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Walker v. Oglethorpe Power Corp.

Court of Appeals of Georgia

June 9, 2017

WALKER et al.
v.
OGLETHORPE POWER CORPORATION et al. SHAPIRO et al.
v.
OGLETHORPE POWER CORPORATION et al.

          DILLARD, P. J., RAY and SELF, JJ.

          DILLARD, PRESIDING JUDGE.

         This consolidated appeal arises from two class actions brought on behalf of former and current members of various electric-membership corporations ("EMCs"), which are private, nonprofit, electric utilities owned by the members they serve. In Case No. A17A0384, former EMC members sued Oglethorpe Power Company ("Oglethorpe"), Georgia Transmission Corporation ("GTC"), Walton EMC, Jackson EMC, and Sawnee EMC, raising numerous claims, all of which were based, at least in part, on their assertion that they were entitled to refunds from the defendant EMCs of "patronage capital."[1] Similarly, in Case No. A17A0385, current EMC members sued the same parties (except for Sawnee EMC), raising a variety of claims that were also generally based on their assertion that they were entitled to a refunds of patronage capital from the defendant EMCs. Ultimately, in separate orders, the trial court dismissed both complaints for several reasons, including lack of standing and failure to state a claim.

         In Case No. A17A0384, former members of the Walton, Jackson, and Sawnee EMCs appeal the trial court's dismissal of their complaint, arguing that the court erred by (1) applying the wrong legal standard applicable to a motion to dismiss; (2) finding that the plaintiffs lacked standing; (3) finding that the plaintiffs' claims were time-barred; (4) concluding that the defendants have no obligation under any circumstances to refund patronage capital to their members; (5) finding that the plaintiffs failed to state claims for breach of contract, unjust enrichment, money had and received, conversion, and equitable relief; and (6) applying the filed-rate doctrine.

         Similarly, in Case No. A17A0385, current members of the Walton and Jackson EMCs appeal the trial court's dismissal of their complaint, arguing that the trial court erred by finding that (1) they lacked standing; (2) the EMC defendants have absolute discretion to never retire patronage capital, except upon dissolution; (3) the plaintiffs failed to state claims for breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, money had and received, conversion, and conspiracy; (4) the plaintiffs' request for declaratory and injunctive relief was improper; and (5) the plaintiffs' claims against certain EMCs were derivative instead of direct. For the reasons set forth infra, we affirm the trial court's dismissal orders in both cases.

         As conceded by the current and former EMC members, the facts necessary to resolve these consolidated appeals are essentially undisputed.[2] The Jackson, Walton, and Sawnee EMCs (collectively, the "distribution" or "retail" EMCs) are private, nonprofit electric cooperatives that are owned by the individuals, businesses, and other entities who purchase and receive electricity from them. Including the three EMCs that are named defendants in this case, there are 38 total distribution EMCs in Georgia, all of which are members of two larger electric cooperatives, Oglethorpe and GTC (collectively, the "wholesale EMCs"). All of the EMCs were formed under and are subject to the Georgia Electric Membership Corporation Act (the "EMC Act"), OCGA § 46-3-170 et seq.

         Oglethorpe, one of the wholesale EMC defendants, was formed by and is owned by the 38 distribution EMCs. And since its formation, Oglethorpe has provided and sold power to those EMCs. In 1997, Oglethorpe created GTC as a separate wholesale EMC to operate its transmission unit, and to that end, GTC now constructs and maintains underground and above-ground power transmission lines, which transmit power to the retail EMCs' customers. But like Oglethorpe, GTC's members and owners are the 38 distribution EMCs, not any of the individual consumers. To summarize, individual consumers purchase electricity from and pay their power bills directly to the distribution EMC (of which they are members), and those EMCs purchase power wholesale from Oglethorpe and GTC.

         Under the EMC Act, all electric cooperatives, including each of the named defendants in these consolidated cases, must operate on a nonprofit basis, which means that they must account for each member's patronage capital-i.e., the member's pro rata share of the EMC's earnings in excess of its operating costs and expenses.[3] This means that when the wholesale EMCs generate extra profit above their operating costs and expenses, they must annually allocate that patronage capital on their books on a pro rata basis to the accounts of their members, which are the 38 distribution EMCs. Similarly, the distribution EMCs must also allocate any patronage capital they accumulate on their books to the accounts of their members-i.e., the individuals and businesses who purchase electricity from the distribution EMCs. Each EMC maintains an account on its books reflecting the cumulative amount of patronage capital that has been allocated to each of its members over the years. And although members of the distribution EMCs no longer accrue patronage capital when they terminate service, the EMCs still maintain accounts on their books for their former members reflecting the amount of patronage capital allocated to them when they were members.

