Ellison v. Southstar Energy Services, LLC.

• Decision Date: 02 June 2009
• Docket Number: No. A09A0701.,A09A0701.
• Citation: 679 S.E.2d 750,298 Ga. App. 170
• Parties: ELLISON et al. v. SOUTHSTAR ENERGY SERVICES, LLC.
• Court: Georgia Court of Appeals

679 S.E.2d 750

298 Ga. App. 170

ELLISON et al. v. SOUTHSTAR ENERGY SERVICES, LLC.

No. A09A0701.

Court of Appeals of Georgia.

June 2, 2009.

Strickland, Brockington & Lewis, Frank B. Strickland, Anne W. Lewis, Atlanta, Jason Ryan Doss, Marietta, for appellants.

Rogers & Hardin, Robert B. Remar, Jill E. Steinberg, Kimberly L. Myers, Atlanta, for appellee.

MIKELL, Judge.

Charles H. Ellison and Susan B. Bresler ("plaintiffs") filed this class action against Southstar Energy Services, LLC d/b/a Georgia Natural Gas ("GNG"), a company engaged in the business of selling natural gas to retail customers. Plaintiffs sought to recover alleged overpayments made to GNG by its existing customers. Plaintiffs asserted that, beginning in October 2006, GNG charged its existing customers an amount in excess of that permitted under the provisions of the Natural Gas Competition and Deregulation Act (the "Gas Act").¹ GNG moved to dismiss the action for failure to state a claim pursuant to OCGA § 9-11-12(b)(6), on the grounds that plaintiffs' claims were barred by the voluntary payment doctrine.² In a three-sentence order citing the voluntary payment doctrine, the trial court granted GNG's motion to dismiss. Plaintiffs appealed. Because we conclude that the voluntary payment doctrine does not apply under the circumstances presented here, we reverse.

"A motion to dismiss for failure to state a claim should be granted only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of the claim."³ When ruling on a motion to dismiss, "all pleadings are to be construed most favorably to the party who filed them and all doubts regarding such pleadings must be resolved in the filing party's favor."⁴ We review de novo the trial court's ruling on a motion to dismiss.⁵

Under this standard, the pleadings⁶ show that, at all times relevant to this action, GNG, a natural gas marketer within the meaning of OCGA § 46-4-152(13) of the Gas Act, sold natural gas to retail consumers, including plaintiffs. Under the Gas Act and the regulations promulgated by the Georgia Public Service Commission (the "Commission") pursuant thereto, the Commission does not regulate the price at which a marketer sells gas;⁷ however, each marketer is required to file each month with the Commission a description of the "standard fixed offer" and the "standard variable offer"⁸ under which it sells natural gas to consumers,⁹ and the price billed by the marketer must not exceed the published price.¹⁰ The published offer must include the "cost per therm for the commodity" as well as "the marketer customer service charge."¹¹

Until December 2006, GNG's Variable Market Plan (the "Original Plan") was the standard variable pricing plan provided to consumers by GNG, and plaintiffs were enrolled in this Original Plan at all times material to this action.¹² As reflected in GNG's Monthly Marketer Pricing Form (the "Monthly Form") filed with the Commission¹³ for September 2006, GNG charged customers enrolled in the Original Plan a customer service charge of $5.95 and a price per therm of $1.149. The per-therm price fluctuated every month (hence the term, "variable plan"). As to bills for months after September 2006, plaintiffs allege that GNG overcharged its Original Plan customers both as to the customer service charge and as to the per-therm price.

Allegations as to excessive customer service charges. Although GNG continued to charge existing Original Plan customers, including plaintiffs, the pre-existing customer service charge of $5.95, this $5.95 charge was not reflected in the filings GNG made with the Commission after September 2006. In October and November 2006, GNG filed Monthly Forms showing that the customer service charge for the Original Plan was $3.99, with a footnote stating that "Customer Service Charges for new customers range from $3.99 to $9.99 based on credit score."¹⁴ The listed $3.99 charge and the footnote following, taken together, implied that for October and November 2006, customer service charges for existing customers in the Original Plan had been reduced to $3.99. On the website of the Commission, however, in the chart prepared by the Commission comparing the various gas marketers' standard variable offers for October 2006, the customer service charge for GNG's Original Plan was described as "from $3.99 to $9.99 based on credit score," without limitation to new customers. Plaintiffs allege that no credit scores were obtained on existing customers. Plaintiffs further allege that GNG actively misled complaining Original Plan customers by telling them that their customer service charges were based on a credit score, even though they were not. Starting in December 2006, GNG no longer listed its Original Plan on its Monthly Form filed with the Commission. Instead, GNG filed a cover letter, in which it set forth the Original Plan's price per therm for that month, without making any mention of the customer service charge to be assessed for that month under the Original Plan.

