author: Dillard, Judge.

text:
    A14A0668.
    ULTRA TELECOM, INC. v. MERCHANT et al.
    (761 SE2d 623)
   Dillard, Judge.

In this civil action, Ultra Telecom, Inc. sued Salim Merchant I, Salim Merchant II, Salim Merchant III, Saddrudin Hussain, and Amazing Amusements Group, Inc. (collectively‘Merchant”), alleging claims of breach of contract and tortious interference with contractual relations. Following a jury verdict and judgment in Merchant’s favor, Ultra Telecom appeals, arguing that the trial court erred in granting Merchant’s Batson challenge to one of its peremptory strikes of a prospective juror. For the reasons set forth infra, we affirm.

The record, in relevant part, shows that Ultra Telecom filed a complaint against Merchant, alleging claims of breach of contract and tortious interference with contractual relations, both of which were in connection with an agreement to lease coin-operated gaming machines to convenience stores. Merchant answered, and, thereafter, the parties engaged in discovery.

The case then went to trial, and, during jury selection, counsel for Merchant asked the jury panel if anyone knew people of Asian Indian (“Indian”) descent. In response, three members of the panel (Jurors 9, 14, and 17) identified themselves as being of Indian descent. At the conclusion of voir dire, Merchant’s counsel objected that Ultra Telecom’s counsel had used peremptory strikes to remove all three of these prospective jurors. Consequently, he requested that the court require Ultra Telecom’s counsel to provide “nondiscriminatory reasons for the excusal of an entire ethnicity on the panel.” Ultra Telecom’s counsel responded that he struck prospective Jurors 9 and 17 because they were young, students, and lacked business experience. With regard to Juror 14, Ultra Telecom’s counsel explained that this panel member stated that she was employed as a technical recruiter, but counsel was concerned about having too many people with technical backgrounds on the jury, and because he did not consider her technical background to be as strong as others, he did not think she would “add anything” to the jury.

The trial court then asked Merchant’s counsel for a response, and he countered that in spite of opposing counsel’s claim that he did not want young people or students on the jury, some students who were not of Indian descent, nevertheless, were not struck. Merchant’s counsel further argued that the case did not involve issues requiring technical expertise and, therefore, opposing counsel’s claim that he struck Juror 14 because of her comparatively low level of technical expertise was not a persuasive justification.

Ultra Telecom’s counsel, thereafter, replied that he, in fact, struck other students in addition to Jurors 9 and 17, the two students of Indian descent, and although some students remained, he used his strikes on those he believed to be the least mature. With regard to Juror 14, Ultra Telecom’s counsel reiterated that he struck her because he did not want to overload the jury with individuals in technology-related fields.

Following these arguments, the trial court found that Ultra Telecom’s counsel’s explanation that he struck Jurors 9 and 17 because of their youth and their status as students was valid and, thus, was not improperly based on their Indian ethnicity. However, the trial court did not find counsel’s explanation for striking Juror 14 to be valid under Batson. Consequently, the trial court granted Merchant’s challenge to that particular peremptory strike and placed Juror 14, the sole remaining panel member of Indian descent, back on the jury.

The trial then commenced and concluded with the jury finding in favor of Merchant as to both of Ultra Telecom’s causes of action. A few weeks later the trial court made the jury’s verdict its final judgment. Subsequently, Ultra Telecom filed a motion for judgment notwithstanding the verdict (j.n.o.v.), in which it argued, inter alia, that the trial court erred in granting Merchant’s Batson challenge to its peremptory strike of Juror 14. After a hearing on the matter, the trial court denied Ultra Telecom’s motion. This appeal follows.

We begin by noting that in Batson v. Kentucky, the Supreme Court of the United States held that “the State’s privilege to strike individual jurors through peremptory challenges[ ], is subject to the commands of the Equal Protection Clause.” Specifically, the Court ruled that the State may not “challenge potential jurors solely on account of their race ... ,” 4A few years later, in Edmonson v. Leesville Concrete Co., the Court extendedits decision in Batson to civil cases. It is, of course, well established that

[t]he evaluation of a Batson challenge involves a three-step process: (1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven discriminatory intent.

Furthermore, in reviewing the trial court’s disposition of a Batson motion, we must bear in mind that “the trial court’s decision rests largely upon assessment of the [proponent’s] state of mind and credibility; it therefore lies peculiarly within a trial judge’s province.” Thus, the trial court’s findings as to whether the opponent of the strike has met the burden of persuasion are “entitled to great deference and will be affirmed unless clearly erroneous.” With these guiding principles in mind, we turn now to Ultra Telecom’s specific claims of error.

1. Ultra Telecom contends that the trial court erred in granting Merchant’s challenge to its peremptory strike of Juror 14, arguing that a prospective juror’s national origin is not a proper basis for a Batson challenge. We disagree that granting Merchant’s challenge constituted error.