         Until 1992, Oglethorpe refunded the patronage capital allocated to the distribution EMCs "on a 13 year revolving cycle." For example, if Oglethorpe still adhered to that practice, patronage capital that allocated to members of an EMC in 2001 would be refunded to those members 13 years later in 2014 and so on. Then, in 1993, however, Oglethorpe increased the length of this refund cycle from 13 years to 30 years. But just four years later, in 1997, Oglethorpe revoked its 30-year revolving cycle. And while it still must allocate patronage capital to its members' accounts, Oglethorpe has not refunded any patronage capital since that time. Moreover, although Oglethorpe refunded some patronage capital to the distribution EMCs prior to 1997, those EMCs never redistributed those refunds to their members. Also in 1997, Oglethorpe refunded $49, 000, 000 in patronage capital to the distribution EMCs to establish equity in and provide working capital to form GTC, but the members of the distribution EMCs did not receive any of that money.

         Following Oglethorpe's 1997 distribution of patronage capital, it has continued to "accumulate tremendous amounts of capital credits, " but it has not refunded those credits to the distribution EMCs. As of 2011, the former and current members of Walton EMC have allegedly been allocated (but not refunded) more than $46, 000, 000 in Oglethorpe patronage capital. And as of 2013, Jackson EMC's former and current members have allegedly been allocated (but not refunded) more than $78, 000, 000 in Oglethorpe patronage capital.[4] Although the plaintiffs who are former members of an EMC lack access to those EMCs' books, [5] they estimate that the amount of patronage capital owned by former and current members of the 38 distribution EMCs is nearly $2, 000, 000, 000.

         On March 13, 2014, Edgar "Ed" Walker, a former member of Walton EMC; Phillip Caltabiano, a former member of Cobb EMC; Grant Meade, a former member of Sawnee EMC; and Samer Khashan, a former member of Jackson EMC, [6] filed a class-action complaint against Oglethorpe, GTC, Walton EMC, Sawnee EMC, and Jackson EMC, primarily seeking payment of allocated, but not refunded, patronage capital. The lawsuit was brought on behalf of "[a]ll Georgia residents who are former members of the 38 retail distribution cooperatives comprising the membership of Oglethorpe . . . and [GTC] and who have unredeemed patronage[-]capital accounts on the books of any of those retail distribution cooperatives." Then, on July 28, 2014, the former-member plaintiffs filed their first-amended complaint, which appears to be a complete replacement of their initial complaint, rather than a supplement.

         In the complaint, the former-member plaintiffs asserted the following claims against the wholesale and distribution EMCs: (1) declaratory, injunctive, and mandamus relief to remedy the EMCs' violation of OCGA § 46-3-340; (2) unjust enrichment; (3) breach of fiduciary duty (only as to the distribution EMCs); (4) breach of contract; (5) conspiracy; (6) money had and received; (7) conversion; and (8) attorney fees. Approximately one year later, on July 9, 2015, the former-member plaintiffs supplemented the complaint to include a claim for abuse of discretion/breach of the duty of good faith.

         Meanwhile, in a separate class action filed on August 21, 2014, Michael Shapiro, a current member of Walton EMC; and Bettye Black, a current member of Jackson EMC, sued Oglethorpe, GTC, Walton EMC, and Jackson EMC on behalf of "[c]urrent members of the 38 electric cooperatives that are members of Oglethorpe . . . and [GTC], " also seeking a refund of patronage capital. In their initial complaint, the current-member plaintiffs asserted claims for (1) unjust enrichment and constructive trust; (2) breach of fiduciary duty (against the Walton and Jackson EMCs only); and (3) breach of contract. Later, in the first and second amendments to their complaint, the current-member plaintiffs added claims for (4) abuse of discretion/breach of duty of good faith; (5) conversion as to Walton EMC and Jackson EMC; (6) conversion as to Oglethorpe and GTC; (7) conspiracy; and (8) money had and received.

         In both class actions, the distribution EMCs and the wholesale EMCs filed separate motions to dismiss the complaints and amended complaints. Then, after responsive pleadings were filed, the trial court appointed Judge Stanley F. Birch, Jr., a retired federal judge from the Eleventh Circuit Court of Appeals, to serve as the special master and to issue a report and recommendation to the court in each case. In evaluating the motions to dismiss, Judge Birch reviewed extensive briefing, consisting of more than 250 pages and more than 300 citations of authority, after which he held a hearing on both cases that lasted more than nine hours.[7] Following the hearing, Judge Birch issued separate reports, recommending that the trial court grant the defendants' motions to dismiss in both cases. Subsequently, the current- and former-member plaintiffs filed motions for the trial court to reject the special master's reports and recommendations and allow their cases to proceed. But ultimately, the trial court denied those motions, adopted Judge Birch's report and recommendation, and dismissed the complaints in both cases. These appeals follow.

         At the outset, we reiterate that this Court conducts "a de novo review of a trial court's ruling on a motion to dismiss."[8] In doing so, our role is to determine whether "the allegations of the complaint, when construed in the light most favorable to the plaintiff, and with all doubts resolved in the plaintiff's favor, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts."[9]Nevertheless, we need not adopt "a party's legal conclusions based on these facts."[10]With these guiding principles in mind, we turn now to the specific claims raised in these appeals.