Allegations as to excessive price-per-therm charges. In December 2006, GNG introduced a new standard (or default) variable offer, available only to new customers. This plan, called the Variable Select Plan (the "New Plan"), was described in the December 2006 Monthly Form filed by GNG as having a customer service charge ranging from $3.99 to $9.99, based on credit score, and a per-therm gas charge of $1.359 (or $1.429, "depending on credit check," according to the footnote). As noted above, from this point forward, GNG relegated disclosure as to the Original Plan to a cover letter filed with the Commission. The cover letter filed for December 2006 stated a per-therm price for the Original Plan of $1.369 (later corrected to $1.399). GNG continued to bill plaintiffs under the Original Plan, even though the New Plan might have offered a lower per-therm charge and a lower customer service charge. GNG did not provide plaintiffs with notice of the establishment of the New Plan; nor were plaintiffs given the opportunity to enroll in the New Plan; nor were plaintiffs advised that their plan, the Original Plan, was no longer GNG's default variable price plan.

The gravamen of plaintiffs' action is that GNG violated the Gas Act by charging plaintiffs more under the Original Plan than they would have been charged under the New Plan. In Count 1 of their Complaint, plaintiffs sought damages for alleged violations of the Gas Act's billing and notice requirements set forth in OCGA § 46-4-160(h), Ga. Comp. R. & Regs. r. 515-7-6-.02(a)(5), and Ga. Comp. R. & Regs. r. 515-7-6-.02(a)(9) (requiring notice of a marketer's changes in "methodology"). In Count 2, plaintiffs sought general, exemplary, and treble damages for intentional violations of the Gas Act, under the Fair Business Practices Act of 1975 (imported into the Gas Act by OCGA § 46-4-160.5(b)). In Count 3, plaintiffs sought damages for breach of private duty¹⁵ under the Gas Act's "bill of rights for consumers" found in OCGA § 46-4-151(b)(9). In Count 4, plaintiffs seek refunds of the alleged overpayments pursuant to the procedures for correcting "billing errors" found in OCGA § 46-4-160.2 of the Gas Act.¹⁶ In Count 5, plaintiffs assert a claim against GNG for unjust enrichment.

The trial court granted GNG's motion to dismiss for failure to state a claim, based on the voluntary payment doctrine. Thus, the issue before this Court is whether the voluntary payment doctrine operates to bar recovery of payments made by plaintiffs to GNG pursuant to GNG's invoices, even if GNG violated the Gas Act in issuing the invoices.

The voluntary payment doctrine is codified at OCGA § 13-1-13:

Payments of claims made through ignorance of the law or where all the facts are known and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party are deemed voluntary and cannot be recovered unless made under an urgent and immediate necessity therefor or to release person or property from detention or to prevent an immediate seizure of person or property. Filing a protest at the time of payment does not change the rule prescribed in this Code section.

"The party seeking to recover payments made bears the burden of showing that the voluntary payment doctrine does not apply."¹⁷ Even if the plaintiff does not have actual knowledge of all of the facts, the doctrine will still bar recovery where the plaintiff had constructive knowledge of the material facts.¹⁸

1. In three related enumerations of error, plaintiffs contend that the voluntary payment doctrine should not be applied to bar claims based on violations of the Gas Act. We agree.

The Gas Act and the regulations promulgated thereunder form a highly technical and convoluted legislative scheme. Because the Gas Act's purpose is clearly remedial,¹⁹ it should be liberally construed.²⁰ In light of its remedial purpose, the voluntary payment doctrine should not be applied to bar actions by gas consumers to recover overpayments made to the gas marketer.

Further, in light of the private right of civil action provided in OCGA § 46-4-160.5 of the Gas Act,²¹ we conclude that Oxford v. Shuman,²² cited by plaintiffs, is more analogous to the case at hand than Fitzgerald Water etc. Comm. v. Shaw Indus.,²³ Telescripps Cable Co. v. Welsh,²⁴ and Cotton,²⁵ relied upon by GNG.

In Oxford, a taxpayer sought a tax refund under a statute providing specifically for such an action.²⁶ This Court refused to apply the voluntary payment doctrine in that case, on the ground that a general statute (such as the voluntary payment doctrine) should not apply where a specific statute (the statute providing for a taxpayer's suit for refund) expressly provided for a refund of the overpayment.²⁷ We note that, where statutes are in irreconcilable conflict, "a specific statute will prevail over a general statute,...