The Supreme Court of the United States has held that under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, a party may not “exercise a peremptory challenge to remove a potential juror solely on the basis of the juror’s gender, ethnic origin, or race.” And here, Merchant raised a Batson challenge based on the fact that Ultra Telecom used peremptory strikes to remove all three of the panel members who were of Asian Indian descent, i.e., of Indian ethnicity. Ultra Telecom contends that, in actuality, Merchant’s challenge was based on national origin and that such a challenge was improper because Batson has not been extended to peremptory strikes based on the prospective jurors’ national origin.* But putting aside the validity of this contention, or even whether national origin and ethnicity can be completely divorced from one another, the trial court in this matter understood Merchant’s challenge to be based on the prospective jurors’ Indian ethnicity. Indeed, in denying two of Merchant’s three Batson challenges, the court found that Ultra Telecom’s counsel adequately explained that those two prospective jurors were struck “based on something other than ethnicity.” Accordingly, the trial court did not err in finding that Merchant raised a challenge to which Batson applied.

2. Ultra Telecom further contends that the trial court erred by applying an improper analysis to Merchant’s Batson challenge. Again, we disagree.

Here, the threshold issue of whether Merchant established a prima facie case of discrimination is moot because Ultra Telecom “offered purportedly race-neutral reasons for its strikes and the trial court ruled on the ultimate issue of purposeful discrimination.” But even if this issue had not been rendered moot, given that Merchant demonstrated that Ultra Telecom’s peremptory strikes would have resulted in the total exclusion of individuals of Indian descent from the jury, Merchant established a prima facie case of ethnic discrimination pursuant to Batson. Thus, regardless, Ultra Telecom’s explanations must be examined.

At step two of the Batson analysis, “the proponent of the strike need only articulate a facially race-neutral reason for the strike.” In fact, step two does not “demand an explanation that is persuasive, or even plausible.” Rather, at this second step of the inquiry, the issue is “the facial validity of the [proponent’s] explanation.” And unless a discriminatory intent is inherent in the proponent’s explanation, “the reason offered will be deemed race neutral.”

Here, as noted supra, Ultra Telecom’s counsel explained that he was concerned with having too many people with technical backgrounds on the jury, and since he did not consider Juror 14’s technical background to be as strong as other members of the panel with such experience, he did not think she would “add anything” to the jury in that regard. Thus, Ultra Telecom offered a race-neutral explanation for exercising the peremptory strike.

If the proponent of the strike carries its burden by providing a race-neutral explanation for the peremptory strike, as Ultra Telecom did here, the trial court must then advance to step three of the Batson analysis “and decide whether the opponent of the strike has proven the proponent’s discriminatory intent in light of all the circumstances that bear upon the issue of racial animosity.” This inquiry involves an evaluation of the credibility of the strike’s proponent, “which in turn may depend on the specificity and case-relatedness of the explanation for the strike given at step two.” And the trial court may conclude that a vague explanation, or one that is in no way case-related, “signals an unwillingness by the proponent to provide the real reason for the strike.”

Citing Williams v. State, Ultra Telecom argues that the trial court erroneously skipped step three and immediately dismissed its explanations as unpersuasive. In doing so, Ultra Telecom contends, the court improperly saddled Ultra Telecom with the burden of persuasion. But this argument is belied by the record. Indeed, following Ultra Telecom’s counsel’s race-neutral explanations for its peremptory strikes, the trial court, in fact, moved on to step three, specifically directing Merchant’s counsel to respond to Ultra Telecom’s race-neutral explanations. At that point, Merchant’s counsel argued that Ultra Telecom’s explanation was not persuasive in light of the fact that other prospective jurors with technical backgrounds were not removed and—more importantly—further argued that the case concerned an alleged breach of contract and interference with contractual relations and, therefore, required no technical expertise. Subsequently, the trial court provided Ultra Telecom with an additional opportunity to argue in favor of its strike before ultimately finding that it would not accept its explanation. As previously noted, this finding is entitled to great deference and “must be affirmed absent clear error.” And given these circumstances, we conclude that the trial court did not clearly err in granting Merchant’s Batson challenge with respect to Juror 14.

Decided July 11, 2014.

Wimberly Lawson Steckel Schneider & Stine, Paul Oliver, Danette Joslyn-Gaul, for appellant.

Mark V. Spix, for appellees.

Judgment affirmed.

Doyle, P. J., and Miller, J., concur.

       476 U. S. 79 (106 SCt 1712, 90 LE2d 69) (1986).

        Id. at 89 (II) (B).

       Id.; accord Willis v. State, 201 Ga. App. 727, 728 (1) (411 SE2d 714) (1991) (noting that under Batson, “the discriminatory use of peremptory challenges to exclude members of the defendant’s race was a denial of equal protection”).

       500 U. S. 614 (111 SCt 2077, 114 LE2d 660) (1991).

        Id. at 630 (II) (B) (“Racial discrimination has no place in the courtroom, whether the proceeding is civil or criminal.”).

        Flanders v. State, 279 Ga. 35, 37 (2) (609 SE2d 346) (2005) (punctuation omitted).

        Duffie v. State, 301 Ga. App. 607, 611 (3) (688 SE2d 389) (2009) (punctuation omitted).

