Lead Opinion
In this сase involving a dispute arising from a daycare center franchise agreement, a Gwinnett County jury rendered a verdict in favor of the plaintiffs, franchisee Mamilove, LLC and its officers, Michele Reymond and Lorraine Reymond (collectively, “Mamilove”), and against the franchisors, Legacy Academy, Inc. and its officers, Frank and Melissa Turner (collectively, “Legacy”). The superior court denied a motion for new trial filed by Legacy, and Legacy appeals from the court’s judgment on the verdict and from its order on the motion for new trial. Legacy contends that the trial court erred in rejecting its argument that Mamilove’s claims were barred as a matter of law, in denying its motion for a directed verdict on all of the claims, in excluding certain evidence, and in denying its motion for new trial. Finding no error, we affirm.
Viewed in favor of the jury’s verdict,
On September 13, 2001, the Reymonds met with the Turners, who gave them a 17-page “Franchise Offering Circular for Prospective Franchisees for Non-Registration States” (the “franchise circular”) and a 37-page, 25-year Franchise Agreement (the “franchise agreement”). The Reymonds did not have time to read the documents or consult with an attorney before signing them, however, because the Turners “pressured” them, telling them with “a sense of urgency” that they had to sign the documents that day or other franchisees would “take” the Old Peachtrеe Road location and it could be months before another location became available. As a result, the Reymonds signed the circular, the agreement, and an amendment to the agreement. The Reymonds also paid Legacy a $30,000 franchise fee.
The Turners subsequently informed the Reymonds that they could not build their center at the Old Peachtree Road location after all, purportedly because of “issues with the zoning” of that property. Several months later, in February 2002, the Reymonds executed an agreement to purchase 2.6 acres of land in Sugar Hill from the Turners
The Reymonds opened their daycare center in November 2002 and, by the end of its first year of operation, they had lost $212,300. Although they recorded net earnings of $103,692 in 2004 and $66,507 in 2005, those amounts were still far less than the $440,000 in annual profits that the other franchisees had earned, according to the earnings claim the Reymonds had received from the Turners.
In 2008, five of Legacy’s franchisees jointly left the franchise and sued Legacy and the Turners.
In November 2010, Mamilove filed suit against Legacy, asserting a claim under OCGA § 51-1-6 that was based upon Legacy’s violations of the FTC Rules,
At trial, Mamilove presented the evidence outlined above, as well as evidence that the earnings claim the Reymonds received from the Turners in the summer of 2001 was, in fact, fraudulent. The evidence showed that the earnings claim was not a historical representation of the actual revenues and expenses of the existing Legаcy franchises, as the Turners had claimed, but was, instead, mere speculation based upon assumptions regarding the total revenues and expenses a franchise might experience.
In addition, Mamilove presented the testimony of four former Legacy franchisees. Patricia Williams, who opened the first Legacy daycare center franchise in November 1998, lost over $283,000 in her first year of operation and lost another $147,000 in the second year. She provided her financial statements to Frank Turner in March 2000 — over a year before the Turners gave the Reymonds the earnings claim that was supposedly based on the performance of Williams’ center and the other franchises. Another franchisee, Tim Paulus, testified that he was considering opening a Legacy franchise in the summer of2001, and Frank Turner gave him an earnings claim that was very similar to the one the Turners gave to the Reymonds around the same time. As with the Reymonds, Turner told Paulus that the earnings claim was based on the actual
Testifying in their defense, the Turners denied that they or anyone on Legacy’s behalf had given the Reymonds an earnings claim for the franchise before the Reymonds signed the franchise agreement on September 13, 2011. The Turners also claimed, inter alia, that they had given the Reymonds the franchise circular prior to September 13, and Frank Turner denied that he had ever promised the Reymonds that they could build a center at the Old Peachtree Road location. Finally, they denied that they had pressured or otherwise prevented the Reymonds from reading the franchise agreement before signing it.
