Benson v. Simon Property Group, Inc.

642 S.E.2d 687, 281 Ga. 744, 2007 Fulton County D. Rep. 798, 29 A.L.R. 6th 827, 2007 Ga. LEXIS 238
CourtSupreme Court of Georgia
DecidedMarch 19, 2007
DocketS06G1286
StatusPublished
Cited by5 cases

This text of 642 S.E.2d 687 (Benson v. Simon Property Group, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Benson v. Simon Property Group, Inc., 642 S.E.2d 687, 281 Ga. 744, 2007 Fulton County D. Rep. 798, 29 A.L.R. 6th 827, 2007 Ga. LEXIS 238 (Ga. 2007).

Opinion

CARLEY, Justice.

Simon Property Group, Inc. and Simon Property Group, L.P., hereinafter referred to collectively as Holder, sells gift certificates and electronic gift cards for use at shopping malls which it owns and manages. Beginning in the seventh month after the sale of each certificate and card, a dormancy fee of $2.50 per month is assessed. The certificates and cards expire approximately one year after issuance. Plaintiffs, hereinafter Owners, are recipients and purchasers of gift cards and certificates which were sold from 2001 to 2004. On December 8, 2004, they brought suit against Holder for damages resulting from the dormancy fees and expiration dates, alleging violations of the Disposition of Unclaimed Property Act (DUPA), OCGA § 44-12-190 et seq. The complaint has four counts which incorporate or repeat those alleged DUPA violations and which assert [745]*745claims of illegal contract, unconscionable contract, unjust enrichment, and breach of the duty of good faith and fair dealing. Pursuant to OCGA § 9-11-12 (b) (6), Holder filed a motion to dismiss for failure to state a claim upon which relief may be granted. The trial court denied the motion and granted a certificate of immediate review. On interlocutory appeal, the Court of Appeals reversed, concluding that the complaint fails to state any claim based on DUPA violations, as follows:

Construing [its] provisions according to their plain and ordinary meaning, the DUPA does not apply to the property at issue unless it has remained unclaimed by the owner for more than five years after it became payable or distributable. ... As none of the cards or certificates had remained unclaimed by their respective owners for more than five years when the complaint was filed, the conditions leading to a presumption of abandonment had not been satisfied within the meaning of the DUPA.

Simon Property Group v. Benson, 278 Ga. App. 277, 282 (628 SE2d 697) (2006). This Court granted certiorari to review that ruling. We hold that, although the holders of unclaimed property have certain procedural duties to locate and notify owners, the substantive provisions of the DUPA are inapplicable to Owners’ claims.

The issue before this Court is not the fairness or even the legality of the dormancy fees or expiration dates. The contractual obligation created by a gift card or certificate is governed by the generally applicable contract law of this state. Violations of that law are, of course, subject to several potential remedies. The legislature may further define or increase the rights of purchasers and recipients of gift cards and certificates. Indeed, effective July 1, 2005, the General Assembly declared it unlawful under the Fair Business Practices Act to issue such a card or certificate without including its terms and conspicuously printing thereon any expiration date and the amount of any dormancy or nonuse fees. OCGA § 10-1-393 (b) (33). To the extent that Owners make claims which are independent of the DUPA, this action may still be viable. However, the sole question before us in this appeal is the applicability of the DUPA, and not any other statute or law of contracts.

The DUPA, which was modeled on the Uniform Unclaimed Property Act of 1981, “shallbe so construed as to effectuate its general purpose to make uniform the law of those states which enact it.” OCGA § 44-12-191. It “governs the disposition of property in the hands of a holder that has been unclaimed for a certain period by its true owner.” 1 Ga. Jur., Property § 11:20 (Lawyers Coop. 1995). [746]*746Specifically, a gift certificate is presumed abandoned, and is thus subject to the custody of the State, if it remains unclaimed by the owner for more than five years. OCGA §§ 44-12-194, 44-12-205 (a).

The purpose of the DUPA is not to expand the substantive rights of owners. Instead, it protects the interests of owners by requiring both holders and the Commissioner of Revenue to take certain steps to locate owners and reunite them with their property. OCGA §§ 44-12-214, 44-12-215; Simon Property Group v. Benson, supra at 280; Screen Actors Guild v. Cory, 154 Cal. Rptr. 77, 80 (Cal. App. 1979); Mayo, Virginia’s Acquisition of Unclaimed and Abandoned Personal Property, 27 Wm. & Mary L. Rev. 409, 419 (1986). Furthermore, the act prevents any statutory or contractual period of limitations from running on the State’s claim against a holder. OCGA § 44-12-226; Mayo, supra. The DUPA is also designed to relieve holders “ ‘from annoyance, expense and liability, to preclude multiple liability, and to give the . . . state the use of some considerable sums of money that otherwise would, in effect, become a windfall to the holders thereof.’ [Cit.]” Simon Property Group v. Benson, supra. See also Screen Actors Guild v. Cory, supra; Mayo, supra.

Owners’ complaint alleges that the expiration dates and dormancy fees violate OCGA §§ 44-12-205 and 44-12-226. Under the latter section, the expiration of statutory or contractual periods of limitation neither precludes the presumption of abandonment nor affects the holder’s duties as imposed by the DUPA.

The expiration, before or after July 1, 1990, of any period of time specified by contract, statute, or court order during which a claim for money or property can be made or during which an action or proceeding may be commenced or enforced to obtain payment of a claim for money or to recover property, does not prevent the money or property from being presumed abandoned nor affect any duty to file a report or to pay or deliver abandoned property to the commissioner as required by this article.

OCGA § 44-12-226. Prior to the inclusion of this section in revisions of the Uniform Act, some courts had held that, if the owner’s remedy is barred by the statute of limitations, then the state, whose right to take custody of unclaimed property is generally derivative, is likewise barred from recovery. State v. Puget Sound Power & Light Co., 694 P2d 7, 10 (II) (Wash. 1985); 1 Epstein, Unclaimed Property Law and Reporting Forms § 3.02 (2002). However, the uniform provision in OCGA § 44-12-226 was enacted to ensure that the holder is not relieved of his obligation to deliver abandoned property to the Commissioner, even though the owner’s claim for possession against the [747]*747holder may be barred by the statute of limitations. Unif. Unclaimed Prop. Act § 29 cmt. (1981); Louisiana Health Service and Indemnity Co. v. Tarver, 635 S2d 1090, 1096 (La. 1994).

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642 S.E.2d 687, 281 Ga. 744, 2007 Fulton County D. Rep. 798, 29 A.L.R. 6th 827, 2007 Ga. LEXIS 238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benson-v-simon-property-group-inc-ga-2007.