        Id. (punctuation omitted); accord Rakestrau v. State, 278 Ga. 872, 874 (3) (608 SE2d 216) (2005).

        See U. S. Const, amend. XIV, sec. I.

        United States v. Martinez-Salazar, 528 U. S. 304, 315 (III) (120 SCt 774, 145 LE2d 792) (2000); see Hernandez v. New York, 500 U. S. 352, 355 (111 SCt 1859, 114 LE2d 395) (1991).

        See Nelson v. State, 289 Ga. App. 326, 333 (2) (a) (657 SE2d 263) (2008) (“Although the United States Supreme Court has extended its holding in Batson to instances where peremptory strikes are exercised solely on the basis of gender, Batson has not been extended to strikes based on national origin.” (footnote omitted)).

        See Hernandez v. Texas, 347 U. S. 475,479 (74 SCt 667, 98 LE 866) (1954) (“The exclusion of otherwise eligible persons from jury service solely because of their ancestry or national origin is discrimination prohibited by the Fourteenth Amendment.”).

        See Martinez-Salazar, 528 U. S. at 315 (III); Hernandez, 500 U. S. at 355.

       Duffie, 301 Ga. App. at 611 (3) (punctuation omitted); see Chandler v. State, 281 Ga. 712, 715-16 (3) (642 SE2d 646) (2007) (holding that because the trial court did not rule as to whether defendant made a prima facie showing of discrimination, hut proceeded to an evaluation of the State’s explanations for its strikes, the issue of a prima facie showing is moot); Bryant v. State, 309 Ga. App. 649, 651 (2) (710 SE2d 854) (2011) (same).

        See Smith v. State, 306 Ga. App. 301, 303 (2) (702 SE2d 211) (2010) (holding that peremptory strikes of jurors, resulting in total exclusion of that juror’s race from the jury, established a prima facie case of discrimination under Batson); Dixon v. State, 303 Ga. App. 517, 523 (4) (693 SE2d 900) (2010) (same); LeMon v. State, 290 Ga. App. 527, 529 (1) (a) (660 SE2d 11) (2008) (same).

        Toomer v. State, 292 Ga. 49, 54 (2) (b) (734 SE2d 333) (2012).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        See, e.g., Flanders, 279 Ga. at 37-38 (2) (finding that prospective juror’s employment as social worker was race-neutral basis for strike); Bell v. State, 306 Ga. App. 853, 855-58 (1) (703 SE2d 680) (2010) (holding that State’s explanation that it struck prospective juror because his job was technical in nature and technical people tend to “overthink” was race-neutral).

        Toomer, 292 Ga. at 55 (2) (b) (punctuation omitted).

        Id.

        Id.

       249 Ga. App. 292 (548 SE2d 63) (2001).

        See id. at 294-95 (“Where, as here, the court combines steps two and three of Batson, it prematurely evaluates the persuasiveness of counsel’s explanations, thereby impermissibly placing the ultimate burden of persuasion upon the proponent of the strike.” (punctuation omitted)).

        McKee v. State, 277 Ga. 577, 581 (8) (591 SE2d 814) (2004).

        See id. (holding that the opponent of a strike may carry his burden of persuasion by showing that similarly situated jurors of another race were not struck); Thomas v. State, 299 Ga. App. 235, 236-37 (682 SE2d 325) (2009) (same); George v. State, 263 Ga. App. 541, 547 (2) (c) (588 SE2d 312) (2003) (same).


source: Caselaw Access Project

license: Public Domain

text:
    A14A0701.
    FIRST BANK OF GEORGIA v. ROBERTSON GRADING, INC.
    (761 SE2d 628)
   Dillard, Judge.

Following a trial by jury, Robertson Grading, Inc. was awarded $448,600.65 in damages and $149,500 in attorney fees against First Bank of Georgia (“the Bank”) on the company’s claims for promissory estoppel, unjust enrichment, and negligent misrepresentation related to paving work the company completed in a subdivision that the Bank ultimately foreclosed upon.* On appeal, the Bank contends that the trial court erred in, inter alia, failing to grant its motion for directed verdict as to each theory of recovery. Because we agree with the Bank that the trial court erred in denying its motion for directed verdict, we reverse.

Viewed in the light most favorable to the verdict, the record reflects that in July 2007, Robertson Grading contracted with R & B Construction (“R & B”), a nonparty to this action, to pave a subdivision R & B was developing in the Augusta area. Robertson Grading quoted R & B an estimated cost of $318,487.50 to complete the project, plus another $32,850 to complete a Department of Transportation public right-of-way/deceleration lane. Before starting work, but after agreeing to perform work for R & B, Robertson Grading requested a list of credit references, which R & B provided in late July 2007 and which included the Bank (listing Hugh Hollar as the Bank’s representative). Lewis Robertson (“Robertson”), the owner of Robertson Grading, testified that he requested the list of references “to be able to determine [R & B’s] credit worthiness” and that he “wanted a bank reference to find out who was funding the job.”