Based upon the evidence presented, the jury rendered a general verdict in favor of Mamilove on all of its claims and awarded it $750,000, plus $350,000 in damages based upon the RICO violations, and $30,000 in attorney fees. Thе jury also found that Frank and Melissa Turner were personally liable for the judgments. In addition, the jury found in favor of Mamilove on Legacy’s breach of contract counterclaim. The court entered judgment on the verdict.*
1. On appeal, Legacy contends that the trial court erred in denying it summary judgment on Mamilove’s claims based upon the expiration of the statute of limitation periods for the claims. It has abandoned this issue, however.
Generally,
[ajfter verdict and judgment, it is too late to review a judgment denying a summary judgment, for that judgment becomes moot when the court reviews the evidence upon the trial of the case. Where a motion for summary judgment is overruled on an issue and the case proceeds to trial and the evidence at the trial authorizes the verdict (judgment) on that issue, any error in overruling the motion for summary judgment is harmless.
(Punctuation, footnotes and emphasis omitted.) ALEA London Ltd. v. Woodcock,
if the legal issues raised and resolved in denying the motion for summary judgment were not considered at trial, then the denial of the motion is not rendered moot by the verdict and judgment. Under such circumstances, a party may appeal the denial of summary judgment as part of the party’s direct appeal from the final judgment, and the denial will be reviewed anddetermined by this Court. See OCGA § 5-6-34 (d)[J
(Citations and punctuation omitted.) Coregis Ins. Co. v. Nelson,
On appeal, Legacy argues that the ruling at issue is not moot because the statute of limitation issue was not submitted to the jury at trial. This argument is patently disingenuous, though, as the trial transcript clearly shows that Legacy expressly abandoned its statute of limitation defense at the beginning of trial. Specifically, the transcript shows that, during a discussion of Legacy’s objection to the admission of evidence of the arbitrator’s award in suits against Legacy that had been brought by other franchisees, Mamilove’s counsel proposed the following compromise: “[If Legacy] were to drop the statute of limitations defense, the arbitration award would not come in. We would still be talking [about] franchisees [and a] similar sort of pattern of activity with respect to the RICO claim, but the [arbitration] award doesn’t come in.” In response, Legacy’s counsel agreed that Legacy would not assert a statute of limitation defense. Therefore, under these circumstances, this alleged error is no longer subject to appellate review. See ALEA London Ltd. v. Woodcock,
2. Legacy also contends that the trial court erred in denying its motion for summary judgment on Mamilove’s rescission claim, arguing that Mamilove waived its right to rescind the franchise agreement by failing to seek rescission in a timely manner as a matter of law. However, after the trial court denied the motion for summary judgment, the parties submitted to the jury the questions of whether Mamilove was entitled to equitable rescission of the agreement and whether it timely moved for rescission of the agreement under the circumstances. Consequently, because there was evidence presented at trial to support a finding by the jury that Mamilove timely asserted its rescission claim under the circumstances presented, the question of whether the trial court properly denied Legacy summary judgment on this issue is moot.
3. Legacy contends that Mamilove waived its right to rescind the agreement as a matter of law when it claimed that Legacy had breached the agreement, because, in asserting that claim, Mamilove acted in a manner that was inconsistent with its purported repudiation of the agreement. This contention lacks merit.
“In general, a party alleging fraudulent inducement to enter a contract has two options: (1) affirm the contract and sue for damages from the fraud or breach; or (2) promptly rescind the contract and sue in tort for fraud.” (Punctuation and footnote omitted.)
Where a party who is entitled to rescind a contract on ground of fraud or false representations, and who has full knowledge of the material circumstances of the case, freely and advisedly does anything which amounts to a recognition of the transaction, or acts in a manner inconsistent with a repudiation of the contract, such conduct amounts to acquiescence, and, though originally impeachable, the contract becomes unimpeachable in equity.
(Punctuation and footnote omitted.) Id. at 341-342 (1).
