In re

• Decision Date: 28 June 2013
• Docket Number: A13A0670.,Nos. A13A0130,s. A13A0130
• Citation: 745 S.E.2d 730,322 Ga.App. 486
• Parties: WRIGHT v. SAFARI CLUB INTERNATIONAL, INC., et al. Wright v. Waterberg Big Game Hunting Lodge Otjahewita (Pty), Ltd.
• Court: Georgia Court of Appeals

322 Ga.App. 486

745 S.E.2d 730

WRIGHT

v.SAFARI CLUB INTERNATIONAL, INC., et al.

Wright

v.Waterberg Big Game Hunting Lodge Otjahewita (Pty), Ltd.

Nos. A13A0130, A13A0670.

Court of Appeals of Georgia.

June 28, 2013.

Michael D. Barber, Atlanta, for Appellant.

Christopher Knox Withers, Andrew B. Flake, Henry Chalmers, Atlanta, for Appellee.

McMILLIAN, Judge.

This is the second appearance of this case before this Court. As set forth in the previous appeal and as shown by the record, appellee Safari Club International, Inc. (“SCI”) is “a charitable, non-profit organization dedicated to promoting wildlife conservation and protecting hunting opportunities.” Each year SCI holds a convention and auction in which attendees have the opportunity to bid on various goods, services and hunting excursions, which primarily have been provided to SCI by third parties (“outfitters”). Appellant Joseph Jerry Wright had been a member of SCI since the 1970's and had attended numerous auctions throughout the years.

In 2007, Wright attended SCI's seminar in Reno, Nevada and was the successful bidder on a 14–day hunting and fishing trip to the Republic of South Africa and Namibia offered and conducted by Waterberg Big Game Hunting, Fishing & Photographic Safaris (“WABI”). WABI subsequently canceled portions of the safari, and Wright brought suit against SCI for breach of contract and violation of the Georgia Fair Business Practices Act.¹Wright v. Safari Club Intl., 307 Ga.App. 136, 137, 706 S.E.2d 84 (2010). SCI filed a motion to dismiss based on Wright's failure to join WABI as a party to the action. The trial court agreed that WABI was an indispensable party but found that WABI was not subject to the jurisdiction of the court; consequently, the trial court dismissed Wright's complaint against SCI. Wright appealed to this Court, and we reversed, finding that SCI had not met its burden of establishing that jurisdiction could not be obtained over WABI, and that, therefore, Wright should be given an opportunity to serve WABI and bring it before the court, at which time WABI could pose a challenge to the court's exercise of personal jurisdiction over it. Id. at 139, 706 S.E.2d 84.

The case was returned to the trial court, and on January 31, 2011, Wright filed a motion for service of process on WABI, a motion for joinder and supporting affidavits, and a second amended complaint against SCI and WABI. SCI did not oppose Wright's motion, but requested that the trial court issue an order requiring Wright to serve WABI within a specified amount of time.

The trial court granted Wright's motion to join WABI and ordered that service be attempted in accordance with the Namibian Reciprocal Service of Civil Process Act of 1994 or, alternatively, that service be perfected in accordance with OCGA § 9–11–4(f)(3)(B)(iii); ² service was apparently perfected on WABI in accordance with Namibian law in May 2011. On December 2, 2011, SCI filed a motion for summary judgment. On December 30, 2011, Wright filed a motion seeking a default judgment against WABI, which the trial court denied on March 14, 2012, based in part on Wright's failure to seek an order from the court requiring WABI to file an answer to Wright's amended complaint.

On March 26, 2012, the trial court granted SCI's motion for summary judgment and made the judgment final as to SCI under OCGA § 9–11–54(b). Wright timely filed a notice of appeal from that order, and that appeal was docketed in this Court as Case Number A13A0130. A few days later, the trial court denied Wright's request for an order directing WABI to answer his amended complaints. Further, the court directed Wright to address WABI's “status” in the case, noting in a footnote that “because it appears that [Wright] may have improperly added, by amendment, [WABI] without first obtaining leave of the court, [WABI] may be subject to dismissal ....”

Wright responded to the trial court's order, acknowledging that he should have first sought permission of the court before filing his second amended complaint to add WABI as a party, but requesting that the court exercise its discretion to approve his amended complaints and to order WABI to file its answer within 30 days of receipt of the trial court's order. On April 12, 2012, the trial court issued a “final” order in this case dismissing WABI because of Wright's failure to seek the court's leave prior to amending his complaint to add WABI. Wright filed another notice of appeal from this order, and that appeal has been docketed in this Court as Case Number A13A0670. We have now consolidated Wright's appeals for our review.

Case Number A13A0130

Wright contends the trial court erred by granting summary judgment to SCI on his breach of contract and FBPA claims.

