Tiismann v. Linda Martin Homes Corp.

• Decision Date: 17 November 2005
• Docket Number: No. A04A0662.,A04A0662.
• Citation: 625 S.E.2d 32,276 Ga. App. 846
• Parties: TIISMANN v. LINDA MARTIN HOMES CORPORATION.
• Court: Georgia Court of Appeals

276 Ga. App. 846

625 S.E.2d 32

TIISMANN v. LINDA MARTIN HOMES CORPORATION.

No. A04A0662.

Court of Appeals of Georgia.

November 17, 2005.

Reconsideration Denied December 14, 2005.

COPYRIGHT MATERIAL OMITTED

Weizenecker, Mottern & Fisher, Vaughn W. Fisher, Jr., Kimberly K. Perez, Womble, Carlyle, Sandridge & Rice, Frank G. Goldman, Atlanta, for appellant.

Michael A. Kessler, Cumming, for appellee.

Sidney R. Barrett, Jr., Senior Assistant Attorney General, McKenna, Long & Aldridge, Samantha M. Rein, amici curiae.

BARNES, Judge.

In Tiismann v. Linda Martin Homes Corp., 279 Ga. 137, 610 S.E.2d 68 (2005), the Supreme Court of Georgia reversed our previous decision in this appeal arising out of an action brought by Mart Tiismann against Linda Martin Homes Corporation (LMH) for, among other things, violating the Fair Business Practices Act (FBPA), OCGA § 10-1-390 et seq. See Tiismann v. Linda Martin Homes Corp., 268 Ga.App. 787, 603 S.E.2d 45 (2004) (Tiismann I). In finding that the trial court did not err in its grant of summary judgment to LMH because Tiismann's FBPA claim was barred by the statute of limitation, we held that "Tiismann knew or should have known of the alleged FBPA violations when he signed the purchase agreement." Id. at 791(1), 603 S.E.2d 45. In reversing this Court, the Supreme Court held that

Tiismann clearly did not suffer any actual damages at the time of the alleged FBPA violation. He could not have suffered any such damages at least until LMH conveyed the house to him without complying with code requirements or used the contractual language in question to deny liability. Therefore, Tiismann's cause of action under the FBPA did not accrue until less than two years prior to the date he filed suit. Accordingly, the statute of limitations did not bar his claim, and the grant of summary judgment in favor of LMH based on OCGA § 10-1-401(a)(1) was erroneous.

Tiismann v. Linda Martin Homes Corp., supra, 279 Ga. at 139-140, 610 S.E.2d 68.

Consequently, our previous opinion and judgment are vacated and set aside, and the decision of the Supreme Court is hereby made the decision of this Court as to the statute of limitation issue. However, "[t]he issues submitted by the remaining enumerations of error which were rendered moot by our previous decision are reopened by the decision of the Supreme Court." Stevens v. Wakefield, 163 Ga.App. 40, 292 S.E.2d 516 (1982). Accordingly, we will address Tiismann's remaining enumerations.

The full facts underlying Tiismann's FBPA claim are set forth in Tiismann I. A brief overview, however, reveals that Tiismann's claim arose from a 1998 dispute with LMH over certain defects related to building code violations in the construction of his $837,000 home. Because of contract disputes, before closing, the parties entered into an amended contract which provided for arbitration of the disputes with Construction Arbitration Associates. Before arbitration, however, Tiismann filed the underlying action seeking to enjoin the arbitration, assign a different arbitrator and make various claims for breach of contract and violations of the FBPA. The trial court refused to enjoin the arbitration, and, subsequently, Tiismann was awarded $205,664.88 for his claims related to the building code violations.

The only remaining claims were related to alleged violations of the FBPA. Tiismann contended that LMH violated the FBPA because its standard construction contract was duplicitous, in that it contained contradictory language which assured the home buyer that LMH would build the home in accordance with the building codes, but also incorporated a limited warranty disclaiming responsibility for any violations of the building codes. The trial court granted LMH summary judgment, finding not only that the statute of limitation barred the FBPA claim, but also that "[t]here exists no genuine issue of material facts as to Tiismann's actual or reasonable reliance as to a FBPA claim since there could not have been reasonable reliance as a matter of law when the conflicting terms were both before Tiismann at the time he signed." As the Supreme Court has held that Tiismann's claim was not barred by the running of the statute of limitation, we will consider whether the trial court erred in holding that Tiismann did not reasonably rely on the conflicting terms.

Tiismann contends that the trial court erred in granting summary judgment to LMH because (1) not all of the representations in the sales contract disclaimed liability for code violations, creating a jury question as to reasonable reliance, (2) LMH had a legal duty, independent of the contract, to comply with the building codes, (3) the sales contract was executory and any representations in the contract were not of a present condition, but of a future action, (4) Tiismann reasonably relied on LMH's obligation to build to code because he knew the contractual disclaimer was invalid when he signed the contract, and (5) reasonable reliance is not an element of Tiismann's FBPA claim.

1. Tiismann argues that LMH had a legal duty, independent of the contract, to comply with the building codes. This contention is irrelevant to Tiismann's FBPA claim, which is based on the contradictory language in LMH's contract. Tiismann's breach of contract, negligent construction, and conversion claims were arbitrated, and he was awarded $205,664.88 in damages, which was subsequently verified by consent order and paid in full. This contention is meritless.

2. Tiismann contends that reasonable reliance is not an element of his claim, and that there was a jury question as to reasonable reliance because not all of the representations in the sales contract disclaimed liability for code violations. We find no merit to these claims.

Tiismann claims that reasonable reliance is only an element of a FBPA claim when the violation is based on a misrepresentation, rather than an act. He contends that reasonable reliance is not applicable in this circumstance because his case is premised upon the act of LMH's refusing responsibility for code violations, not for any misrepresentations.

Pretermitting whether Tiismann's contention has any legal basis, his assertion is particularly curious given the statement in his complaint alleging a violation of the FBPA in that he had "reasonably relied upon the certain representations set forth" in the purchase agreement. Moreover, if, as he maintains, his FBPA claim was based on LMH's refusal to take responsibility for the code violations in his home rather than on LMH's contractual misrepresentations, he cannot recover under the Act.

Generally,

if the deceptive or unfair act or practice had or has no potential for harm to the general consuming public, the allegedly wrongful act of the defendant was not made in the context of the consumer marketplace. 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." [Cit.]

Zeeman v. Black, 156 Ga.App. 82, 84, 273 S.E.2d 910 (1980). The "act" of LMH's...