In this case, the record shows that Mamilove did not affirm the contract and then assert a breaсh of contract claim against Legacy in its complaint; instead, it sought rescission of the agreement. In contrast, Legacy’s breach of contract counterclaim asserted that Mamilove had breached the agreement by failing to pay royalties and other fees due under the contract. Subsequently, in the consolidated pretrial order, Mamilove, as the defendant to that counterclaim, raised the defense that Legacy’s fraudulent conduct constituted a prior breach of the agreement that had relieved Mamilove of its obligations under the agreement. Legacy now argues that, by asserting a defense that was based on the agreement, Mamilove affirmed the agreement and, thus, waived its right to rescission of the agreement. However,
there is a fundamental difference between the assertion of a “defense” by a defendant and the assertion of a right to affirmative relief through the filing of a “claim” ... by one who thereby occupies the status of a plaintiff. A “defense” is “that which is offered and alleged by the party proceeded against in an action or suit, as a reason in law or fact why the plaintiff should not recover or establish what he seeks. A defense is not something by means of which the party who interposes it can obtain relief for himself.”
(Citation and punctuation omitted.) T. V. Tempo, Inc. v. T. V. Venture, Inc.,
4. Legacy contends that the trial court erred in failing to grant its motion for a directed verdict on Mamilove’s claim for rescission of the franchise agreement.
[0]n appeal from a trial court’s rulings on motions for directed verdict and judgment notwithstanding the verdict, we review and resolve the evidence and any doubts or ambiguities in favor of the verdict; directed verdicts and judgments notwithstanding the verdict are not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.
(Citation and punctuation omitted.) Fertility Technology Resources v. Lifetek Med.,
On appeal, Legacy argues that Mamilove could not prove that the Turners fraudulently induced them to sign the agreement by showing them the earnings claims because the agreement specifically states that Mamilove had not received any representations of potential income or earning capabilities from Legacy prior to signing the agreement.
It is well-settled law in Georgia that a party who has the capacity and opportunity to read a written contract cannot afterwards set up fraud in the procurement of his signature to the instrument based on oral representations that differ from the terms of the contract. ... In fact, the only type of fraud that can relieve a party of his obligation to read a written contract and be bound by its terms is a fraud that prevents the party from reading the contract.
(Citations and punctuation omitted.) Novare Group v. Sarif,
Although it is undisputed that the Reymonds did not read the agreement prior to signing it, the parties submitted to the jury the question of whether the Turners intentionally prevented the Reymonds from reading the agreement before they signed it. Mamilove then presented evidence showing, inter alia, that the Turners first gave the Reymonds the 17-page circular and 37-page agreement on September 13, 2001, and told them that they had to sign the documents that day or another franchisee would be allowed to take the daycare center location they had chosen and it could be months before another location became available.
It follows that, despite the fact that the agreement stated otherwise, the evidence presented authorized the jury to find that Frank Turner did, in fact, show the Reymonds a fraudulent earnings claim prior to September 13, 2001, and that he did so with the intention of inducing them to execute the franchise agreement. See Greenwald v. Odom,
5. Legacy contends that the trial court erred in denying its motion for a directed verdict on Mamilove’s claims for fraud, negligent misrepresentation, and RICO violations because the merger or “entire agreement” provision in the franchise agreement bars these claims as a matter of law. Section 24.6 of the agreement states as follows: “Entire Agreement. Franchisee acknowledges that this agreement constitutes the entire agreement of the parties with respect to the matters contained herein. This [a] greement terminates and supersedes any рrior agreement between the parties concerning the same subject matter.” According to Legacy, this provision prevents the Reymonds from proving that they reasonably relied on the earnings claim Frank Turner had given them before they executed the franchise agreement. It argues that, because justifiable reliance is an essential element of Mamilove’s claims for fraud,
(a) As we stated in Division 3, supra, “a party alleging fraudulent inducement to enter a contract has two options: (1) affirm the contract and sue for [damages from the fraud or] breach; or (2) rescind the contract and sue in tort for fraud.” (Citations omitted.) Jones v. Cartee,
Depending upon which of the two actions is ultimately pursued, the presence of a merger clause in the underlying contract may be determinative as to the successful outcome. If the defrauded party has not rescinded but has elected to affirm the contract, he is relegated to a recovery in contract and the merger clause will prevent his recovеry. If, on the other hand, he does rescind the contract, the merger clause will not prevent his recovery under a tort [claim for fraud].