Pertinent to this issue, and viewed in the light most favorable to Wright as the nonmovant,³ the evidence shows that several months prior to the 2007 convention, SCI began sending its members, including Wright, various publications promoting the auction which contained SCI's “Auction Program Policies.” The Program Policies were printed in either the back or back and front of the brochures, and included various subheadings, which were in all capitals and set off by bolder type and larger font. One of the subheadings was titled “Auction Buyer Policy,” and provided that “All sales are final and there will be no exchanges or refunds on items or hunts.”

Also relevant here, the evidence shows that immediately following the auction, Wright signed a one-page “Safari Club International Auction Sales Invoice and Buyer's Agreement” (“Buyer's Agreement”). The Buyer's Agreement contained a provision headed “Non–Warranty and Disclaimer of Liability.” The heading was printed in all capitals in larger, bolder print and contained language similar to that contained in the pre-auction promotion publications, including that the “purchase is non-refundable under any and all circumstances ....” Additionally, the Buyer's Agreement provided that SCI did not perform any of the services covered by the Buyer's Agreement and did not have any responsibility for the delivery or quality of the services or for any loss or damages related to the performance or non-performance of the services.

In granting summary judgment to SCI, the trial court found that the disclaimer was valid and enforceable as a matter of law, defeating Wright's breach of contract claim. Further, the trial court found that neither the fact of the disclaimers nor any other facts showed that SCI had engaged in deceptive and unfair trade practices, and thus also determined that SCI was entitled to summary judgment on Wright's FBPA claim. As more fully set forth below, Wright challenges these findings.

1. We first consider Wright's claims under the FBPA.⁴

(a) “A prerequisite to stating a claim for relief under the [FBPA] is the commission of some unfair act or deceptive practice in trade or commerce, from which the Act is designed to protect the public. OCGA § 10–1–391(a).” Rivergate Corp. v. McIntosh, 205 Ga.App. 189, 192, 421 S.E.2d 737 (1992).

To be deceptive, a business practice must have ‘the tendency or capacity to deceive.’ Jeter v. Credit Bureau, 760 F.2d 1168, 1172(II) (11th Cir.1985) (construing the Federal Trade Commission Act (FTCA)). Disclaimers and qualifications are not deceptive if they are “sufficiently prominent and unambiguous to change the apparent meaning of (other unconditional) claims and to leave an accurate impression.” Removatron Intl. Corp. v. FTC, 884 F.2d 1489, 1497(IV) (1st Cir.1989) (construing the FTCA).

Tiismann v. Linda Martin Homes Corp., 281 Ga. 137, 140(2), 637 S.E.2d 14 (2006).

Contrary to Wright's arguments on appeal, we find that the disclaimers in this case were sufficiently prominent and clear.⁵ The Auction Program Policies appeared immediately before or immediately after the sections cataloging the items and services for sale, and each section, including the section titled “Auction Buyer Policy” was clearly delineated. Likewise, the heading in the Buyer's Agreement clearly and unambiguously identified the contents of that section as “Non–Warrant[ies] and Disclaimer of Liability,” and the relevant text of the disclaimer was clearly written and easily understood. Moreover, Wright had the opportunity to read the Auction Buyer Policy containing the no refund policy before he attended the auction and the opportunity to read the Buyer's Agreement before he signed it.⁶ “[I]t is undisputed that nothing was withheld from [Wright] or falsely stated to him and that the provisions which he contends were deceptive appear on the face of the agreement and were available for him to read and to accept or reject before signing.” Tiismann, 281 Ga. at 140(2), 637 S.E.2d 14.

Thus, the trial court did not err by finding that to the extent Wright's FBPA claim was based on the disclaimers, that claim failed as a matter of law.

(b) Moreover, although Wright attempts to graft definitions and subsections of the FBPA pertaining to “promotions” onto his claim, this case clearly does not involve a “promotion,” as that term is defined in the FBPA,⁷ and this argument is not pertinent.⁸ Likewise, as Wright himself argues, this case does not come within the purview of Georgia's Uniform Commercial Code (UCC), OCGA § 11–1–101 et. seq., and we are not bound to analyze the viability of the disclaimers under those provisions. See Tiismann, 281 Ga. at 140(2), 637 S.E.2d 14.

(c) Wright posits in a separate enumeration that the trial court erred by failing to consider whether it is “possible acts or practices beyond the disclaimer of liability could be violations of the FBPA.” Although such a vague assertion of a possible claim is insufficient to withstand summary judgment, in his reply brief Wright asserts more specifically that the general practice of failing to give aggrieved buyers appropriate notice of their lack of remedies constituted an unfair or deceptive trade practice. But...