         Case No. A17A0384

         1. The former-member appellants first argue that the special master (and therefore the trial court) applied the incorrect standard for reviewing motions to dismiss a complaint. We disagree.

         The former-member appellants argue that the trial court erred in applying a "hybrid standard" drawn from both federal and state law that was "heavily influenced" by federal cases. They further contend that, although the court did not expressly adopt "the more restrictive federal standard" set forth in those cases, the standard it applied does not comport with Georgia law. Specifically, the former-member appellants appear to take issue with a portion of the special master's report that quotes a passage regarding standing from a dissent in a Supreme Court of Georgia opinion, Charles H. Wesley Education Foundation, Inc. v. State Election Board, [11] which cites two federal cases.[12] And the former-member appellants maintain that in applying this incorrect "hybrid" standard, the special master failed to accept their pleadings as true, construe them in a light most favorable to them, resolve all inferences in their favor, or otherwise give them the benefit of the doubt. But the special master's report (adopted by the trial court) expressly acknowledged that he was "required to take all the factual allegations in the complaint as true, " and nothing in the report suggests that he rejected or disregarded any of the undisputed factual allegations set forth supra.

         Moreover, the only examples that the former-member appellants identify as "facts" that the special master rejected are actually legal conclusions, which the trial court was not required to accept as true.[13] Specifically, the former-member appellants challenge the special master's construction of the phrase "cooperative non-profit basis" in the EMC Act, but the interpretation of a statute is a question of law for the court.[14] Further, the former-member appellants challenge the special master's conclusion that they failed to allege facts that would support claims for conspiracy and fraud. But determining whether the former-member appellants alleged sufficient facts to support a legally viable claim against the EMCs was precisely the question the trial court was required to resolve in ruling on the motions to dismiss.[15] And it bears repeating that in the absence of any specifically pleaded facts to support what amounts to a legal conclusion couched as fact, the trial court was not required to accept the conclusion as true.[16] In any event, regardless of the standard the trial court applied below, this Court reviews the trial court's decision on a motion to dismiss de novo, and in doing so, we have accepted as true all of the well-pleaded material allegations in the complaint.[17]

         2. The former-member appellants next argue the trial court, by adopting the special master's report, erred in finding that they lacked standing to sue Oglethorpe, GTC, and any of the distribution EMCs of which they were never members. This claim is likewise without merit.

         (a) Breach of Contract and Related Tort Claims

         The general rule in Georgia is that "one not in privity of contract with another lacks standing to assert any claims arising from violations of the contract."[18] Moreover, OCGA § 51-1-11 (a) provides:

No privity is necessary to support a tort action; but, if the tort results from the violation of a duty which is itself the consequence of a contract, the right of action is confined to the parties and those in privity to that contract, except in cases where the party would have a right of action for the injury done independently of the contract.[19]

         In this case, the former-member appellants' contract and related tort claims, albeit stated in different terms, all essentially sought to establish and enforce a duty under each of the EMCs' bylaws to refund patronage capital to their members, either at the time when a member terminates his or her membership or after some "reasonable, " but unspecified, length of time.[20] Nevertheless, the former-member appellants have not alleged that the EMCs have a duty to refund patronage capital independent of the contract itself.[21] Thus, they lack standing as to their tort claims as well as their contract-based claims absent a showing that they are in privity of contract with the particular EMC at issue.[22]

         In the case sub judice, the only potential contracts that were identified by the former-member appellants as having been breached are each EMC's bylaws. But they acknowledged that each EMC's bylaws "constitute a contract between the cooperative and its members"[23] and that the distribution EMCs are the sole members of Oglethorpe and GTC. Moreover, the complaint is devoid of any allegations that the former-member appellants have ever contracted with any EMC other than the particular distribution EMC of which they are former members. Thus, the trial court correctly found that, due to a lack of privity, each individual plaintiff in the former-member class lacks standing to bring any contract or any tort claim arising from a breach of that contract against Oglethorpe, GTC, and any of the 38 distribution EMCs of which he or she has never been a member.[24]

         Lastly, we note that because all of the former-member appellants-as well as any other former member of a distribution EMC the appellants purport to represent-lack standing to sue Oglethorpe and GTC for breach of contract or for any tort claim based on a violation of their bylaws, DeKalb County is no longer a proper venue to bring such claims against any of the remaining EMC defendants. Indeed, the former-member appellants' complaint asserted that venue in DeKalb County is proper as to Oglethorpe and GTC because they maintain their principal places of business and their registered agents in that county.[25] And they alleged that venue is proper as to the remaining defendants (i.e., Jackson, Walton, and Sawnee EMCs) solely because they are joint obligors and tortfeasors with Oglethorpe and GTC.[26] But in order to maintain a suit against a nonresident, it is essential that a cause of action be alleged and proven against the resident defendant."[27] Thus, because the former-member appellants lack standing to sue the two resident defendants (i.e., Oglethorpe and GTC), venue is no longer proper as to the remaining nonresident defendants (i.e., the distribution EMCs).[28]