Robertson testified that he visited Hollar at the Bank at the beginning of August 2007 and that he told Hollar “how much the paving was going to be and [he] wanted to be sure enough funds were available when we finished the paving to be able to get paid.” Robertson told Hollar that the paving would cost “up to $400,000.00,” not including the cost to pave the public right-of-way. In response, Hollar did not give Robertson a specific dollar amount but indicated that there were sufficient funds remaining in the loan to pay for the paving and told Robertson that the company “would get paid for the paving.” According to Robertson, Hollar also said that he would notify Robertson if any problems arose with R & B’s account.

Following that meeting, Robertson Grading started to pave the subdivision, doing the initial work of laying a base. And on August 28, 2007, Robertson Grading sent R & B an initial invoice for $123,963.75. However, R & B did not pay the invoice, leading Robertson to contact the R & B subdivision superintendent in early September to make further inquiry. According to Robertson, the superintendent informed him that the invoice had not been paid because the paving project was nearly finished and the Bank wished to wait until the paving was complete to write one check.

Doubting the validity of this explanation, Robertson then drove to the Bank to speak with Hollar. Robertson testified that Hollar confirmed that the Bank wished to issue one check at the completion of the paving work, and that he said either “when you get the last ton of asphalt down, send your invoice to R & B and I promise you we will get it paid” or “[w]hen you put the last ton of asphalt down and you get a bill into R & B Construction, I promise you [,] you will get paid.” And Robertson informed Hollar that he expected the paving work to be completed in two to three weeks.

Thereafter, Robertson Grading continued to pave the subdivision, the completion of which was greatly delayed from the estimate that Robertson gave to Hollar during the early-September visit, with the work instead being completed one or two days before November 7, 2007. Robertson testified that the completion date was delayed because R & B initially indicated that the public right-of-way/deceleration lane would be prepared for Robertson Grading to just put down the rock-base and pave the area, but instead, R & B later asked Robertson Grading to “do the grading and shoulder” work as well. He also definitively testified that R & B requested the extra work, not the Bank; that he did not tell the Bank about the extra work; and that he dealt exclusively with R & B as to this work.

After the completion of the work, Robertson Grading sent an invoice to R & B dated November 7,2007, billing R & B for $324,636.90, which did not include the $123,963.75 from the prior invoice. As to the price, Robertson testified that it was only at the very end of the project, just prior to sending the November invoice, that Robertson Grading realized the quantity of materials initially estimated to R & B had increased, resulting in an increase in the total price of the paving proj ect. Additionally, the cost of the deceleration lane increased above the estimated cost, and again, Robertson testified that the deceleration lane “was additional work that was added onto [the project] that wasn’t a part of the scope of our work.”

Approximately one to two weeks later, the outstanding invoices remained unpaid and Robertson called the subdivision superintendent to make inquiry. After the superintendent indicated that he did not know why the invoices were unpaid, Robertson called Hollar at the Bank. Hollar then told Robertson that because R & B had missed its last interest payment on the construction loan, the Bank was not disbursing any further funds on the account.

According to the Bank, R & B’s interest payment was due October 10 with a built-in ten-day grace period for late payment, making the ultimate due date October 20. But because October 20 fell on a weekend, the Bank did not learn of the missed payment until Monday, October 22. Thereafter, R & B assured the Bank that it was working to make payment as quickly as possible, and although the Bank initially had confidence that payment was forthcoming, eventually the Bank lowered the rating on R & B’s loan in early November as interest grew each day.

As for Robertson Grading, the company filed a lien against the subject property, contending that R & B owed money for the completed paving work. However, R & B filed for bankruptcy, and the bankruptcy court found that Robertson Grading’s lien was invalid because it had not been properly perfected. The bankruptcy court did, however, determine that Robertson Grading had a valid claim against R & B and allowed it to seek collection of payment as an unsecured creditor in the case, which remained pending at the time of trial between Robertson Grading and the Bank.

Meanwhile, the Bank began foreclosure proceedings when it became clear that R & B would not make payment on the missed interest payment. Although the proceedings were temporarily interrupted when R & B filed for bankruptcy, the property was eventually released by the bankruptcy court in October 2008, and the Bank then foreclosed on that property in December 2008. And despite working with Robertson Grading to approve a loan and assist in its potential purchase of the subdivision through foreclosure, ultimately nothing came to fruition as a result of those discussions, and the Bank ended up being the sole bidder at the foreclosure sale. Eventually, the Bank sold all of the lots in the subdivision which, it was undisputed, would not have been possible without paved streets. And at trial, the Bank stipulated to the fact that it made over $1 million in profit from the sale of the property.

Robertson Grading filed suit against the Bank in August 2011, bringing claims for promissory estoppel, unjust enrichment, negligent misrepresentation, and fraud. And following trial, the jury found in the Bank’s favor as to the claim for fraud but awarded Robertson Grading $448,600.65 in damages and $149,500 in attorney fees against the Bank via a general-verdict form that was used over the Bank’s objections. This appeal by the Bank follows.

