Foshee v. General Telephone Co. of Southeast
| Citation | 295 Ala. 70,322 So.2d 715 |
| Parties | , 13 P.U.R.4th 428 Crum FOSHEE v. GENERAL TELEPHONE COMPANY OF the SOUTHEAST, a corporation, et al. SC 1316. |
| Decision Date | 20 November 1975 |
| Court | Supreme Court of Alabama |
Tipler, Fuller & Barnes, Andalusia, for appellant.
Hill, Hill, Carter, Franco, Cole & Black, Montgomery, Albrittons & Rankin, Andalusia, Lee & McInish, Dothan, Ward W. Wueste, Jr., Durham, N.C., for appellees.
Appeal from judgment dismissing a class action against General Telephone Company seeking recovery of alleged overcharges for telephone service. Appellants are telephone service subscribers of General Telephone, appellee here. The subscriber class is represented by Crum Foshee. We affirm.
The sole issue for decision is whether the subscribers could prove any set of facts in support of their claim which would entitle them to relief under any cognizable theory of law. ARCP 12(b)(6).
On 30 October 1972 the Alabama Public Service Commission granted General Telephone a rate increase. The State of Alabama, the Governor and sixteen municipalities appealed from the order of the Commission. On 1 February 1974 the Montgomery County Circuit Court ruled that the APSC established rate was excessive by $208,924 because of errors made by the APSC in computing General Telephone's rate base. That court remanded the case to the APSC to enter an order establishing proper rates. That court also ruled it could not order a refund to subscribers for the excessive charges paid while the original APSC order was in effect. This court affirmed, State v. Alabama Public Service Commission, Ala., 307 So.2d 521 (1975), holding the APSC established rate was excessive but that no refund was due because no supersedeas bond was made and no statutory authority existed that would permit the court to order a refund.
Sebsequently the subscribers brought this class action seeking to recover charges paid by them during the time the original APSC order was in effect in excess of the rates fixed by APSC on remand to it. The complaint alleged and plaintiffs argue here that cognizable theories of unjust enrichment, money had and received, or debt owed empower the courts to grant them relief on their claim. The trial court granted General Telephone's motion to dismiss.
We first note This is not a rate case. Nor is it a case seeking to recover monies paid for charges In excess of rates established by the APSC. This case is one in which recovery is sought of a portion of charges paid Under a rate schedule established by lawful order of the APSC.
The essence of the theories of unjust enrichment or money had and received is that facts can be proved which show that defendant holds money which in equity and good conscience belongs to plaintiff or was improperly paid to the defendant because of mistake or fraud. Wash v. Hunt, 281 Ala. 368, 202 So.2d 730 (1967); Birmingham Broadcasting Co. v. Bell, 259 Ala. 656, 68 So.2d 314 (1953). The essence of the cause of action for debt is that facts can be proved which shows ...
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