         (b) Violation of the EMC Act

         In addition to the contract and related tort claims, the former-member plaintiffs alleged that all of the EMCs violated a requirement in OCGA § 46-3-340 that they periodically refund patronage capital prior to dissolution. But the trial court concluded that OCGA § 46-3-340 does not provide a right of action for the former-member appellants to enforce its provisions, and they do not challenge that determination on appeal. Indeed, although Count 1 of their complaint specifically requested relief for a violation of OCGA § 46-3-340 and the former-member appellants devote a significant portion of their opening brief to discussing the history, "purpose, " and alleged requirements of the EMC Act, they nevertheless maintain that they "do not need a private right of action" under OCGA § 46-3-340 to bring their claims.[29] Thus, the former-member appellants have abandoned any claim that they have a private right of action under OCGA § 46-3-340 to compel any of the EMC defendants to refund patronage capital at any particular time or on any specific schedule.[30] Moreover, as explained in Division 4 infra, OCGA § 46-3-340 does not require that the EMCs do so.

         Furthermore, because the EMC Act and its alleged requirements are discussed at such length in the former-member appellants' brief, it is worth noting that the trial court did not err in finding that there is no private right of action to enforce the provisions of OCGA § 46-3-340. It is well settled in Georgia that "violating statutes and regulations does not automatically give rise to a civil cause of action by an individual claiming to have been injured from a violation thereof."[31] Instead, the statutory text must "expressly provide a private cause of action."[32] And even when the private right of action is alleged to be implied by the statute, "the indication that the legislature meant to impose a civil . . . penalty must be found in the provisions of the statute at issue, not extrapolated from the public policy the statute generally appears to advance."[33] Suffice it to say, in the absence of such textual support, "a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute."[34] In the instant case, the appellants have not identified (or even argued that there is) any textual basis in OCGA § 46-3-340 suggesting that they have a private right of action to enforce its provisions. Indeed, the text of OCGA § 46-3-340, in its entirety, is set forth below in Division 4 infra and is devoid of any language indicating there is a private right of action to enforce its terms. Thus, even if that statute imposed the duties on EMCs that the former-member appellants allege, they lack standing to sue the EMCs for breaching those duties.[35]

         Nevertheless, the former-member appellants argue that they have standing to enforce a "breach of statutory duty" under OCGA § 51-1-6, which provides that "[w]hen the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby." But as explained by our Supreme Court, the alleged duty "cannot rest solely upon OCGA § 51-1-6 because this statute sets forth merely general principles of tort law."[36] Indeed, by its express terms, tort liability under OCGA § 51-1-6 mandates that "the alleged tortfeasors have breached a legal duty to perform a beneficial act or to refrain from doing an injurious act."[37] Thus, the legal duty necessary to support the former-member appellants' claims "must be found in another legislative enactment, "[38] which they assert is OCGA § 46-3-340. But for the reasons set forth in Division 4 infra, OCGA § 46-3-340 does not impose the legal duties on EMCs that the former-member appellants allege that it does, and they cannot rely on OCGA § 51-1-6 to create them.[39]

         (c) Conspiracy

         The former-member appellants further argue they have standing to sue all of the EMCs, including Oglethorpe and GTC, because the EMCs "acted in concert and as part of a conspiracy reflected in, among other things, their joint decisions, interlocking boards, integrated business structure, and common economic interest." And they are correct that "[a]fter [a] conspiracy is formed, members of the conspiracy are jointly and severally liable for acts of co-conspirators done in furtherance of the conspiracy."[40] But as we have explained,

[a] conspiracy is a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means[, ] [and] [t]o recover damages for a civil conspiracy claim, a plaintiff must show that two or more persons, acting in concert, engaged in conduct that constitutes a tort."[41]

         Indeed, absent the underlying tort, "there can be no liability for civil conspiracy."[42]Here, although the former-member appellants asserted a conspiracy claim in their complaint, they do not challenge the trial court's dismissal of that claim on appeal. Thus, they have abandoned any argument that their complaint was sufficient to state a claim for conspiracy to commit any particular unlawful act.[43] But regardless, the former-member appellants cannot rely on a conspiracy theory as a basis to sue all of the EMC defendants as joint tortfeasors because, for reasons set forth more fully in Division 5 infra, they have failed to state a claim as to any underlying tort or unlawful act, which is required to impose liability for civil conspiracy.[44]

         (d) Juridical-Link Doctrine

         The former-member appellants next argue that, regardless of whether they have directly interacted with all of the defendant EMCs, they can sue those EMCs under the "juridical[-]link doctrine" because they are linked through contracts or other independent relationships. In Moore v. Comfed Savings Bank, [45] the Eleventh Circuit Court of Appeals acknowledged that this doctrine had been applied in a few other cases at the district-court level to provide standing to plaintiffs in class actions.[46] But the Moore Court further explained that, while all of those trial-court cases supported the plaintiffs' view that

in the event there is a juridical link, it is appropriate to join as a defendant a party with whom the named class representative did not have a direct contact, each of them presents a situation in which there was either a contractual obligation among all defendants or a state or local statute requiring common action by the defendants.[47]

         And here, the former-member appellants have not identified any specific contract under which all of the EMC defendants share the same contractual obligation or any statute requiring a common action by all of the wholesale and retail EMCs.[48]Regardless, the appellants concede that no Georgia court has ever adopted the juridical-link doctrine, and even in Moore, the Eleventh Circuit merely discussed the doctrine in dictum and chose not to apply it.[49] We likewise decline to apply it now in this case.

