O.C.G.A.
O.C.G.A.

O.C.G.A. § 10-1-401 (2019)

Limitation of actions; right to set off damages or penalties not limited

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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(a) No private right of action shall be brought under this part: (1) More than two years after the person bringing the action knew or should have known of the occurrence of the alleged violation; or (2) More than two years after the termination of any proceeding or action by the State of Georgia, whichever is later. (b) Damages or penalties to which a person is entitled pursuant to this part may be set off against the allegation of the person to the seller and may be raised as a defense to a suit on the obligation without regard to the time limitations prescribed by this Code section.

History

Ga. L. 1975, p. 376, § 17; Ga. L. 2015, p. 1088, § 2/SB 148.

Annotations

Law reviews. For article, “Acquisition of Trademark

Rights Under United States and Georgia Law,” see 7 Ga. St. B. J. 14 (2001).

JUDICIAL DECISIONS Application to alleged unfair trade practices. - Two-year statute of limitation under O.C.G.A. § 10-1-401 applied to a vending machine purchaser’s unfair trade practices claim against the sellers. League v. U.S. Postamatic, Inc., 235 Ga. App. 171, 508 S.E.2d 210, 1998 Ga. App. LEXIS 1374 (1998), cert. denied, No. S99C0342, 1999 Ga. LEXIS 226 (Ga. Feb. 26, 1999). Commencement of limitations period. - Plaintiffs’ cause of action under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., was barred by the two year statute of limitations since the action was commenced more than two years after the defendant obtained the plaintiffs’ property without complying with statutory requirements, notwithstanding the plaintiffs’ contention that the statute of limitations did not begin to run until the plaintiffs discovered the plaintiffs had been injured, which occurred when the plaintiffs received

notice of a dispossessory action, since the failure of the defendant to provide a written contract or notice of the right to rescind as required by statute was evident and complete at the time the property was transferred to the defendant. Greene v. Team Props., Inc., 247 Ga. App. 544, 544 S.E.2d 726, 2001 Ga. App. LEXIS 27 (2001), overruled in part, Tiismann v. Linda Martin Homes Corp., 279 Ga. 137, 610 S.E.2d 68, 2005 Ga. LEXIS 146 (2005), overruled in part, Foster v. Ga. Reg’l Transp. Auth., 297 Ga. 714, 777 S.E.2d 446, 2015 Ga. LEXIS 653 (2015). O.C.G.A. § 10-1-401(a)(1) did not bar a home buyer’s claim under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., because the buyer did not suffer any actual damages at the time of the alleged violation, and could not have suffered any such damages at least until the homebuilder conveyed the house to the buyer without complying with code requirements or used the contractual

SELLING/OTHER TRADE PRACTICES

language in question to deny liability; therefore, the buyer’s cause of action did not accrue until less than two years prior to the date suit was filed. Tiismann v. Linda Martin Homes Corp., 279 Ga. 137, 610 S.E.2d 68, 2005 Ga. LEXIS 146 (2005). Thirty day demand for relief provision does not toll limitations period. - Because plaintiffs knew or should have known of alleged Sale of Business Opportunity Act, O.C.G.A. § 10-1-410 et seq., violations more than two years before bringing claims, the trial court properly held that the plaintiff’s claims were time-barred. Touchton v. Amway Corp., 247 Ga. App. 269, 543 S.E.2d 782, 2000 Ga. App. LEXIS 1457 (2000), overruled in part, Pollard v. Great Dane, LLC, No. A24A0545, 2024 Ga. App. LEXIS 236 (Ga. Ct. App. June 18, 2024). The 30-day notice requirement of O.C.G.A. § 10-1-399(b) does not toll or extend the limitations period provided for

in O.C.G.A. § 10-1-401 and does not constitute the bringing of an action. Greene v. Team Props., Inc., 247 Ga. App. 544, 544 S.E.2d 726, 2001 Ga. App. LEXIS 27 (2001), overruled in part, Tiismann v. Linda Martin Homes Corp., 279 Ga. 137, 610 S.E.2d 68, 2005 Ga. LEXIS 146 (2005), overruled in part, Foster v. Ga. Reg’l Transp. Auth., 297 Ga. 714, 777 S.E.2d 446, 2015 Ga. LEXIS 653 (2015). Complaint time-barred. - Unpublished decision: Because plaintiff dry cleaners sued defendant natural gas supplier 33 months after the alleged misdeeds, and it was not alleged that any Georgia Public Service Commission proceedings had been initiated that would have postponed the accrual date under O.C.G.A. § 10-1-401(a)(2), the O.C.G.A. § 10-1-393(a) claim was time-barred by § 10-1-401(a)’s two-year limitations period. Byung Ho Cheoun v. Infinite Energy, Inc., 363 Fed. Appx. 691, 2010 U.S. App. LEXIS 1866 (11th Cir. 2010).

RESEARCH REFERENCES ALR. Effect of fraud to toll the period for bringing action prescribed in statute creating the right of action, 15 A.L.R.2d 500. Validity, and applicability to causes of action not already barred, of a statute enlarging limitation period, 79 A.L.R.2d 1080.

