GEORGIA POWER COMPANY v. CAZIER

Supreme Court of Georgia

GEORGIA POWER COMPANY v. CAZIER

303 Ga. 820

CourtSupreme Court of Georgia

DecidedJune 18, 2018

DocketS17G0706

StatusPublished

Cited by7 cases

This text of 303 Ga. 820 (GEORGIA POWER COMPANY v. CAZIER) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

GEORGIA POWER COMPANY v. CAZIER, 303 Ga. 820 (Ga. 2018).

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Opinion

303 Ga. 820 FINAL COPY

S17G0706. GEORGIA POWER COMPANY v. CAZIER et al.

BLACKWELL, Justice.

Amy Cazier and four other consumers of retail electrical service brought

this putative class action against Georgia Power Company, asserting that

Georgia Power for several years has collected municipal franchise fees from

customers in amounts exceeding those approved by the Public Service

Commission, and seeking to recover the excess fees for themselves and a class

of Georgia Power customers. In Cazier v. Ga. Power Co., 339 Ga. App. 506

(793 SE2d 668) (2016), the Court of Appeals held that the plaintiffs were not

required to exhaust administrative remedies before bringing their putative class

action. We issued a writ of certiorari to review the decision of the Court of

Appeals, and we now affirm.

1. The Public Service Commission has authorized Georgia Power to

collect municipal franchise fees from its customers. The amount of the

municipal franchise fee varies from customer to customer, and according to the plaintiffs, the applicable orders of the Commission provide that the amount of

the fee is to be based upon the “usage revenue” collected from a customer. As

the plaintiffs see it, the Commission has directed that the municipal franchise fee

chargeable to any particular customer be derived from his actual consumption

of electrical service. The plaintiffs allege, however, that Georgia Power has

calculated municipal franchise fees differently, basing the fees not only upon

“usage revenue,” but also upon other fees and charges that are not, they say,

properly characterized as “usage revenue.” This has resulted, the plaintiffs

contend, in Georgia Power illegally collecting municipal franchise fees in excess

of the amounts authorized by the Commission. For themselves and the putative

class of Georgia Power customers, the plaintiffs assert claims for conversion,

money had and received, unjust enrichment, and damages under OCGA § 46-2-

90.1 Georgia Power denies that it has calculated municipal franchise fees other

1 Section 46-2-90 provides: If any company under the jurisdiction of the [C]ommission does, causes to be done, or permits to be done any act which is prohibited, forbidden, or declared to be unlawful, or fails to do any act which is required either by a law of this state or by an order of the [C]ommission, such company shall be liable to the persons affected thereby for all loss, damage, or injury caused thereby or resulting therefrom. An action to recover for such loss, damage, or injury may be brought in any court of competent jurisdiction by any such person. . . .

2 than as required by the Commission, and Georgia Power asserts that the

plaintiffs seek in this lawsuit to rewrite the applicable orders of the Commission.

Following discovery, the plaintiffs moved for certification of a class, and

Georgia Power moved for summary judgment upon several grounds, including

that the plaintiffs had failed to exhaust their administrative remedies. Upon

hearing these motions, the trial court dismissed the lawsuit. The trial court

explained that some of the applicable orders of the Commission speak of the

municipal franchise fee in terms of “usage revenue,” other applicable orders

refer to “total revenue,” still other applicable orders speak of “revenue,” the

Commission has defined none of these terms in this context, and to decide the

merits of the putative class action, the court would have to resolve the

ambiguities in the various orders of the Commission. Resolving those

ambiguities would require, the court continued, “normative judgments about

what it is that the terminology should mean given the [Commission]’s mandate.”

The court then concluded:

But the body that determines the [Commission]’s mandate is the [Commission] and not this court. There is a mechanism in place for obtaining the [Commission]’s determination in evaluation of what its orders and rules mean. . . . This court is not authorized to substitute its judgment for that of the [Commission] as to what [the

3 Commission] meant in its various orders establishing the methodology for collecting the municipal franchise fee.

Because the plaintiffs had failed to have the Commission resolve the ambiguities

in its own orders, the trial court found, the plaintiffs failed to exhaust their

administrative remedies, and the trial court was, therefore, without jurisdiction

of the subject matter.

The plaintiffs appealed, and in Cazier, the Court of Appeals vacated the

dismissal of the putative class action.2 As to whether the plaintiffs were required

to exhaust administrative remedies, the Court of Appeals looked principally to

the Administrative Procedure Act (APA), OCGA § 50-13-1 et seq., which

requires exhaustion when one aggrieved by an administrative decision seeks

judicial review of that decision under the APA. See 339 Ga. App. at 508 (1).

The Court of Appeals then reasoned that the putative class action did not seek

judicial review under the APA, and the plaintiffs did not seek to challenge the

applicable orders of the Commission:

Here, in contrast, petitioners do not claim to be aggrieved by any action of the [Commission], nor do they object to any decision or order of the [C]ommission. Instead, they contend that Georgia

2 This was the second appearance of this case in the Court of Appeals. See Ga. Power Co. v. Cazier, 321 Ga. App. 576 (740 SE2d 458) (2013).

4 Power has violated the relevant orders of the [Commission] by failing to use the basis prescribed by the [C]ommission to calculate municipal franchise fees. . . . [T]here is no challenge to the validity or reasonableness of any utility rate set by the [C]ommission, and instead there is simply a challenge to the method of calculating and collecting the said fee.

Id. (citations and punctuation omitted). The Court of Appeals also looked to

OCGA § 46-2-90, the basis for the statutory cause of action asserted by the

plaintiffs against Georgia Power, and noted that this statute “does not

contemplate any administrative proceedings before the [Commission] . . . but

rather authorizes an action to recover damages ‘in any court of competent

jurisdiction’ . . . .” Id. at 509 (1). From its examination of the APA and OCGA

§ 46-2-90, the Court of Appeals determined that the plaintiffs were not required

to exhaust administrative remedies. See id. About the concern of the trial court

that deciding the case would require the resolution of ambiguities in orders of

the Commission, the Court of Appeals held that the trial court was perfectly

competent to resolve those ambiguities. See id. at 509-510 (2). Although our

analysis differs in some respects from that of the Court of Appeals, we affirm

the judgment below.

2. As a general rule, one aggrieved by an administrative decision must

5 exhaust his administrative remedies before pursuing a judicial remedy. As the

Court of Appeals correctly noted, the APA governs judicial review of orders of

the Commission, see Ga. Power Co. v. Campaign for a Prosperous Ga., 255 Ga.

253, 255 (1) (336 SE2d 790) (1985), and it requires exhaustion of administrative

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