At the outset, we note that a trial court’s denial of a motion for a directed verdict or judgment notwithstanding the verdict is “to be reviewed using the any evidence test, and the evidence is to be construed most favorably toward the party opposing the motion.” The question before this Court, then, is “not whether the verdict and judgment of the trial court were merely authorized, but whether a contrary judgment was demanded.” Thus, we must construe the evidence with every inference and presumption in favor of upholding the verdict, even when the evidence is in conflict. And so long as there is some evidence to support the jury’s verdict, “it must be upheld on appeal . . . because jurors are the sole and exclusive judges of the weight and credit given to evidence presented at trial.” With these guiding principles in mind, we will now address the Bank’s enumerations of error as to each theory of recovery.

1. Promissory Estoppel. In separate enumerations of error, the Bank contends that the trial court erred in denying its motion for directed verdict as to promissory estoppel when, inter alia, (1) the claim was barred by the statute of frauds and (2) Robertson Grading could not establish exclusive or reasonable reliance upon any statement made by the Bank. We agree that Robertson Grading failed to establish exclusive or reasonable reliance upon any statement by the Bank and, furthermore, that the Bank’s failure to perform any alleged promise was caused by an independent occurrence for which the Bank was not at fault (i.e., default on the loan by R & B).

At the outset, we note that a claim for promissory estoppel “allows enforcement of promises that would otherwise be defeated by the statute of frauds.” Thus, to the extent that Robertson Grading argued that the Bank promised to answer for the debt of R & B, the statute of frauds would apply to such a promise, but Robertson Grading would not be precluded from bringing a claim for promissory estoppel.*

Nevertheless, in responding to the Bank’s arguments as to the application of the statute of frauds to Robertson Grading’s claim for promissory estoppel (and negligent misrepresentation, discussed infra), Robertson Grading devotes much of its appellate brief to argument regarding an alleged “original undertaking.” But this argument is a nonstarter because, among other reasons, the record is entirely devoid of any evidence that R & B was released from the original contract so as to form an original undertaking between Robertson Grading and the Bank.

Having disposed of Robertson Grading’s argument as to original undertaking, we now consider whether there is any legally relevant evidence to support a recovery under a theory of promissory estoppel. To prevail on a claim of promissory estoppel, Robertson Grading was required to show that (1) the Bank made certain promises; (2) the Bank should have expected Robertson Grading to rely on those promises; (3) Robertson Grading did in fact rely on those promises to its detriment; and (4) injustice could be avoided only by enforcement of the promises. And because promissory estoppel is an equitable doctrine, the third requirement is one of reasonable reliance, which means that “the plaintiff relied exclusively on such promise and not on his or her own preconceived intent or knowledge; that the plaintiff exercised due diligence, so as to justify such reliance as a matter of equity; and that there was nothing under the circumstances which would prevent the plaintiff from relying to his detriment.”

Here, based on Robertson’s testimony at trial, Robertson Grading contends that it relied upon the Bank’s statements that “the funds were available in [the Bank’s] loan proceeds to pay for the paving” and that the company would be “paid when [it] finished the paving.” Robertson Grading contends that its “decision to undertake the project was exclusively based on these assurances and promises.” And Robertson Grading contends that the Bank knew or should have known at its first meeting that the funds left in the loan were inadequate to pay for the paving work. But Robertson Grading simply cannot establish a claim for promissory estoppel based on these statements because, as Robertson himself testified, the company had already contracted with R & B to pave the subdivision before meeting with the Bank as a credit reference. Accordingly, Robertson Grading had already formed the intent to enter into a contract to perform the paving work and, in fact, had entered into a contract to perform the paving work, which completely eviscerates any ability to establish reasonable, exclusive reliance upon any statements made by the Bank.

Next, Robertson Grading argues that it also reasonably and exclusively relied upon the Bank’s promise that, after the initial invoice was unpaid by R & B, Robertson Grading would be paid at the completion of the project if it submitted an invoice to R & B. Thus, according to Robertson Grading, it completed the paving work in the subdivision because of this promise. Robertson Grading contends that it was harmed by the representations made by the Bank at this second meeting because it continued working on the paving project until completion. Specifically, Robertson Grading (both at trial and on appeal) focuses exclusively upon the amount of money that remained in the loan at various points throughout Robertson’s communications with Hugh Hollar (the Bank’s representative), arguing that the loan never contained enough funds to fully cover the cost of the paving work. Additionally, Robertson Grading argues that, despite promising to inform it of any issues with R & B’s account, the Bank failed to notify the company of the October 2007 default by R & B.

