Robin v. Bellsouth Advertising & Pub. Co.
| Decision Date | 09 May 1996 |
| Docket Number | No. A96A0502,A96A0502 |
| Citation | 471 S.E.2d 294,221 Ga.App. 360 |
| Parties | ROBIN v. BELLSOUTH ADVERTISING & PUBLISHING COMPANY. |
| Court | Georgia Court of Appeals |
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.
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).
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.
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. (Punctuation omitted.) Southern Business Machines etc. v. Norwest Financial Leasing, 194 Ga.App. 253, 256(2), 390 S.E.2d 402 (1990); compare Re/Max of Ga. v. Real Estate Group etc., 201 Ga.App. 787, 412 S.E.2d 543 (1991) ().
3. The trial court properly dismissed Robin's claim that BAPCO tortiously interfered with his future client base by driving prospective clients to attorneys mentioned in Real Consumer Tips. To succeed on that claim, he would have to show he could, under some set of facts, prove BAPCO: 1) placed these audio advertisements improperly and without privilege; 2) did so without justification or legal excuse in an effort to damage Robin; 3) induced potential clients to avoid Robin; and 4) caused him injury. Renden, Inc. v. Liberty, etc., Partnership III, 213 Ga.App. 333, 334(2), 444 S.E.2d 814 (1994); Green v. Johnston Realty, 212 Ga.App. 656, 659, 660(4), 442 S.E.2d 843 (1994).
As this involves a motion to dismiss, we assume Robin could produce live witnesses to establish they were "fooled" by BAPCO into choosing another attorney over him, depriving him of valuable legal fees. Morgan, supra at 780(1), 397 S.E.2d 49. We do so recognizing the difficulties of such proof. See Bankers Health, etc., Co. v. Fryhofer, 114 Ga.App. 107, 110(1), 150 S.E.2d 365 (1966), which held the testimony of an attorney as to his lost future business was wholly speculative, and Jenkins v. General Hosps. of Humana, 196 Ga.App. 150, 151, 395 S.E.2d 396 (1990), which rejected the tortious interference claim of a doctor who could not name a single patient he failed to acquire because of a hospital's actions. Even with the assumptions, Robin's claim fails because he does not allege BAPCO maliciously intended to damage him.
The Restatement 2d of Torts, § 766B, Comment d states that a tortfeasor has the requisite "intent" to interfere with another's prospective contractual relations when he "desires to bring it about or if he knows that the interference is certain or substantially certain to occur as a result of his action." Robin does not allege BAPCO intentionally tried to drive clients away from him. Even if these "tips" may have been more effective in attracting clients to certain attorneys, as he argues, they do not support the claim that BAPCO directly induced any clients to patronize attorneys other than Robin. See St. Mary's Hosp. of Athens v. Radiology Prof. Corp., 205 Ga.App. 121, 124, 125...
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