Settlement negotiations as estopping reliance on statute of limitations, 39 A.L.R.3d 127. Fraud as extending statutory limitations period for contesting will or its probate, 48 A.L.R.4th 1094.

Notes of Decisions
Cited in 20 cases (3 in the last 5 years), 1989–2024 · leading case: Amin v. Mercedes-Benz United States, LLC, 301 F. Supp. 3d 1277 (N.D. Ga. 2018).
Sort: Relevance Newest Treatment
Amin v. Mercedes-Benz United States, LLC, 301 F. Supp. 3d 1277 (N.D. Ga. 2018). · cites it 4× “" O.C.G.A. § 10-1-401(1) ; see also Fortson v.”
Tiismann v. Linda Martin Homes Corp., 610 S.E.2d 68 (Ga. 2005). · cites it 8× “On appeal, the Court of Appeals *138 affirmed the grant of summary judgment on the ground that Tiismann knew or should have known of the conflicting language which constituted the FBPA violation when he signed the contract and, thus, the two-year statute of limitations in OCGA §…”
Weinstock v. Novare Grp., Inc., 710 S.E.2d 150 (Ga. Ct. App. 2011). · cites it 4× “Accordingly, we do not reach the issue of justifiable reliance for purposes of the FBPA.”
Hornsby v. Phillips, 378 S.E.2d 870 (Ga. Ct. App. 1989). · cites it 4× “In this regard, appellant first argues that the statute of limitation contained in OCGA § 10-1-401, the Fair Business Practices Act (FBPA), provides that "[n]o action shall be brought under this part .”
Sandy Springs Toyota v. Classic Cadillac Atlanta Corp., 604 S.E.2d 303 (Ga. Ct. App. 2004). · cites it 2× “OCGA § 10-1-401 (a) (1). All of SST’s claims are based upon the defect in the Cadillac’s title, which necessarily occurred when Classic sold the Cadillac to Toulmin and applied for a title on her behalf.”
Greene v. Team Props., Inc., 544 S.E.2d 726 (Ga. Ct. App. 2001). · cites it 4× “*546 Pursuant to OCGA § 10-1-401, an action under the FBPA cannot be brought “ [m] ore than two years after the person bringing the action knew or should have known of the occurrence of the alleged violation.”
Henderson v. Gandy, 608 S.E.2d 248 (Ga. Ct. App. 2004). · cites it 2× “As we have found that Henderson cannot assert a FBPA claim under the facts of this case, we need not address her allegation that the trial court also erred by finding that her FBPA claim was barred by the two-year statute of limitation in OCGA § 10-1-401 (a) (1).”
Great Am. Builders, Inc. v. Howard, 427 S.E.2d 588 (Ga. Ct. App. 1993). · cites it 2× “” OCGA § 10-1-401 (a) (1). The plaintiffs or their privies knew or should have known any FBPA violation by at least 1987, by which time documentation that Great American had not been granted a permanent easement was provided to all concerned.”
Tiismann v. Linda Martin Homes Corp., 603 S.E.2d 45 (Ga. Ct. App. 2004). · cites it 2× “Pursuant to OCGA § 10-1-401 (a) (1), an action under the FBPA cannot be brought “[m]ore than two years after the person bringing the action knew or should have known of the occurrence of the alleged violation.”
Sarif v. Novare Grp., Inc., 703 S.E.2d 348 (Ga. Ct. App. 2010). · cites it 2× “Appellants challenge the trial court’s finding that their FBPA claim was barred by the statute of limitation because they could not have first maintained their action to a successful result until September 2008.”
Kason Indus., Inc. v. Component Hardware Grp., Inc., 120 F.3d 1199 (11th Cir. 1997). “” The court refused to excuse Kason’s delay. It found in abbreviated discussion that Kason’s delay caused CHG to suffer prejudice.”
Tiismann v. Linda Martin Homes Corp., 625 S.E.2d 32 (Ga. Ct. App. 2005). · cites it 2× “Accordingly, the statute of limitations did not bar his *847 claim, and the grant of summary judgment in favor of LMH based on OCGA§ 10-1-401 (a) (1) was erroneous. Tiismann v.”
Show all 20 citing cases →
— 10-1-401(1) — 1 case
Amin v. Mercedes-Benz United States, LLC, 301 F. Supp. 3d 1277 (N.D. Ga. 2018). “" O.C.G.A. § 10-1-401(1) ; see also Fortson v.”
— 10-1-401(a) — 1 case
Polywad Inc v. Ables Sporting Inc (M.D. Ga. 2024).
— 10-1-401(a)(1) — 2 cases
Amin v. Mercedes-Benz United States, LLC, 301 F. Supp. 3d 1277 (N.D. Ga. 2018). “" O.C.G.A. § 10-1-401(1) ; see also Fortson v.”
Posada v. Parker Promotions (M.D. Ga. 2023).
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