Tiismann v. Linda Martin Homes Corp.
Decision Date | 25 October 2006 |
Docket Number | No. S06G0848.,S06G0848. |
Citation | 281 Ga. 137,637 S.E.2d 14 |
Parties | TIISMANN v. LINDA MARTIN HOMES CORPORATION. |
Court | Georgia Supreme Court |
Michael A. Kessler, Cumming, Barry W. Reid, Atlanta, Thurbert E. Baker, Atty. Gen., Isaac Byrd, Deputy Atty. Gen., Sidney R. Barrett Jr., Asst. Atty. Gen., for Linda Martin Homes Corporation.
Tiismann v. Linda Martin Homes Corp., 276 Ga.App. 846, 847, 625 S.E.2d 32 (2005) (Tiismann III). On remand, the Court of Appeals again affirmed, holding that reasonable reliance was an essential element of Tiismann's FBPA claim, and that Tiismann III, supra at 849(2), 625 S.E.2d 32. Tiismann applied for and we granted certiorari to review the opinion of the Court of Appeals.
1. Subsection (a) of OCGA § 10-1-399 creates a private cause of action for an individual "who suffers injury or damages ... as a result of consumer acts or practices in violation of [the FBPA]," whereas subsection (b) of that statute requires, as a prerequisite to filing suit, written notice "reasonably describing the unfair or deceptive act or practice relied upon. . . ." (Emphasis supplied.) On remand, the Court of Appeals based its affirmance of the grant of summary judgment primarily upon Zeeman v. Black, 156 Ga.App. 82, 273 S.E.2d 910 (1980). In that case, OCGA § 10-1-399 was construed
as incorporating the "reliance" element of the common law tort of misrepresentation into the causation element of an individual claim under the FBPA. [Cit.] Thus, under [OCGA § 10-1-399], a claimant who alleges the FBPA was violated as the result of a misrepresentation must demonstrate that he was injured as the result of the reliance upon the alleged misrepresentation. Therefore, under [OCGA § 10-1-399] when the alleged violation of the FBPA is a misrepresentation, the claimant is not entitled to recover if he had an equal and ample opportunity to ascertain the truth but failed to exercise proper diligence to do so. [Cit.] [Cit.]
Zeeman v. Black, supra at 87, 273 S.E.2d 910. Since Zeeman was decided, the General Assembly has amended OCGA § 10-1-399 several times, but never so as to alter the interpretation given the statute in that decision.
[Cit.]
Mitchell v. State, 239 Ga. 3, 6(2), 235 S.E.2d 509 (1977). See also Security Life Ins. Co. of America v. St. Paul Fire & Marine Ins. Co., 278 Ga. 800, 801(1), 606 S.E.2d 855 (2004).
[Cit.]
Tiismann II, supra at 139, 610 S.E.2d 68. Therefore, Zeeman continues to constitute viable authority as to the construction of OCGA § 10-1-399, and the Court of Appeals correctly recognized it as such. Compare OCGA § 10-1-397(a), which authorizes the administrator of the FBPA to issue a cease and desist order or impose a civil penalty, "whether or not any person has actually been misled. . ."; Agnew v. Great A & P Tea Co., 232 Ga.App. 708, 711(2), 502 S.E.2d 735 (1998), recognizing that the
2. Tiismann II, supra at 139, 610 S.E.2d 68. LMH's post-closing refusal to accept responsibility for remedying the code violations was not an unfair or deceptive act, since it was based on the very language of the agreement that Tiismann had signed. The disclaimer provision was either a valid defense to LMH's contractual liability or it was not. See Emory Univ. v. Porubiansky, 248 Ga. 391, 282 S.E.2d 903 (1981) ( ); BodySlimmer v. Sanford, 197 Ga.App. 565, 398 S.E.2d 840 (1990) ( ). LMH's decision to litigate that issue was not unfair or deceptive within the meaning of the FBPA. Moreover, Tiismann obviously was not injured as the result of LMH's denial of responsibility for the code violations, since its defense ultimately proved unsuccessful and Tiismann was awarded a substantial sum in the arbitration action for those violations.
It should be noted at the outset that there is considerable doubt whether the contractual language at issue even constitutes a violation of the FBPA. One provision of the agreement merely states LMH's obligation to construct the home in accordance with the applicable building codes, whereas the other simply purports to limit LMH's legal liability for failing to do so. As previously noted, the latter provision was either valid or it was not, and the mere fact that, as a matter of contract law, it proved to be unenforceable by LMH does not necessarily make its inclusion in the agreement a deceptive business practice. To be deceptive, a business practice must have "the tendency or capacity to deceive." Jeter v. Credit Bureau, 760 F.2d 1168, 1172(II) (11 Cir.1985) (Federal Trade Commission Act (FTCA)) the . 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...
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