In City Dodge v. Gardner,
the question of reliance on the alleged fraudulent misrepresentation in tort cases cannot be determined by the provisions of the contract sought to be rescinded but must be determined as a question of fact by the jury. It is inconsistent to apply a disclaimer provision of a contract in a tort action brought to determine whether the entire contract is invalid because of alleged prior fraud which induced the execution of the contract. If the contract is invalid because of the antecedent fraud, thenthe... provisionfs] therein [are] ineffectual since, in legal contemplation, there is no contract between the parties.
(Emphasis supplied.) Id. at 770.
Therefore, in the instant case, because the evidence supported the jury’s verdict in favor of Mamilove on the rescission claim, as explained in Division 4, supra, the entire agreement — including the merger clause—was no longer valid or enforceable against Mamilove and did not prevent the Reymonds from proving that they reasonably relied on the fraudulent earnings claim when they executed the franchise agreement. See id.
(b) Still, Legacy argues that the Reymonds could not prove the element of reasonable reliance as a matter of law because precontractual misrepresentations that contradict
6. Legacy contends that the trial court erred in denying its motion for a directed verdict on Mamilove’s claim for violation of a legal duty under OCGA § 51-1-6. Under OCGA § 51-1-6, “[w]hen the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.”
Mamilove’s claim under this statute was based upon Legacy’s violations of the FTC Rules, specifically the FTC’s Disclosure Requirements and Prohibitions Concerning Franchising, 16 CFR §§ 436.1-436.5. Under the FTC Rules,
a franchisor must provide to prospective franchisees a complete and accurate basic disclosure document containing information relating to the franchisor and its existing franchisees. 16 CFR §§ 436.2-436.5.[24 ] A franсhisor’s failure to disclose that information is an unfair or deceptive trade practice that violates § 5 of the Federal Trade Commission Act (FTCA). 16 CFR § 436.2; 15 USC § 45.
Palermo Gelato, LLC v. Pino Gelato, Inc., 2013 U. S. Dist. LEXIS 9931 (1), n. 2 (W.D. Penn. 2013).
On appeal, Legacy argues that 15 USC § 45 allows a franchisee, like Mamilove, to file a complaint with the FTC asserting a
However, the phrase “cause of action” in the context of OCGA § 51-1-6 refers to an injured party’s right to bring a private lawsuit. “OCGA § 51-1-6 authorizes a plaintiff to recover damages for the breach of a legal duty . . . when that duty arises from a statute that does not provide a private cause of action.” (Citation and punctuation omitted; emphasis supplied.) Pulte Home Corp. v. Simerly,
Accordingly, we conclude that Mamilove was entitled to pursue a claim under OCGA § 51-1-6 based upon Legacy’s violations of the FTC Rules. See Holiday Hospitality Franchising v. 174 West Street Corp., 2006 U. S. Dist. LEXIS 49177 (III) (A) (2) (N.D. Ga. 2006).
