Appellee/cross-appellant Hugh Williams brought suit against appellant/cross-appellee James Lynas d/b/a Executive Collision Services (Lynas) averring, inter alia, that appellant’s conduct in repairing appellee’s car violated the Fair Business Practices Act of 1975, specifically OCGA § 10-1-393 (b) (7). Appellant/cross-appellee Lynas appeals from the orders of the trial court denying his motions for summary judgment and directed verdict, and denying in part his motion for j.n.o.v. or in the alternative for new trial. Cross-appellant/ appellee Hugh Williams cross-appeals from the order of the state court granting in part cross-appellee’s motion for j.n.o.v. with respect to exemplary damages and denying cross-appellant’s motion for supersedeas bond. Held:
Case No. A94A2815
1. Appellant Lynas first enumerates that the trial court erred in denying his motion for summary judgment, on the grounds of lack of a genuine issue of material fact to at least one of the essential elements of appellee Williams’ claim. This question is moot.
Talmadge
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v. Talmadge,
2. Appellant Lynas contends the trial court erred in not admitting certain photographs. This issue is not preserved for appeal as it is not reasonably contained within the scope of appellant’s enumerations of error.
Jones v. Sauls,
3. Appellant Lynas contends the trial court erred in denying his motions for directed verdict and motion j.n.o.v., as “there was no evidence presented at trial in support of all the required elements of appellee’s cause of action.”
(a) In support of this enumeration appellant asserts that appellee failed to give the statutorily required notice of OCGA § 10-1-399 (b). Appellant’s contention that the notice must be given by the administrator of the FBPA is without merit; notice may be given by the claimant or his attorney. Compare
Sharpe v. Gen. Motors Corp.,
(b) Appellant Lynas contends, inter alia, that the trial court erred, as enumerated, as appellant’s conduct had or has no potential for harm to the general consuming public but occurred during an essentially private transaction. “ ‘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. (OCGA § 10-1-399) does not encompass suits based upon allegedly deceptive or unfair acts or practices which occur in an essentially private transaction. In those circumstances, even though the plaintiff may be a “consumer” with regard to the transaction, 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.”
State of Ga. v. Meredith Chevrolet,
We find that the circumstances here establish, plainly and indisputably, that the agreement at issue was entered into as a result of an essentially private transaction; appellant’s alleged acts and conduct did not in this instance arise in the context of the consumer marketplace. “Here, the alleged deception was not introduced into the stream of commerce. Nor was it reasonably intended to impact on any ‘market’ other than [appellee Williams].”
Larson v. Tandy Corp.,
Additionally, appellee testified that appellant stated his work was “pure work,” that appellee would be “extremely pleased” by the caliber of the work, and that the work would be “stunning” and appellee was in fact “stunned” by it. These general statements as to the nature of the work constitute “puffing,” and are so subjective in nature and so lacking in specificity as to any claim of workmanlike standard as to preclude a reasonable person in like circumstance from harboring any genuine reliance thereon as to any particular quality of work that would be accomplished in the future. “The Fair Business Practices Act incorporates the ‘reliance’ element of the common law tort of misrepresentation into the causation element of a FBPA claim.
Zeeman v. Black,
[supra at 87]. Consequently, justifiable reliance is an essential element.
Condon v. Kunse,
As the form of the verdict (to which neither side objected) so inextricably linked the jury’s finding in favor of appellee/plaintiff as to the FBPA claim with the claim for damages to the automobile, it cannot be determined whether the jury awarded all or any part of the general or exemplary damages solely for the damage to the automobile claim. Moreover, the verdict form, by specifying the general damage award pertained to “damages to automobile and/or violation of Fair Business Practices Act,” in this instance, rendered the award of
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general damages contradictory as to whether the $2,100 award pertained to both causes or as to only one — and, if so, to which one. A contradictory verdict is repugnant and void; no valid judgment can be entered thereon.
Hilltop Terrace v.
Baker,
Case No. A94A2816
Cross-appellant enumerates that the trial court erred in setting aside sua sponte the award of exemplary damages. The jury found no intentional violation as to the FBPA claim. Exemplary damages shall be awarded only in cases of intentional violation. OCGA § 10-1-399. A court has inherent and statutory power to correct its own proceedings before final judgment. OCGA § 15-1-3. However, whether the trial court erred in setting aside the award of exemplary damages is moot in view of our holding in Case No. A94A2815 above, the appeal in A94A2816 shall be dismissed.
Judgment reversed in Case No. A94A2815; appeal dismissed in Case No. A94A2816.