Aрpellant, Regency Nissan, appeals from the judgment entered in favor of appellee William H. Taylor, Jr. Appellee brought suit for breach of warranty of title and for a violation of the Fair Business Practices Act (FBPA), OCGA § 10-1-390 еt seq.
Appellee purchased a used pickup truck from appellant; the truck, a stolen vehicle, subsequently was confiscated by law enforcement authorities. Appellant denied actual knowledge that the automobile was stolen and asserted that, as an automobile dealer, it duly relied upon proof of ownership by matching the vehicle identification number (VIN) on the dashboard with the vehicle number on the cer *646 tificate of title presented to it by another automobile dealer from whom it had purchased the vehicle. These numbers did match. However, the federal safety tag on the door was missing, the windshield VIN plate was not attached with Nissan rivets, аnd the confidential vehicle number and motor number (neither of which matched the VIN and vehicle identification number on the title) were not checked by appellant’s employees.
The trial court “in essence” granted appellant’s motion for directed verdict as to breach of warranty and elected not to instruct the jury concerning that claim. See generally OCGA § 11-2-607. The jury found against appellant as to appellee’s FBPA claim. Held:
1. Aрpellee’s motion to dismiss appeal on the grounds of appellant’s late filing of appellate brief is denied.
2. Appellant asserts that the trial court erred in failing to grant its motion for directed verdict as to the FBPA claim, on grounds that the appellee had failed to establish that appellant committed an intentional act.
In support of this enumeration of error, appellant, citing
Gresham v. White Repair &c. Co.,
Conduct to be actionable under the FBPA must fall within that class of conduct made unlawful by OCGA § 10-1-393 (a), which proscribes unfair or deceptive acts or practices in trade or commerce.
Larson v. Tandy Corp.,
The question of “volition” arises in regard to this first step. This court consistently has held that “to be subject to direct suit under the FBPA, the alleged offender must have done some
volitional act
to avail himself of the channels of consumer commerce. The allegedly offensive activity must have taken place ‘in the conduct of . . . consumer acts or practices,’ i.e., within the context of the consumer marketplace.” (Emphasis supplied.)
State of Ga. v. Meredith Chevrolet,
We must now detеrmine whether appellant’s conduct constituted unfair or deceptive acts or practices within the meaning of OCGA § 10-1-393 (a). Such conduct “would necessarily be attended by some [form of] reprehensible conduct on thе part of the defendant.”
Standish v. Hub Motor Co.,
A private FBPA claim has three essential elements: a violation of the act, causation and injury.
Nims v. Otter,
Moreover, OCGA § 10-1-391 (b) expressly states that “[i]t is the intent of the General Assembly that [the FBPA] be interpreted and construed consistently with interpretations given by the Federal Trade Commission in thе federal courts pursuant to Section 5 (a) (1) of the Federal Trade Commission Act (15 USC Section 45 (a) (1)), as from time to time amended.” In Gimbel Bros. v. Fed. Trade Comm., 116 F2d 578 (4) (2nd Cir.), the court concluded: “It is in the public interest to prevent the sale of commodities by false аnd misleading statements. ... [A] deliberate effort to deceive is not necessary to make out a case of ‘using unfair methods of competition’ within the prohibitions of [Section 5 of the Federal Trade Commission Act of 1914, 15 USC § 45].” (Emphasis supplied.) See generally 55 AmJur2d, Monopolies, § 741.
Accordingly, we conclude that establishment of unfair or deceptive acts or practices, within the meaning of the FBPA, does
not
require proof of an
intentional
conduct on the part of the defendant. Appellant’s reliance on
Attaway v. Tom’s Auto Sales,
It is equally true, however, that merе negligence is not an element of an FBPA claim. But, consistent with the requirement for liberal construction and application of the- FBPA (OCGA § 10-1-391
*648
(a)), we find it would constitute an unfair business practice if, before merchandise is sold in the cоnsumer marketplace, a seller is placed on
reasonable
notice that his claim of title to the merchandise could be legally defective and thereafter in blatant disregard of the rights of innocent purchasers fails to take
reasonable
measures to ascertain the true state of facts concerning title before consummating the sale. Compare
Paces Ferry Dodge,
supra at 643 (“there was evidence that the slightest attention on appellant’s part, equivalent tо knowledge, would have uncovered the defect”) with
Gross v. Ideal Pool Corp.,
Except in plain and indisputable cases, the question of whether a particular act or omission, or a series thereof, constitutes unfair or deceptive acts or practices within the meaning of OCGA § 10-1-393 generally is for jury resolution. See
Credithrift of America v. Whitley,
3. Appellant asserts that the trial court erred in failing to rule at the inception of trial that its offer of compromise was reasonable or that it should be submitted to the jury, in failing to allow parol evidenсe to clarify an ambiguous offer of compromise, and in failing to limit damages in light of defendant’s reasonable offer of compromise.
Pretermitting these issues, however, is the issue of whether appellant’s oral offer constituted a “written tender of settlement” within the meaning of OCGA § 10-1-399 (b).
OCGA § 10-1-399 (b) is plain and unambiguous on its face. This statute expressly requires that the tender of settlement be in writing. When a statute is found to be plain and susceptible of but one natural and reasonable construction, an appellate court has no authority to place a different construction upon it, but must construe it according to its terms.
Ringewald v. Crawford W. Long Mem. Hosp.,
4. Appellant asserts that the triаl court erred in incorporating the jury verdict into its order, as the verdict was excessive. Specifically, appellant asserts that a plaintiff can only recover “actual” damages where he is not entitled to trеble damages under OCGA § 10-1-399; that the trial court found plaintiff entitled only to general damages and not to treble damages; that the FBPA limits the remainder of plaintiff’s recovery to actual damages, not general damages; and, that the evidence of record does not establish actual damages in an amount sufficient to support the jury’s award.
Appellee argues the FBPA does allow for the award of general damages; that according to OCGA § 51-12-2 (а) general damages may be recovered without proof of any amount; and, that the proper measure of general damages is limited only by the enlightened conscience of an impartial jury.
OCGA § 10-1-399 (a) pertinently prоvides that an-FBPA cause of action can be brought “to recover . . . general and exemplary damages sustained as a consequence thereof . . . provided, however, exemplary damages shall be awarded only in cаses of intentional violation.” (Emphasis supplied.) Thus, it is clear that general damages can be recovered in an FBPA action (see generally Cobb & Eldridge, Ga. Law of Damages (2d ed.), § 29-5), and this interpretation is consistent with our conclusion in Division 1 that an FBPA violation need not be grounded on deliberate or intentional conduct in all instances.
This court, however, has consistently held that in accordance with the statutory requirements of the FBPA, the measure оf damages to be applied for an FBPA violation is that of “actual injury suffered.”
Givens v. Bourrie,
We find, as a matter of law, that the evidence of record in this case would not support an award of treble damages. We also find that appellee has failed to provide sufficient evidence from which the jury could determine that actual damage was suffered in the amount of $22,367.27 as awarded.
The trial record, nevertheless, does contain evidence of some “ac *650 tual injury suffered” by appellee, notwithstanding his election at trial to decline to place a “dollar value” on the aggravation he had suffered as a result of the incident.
The judgment is affirmed on condition that appellee take judgment only as to such damages as the trial court finds from the posture of the trial record can be measured by actual injury suffered; otherwise reversed.
Judgment affirmed on condition.