         (e) Agency

         The former-member appellants further assert that, notwithstanding the fact they are not parties to any contracts between the wholesale EMCs and their members, they have standing to sue the wholesale EMCs for a breach of their bylaws because the distribution EMCs, which are parties to those bylaws, are their agents. But to prove actual agency, the purported principal must have "assumed the right to control the method, manner, and time of the purported agent's work, as distinguished from the right merely to require certain definite results in conformity to the contract."[50] And here, the appellants have not identified any factual allegations in their complaint indicating that they have assumed control over the method, manner, or timing of any distribution EMC's operations. Indeed, while the former-member appellants reference their claim that EMCs are "wholly or substantially controlled by their consumers, " the only factual allegation in the complaint to support this assertion is that current members of an EMC have the right to vote annually to elect the EMC's board of directors, which presumably handles the EMC's day-to-day operations. The complaint does not allege that the individual members of a distribution EMC have any actual control over the daily operations of the EMC from which they purchase electricity for their residence or business. And the right to elect board members does not amount to the members personally assuming day-to-day control over the operations of any particular EMC.[51] In fact, the former-member appellants' primary concern in this case is their lack of control over the EMCs' decisions regarding if and when to retire patronage capital. Thus, even accepting all of the factual allegations in the complaint as true, the former-member appellants did not allege sufficient facts to establish an agency relationship between themselves and any of the distribution EMCs.[52]

         (f) Third-Party Beneficiaries

         Finally, the former-member appellants argue they have standing to sue Oglethorpe and GTC because they are third-party beneficiaries of those EMCs' bylaws. Although the appellants are indeed correct that a third-party beneficiary does not need to be specifically named in the contract, "the contracting parties' intention to benefit the third party must be shown on the face of the contract."[53] Moreover, the mere fact that a third party would benefit from the performance of an agreement is insufficient to establish standing.[54] And while the appellants contend that the intent of the parties to a contract to benefit a third party is "typically" a fact question, [55] they have not identified any specific provision or language on the face of Oglethorpe or GTC's bylaws that would support a jury finding that these wholesale EMCs intended for their bylaws to benefit the former, or even current, members of the distribution EMCs.[56] Thus, the appellants cannot establish standing to sue the wholesale EMCs on this basis.[57]

         3. The former-member appellants further contend the trial court erred in finding that their claims were barred by the applicable statutes of limitation. Again, we disagree.

         Even if the former-member appellants had standing to sue the individual distribution EMC of which they were previously members, the trial court correctly found that their claims are time-barred. In Georgia, "[t]he true test to determine when a cause of action accrues is to ascertain the time when the plaintiff could first have maintained his or her action to a successful result."[58] And on a contract claim, "the statute of limitations begins to run at the time of its alleged breach."[59]

         Here, the former-member appellants' complaint alleged that "[r]epayment of former members' patronage capital is an obligation of each [d]efendant [that] must be done on at least an annual basis."[60] The appellants also claimed that the "[c]orrect application of cooperative principles and state and federal tax law should result in the immediate refund of patronage capital when service terminated[.]"[61]As a result, they could have maintained an action seeking such a refund either immediately after they terminated their accounts or when they did not begin receiving annual refunds after termination. And because 2005 is the most recent year that any named plaintiff terminated his account without receiving a refund of patronage capital, the substantive claims brought in the appellants' original complaint, which was filed in 2014, are all barred by a four- or six-year statute of limitations.[62]

         With respect to their conversion claim, the former-member appellants alleged that, in 1997, Oglethorpe made a patronage capital refund of $49, 000, 000 to the distribution EMCs, and in 1990 through 1992, Oglethorpe refunded other unknown amounts of patronage capital to the distribution EMCs. And they further alleged that the distribution EMCs wrongfully withheld these funds, in which the appellants "had an immediate possessory interest." But regardless of whether they adequately stated a conversion claim, such claims are subject to a four-year statute of limitations[, ][63]and the "statute of limitation [for conversion] begins to run when the damage from the tortious act is actually sustained by plaintiffs, "[64] which in this case would be the dates of the alleged conversions between 1990 and 1997.[65] Because the instant action was not initiated until 2014, well over four years after any of the alleged conversions, the appellants' conversion claim is statutorily time-barred.

