Telescripps Cable Co. v. Welsh

• Court: Georgia Court of Appeals
• Writing for the Court: POPE, Presiding.
• Citation: Telescripps Cable Co. v. Welsh, 542 S.E.2d 640, 247 Ga. App. 282 (Ga. App. 2000)
• Decision Date: 22 November 2000
• Docket Number: No. A00A1179.,A00A1179.
• Parties: TELESCRIPPS CABLE COMPANY v. WELSH.

542 S.E.2d 640

247 Ga. App. 282

TELESCRIPPS CABLE COMPANY v. WELSH.

No. A00A1179.

Court of Appeals of Georgia.

November 22, 2000.

Reconsideration Denied December 13, 2000.

Gerry, Friend & Sapronov, William D. Friend, John W. Sandifer, Mari Myer, Atlanta, for appellant.

Page & Bacek, Brian N. Smiley, James M. Bishop, Atlanta, Butler, Wooten, Overby, Fryhofer, Daughtery & Sullivan, Joel O. Wooten, Jr., C. Frederick Overby, Columbus, Jeffrey C. Casurella, Marietta, for appellee.

Mark M. Middleton, Norcross, amicus curiae.

POPE, Presiding Judge.

Mark D. Welsh filed this class action against Telescripps Cable Company asserting that the late charge assessed by the company on overdue monthly payments was an unenforceable penalty under Georgia law.

Telescripps provided cable television service to portions of the Atlanta metropolitan area. Each subscriber to the service signed a Service Agreement, which stated that an unspecified late fee would be charged to a customer's account if payment was not received by the due date. At the time they signed up for the service, Telescripps customers were provided with a rate card showing the current late fee. The fee was $2 in February 1991; it increased to $5 in March 1991 and then to $6 in January 1994.

Under the Service Agreement, Telescripps billed in advance for its services. Each monthly statement showed the balance owing and a payment due date, which was 27 days after the statement was mailed. If a subscriber did not pay by the stated due date, Telescripps notified the subscriber on the next monthly billing statement. That statement was mailed approximately 30 days after the previous month's statement was mailed. If the subscriber did not make a payment by the next due date, an additional 27 days later, the late fee was added to the account and showed up on the next monthly statement. Therefore, subscribers had 57 days from the mailing of the first statement in which to make payment before a late fee was assessed.

If payment was not received by the sixty-second day of the billing cycle, Telescripps performed an electronic, or "soft," disconnection. If the subscriber had not paid by the sixty-fifth day, Telescripps initiated collection efforts such as collecting payments in the field or disconnecting the service at the subscriber's residence, a "hard" disconnection. The Service Agreement provided for a $20 collection fee "if a technician collects the balance when he comes to disconnect the service," (i.e., a field collection). And if a hard disconnection occurred, the subscriber was required to pay a reconnection fee to restore service. These fees were in addition to the late fee. If the account still was not paid, Telescripps continued its collection efforts, including telephone calls, mailings and referral to a collection agency. After 90 days, the account was closed for nonpayment.

Approximately ten percent of Telescripps subscribers per month failed to pay on time. The costs incurred by Telescripps in collecting on delinquent accounts varied according to how often and how long a particular subscriber was delinquent, what collection efforts were used and whether the charges were ever paid. The costs included payroll costs, telephone costs, equipment costs, mailing costs, costs of funds and collection fees.

In 1996, Welsh filed suit on behalf of himself and all others similarly situated, asserting claims for breach of contract and money had and received. After the class was certified, Welsh moved to redefine the class, and the trial court granted the order. As redefined, the class consists of

a) Current Georgia residents, b) who were, for the six year period prior to the effective date of the class action, subscribers to Telescripps cable service, under any trade name; and c) who were assessed and paid a "late fee" prior to either a "soft" or a "hard" disconnection of cable services.

Welsh subsequently moved for partial summary judgment as to liability, and Telescripps filed a motion to dismiss and a cross-motion for summary judgment. The trial court granted Welsh's motion for partial summary judgment and denied Telescripps' motions. Telescripps appeals from that order, as well as from the trial court's class certification orders.

1. Telescripps asserts that the trial court erred in denying its motion to dismiss based upon the voluntary payment doctrine. This doctrine is set forth in OCGA § 13-1-13, which reads:

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 payment bears the burden of showing that the voluntary payment doctrine does not apply. See Rod's Auto Finance v. Finance Co., 211 Ga.App. 63(1), 438 S.E.2d 175 (1993). But as movant, Telescripps bears the burden of establishing that Welsh would not be entitled to relief under any state of facts that could be proven to support the claims. Butler v. Dawson County, 238 Ga.App. 808, 810, 518 S.E.2d 430 (1999). "Even taking this standard into account, however, we agree with [Telescripps] that dismissal is warranted." (Citation omitted.) Id.

Under the Service Agreement, a late fee was incurred if payment was not made by the due date. Each of the members of the plaintiff class was aware of this policy, yet failed to make timely payment. They then chose to voluntarily pay the late fee after it was assessed. The plaintiffs raise no claim of misplaced confidence, artifice, deception, or fraudulent practice. Nor do they assert that the payment was made under urgent necessity or to prevent the improper seizure of or to secure the release of person or property. OCGA § 13-1-13. Instead, they assert that they did not know the late fee was not a reasonable preestimate of Telescripps' probable loss incurred as a result of a subscriber's late payment.

This assertion ties in with plaintiffs' claim that the late fee was an unenforceable penalty. In order for the late fee to be considered an enforceable liquidated damage provision, rather than a penalty, it must comply with three requirements, one of which is that it must be a reasonable preestimate of probable loss:

Such provisions are enforceable if (1) the injury caused by a breach of contract is difficult or impossible to estimate accurately; (2) the parties intended to provide for damages rather than a penalty; and (3) the stipulated sum is a reasonable estimate of the probable loss.

Swan Kang, Inc. v. Kang, 243 Ga.App. 684, 686(1), 534 S.E.2d 145 (2000). See also Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230, 227 S.E.2d 340 (1976).

Assuming, without deciding, that the late fee was not a reasonable preestimate, the plaintiffs are asserting that they did not know that the late fee was unenforceable under the law. In other words, the plaintiffs are simply stating that they made their payment under ignorance of the law. And when payment is made through mere ignorance of the law, it is not recoverable:

When money is paid with a full knowledge of all the facts and circumstances upon which it is demanded, or with the means of such knowledge, it cannot be recovered back upon the ground that the party supposed he was bound in law to pay, when in truth he was not. He shall not be

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