Pryor v. CCEC, INC.

• Decision Date: 18 September 2002
• Docket Number: No. A02A1268.,A02A1268.
• Citation: 571 S.E.2d 454,257 Ga. App. 450
• Court: Georgia Court of Appeals
• Parties: PRYOR et al. v. CCEC, INC.

571 S.E.2d 454

257 Ga. App. 450

PRYOR et al. v. CCEC, INC.

No. A02A1268.

Court of Appeals of Georgia.

September 18, 2002.

John H. Bedford, Tucker, for appellants.

Gray, Rust, St. Amand, Moffett & Brieske, Matthew G. Moffett, Kristy L. Eckhardt, Atlanta, for appellee.

MILLER, Judge.

A private school dismissed a student for misbehavior. The student and her mother sued the school, claiming a violation of the Georgia Fair Business Practices Act (FBPA), and asserted a claim for negligent infliction of mental distress. We uphold the grant of summary judgment to the school on the grounds that the FBPA does not apply to this private transaction and that the mental distress claim cannot lie because of the lack of physical impact to the student or the mother.

Summary judgment is only proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). We review the evidence de novo in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga.App. 459(1), 486 S.E.2d 684 (1997).

So construed, the evidence shows that Cloister Creek Educational Center is a residential transition school for young adults in need of assistance to transition to work and independent living. On the advice of an educational consultant, Carol Pryor considered placing her 18-year-old daughter there in the summer of 1999. She met with the director of Cloister Creek, who concluded that Pryor's daughter was appropriate for the program. Pryor paid the school $7,811.36 (representing three months of tuition), and her daughter was admitted in early July. Pryor admits that the financial arrangement was governed by an unsigned document she reviewed at that time, which stated that the tuition was nonrefundable. No one contradicted this statement. Nor were any representations made to Pryor regarding grounds or procedures for dismissal.

On July 21, 1999, the school director was replaced by Dr. Wiley. Over the next few weeks, Dr. Wiley received reports that the daughter assaulted two students, violated curfew by showering after hours, and violated boundary restrictions by running into the woods behind the school; Dr. Wiley also witnessed the daughter respond to reprimands by donning army fatigues. Aware of her daughter's prior history of threats and of defiance to teachers, Pryor received reports from the school regarding the fatigues and the curfew violation. Plaintiffs have no evidence to refute any of the allegations of misbehavior against the daughter. However, Pryor was not notified of the assaults or of the boundary violation.

Based on this behavior and on a review of the daughter's medical records, Dr. Wiley concluded that she had behavioral disorders and dismissed her from the school on August 7, 1999. Despite the school's "no refund" policy, the school did refund $1,983.76 to Pryor. Pryor requested the school to set forth the grounds for dismissal in writing, to which the school did not respond.

Pryor and her daughter then brought the present action against the school. In the first count, they allege that the school violated the FBPA (OCGA § 10-1-393) by falsely representing that the program was appropriate for the daughter and then (shortly after the daughter began the program) arbitrarily reversing that decision and dismissing her without refunding "most of the money" paid for tuition. The second count alleges a claim for negligent infliction of mental distress in that Dr. Wiley failed to exercise due care in the determination that the daughter had a behavioral disorder and in dismissing her, which action worsened the daughter's mental condition and caused her mental anguish. The trial court granted summary judgment on all claims, which the mother and daughter appeal.

1. "One may bring a private suit under the FBPA only if he is individually injured by the breach of a duty owed to the consuming public in general. [The Act] does not encompass suits based upon allegedly deceptive or unfair acts or practices which occur in an essentially private transaction." (Citation and punctuation omitted.) Lynas v. Williams, 216 Ga.App. 434, 436(3)(b), 454 S.E.2d 570 (1995). "Unless it can be said that the defendant's actions had or has potential harm for the consumer public the act or practice cannot be said to have `impact' on the consumer marketplace and any act or practice which is outside that context, no matter how unfair or deceptive, is not directly regulated by the FBPA." (Citation and punctuation omitted.) Gross v. Ideal Pool Corp., 181 Ga.App. 483, 484(1), 352 S.E.2d 806 (1987); accord Zeeman v....