiction" from a company under the PSC's jurisdiction that has violated a PSC order by act or omission. This is consistent with our observation in Cazier I that this count does not challenge a rate set...