7. Legacy contends that the trial court erred in denying its motion for a directed verdict on its counterclaim for breach of contract based upon Mamilove’s failure to pay royalty and advertising fees to Legacy after the Reymonds discovered Legacy’s fraud and terminated the franchise agreement in 2010. However, because the jury found that the franchise agreement was resсinded due to Legacy’s antecedent fraud, as discussed in Division 4, supra, no contractual fee obligation survived for Mamilove to breach. See City Dodge v. Gardner,
Moreover, even if Mamilove had been obligated to pay such fees to Legacy after terminating the agreement, Legacy failed to produce any evidence at trial to prove the amount of fees Mamilove failed to pay, instead relying on a purely speculative estimate of the franchise’s possible revenue for the remainder of the contract period. “Damages must be proved by evidence which furnishes the jury with sufficient data to enable them to calculate the amount with reasonable certainty. Proof of damages cannot be left to speculation, conjecture and guesswork.” (Citation and punctuation omitted.) Olagbegi v. Hutto,
8. Legacy contends that the trial court erred in denying its motion for a direсted verdict on Melissa Turner’s individual liability for Mamilove’s claims. Because there was evidence presented at trial to support the jury’s finding on Melissa Turner’s individual culpability for Mamilove’s claims, and because Legacy has failed to cite to any evidence or authority to demand a contrary finding, the trial court did not err in refusing to direct a verdict on this factual issue. See Fertility Technology Resources v. Lifetek Med.,
9. Legacy contends that the trial court abused its discretion in excluding the tax returns of one of its other franchisees, JLK, Inc. and JLK Holdings, Inc. The trial court excluded the evidence after concluding that it constituted hearsay. Legacy has failed to cite to any evidence or authority to show that this conclusion was erroneous and that, as a result, the court abused its discretion in excluding admissible evidence.
10. Legacy contends that the trial court abused its discretion in excluding the tax returns of a separate business, The Cutting Board, Inc., that was owned solely by Lorraine Reymond. The trial court excluded the evidence on the basis that it was irrelevant to the issues presented at triаl. Because Legacy failed to tender the evidence at trial and has not cited to any authority on appeal to support this alleged error, this argument is deemed abandoned. See Court of Appeals Rule 25 (c) (2).
11. Legacy contends that the trial court abused its discretion in denying its motion for a new trial.
Under OCGA § 5-5-23, the trial court is authorized to grant a new trial “in any case where any material evidence, not merely cumulative or impeaching in its character but relating to new and material facts, is discovered by the applicant after the rendition of a verdict against him and is brought to the notice of the court within the time allowed by law for entertaining a motion for a new trial.”
Grants of new trial on the ground of nеwly discovered evidence are not favored and are addressed to the sound discretion of the trial court. The trial court’s decision will not be disturbed absent a manifest abuse of discretion. To obtain a new trial based on newly discovered evidence, the evidence supporting the motion must satisfy six criteria: (1) it must have been discovered after the trial or hearing; (2) its late discovery was not due to lack of diligence; (3) it is so material that its introduction in evidence would probably produce a different result; (4) it is not merely cumulative; (5) the affidavit of the witness must be attached to the motion (or its absence accounted for); and (6) it does not operate only to impeach a witness. All six criteria must be satisfied for a new trial to be warranted.
(Footnotes omitted.) Hopper v. M & B Builders,
In this case, in arguing that Reymond had lied during her trial testimony as to when she received the circular and agreement from Legacy, Legacy is relying on copies of the documents that, by its own admissions, it possessed prior to and during trial. Thus, the documents are not newly discovered evidence that might, under certain circumstances, authorize the grant of a new trial. Further, even if the documents had been newly discovered evidence, their only purpose would be to impeach Reymond’s testimony as to when she received the documents from Legacy.
Judgment affirmed.
Notes
See ALEA London Ltd. v. Woodcock,
The record shows that the Turners purchased 6.6 acres of property at the Sugar Hill location for $440,000, and then, on the same day, sold the Reymonds a 2.26-acre parcel of the property for $525,000, thereby obtaining an immediate and substantial profit on the land. The Turners constructed a building for the Legacy Academy corporate headquarters on the remaining four-acre parcel right behind Mamilove’s daycare center.
Net earnings for subsequent years also fell far short of those represented in the earnings claim, with the Reymonds earning just $89,947 in 2006, $40,668 in 2007, $17,213 in 2008, and $28,299 in 2009.
