Robin v. Bellsouth Advertising & Pub. Co., A96A0502

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: BEASLEY; BIRDSONG, P.J., and BLACKBURN
• Citation: 471 S.E.2d 294,221 Ga.App. 360
• Parties: ROBIN v. BELLSOUTH ADVERTISING & PUBLISHING COMPANY.
• Docket Number: No. A96A0502,A96A0502
• Decision Date: 09 May 1996

Page 294

471 S.E.2d 294 221 Ga.App. 360 ROBIN
v.
BELLSOUTH ADVERTISING & PUBLISHING COMPANY. No. A96A0502. Court of Appeals of Georgia. May 9, 1996.
Certiorari Denied July 12, 1996.

Page 295

[221 Ga.App. 363] Savage & Turner, Brent J. Savage, Robert B. Turner, Simon, Booth & Cook, William M. Simon, Savannah, for appellant.

Bouhan, Williams & Levy, Leamon R. Holliday, III, Timothy H. Edwards, Savannah, for appellee.

[221 Ga.App. 360] BEASLEY, Chief Judge.

Robin, a Savannah attorney, sued BellSouth Advertising and Publishing Company ("BAPCO") over a feature called "Real Consumer Tips" found in its Savannah yellow pages advertising. The trial court dismissed his case for failure to state a claim, and we affirm because Robin cannot succeed, as a matter of law, on his claims for breach of contract, tortious interference with prospective business relations, and violations of the Fair Business Practices Act, OCGA § 10-1-390 et seq.

Tucked amid large and small advertisements for attorneys, "Real Consumer Tips" displays invite perusers of BAPCO's "Real Yellow Pages" to call a certain number for "free consumer information" on topics such as "selecting an attorney," "prenuptial agreements," and "what to look for in a personal injury attorney." Apparently, those who call these numbers also hear an advertisement from certain attorneys who pay BAPCO for this service. Robin had a yellow pages listing himself, but his practice was not featured in any Real Consumer Tips message.

Robin does not allege he was refused access to this advertising service; rather, he contends BAPCO's method of communicating the telephonic advertisements damaged him. He alleges that because the attorney advertisements included in the "consumer tips" messages do not reveal that attorneys paid for the ads, BAPCO creates the impression that the featured attorneys are more qualified or that BAPCO endorses them. His claims are based on that allegation. We take as true all the factual allegations of his complaint, as required when determining the merits of a motion to dismiss. Morgan v. Vitrified Brick & Clay Co., 196 Ga.App. 779, 780(1), 397 S.E.2d 49 (1990).

[221 Ga.App. 361] 1. The trial court properly dismissed Robin's claim under the Fair Business Practices Act, OCGA § 10-1-390 et seq. Robin alleges BAPCO violated OCGA § 10-1-393(b)(3) by creating "actual confusion ... as to [the] affiliation, connection, or association with or certification by another" of these attorneys. BAPCO is exempt from this statute pursuant to OCGA § 10-1-396(2) because the allegedly improper acts were committed in the course of its business as the publisher of an advertising periodical. Robin did not allege, and it does not appear, that BAPCO has any direct financial interest in the law practice of the featured attorneys. Although Robin argues that BAPCO receives compensation for these ads, the mere fact that it charges lawyers for advertising does not give it a financial interest in any lawyer's practice, including Robin's.

Page 296

2. Robin's claim for breach of contract also fails. That claim is based on his argument that because he had a contract with BAPCO as a Real Yellow Pages advertiser, BAPCO breached its implied duty of dealing with him in good faith by "actively recommending potential clients" to attorneys featured in the Real Consumer Tips messages. Robin does not allege, and it does not appear, his contract with BAPCO prevented the company from accepting advertisements from other attorneys or even from recommending them. "[T]here can be no breach of an implied covenant of good faith where a party to a contract has done what the provisions of the contract expressly give him the right to do. [Cit.]" (Punctuation omitted.) Southern Business Machines etc. v. Norwest...