In addressing this aspect of Robertson Grading’s argument, we begin by noting that it was undisputed between the parties that at the time this second conversation between Robertson Grading and the Bank occurred in early September 2007, Robertson Grading believed that the paving work would be completed in two to three weeks’ time, putting the completion date somewhere toward the middle or end of September, and Robertson Grading made that representation to the Bank. Nevertheless, Robertson testified at trial that the project’s completion was delayed by extra work the company took on to complete the public right-of-way/deceleration lane, all at R & B’s request, pushing the ultimate completion date to one or two days before November 7, 2007. To sum up, then, Robertson Grading made two representations to the Bank in seeking the Bank’s assurance that it would be paid for its work on the project: (1) that, “if everything went according to schedule,” the work would be completed within to two to three weeks (i.e., by the middle or end of September); and (2) that it would be performing paving work. But as it turns out, neither of these representations by Robertson Grading ended up being accurate, and Robertson admitted at trial that he did not have any additional meetings with the Bank or otherwise advise it about the work delay or agreement between Robertson Grading and R & B to expand the scope and expense of the work to include grading-and-shoulder work. Suffice it to say, Robertson Grading cannot claim that it reasonably relied upon an assurance of payment by the Bank when it unilaterally changed the very terms upon which that assurance was based. Nor can Robertson Grading possibly argue that, given the foregoing, “injustice can be avoided only by enforcing the promise.”

Furthermore, even if Robertson Grading were entitled to reasonably rely on the representations made by the Bank to Robertson during this second and last meeting, Robertson Grading’s promissoryestoppel claim still fails. Indeed, while Robertson Grading focuses on the amount of loan money available for disbursement at various times, the evidence at trial established that the final invoice was unpaid not because of a lack of funds in the loan (even if the remaining loan funds would have been insufficient to cover the total cost) but as a direct result of R & B defaulting on its payments to the Bank, which was an independent, unforeseen occurrence. And to the extent that Robertson Grading claims that it expected the Bank to disburse payments even if R & B defaulted, reliance on such a promise would be wholly unreasonable, as Robertson himself testified that he expected payment to be made by R & B from funds the Bank provided to R & B, that he wished to know if any problems arose with the loan, and that he understood that defaulting on the loan would entitle the Bank to stop advancing money.

Finally, although Robertson Grading argues that the Bank failed to notify it of R & B’s default, the statement upon which this alleged promise was based—i.e., the statement that the Bank would notify Robertson if “any problems arose”—is simply too vague and indefinite to be enforceable by promissory estoppel. Additionally, the evidence established that the completion of the project was greatly delayed by extra work that Robertson Grading undertook upon the deceleration lane at R & B’s request without any notification to the Bank, delaying the anticipated completion date by a month to one or two days before November 7, 2007; that, due to the timing of the missed payment and a built-in ten-day grace period, the Bank did not learn of R & B’s missed payment until October 22, 2007; that R & B assured the Bank that payment was forthcoming; and that when payment was not made, the Bank reevaluated and reclassified R & B’s loan, downgrading its rating, all at some point after submission of a memorandum to the Bank’s loan committee (dated November 9, 2007), and determined at that time that the “loan was going into default.” Robertson testified that of the $448,000 that he believed the Bank owed to Robertson Grading, approximately $80,000 was the result of work performed after October 10; however, Robertson did not definitively testify that Robertson Grading would have stopped working if he had been immediately informed of the missed payment, testifying instead that the company “[m]ore than likely” would have stopped. And Robertson himself testified that he thought Hollar “should have notified [him] that there was a problem” in a “timely fashion,” which, in his opinion, would have been to “[mjaybe give [R & B] two or three days to make the payment or whatever the Bank terms are.” But the evidence established that the Bank, pursuant to its own operating standards and ongoing discussions with R & B, considered the loan in default only after Robertson Grading completed its work, at which point Robertson Grading was notified of the default after it inquired as to why R & B had not paid the final invoice.

Accordingly, for all of the foregoing reasons, we conclude that the trial court erred in failing to grant the Bank’s motion for directed verdict as to promissory estoppel.

2. Negligent Misrepresentation. As to negligent misrepresentation, the Bank contends that the trial court erred in denying its motion for directed verdict when, inter alia, there is no evidence of any damages proximately resulting from the alleged misrepresentation. We agree.

To prevail on a claim of negligent misrepresentation, a party must prove the following essential elements: “(1) the defendant’s negligent supply of false information to foreseeable persons, known or unknown; (2) such persons’ reasonable reliance upon that false information; and (3) economic injury proximately resulting from such reliance.” Robertson Grading contends that the Bank misrepresented the funds remaining in the loan for disbursement, which induced Robertson Grading to enter into the contract to perform services and to continue performing under the contract. However, for the same reasons why any such statement cannot support a claim for promissory estoppel, those same statements cannot support Robertson Grading’s claim for negligent misrepresentation.

First, as discussed supra, Robertson testified that Robertson Grading had already contracted to perform the paving work for R & B prior to meeting with the Bank. Second, even assuming that the Bank misrepresented the amount of funds remaining in the loan for disbursement, the undisputed evidence shows that the proximate cause of Robertson Grading’s damages was not a lack of payment by the Bank due to insufficient funds but was instead R & B’s default upon the loan, which Robertson himself admitted would entitle the Bank to discontinue disbursements. Proximate cause is, generally, “a jury issue except in plain, clear, and palpable cases,” and this is such a case. Thus, the trial court erred in denying the Bank’s motion for directed verdict as to negligent misrepresentation.

