City of Jonesboro v. Clayton County Water Authority ( 1974 )

Stolz, Judge.

This case commenced as a declaratory judgment action by the Clayton County Water Authority (Water Authority) against the City of Jonesboro (Jonesboro) over its right to raise water rates pursuant to certain written contracts between the two, which were attached to the complaint and made a part thereof. Jonesboro, as part of its answer, moved to dismiss the complaint on the grounds that the same failed "to properly state a cause of action upon which any of the relief prayed for may be granted” as to declaratory judgment and "fails to state any grounds upon which the damages sought. . . may be granted as prayed.” We construe these motions as contending the failure to state a claim, not a cause of action, which is no longer required. Contemporaneously with the filing of the above, Jonesboro filed a motion to strike paragraphs 12 and 13 of the complaint on the grounds of relevance and materiality. These various motions came on for hearing. No evidence was presented. After hearing argument of counsel and citation of authority, the trial judge denied the motions. The appeal is from that judgment. Held:

Argued November 7, 1973 Decided March 8, 1974.

Under the Civil Practice Act, a motion to dismiss a complaint for failure to state a claim should not be granted unless the averments in the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claim. Herndon v. Aultman-Beasley, Inc., 127 Ga. App. 743, 744 (195 SE2d 250) and cits. A review of the complaint and contracts attached thereto, demonstrates affirmatively that facts could be proved under which the Water Authority would be entitled to the relief sought.

The trial judge was correct and his judgment is affirmed.

Judgment affirmed.

Bell, C. J., Hall, P. J., Eb-erhardt, P. J., Pannell, Deen and Quillian, JJ., concur. Evans, J, concurs specially. Clark, J, dissents. Albert B. Wallace, for appellant. Hodges, Oliver & Duckworth, G. Robert Oliver, for appellee.