                             THIRD DIVISION
                              MILLER, P. J.,
                        MCFADDEN and MCMILLIAN, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                  November 15, 2016




In the Court of Appeals of Georgia
 A16A1455. HALL et al. v. B-H TRANSFER COMPANY.                               McF-055

      MCFADDEN, Judge.

      Bobby Hall, III, John B. King, and Russell S. Sheppard appeal the trial court’s

grant of summary judgment to B-H Transfer Company on the plaintiffs’ claim for

violations of the disclosure requirements of the Truth-in-Leasing regulations, 49 CFR

§§ 376.1 et seq., promulgated under the federal Motor Carrier Act, 49 USC §§ 14101

et seq. The plaintiffs argue that the trial court erred by finding that they had presented

no evidence of actual damages due to B-H’s violations of the regulations. We agree

with the trial court that the plaintiffs have failed to point to any evidence that they

have sustained actual damages because of B-H’s violations of the regulations. We

therefore affirm the trial court.
      The plaintiffs are independent motor vehicle owner-operators who entered

contracts with B-H to transport goods. At some point, the plaintiffs believed that B-H

was underpaying them. They filed this action in 2003, alleging, among other things,

breach of contract and violation of the disclosure requirements of the Truth-in-

Leasing regulations. The trial court granted B-H summary judgment on the breach of

contract claim, and we affirmed the judgment without opinion. Gay v. B. H. Transfer

Company, 316 Ga. App. XXIV (July 2, 2012) (unpublished).

      Upon remittitur, the trial court granted the plaintiffs partial summary judgment,

finding that their contracts with B-H violated certain provisions of the Truth-in-

Leasing regulations, but then granted B-H’s motion for summary judgment on the

ground that the plaintiffs had not presented any evidence to create an issue of material

fact on the question of whether they had sustained actual damages because of the

violations. The plaintiffs filed this appeal. The damages they claim are allegedly

unauthorized deductions from their compensation for drayage fees.1

      1
       The trial court defined “drayage” in the order that was previously affirmed on
appeal.
      The term “drayage” is used when a container is moved from a trucking
      company’s yard [to] the port. Drays are often required when a truck
      driver arrived too late and the port is closed. The truck driver will leave
      the container at the trucking company’s yard rather than wait until the

                                           2
      Prior to 2002, the parties’ contracts stated that B-H “reserves the right to

withhold $200.00 on settlement date if the Contractor has failed to perform and

complete any trips. . . .” Beginning some time in 2002, the contracts stated that B-H

“may make deductions from payments otherwise due to Independent Contractor

hereunder for amounts which Independent Contractor is indebted to [B-H] by virtue

of the following: . . . Cost to [B-H] of actual expenses incurred due [to] Independent

Contractor’s failure to complete service as dispatched.” The cost to complete the trip

(i.e. to dray the load) is $36, and B-H only ever deducted $25 when a driver failed to

complete a delivery and the company had to pay for a dray.

      As pertinent to this appeal, the trial court found that these contractual

provisions violated 49 CFR § 376.12 (d) because they allowed B-H “to withhold any

amount sufficient to protect [it] from loss or to withhold actual expenses incurred,




      port opens the following day. The next day a different driver will deliver
      the container to the port. It is the industry[-]wide practice for the
      original truck driver who was unable to deliver the container to the port
      to pay a share of the expenses associated with the dray.




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including ‘drayage fees.’” (This regulation is reproduced in full in the margin.2) The

court found that the contracts’ failure to state how drayage charges would be

calculated violated 49 CFR § 376.12 (h). (This regulation is reproduced in full in the

margin.3) But, the trial court found, because B-H never deducted more than $25 – less


      2
          49 CFR § 376.12 (d) provides:

      Compensation to be specified. The amount to be paid by the authorized
      carrier for equipment and driver’s services shall be clearly stated on the
      face of the lease or in an addendum which is attached to the lease. Such
      lease or addendum shall be delivered to the lessor prior to the
      commencement of any trip in the service of the authorized carrier. An
      authorized representative of the lessor may accept these documents. The
      amount to be paid may be expressed as a percentage of gross revenue,
      a flat rate per mile, a variable rate depending on the direction traveled
      or the type of commodity transported, or by any other method of
      compensation mutually agreed upon by the parties to the lease. The
      compensation stated on the lease or in the attached addendum may apply
      to equipment and driver’s services either separately or as a combined
      amount.
      3
          49 CFR § 376.12 (h) provides:

      Charge-back items. The lease shall clearly specify all items that may be
      initially paid for by the authorized carrier, but ultimately deducted from
      the lessor’s compensation at the time of payment or settlement, together
      with a recitation as to how the amount of each item is to be computed.

                                          4
than the amount allowed by the contracts – the plaintiffs were not damaged. On

appeal, the plaintiffs argue that the regulatory violations rendered the contractual

provision invalid, and therefore every time drayage fees were deducted from their

compensation, they were damaged.

      The Motor Carrier Act at 49 USC § 14704 (a) (2) authorizes a private right of

action for civil damages from violations of the federal Truth-in-Leasing regulations.

The plain language of the statute requires that the plaintiffs prove actual damages.

Owner-Operator Independent Drivers Assn. v. Landstar System, 622 F3d 1307, 1325

(VII) (11th Cir. 2010). Under the Act, a carrier “is liable for damages sustained by a

person as a result of an act or omission of that carrier or broker in violation of [the

regulations].” 49 USC § 14704 (a) (2) (emphasis supplied). “This standard requires

proof that the [plaintiffs] sustained an injury as a result of [B-H’s] failure to comply

with § 376.12. Such proof . . . requires [the plaintiffs] to show how they sustained

damages because of the violations.” Landstar, 622 F3d at 1325 (VII) (citation

omitted).


      The lessor shall be afforded copies of those documents which are
      necessary to determine the validity of the charge.




                                           5
      The plaintiffs argue that because the contractual provisions under which B-H

made deductions for drayage fees from the plaintiffs’ compensation violated the

Truth-in-Leasing regulations, those contractual provisions were invalid, the

deductions made under those provisions were improper, and the amount of the

deductions constitute their damages. They cite no authority, and we have found none,

that supports the position that a Truth-in-Leasing violation per se invalidates a

contractual provision.

      “[F]or the [p]laintiffs in this case to recover actual damages, each [p]laintiff

must show that he suffered a loss because he relied on an inaccurate or incomplete

disclosure, in regards to section 376.12(d)[ or (h)], by [B-H].” Owner-Operator

Independent Drivers Assn. v. Landstar System, No. 3:02-CV-1005-J-25MCR, 2012

U.S. Dist. LEXIS 184418, 2012 WL 6827463, at *24 (II) (M.D. Fla. Aug. 30, 2012)

(citations omitted). The plaintiffs have not pointed to evidence to create a question

of fact on the issue of whether they suffered a loss because they relied on an

inaccurate or incomplete disclosure. They point to no evidence that had the

deductions for drayage fees been disclosed more fully they would not have taken jobs

under the contracts. They point to no evidence that had the deductions been disclosed

more fully the amount deducted would have been less than the $25 that was deducted.

                                          6
The plaintiffs’ argument that they were damaged from the deduction of drayage fees

simply because of disclosure violations regarding the fees “is akin to statutory or

presumed damages, rather than sustained damages as required by § 14704 (a) (2).”

Landstar, 622 F3d at 1325 (VII). Accordingly, we affirm the trial court’s grant of

summary judgment to B-H.

        Judgment affirmed. Miller, P. J., concurs. McMillian, J., concurs in judgment

only.




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