3. Unjust Enrichment. The Bank argues that the trial court erred in denying its motion for directed verdict as to unjust enrichment when the Georgia materialman’s lien statute provided Robertson Grading’s sole remedy and because any “enrichment” cannot be “unjust” because it was received by the Bank through its right to foreclose. Once again we agree.

As noted in Division 1, supra, there was no evidence that the Bank entered into an “original undertaking” with Robertson Grading. Consequently, there was no contractual relationship between the Bank and Robertson Grading. And under Georgia law, a material-man or subcontractor may not recover against an owner or general contractor with whom it has no contractual relationship, based on the theory of unjust enrichment or implied contract; “rather, it is limited to the statutory remedies provided by Georgia’s lien statute.” And there is no obligation arising by operation of law requiring a lender to “protect the subcontractors from the risks of doing business with its borrower . . . .” Indeed, given that the lender’s primary role is to protect its interest in the secured property, we find no basis for “imposing upon the lender the duties of the owner and general contractor to pay for labor and materials supplied to the project.”

Decided July 11, 2014 —

Warlick, Tritt, Stebbins & Murray, Charles C. Stebbins III, Nathan E. Huff, for appellant.

As such, Robertson Grading could not pursue a claim of unjust enrichment against the Bank when Robertson Grading had no contractual relationship whatsoever with the Bank. Instead, Robertson Grading maintained a contract with R & B, and Robertson Grading was entitled to seek a remedy via the Georgia materialman’s statute (which it did, although unsuccessfully due to its failure to perfect that lien). Accordingly, the trial court erred in denying the Bank’s motion for directed verdict as to unjust enrichment.

4. Finally, we note that although we have held that the trial court erred in failing to direct a verdict as to each of Robertson Grading’s theories of recovery, even if one of the theories of recovery were valid, we would still be required to reverse and remand for a new trial because the jury returned its verdict via a general-verdict form (at Robertson Grading’s request and over the Bank’s objections). Our holdings in Divisions 1 through 3, however, make such a remand unnecessary.

5. In light of our disposition of this case in Divisions 1 through 3, the jury’s award of attorney fees to Robertson Grading pursuant to OCGA § 13-6-11 must also be reversed.

Judgment reversed.

Doyle, P. J., and Miller, J., concur.

Trotter Jones, William A. Trotter III, Chilivis, Cochran, Larkins & Bever, John K. Larkins, Jr., for appellee.

       The jury found in the Bank’s favor on Robertson Grading’s claim of fraud.

        See, e.g., Turnage v. Kasper, 307 Ga. App. 172, 178-79 (1) (704 SE2d 842) (2010).

       Hollar testified at trial that he only assured Robertson that the loan had money allocated for paving, not that it contained a sufficient amount to cover the entire project, and that Robertson came to him for a rating on R & B, which he provided by explaining that the Bank had done business with the company, that R & B was in good standing, and that R & B was a large company with projects across the state. But viewing the evidence in the light most favorable to the jury’s verdict, we accept Robertson’s account of his conversation.

       Robertson testified that payment on the August invoice was his “leverage” because if Robertson Grading did not get paid for laying the base, the company would “just stop paving.” He further explained that he had “never done work with R & B and [he] just wanted to be sure that we got paid for that before we did the paving.” As for Hollar, he testified that it was R & B who wished to issue one check at the completion of the paving project, not the Bank; that he informed Robertson that it was R & B’s wish to do so; and that from the Bank’s perspective, it would have been more beneficial to advance the money so that the Bank could begin receiving interest. But again, viewing the evidence in the light most favorable to the jury’s verdict, we accept Robertson’s account of his conversation.

        Ihrnage, 307 Ga. App. at 178 (1).

        Id.

         Id. at 178-79 (1).

        Id. at 179 (1) (footnotes omitted).

        Johnson v. Univ. Health Servs., Inc., 161 F3d 1334, 1340 (II) (C) (11th Cir. 1998); see 20/20 Vision Ctr., Inc. v. Hudgens, 256 Ga. 129, 135 (7) & n.7 (345 SE2d 330) (1986) (reversing dismissal of complaint and remanding for consideration of case under a theory of promissory estoppel, and noting that statute of frauds applied to the alleged promise at issue).

        See OCGA § 13-5-30 (2) (“To make the following obligations binding on the promisor, the promise must be in writing and signed by the party to be charged therewith or some person lawfully authorized by him: ... [a] promise to answer for the debt, default, or miscarriage of another.”).

        See 20/20 Vision Ctr., 256 Ga. at 135 (7); see also Ga. Invest. Int'l, Inc. v. Branch Banking & Trust Co., 305 Ga. App. 673, 676 (1) n.3 (700 SE2d 662) (2010) (“The Supreme Court has rejected the argument that the statute of frauds bars a promissory estoppel claim.” (punctuation omitted)).