According to Michele Reymond, she tried to avoid complaining too often or committing any violations of Legacy’s policies because she was concerned about getting “default letters” from Legacy for even minor or inadvertent infractions, which she feared would cause Legacy to take over Mamilove’s center.
The franchisees asserted claims for fraud, negligent misrepresentation, RICO violations, and breach of contract. In July 2010, an arbitrator issued an award in favor of franchisees that was later confirmed by the Superior Court of Gwinnett County. At trial in the instant case, the parties agreed that they would not present to the jury evidence of the arbitration award. See Division 1, infra.
After removing Legacy’s insignia and other materials from the daycare center, the Reymonds began operating the center as the “Wise Owl Academy.”
See Division 6, infra.
See OCGA § 16-14-1 et seq. (the “Georgia Racketeer Influenced and Corrupt Organizations Act”).
Mamilove also asserted claims against the contractor that built its daycare center, but those claims are not at issue in this appeal.
Notably, although the most Legacy daycare center franchises in operation at one time was about twenty-five, only ten were still in operation at the time of the 2013 trial in this case.
See Division 11, infra, regarding the trial court’s denial of Legacy’s motion for new trial.
Further, to the extent that Legacy contends that it was entitled to a directed verdict on this issue, the record shows that Legacy failed to raise this issue in its motion for a directed verdict. Regardless, Legacy would not have been entitled to a directed verdict on this issue, because there was evidence to support the jury’s finding that Mamilove timely asserted its claim for rescission. See Krayev v. Johnson,
Specifically, the agreement contained the following relevant provisions:
24.2. No Representations, Warranties or Guarantees. Franchisor expressly disclaims the making of, and Franchisee and each Owner acknowledge that it has not received from Franchisor or any party on behalf of Franchisor, any representation, warranty or guarantee, express or implied, as to the potential volume, profit, income or success of the business licensed under this Agreement. . . . 24.7. No Earnings Claims. Franchisee acknowledges that neither Franchisor, nor any person on behalf of Franchisor, has made any written, oral or visual representation of (i) earnings capability of Legacy Academy Center; (ii) a specific level of potential sales, income, gross or net profit for the Franchisee; or (iii) a specific level of sales, income, gross or net profits of existing centers (whether franchised or company-owned) other than as specifically described in the Offering Circular.
Accordingly, the dissent’s statement that the Reymonds “presented no evidence that the Turners said or did anything that prevented them from reading the agreement before they signed it” is simply incorrect.
The dissent misrepresents this conclusion by stating that “the majority concludes that Mamilove is entitled to rescind the franchise agreement despite the Reymonds’ failure to read it because the jury was authorized to find that they were ‘pressured’ or ‘rushed’ into signing it.” To be clear, the evidence did not only show that the Turners merely “pressured” the Reymonds into signing the agreement before reading it; it authorized the jury to find that the Turners actively defrauded the Reymonds by intentionally preventing them from reading the voluminous agreement so that they would be bound by the 25-year agreement before discovering the false statements contained therein.
Further, the facts in the cases cited by the dissent on this issue are clearly distinguishable from those presented in this case. The Reymonds never testified that they could not read the agreement because they were “too busy” or “occupied with other business.” Cf. Citicorp Indus. Credit v. Rountree,
Cf. Novare Group v. Sarif,
See Jones v. Cartee,
See Greenwald v. Odom,
The R.ICO claim was based upon allegations that Legacy had committed at least two acts of racketeering activity, including, among other crimes, theft by deception. See OCGA § 16-8-3 (a), (b) (1) (theft by deception); OCGA § 16-14-3 (8) (A), (9) (A) (ix) (RICO Act); see also First Data POS v. Willis,
See Novare Group v. Sarif,
Cf. Novare Group v. Sarif,
We note that, to the extent that Legacy relies on an unpublished opinion by this Court in a previous appeal involving Legacy and a different franchisee, JLK, Inc. v. Legacy Academy (A13A0810) (323 Ga. App. XXIII) (2013), this Cоurt issued that opinion pursuant to Court of Appeals Rule 36. Thus, pretermitting whether that appeal addressed this issue, Rule 36 specifically states that such opinions “have no precedential value.”