         Nevertheless, the former-member appellants argue the statute of limitations did not begin to run until the EMCs breached their duty to refund patronage capital "within a reasonable time" after they terminated their accounts. They further claim that the trial court ignored their alternative request for relief that the EMCs establish "an ongoing schedule to retire patronage capital over time." But in addition to their allegations that they were entitled to a refund of patronage capital upon terminating their accounts or annually thereafter, the appellants also defined a "reasonable" rotating schedule for refunding patronage capital to be no longer than 13 years. And according to their complaint, the distribution EMCs (of which the appellants were former members) "have never refunded patronage capital originally allocated to them by Oglethorpe and [GTC] . . . ."[66] Thus, the appellants should have had sufficient knowledge to file a complaint challenging the EMCs' failure to periodically refund patronage capital at least as early as 13 years after patronage capital was first allocated to them, and they did not receive a refund of same. Because the appellants alleged that they first became members of distribution EMCs at times ranging from 1976 to 1993, we reject their apparent argument that the statute of limitations did not begin to run until some unspecified time after March 13, 2008 (i.e., six years before they filed their March 13, 2014 complaint).

         Next, the former-member appellants argue that the trial court erred in rejecting their claim that the statute of limitations was tolled due to fraudulent concealment. In Georgia, if a defendant is "guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff's discovery of the fraud."[67] But where the gravamen of the underlying action is not a claim of fraud, "the statute of limitations is tolled only upon a showing of a separate independent actual fraud involving moral turpitude which deters a plaintiff from filing suit."[68] Under such circumstances,

before the running of the limitation period will toll, it must be shown that the defendant concealed information by an intentional act-something more than a mere failure, with fraudulent intent, to disclose such conduct, unless there is on the party committing such wrong a duty to make a disclosure thereof by reason of facts and circumstances, or the existence between the parties of a confidential relationship.[69]

         Here, the former-member appellants' complaint alleged, generally, that the EMCs both concealed and breached their obligation to periodically refund patronage capital. But they also alleged that this obligation arises from the EMC Act, a statute available to the public, and the bylaws of each EMC, which the appellants have never alleged were concealed from them. And in fact, the EMC Act authorizes members of an EMC to sue an EMC in superior court to enforce their statutory right to inspect an EMC's books and records.[70] And even if they no longer have that right as former EMC members, this information was at least available to them prior to when they terminated their accounts. Significantly, to the extent the appellants needed additional information that was not available in the EMCs' bylaws and the EMC Act to bring this lawsuit, they have not identified, either in their complaint or on appeal, what that information was or any particular time when they discovered the alleged fraudulent concealment such that they had sufficient information to initiate this lawsuit.[71] In any event, even if the issue of when each of their claims accrued is, as they contend, a question of fact for the jury, their complaint was also properly dismissed for lack of standing and failure to state a claim for the reasons given in Divisions 2 and 5 herein.

         4. The former-member appellants argue the trial court erred in finding that the wholesale and distribution EMCs have no obligation under any circumstances to refund patronage capital except upon dissolution. This claim is likewise without merit.

         The former-member appellants argue that the EMC Act requires EMCs to refund patronage capital before dissolution at "reasonable times, "[72] and they cite to several sections of the Act in their appellate brief that they allege support this claim.[73]But as previously explained, they have no private right of action to sue an EMC under the EMC Act to recover patronage capital. Nevertheless, because the statutory requirements of the EMC Act appear to be the primary basis underlying all of the appellants' numerous claims (in both cases), it is worth noting that, even if the appellants had a statutory right to sue to enforce the provisions of the EMC Act, their complaint did not identify any action or inaction by the EMCs that violated the Act. Specifically, although their appellate briefs cite several provisions of the Act and discuss its provisions at length, Count 1 of the complaint only identified OCGA § 46-3-340 as the provision requiring an EMC to refund patronage capital prior to dissolution on some sort of reasonable, rotating basis. But this contention is belied by the plain language of that statute.

         We are mindful that, in considering the meaning of a statute, our charge as an appellate court is to "presume that the General Assembly meant what it said and said what it meant."[74] Toward that end, we must afford the statutory text its plain and ordinary meaning, [75] consider the text contextually, [76] read the text "in its most natural and reasonable way, as an ordinary speaker of the English language would, "[77] and seek to "avoid a construction that makes some language mere surplusage."[78] Simply put, when the language of a statute is "plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly."[79]

         Turning to the statute at hand, OCGA § 46-3-340 provides:

(a) Each electric membership corporation shall be operated without profit to its members; but the rates, fees, rents, or other charges for electric energy and any other facilities, supplies, equipment, or services furnished by the electric membership corporation shall be sufficient at all times:
(1) To cover all administrative and operating expenses and the costs of purchased capacity and energy as necessary or desirable for the prudent conduct of its business, and to cover the payments of the principal of and interest on the obligations issued or assumed by the electric membership corporation in the performance of the purposes for which it was organized; and
(2) To establish and maintain reasonable reserves.
(b)An electric membership corporation may also accumulate funds for future capital needs and for the purpose of establishing and maintaining a reasonable capital structure.
(c) The bylaws of an electric membership corporation shall contain provisions, consistent with subsection (a) of this Code section, for accounting for, allocating, assigning and disposing of its revenues and assets and may establish classes of members for such purposes.[80]

