December 18, 2014
WATERBERG BIG GAME HUNTING LODGE OTJAHEWITA (PTY), LTD
Contract. Fulton Superior Court. Before Judge Glanville.
Michael D. Barber, Eric A. Ballinger, for appellant.
Knight Johnson, James M. Johnson, for appellee.
ELLINGTON, Presiding Judge. Phipps, C. J., and McMillian, J., concur.
Ellington, Presiding Judge.
This is the third appearance of this case before this Court. As set forth in the previous appeals and as shown by the record, Appellant Joseph " Jerry" Wright was a long-time member of Safari Club International, Inc. (" SCI" ), a charitable organization that holds conventions at which attendees have the opportunity to bid at auction on various goods, services, and hunting excursions, which primarily have been donated to SCI by third parties (" outfitters" ). Wright v. Safari Club Intl., 307 Ga.App. 136 (706 S.E.2d 84) (2010) (" Wright I " ); Wright v. Safari Club Intl., 322 Ga.App. 486 (745 S.E.2d 730) (2013) (" Wright II " ). In 2007, Wright attended SCI's seminar in Reno, Nevada and was the successful bidder on a 14-day hunting and fishing trip to the Republic of South Africa and Namibia offered and conducted by one such outfitter, Appellee Waterberg Big Game Hunting Lodge Otjahewita (Pty), Ltd. (" WABI" ). See Wright II, 322 Ga.App. at 486.
WABI subsequently canceled portions of the safari, and Wright brought suit against SCI and WABI for breach of contract and violation of the Georgia Fair Business Practices Act (" FBPA" ), OCGA § 10-1-393. See Wright II, 322 Ga.App. at 494-495 (5) (Wright had permission to add WABI as a party defendant in his second amended complaint).
The trial court granted SCI's motion for summary judgment, and this Court previously affirmed that ruling. Wright II, 322 Ga.App. at 489-493 (1), (2), (3), (4). The trial court later granted WABI's motion to dismiss Wright's complaint for failure to state a claim. Wright appeals. For the reasons explained below, we reverse in part, as to the dismissal of Wright's breach of contract claim.
A trial court may grant a motion to dismiss for failure to state a claim upon which relief may be granted only if
(1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party's favor.
[330 Ga.App. 509] (Citations and punctuation omitted.) Liberty County School Dist. v. Halliburton, 328 Ga.App. 422, 423 (762 S.E.2d 138) (2014). If, on the other hand, " within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient[,]" and the trial court should deny a motion to dismiss for failure to state a claim upon which relief may be granted. (Citation and punctuation omitted.) Id.
" In ruling on a motion to dismiss, the trial court must accept as true all well-pled material allegations in the complaint and must resolve any doubts in favor of the plaintiff." (Citations, punctuation and footnotes omitted.) Roberson v. Northrup, 302 Ga.App. 405 (691 S.E.2d 547) (2010). As an appellate court, " [w]e review de novo a trial court's determination that a pleading fails to state a claim upon which relief can be granted, construing the pleadings in the light most favorable to the plaintiff and with any doubts resolved in the plaintiff's favor." (Citation omitted.) Babalola v. HSBC Bank, USA, N.A., 324 Ga.App. 750 (751 S.E.2d 545) (2013).
1. Wright contends that the trial court erred in dismissing his claim for breach of contract. Liberally construed, Wright's amended complaint alleged the following: WABI promised SCI that it would provide to the highest bidder at SCI's auction certain goods and services, specifically, a safari trip as described in promotional materials WABI prepared. Wright was the highest bidder at the auction; he satisfied his bid by paying $10,000 for the safari trip to SCI; later, WABI demanded and received $3,850 from Wright for license and trophy fees in connection with his purchase of the safari; and WABI failed to provide the goods and services as promised. These allegations state a claim that WABI entered into a contract with SCI, that Wright was a third-party beneficiary of that contract, and that WABI breached that agreement. See OCGA § 9-2-20 (b) (" The beneficiary of a contract made between
other parties for his benefit may maintain [330 Ga.App. 510] an action against the promisor on the contract." ); Starrett v. Commercial Bank of Ga., 226 Ga.App. 598, 599 (1) (486 S.E.2d 923) (1997) (A third-party beneficiary contract is " one in which the promisor engages to the promisee to render some performance to a third person." ) (citation and punctuation omitted).