See Novare Group v. Sarif,
Cf. Novare Group v. Sarif,
The FTC Rules require, inter alia, that franchisors provide prospective franchisees with a copy of the current franchise circular and agreement “at least 14 calendar-days before the prospective franchisee signs a binding agreement with, or makes any payment to, the franchisor[.]” 16 CFR § 436.2 (a). The Rules also require that, if a franchisor provides a prospective franchisee “information about the actual or potential financial performance of its franchised and/or franchisor-owned outlets,” there must be “a reasonable basis for the information,” and the information must be included in the disclosure documents provided at least 14 days before the agreement is executed. 16 CFR § 436.5 (s). Further, the Rules state as follows:
If the franchisor makes any financial рerformance representation to prospective franchisees, the franchisor must have a reasonable basis and written substantiation for the representation at the time the representation is made and must state the representation in the Item 19 disclosure. The franchisor must also disclose the following: (i) Whether the representation is an historic financial performance representation about the franchise system’s existing outlets, or a subset of those outlets, or is a forecast of the prospective franchisee’s future financial performance. . . . (ii) If the representation relates to past performance of the franchise system’s existing outlets, the material bases for the representation!.]
16 CFR § 436.5 (s) (3).
Legacy does not dispute that it owed a legal duty to Mamilove under the FTC Rules.
See 15 USC § 45 (b) (‘Whenever the Commission shall have reason to believe that any such person, partnership, or corporation has been or is using any... unfair or deceptive act or practice in or affecting commerce, and if it shall appear to the Commission that a proceeding by it in respeсt thereof would be to the interest of the public, it shall issue and serve upon such person, partnership, or corporation a complaint stating its charges in that respect and containing a notice of a hearing!.] • • . If upon such hearing the Commission shall be of the opinion that the method of competition or the act or practice in question is prohibited by this Act, it shall make a report in writing in which it shall state its findings as to the facts and shall issue and cause to be served on such person, partnership, or corporation an order requiring such person, partnership, or corporation to cease and desist from using such method of competition or such act or practice.”).
Id.
Seel5USC§45(l) (“Any person, partnership, or corporation who violates an order of the Commission after it has become final, and while such order is in effect, shall forfeit and pay to the United States a civil penalty of not more than $10,000 for each violation, which shall accrue to the United States and may be recovered in a civil action brought by the Attorney General of the United States.”); see also 15 USC § 45 (m) (1) (A) (“The Commission may commеnce a civil action to recover a civil penalty in a district court of the United States against any person, partnership, or corporation which violates any rule under this Act respecting unfair or deceptive acts or practices .. . with actual knowledge or knowledge fairly implied on the basis of objective circumstances that such act is unfair or deceptive and is prohibited by such rule. In such action, such person, partnership, or corporation shall be liable for a civil penalty of not more than $10,000 for each violation.”).
Moreover, the federal courts have repeatedly ruled that the FTC’s franchise disclosure rules, 16 CFR §§ 436.2-436.5, “do not create a private right of action.” (Citations omitted.) Holiday Hospitality Franchising v. 174 West Street Corp., 2006 U. S. Dist. LEXIS 49177 (III) (A) (2) (N.D. Ga. 2006). See, e.g., Bans Pasta v. Mirko Franchising, 2014 U. S. Dist. LEXIS 19953 (II) (B) (4) (W.D. Va. 2014) (“[Njeither the FTC Act nor [16 CFR § 436.5] gives rise to a private cause of action, and numerous courts have so held.”); Palermo Gelato, LLC v. Pino Gelato, Inc., 2013 U. S. Dist. LEXIS 9931 (II) (“It is well settled that [16 CFR § 436.5] may only be enforced by the FTC, and does not create a private cause of action.”) (citations omitted).