         As evidenced above, the plain language of subsections (a) (2) and (b) expressly permits EMCs to "accumulate funds" beyond those necessary for costs and operating expenses to "maintain reasonable reserves" for future capital needs and "for the purpose of establishing and maintaining a reasonable capital structure." The former-member appellants have not alleged, and we do not find, that those subsections are ambiguous in any respect. Instead, the appellants argue that subsection (c) contains an implicit requirement that EMCs refund patronage capital prior to dissolution either when a member terminates his or her account or on a "reasonable" schedule that requires EMCs to refund patronage capital at least 13 years after it was allocated to a member. But no such specific and detailed requirements for the retirement of patronage capital are contained in subsection (c), implicitly or otherwise.

         Contrary to the former-member appellants' contention, the plain and unambiguous language of OCGA § 46-3-340 (c) requires only that the bylaws of each EMC "contain provisions" regarding the accounting for, allocating, assigning, and disposing of revenues. And it sets forth no mandates as to the substance of those provisions. In essence, the appellants ask this Court (or a jury) to create a mandate that EMCs adopt a particular schedule for refunding patronage capital prior to dissolution based solely on the Act's general principles regarding the cooperative and nonprofit nature of EMCs, rather than based on the statutory text itself. We are not at liberty to do so. Although the statute, as written, may seem unfair to the appellants, it is the job of the legislature, not the courts, to rewrite or revise statutes.[81]

         Moreover, notwithstanding the appellants' repeated claims to the contrary, the Supreme Court of Georgia has held that "[capital] credits allocated to a patron on the books of a cooperative do not reflect an indebtedness which is presently due and payable by the cooperative to such patron."[82] Instead, such credits "represent an interest which will be paid to them at some unspecified later date to be determined by the board of directors."[83] Thus, even if the appellants had a private right of action to enforce OCGA § 46-3-340 (which they do not), this Court has no legal basis for granting the relief requested.[84]

         5. In four separate enumerations of error, the former-member appellants argue the trial court erred in finding that they failed to state a claim for breach of contract, unjust enrichment, money had and received, conversion, declaratory relief, and injunctive relief. Yet again, we disagree.

         We begin by reiterating that "[w]e review de novo a trial court's determination that a pleading fails to state a claim upon which relief can be granted, treating all material allegations set forth in the complaint as true, treating all denials set forth in the answer as false, and resolving any doubts in favor of the plaintiff."[85] And in Georgia, "it is not necessary for a complaint to set forth all of the elements of a cause of action in order to survive a motion to dismiss for failure to state a claim."[86] Instead, the Georgia Civil Practice Act "requires only notice pleading and, under the Act, pleadings are to be construed [forgivingly] and reasonably to achieve substantial justice consistent with the statutory requirements of the Act."[87] In other words, a motion to dismiss for failure to state a claim "should not be granted unless the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof."[88] In this matter, even if the former-member appellants' claims were not also time-barred, they have failed to state a valid claim against their former EMCs for the reasons that follow.

         (a) Breach of contract

         As an initial matter, and as explained in Division 2 (a) supra, the former-member appellants lack standing to bring a breach-of-contract claim against Oglethorpe, GTC, and any of the 38 distribution EMCs of which they were never a member. Here, the named plaintiffs are former members of Walton, Cobb, Sawnee, and Jackson EMCs.[89] Thus, to the extent that the appellants can still be considered to be parties to the bylaws of the EMC of which they were, but are no longer members, we consider whether their complaint sufficiently alleged a breach-of-contract claim as to those distribution EMCs only.

         In Georgia, the elements for a breach-of-contract claim are "the (1) breach and the (2) resultant damages (3) to the party who has the right to complain about the contract being broken."[90] And a breach occurs if a contracting party, inter alia, "fails to perform the engagement as specified in the contract[.]"[91] As previously mentioned, the former-member appellants alleged that each EMC's bylaws "constitute a contract between [the EMC] and its members" and that the defendant EMCs "breached the contractual obligations in their bylaws by failing to return the patronage capital resulting from their excess earnings owned by their former members upon termination of membership or within a reasonable time after services [are] terminated." In addition, the appellants alleged that the EMCs breached the contractual obligation in their bylaws "by failing to adopt reasonable policies and procedures to periodically retire patronage capital resulting from their excess earnings for the benefit of all members and former members."