WABI contends, however, that Wright waived any argument that his complaint stated a claim for breach of contract as a third-party beneficiary because he did not characterize his claim as such in his complaint or in response to its motion to dismiss. Although Wright did not use the phrase " third-party beneficiary" in his complaint,
the Georgia Civil Practice Act requires only notice pleading and, under the Act, pleadings are to be construed liberally and reasonably to achieve substantial justice consistent with the statutory requirement of the Act. Pleadings serve only the purpose of giving notice to the opposing party of the general nature of the contentions of the pleader, and thus general allegations are sufficient to support a plaintiff's claim for relief.
Citations and punctuation omitted.) Racette v. Bank of America, 318 Ga.App. 171, 180 (4) (733 S.E.2d 457) (2012). Furthermore, pretermitting whether failing to describe himself in connection with WABI's motion to dismiss as a " third-party beneficiary" could operate as a waiver of this claim, WABI's assertion is not supported by the record -- Wright did argue, albeit briefly, in a brief filed in response to WABI's motion to dismiss that a third-party beneficiary right to him was created when WABI agreed to donate the safari to SCI for auction.
Moreover, the allegations that WABI demanded and received from Wright an additional $3,850 for license and trophy fees in connection with his purchase of the safari arguably shows the flow of consideration directly from Wright to WABI for goods and services [330 Ga.App. 511] which WABI failed to provide. Based on the foregoing, we conclude that the trial court erred in granting WABI's motion to dismiss Wright's claim for breach of contract. Racette v. Bank of America, 318 Ga.App. at 180-181 (4).
2. Wright contends that the trial court erred in dismissing his claim for a violation of the FBPA, which declares that " [u]nfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices in trade or commerce are ... unlawful." OCGA § 10-1-393 (a). As we held in Wright II, " [a] prerequisite to stating a claim for relief under the (FBPA) is the commission of some unfair act or deceptive practice in trade or commerce, from which the Act is designed to protect the public. To be deceptive, a business practice must have the tendency or capacity to deceive." (Citations and punctuation omitted.) 322 Ga.App. at 489 (1) (a).
In setting out his claim under the FBPA, he alleged that " WABI caused actual confusion or actual misunderstanding as to the source, sponsorship, approval, or certification of services."  In his amended complaint, however, Wright did not allege that a person or entity other than the purported provider (that is, WABI) provided, sponsored, or approved the goods or services (that is, the safari trip). Rather, Wright alleges that the goods and services were not provided at all. Nor did Wright allege that WABI advertised its donation of a safari without any intention of performing. The trial court did not err in ruling that the complaint failed to state a claim under the FBPA against WABI. See id. at 489-491 (1) (affirming summary judgment in SCI's favor on Wright's FBPA claim).
3. Wright contends that the trial court erred when it sua sponte dismissed his complaint after entering a case management order providing for additional discovery and a trial date. In light of our holding in Division 1, supra, this claim of error is moot.
[330 Ga.App. 512] 4. Wright contends that the trial court erred when, after finding that WABI had not met its burden of showing improper service of process, it impliedly questioned the propriety of service by noting that " the court may revisit this issue at a later date." We are a court for the correction of errors, however, and are not authorized to issue an advisory opinion about a potential error a trial court may make in the future. City of Atlanta v. Hotels.com, 285 Ga. 231, 236, n. 4 (674 S.E.2d 898) (2009); Bibbins v. State, 280 Ga. 283, 284-285 (627 S.E.2d 29) (2006). This claim of error presents nothing for our review.
Judgment affirmed in part and reversed in part.
Phipps, C. J., and McMillian, J., concur.