See generally Pulte Home Corp. v. Simerly,
See Carter v. State,
See Hopper v. M & B Builders,
See OCGA § 24-6-621 (“A witness maybe impeached by disproving the facts testified to by the witness.”).
Concurrence Opinion
concurring in part and dissenting in part.
For the reasons set forth below, I must respectfully dissent to Division 4 and Division 5 of the majority opinion.
1. Contrary to the majority’s holding in Division 4, Legacy was entitled to a directed verdict on Mamilove’s claim for rescission of the franchise agreement.
As the majority states, it is undisputed in this case that Michele Reymond and Lorraine Reymond did not read the franchise agreement prior to signing. Further, as the majority acknowledges, it is “well-settled law in Georgia that a party who hаs the capacity and opportunity to read a written contract cannot afterwards set up fraud in the procurement of [the contract] based on... representations that differ from the terms of the contract.” (Citation and punctuation omitted.) Novare Group v. Sarif,
But being pressured or rushed into signing an agreement does not provide a legal excuse
[i]n fact, the only type of fraud that can relieve a party of his obligation to read a written contract and be bound by its terms is a fraud that prevents the party from reading the contract.... To be able to rescind a contract, the fraud must be of a nature that the [party seeking to rescind the contract was] deprived of an opportunity to read the agreements.
(Emphasis supplied.) Id. at 189 (2). In this case, although the Reymonds set out evidence that the Turners “rushed” or “pressured” them into signing the agreement “right then” by telling them they would lose the franchise opportunity if they did not act, they presented no evidence that the Turners said or did anything that prevented them from reading the agreement before they signed it. Citizens Bank, Vienna v. Bowen,
Thus, Mamilove was bound by the terms of the franchise agreement, which contained a merger clause and disclaimers
2. Because Mamilove was not entitled to rescind the agreement, I also disagree with the majority’s conclusion in Division 5 that the disclaimers and merger clause contained in the agreement were ineffectual. In other words, because Mamilove “[was] not entitled to rescission as a remedy, [it was] bound by the terms of [its] agreement[ ].” Novare,
3. Mamilove argues, however, that even if we were to decide that it was not entitled to rescind the franchise agreement and accordingly it was bound by its terms, we nevertheless must sustain the jury’s verdict as long as the verdict in its favor on its other claims remains extant. But as our Supreme Court explained in Georgia Power Co. v. Busbin,
I am authorized to state that Presiding Judge Andrews and Judge Ray join in this opinion.
Paragraph 24.2 of the franchise agreement provides:
No Representations, Warranties or Guarantees. Franchisor expressly disclaims the making of, and Franchisee and each Owner acknowledge that it has not received from Frаnchisor or any party on behalf of Franchisor, any representation, warranty or guarantee, express or implied, as to the potential volume, profit, income or success of the business licensed under this Agreement.
Paragraph 24.7 provides:
No Earnings Claims. Franchisee acknowledges that neither Franchisor, nor any person on behalf of Franchisor, has made any written, oral or visual representation of (i) earnings capability of Legacy Academy Center; (ii) a specific level of potential sales, income, gross or net profit for the Franchisee; or (iii) a specific level of sales, income, gross or net profits of existing centers (whether franchised or company-owned) other than as specifically described in the Offering Circular.
The merger clause was contained in paragraph 24.6 and provides:
Entire Agreement. Franchisee acknowledges that this agreement constitutes the entire agreement of the parties with respect to the matters contained herein. This Agreement terminates and supersedes any prior agreement between the parties concerning the same subject matter.
The verdict form was general as to liability for the claims asserted.
I concur with the majority’s conclusion in Division 1 that Legacy waived the statute of limitation defense as to this claim.