         But the former-member appellants have never, and do not now, claim that any particular provision in the EMCs' bylaws expressly mandates that the EMCs refund patronage capital at the time when a member terminates his or her account or after any specified length of time thereafter. Instead, they alleged that by failing to periodically refund patronage capital on a "reasonable" schedule of no more than 13 years following allocation, the EMCs breached a more general promise to "operate on a nonprofit cooperative basis for the mutual benefit of the members who are their customers." Put another way, they claimed that "[t]he obligation to allocate and return patronage capital to the members and former members is reflected in the [EMCs'] bylaws through their embrace of cooperative principles . . . ."[92]

         Notwithstanding the former-member appellants' interpretation of what the term "cooperative principles" means or requires of EMCs, we have held that "when a provision specifically addresses the issue in question, it prevails over any conflicting general language."[93] And here, the bylaws of Walton, Jackson, and Sawnee EMCs contained specific provisions addressing the allocation and retirement of patronage capital, which do not require the board of directors of each EMC to refund patronage capital at any particular time or on any "reasonable" schedule prior to dissolution of the cooperative.[94] For example, in Walton EMC's bylaws, Section 9.02 is entitled "Patronage Capital in Connection with Furnishing Electric Energy[, ]" and requires only that the EMC "pay credits to a capital account for each patron all such amounts in excess of operating costs and expenses[, ]" and to "notify each patron of the amount of capital so credited to his/her account" within a reasonable time after the close of each fiscal year. In addition, Section 9.02 provides that in the event of dissolution or liquidation, all

outstanding capital credits shall be retired without priority on a pro rata basis . . . [, ]" and that, "[i]f at any time prior to dissolution or liquidation, the [b]oard of [d]irectors shall determine that the financial condition of the [c]ooperative will not be impaired thereby, the capital credited to patrons' accounts may be retired in full or in part.[95]

         And finally, Walton EMC's bylaws suggest there may not be any pre-dissolution retirement of patronage capital by providing that the board of directors "shall determine the method of allocation, basis, priority, and order of retirement, if any."[96]

         The specific provisions regarding the allocation and retirement of patronage capital unambiguously provide that the only time when Walton EMC's board of directors is required to refund patronage capital is at the time of dissolution or liquidation, [97] but that its board of directors may (but is not required to) do so at other times under certain conditions. Given these particular circumstances, the specific provisions in the EMCs' bylaws granting the board of directors the discretion to refund patronage capital prior to dissolution if it chooses to do so controls over any general promise in the bylaws to operate pursuant to "cooperative principles."[98] And significantly, the bylaw provisions regarding such allocation are consistent with our Supreme Court's characterization of patronage capital in Howard discussed in Division 4 supra.[99]

         Nevertheless, while the former-member appellants appear to concede that each EMC's board of directors has discretion regarding when to refund patronage capital prior to dissolution, they argue that the EMC boards have breached their duty to exercise such discretion in good faith. But although every contract "implies a covenant of good faith and fair dealing in the contract's performance and enforcement[, ] . . . the covenant cannot be breached apart from the contract provisions it modifies and therefore cannot provide an independent basis for liability."[100] As a result, the appellants cannot maintain a claim for the breach of the covenant of good faith and fair dealing because they have not alleged a viable claim for breach of contract.[101]

         (b) Unjust Enrichment and Money Had and Received

         The former-member appellants next challenge the trial court's dismissal of their claims for unjust enrichment and money had and received. Specifically, they argue that the trial court erred in finding that (1) such claims only arise in the absence of a contract; (2) the appellants were required to allege that they conferred a direct benefit on Oglethorpe and GTC; and (3) the retention of patronage capital by Oglethorpe and GTC was not unjust or inequitable because those EMCs were entitled to retain such funds under the EMC Act.

         Nevertheless, as explained by the Supreme Court of Georgia, "[u]njust enrichment applies when as a matter of fact there is no legal contract, but where the party sought to be charged has been conferred a benefit by the party contending an unjust enrichment which the benefit[t]ed party equitably ought to return or compensate for."[102] Further, to state a claim for money had and received, a plaintiff must allege that "a person has received money of the other that in equity and good conscience he should not be permitted to keep; demand for repayment has been made; and the demand was refused."[103] And similarly to unjust enrichment, a claim for money had and received "exists only where there is no actual legal contract governing the issue."[104]

         As to the former-member appellants' unjust-enrichment claim, the complaint alleged that the defendant EMCs were retaining property belonging to them-i.e., patronage capital allocated to them on the EMCs' books. Similarly, the appellants' money-had-and-received claim was based on an allegation that the EMCs have wrongfully retained patronage capital after they terminated their accounts that should be refunded to them. Importantly, they claimed that the EMCs were bound to refund patronage capital "by contract and state and federal law."[105]

         But the former-member appellants paid no money (and conferred no benefit) to any EMC other than the distribution EMC from which they formerly purchased electricity. Moreover, to establish their entitlement to a refund of patronage capital, the appellants rely only on a statute, under which they have no private right of action, and the EMCs' bylaws, which they expressly alleged are contracts between each EMC and its members. Furthermore, as discussed at length supra, the EMC statute, the EMCs' bylaws, and the Supreme Court of Georgia's decision in Howard all establish that an EMC's board of directors is not required to refund patronage capital at any time other than upon dissolution or liquidation. Indeed, although the appellants claim that they own the patronage capital being retained by the EMCs, our Supreme Court has explained that allocations of capital credits merely reflect a member's ownership interest in such retained ...


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