       This position is, of course, legally inconsistent with Robertson Grading’s theory of recovery under promissory estoppel, which permits recovery even when a promise is unenforceable as a contract. See Bank of Dade v. Reeves, 257 Ga. 51, 53 (3) (354 SE2d 131) (1987) (holding that theory of promissory estoppel did not apply when there was instead “simply the possibility of a breach of contract” and noting that “the key difference between a promise supported by consideration and a promise supported by a promissory estoppel is that in the former case the detriment is bargained for in exchange for the promise; in the latter, there is no bargain”); see also Brown v. Rader, 299 Ga. App. 606, 611 (2) (a) (683 SE2d 16) (2009). An original undertaking “recognized by our law as legal and enforceable whether in writing or parol is an engagement on the part of the promisor to answer for credit extended to another.” Holcombe v.

        Parker, 99 Ga. App. 616, 620 (109 SE2d 348) (1959). Put another way, an “original undertaking” amounts to a new contract, the breach of which would give rise to an action for breach of contract. See White House, Inc. v. Winkler, 202 Ga. App. 603, 606 (415 SE2d 185) (1992) (“[T]he statute of frauds does not apply to ‘an original undertaking whereby a new promisor, for a valuable consideration between him and the promisee, substitutes himself as the party who is to perform, thus causing the original promisor to be released from the contract.’ ”); see also Wooten v. Wilcox, 87 Ga. 474, 476 (13 SE 595) (1891) (“[W]e are inclined to think that. . . this contract is enforceable as an original undertaking by the new firm, made on a valuable consideration moving to them, and entered into to serve their own interest as a leading object, and to protect property which had become theirs, subject to the plaintiff’s lien, from being subjected to that lien at once.” (emphasis supplied)); Burgess v. Torrence, 23 Ga. App. 193, 194 (98 SE 170) (1919) (“Even if it should appear that the plaintiff in the first instance rented the land to the husband, and subsequently entered into a new and different agreement with the wife, whereby she was to take over the land and become the tenant instead of the husband, such a procedure could not properly he called an assumption by the wife of the husband’s obligation, but would be an original undertaking on her part; and unless it be shown that the new contract was brought about by fraud or duress practiced upon the wife by the plaintiff, or by another with his knowledge, there would he nothing to render such an agreement on her part invalid.” (emphasis supplied)). Cf. White House, Inc., 202 Ga. App. at 606-07 (holding that trial court properly granted summary judgment on breach-of-contract claim when appellant did not present “sufficient evidence to create an issue for recovery based upon an original undertaking”). And we note that Robertson Grading did not pursue a hreach-of-contract claim against the Bank.

       In order for a promise to be considered an original undertaking, “the new promisor, for valuable consideration, must substitute himself as the party who is to perform, and the original promisor must be released.” Litland v. Smith, 247 Ga. App. 277, 278 (2) (543 SE2d 468) (2000) (emphasis supplied). Thus, whether a promise to assume the debt of another is an original undertaking or a collateral one is “a question of intent and whether the parties meant for the promisor to stand in the place of the third party.” B.J. Howard Corp. v. Skinner, Wilson & Strickland, 172 Ga. App. 180, 181 (1) (322 SE2d 306) (1984) (punctuation omitted). And here, the record is entirely devoid of any evidence that R & B, the original promisor, was released from its obligation under the contract with Robertson Grading to pave the subdivision. See Ross v. W. P. Stephens Lumber Co., 138 Ga. App. 748, 749-50 (227 SE2d 486) (1976) (“The evidence on this appeal will not support a finding that the original debtor... was released by the appellee, for suit was brought against it as a joint defendant to recover on the unpaid account; there was no substitution of [appellant] as the sole party to perform.”); see also Palmetto Mfg. Co. v. Parker & Anderson, 123 Ga. 798, 798 (51 SE 714) (1905) (“[I]t must he shown that the person substituted as the debtor in the place of the person released became such as the result of an agreement in which all three concurred.”). The record reflects that, with the exception of Lewis Robertson’s two meetings with Hugh Hollar at the Bank, Robertson Grading continued to exclusively communicate with R & B, undertook extra paving work in the subdivision at R & B’s behest, sent the two relevant invoices to R & B, made initial inquiry with R & B as to why the invoices were unpaid, and pursued remedies against R & B by way of an unperfected materialman’s lien and, ultimately, as an unsecured creditor in R & B’s bankruptcy case. Accordingly, there is no evidence that the Bank’s statements to Robertson Grading amounted to an original undertaking.

        Sun-Pacific Enters., Inc. v. Girardot, 251 Ga. App. 101, 103 (1) (553 SE2d 638) (2001); accord Insilco Corp. v. First Nat. Bank of Dalton, 248 Ga. 322, 322 (283 SE2d 262) (1981); see also OCGA § 13-3-44 (a) (“A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may he limited as justice requires”).

        See DeKalb County School Dist. v. Gold, 318 Ga. App. 633, 640 (1) (b) (734 SE2d 466) (2012) (“Promissory estoppel is an equitable doctrine.”); D.N. Garner Co. v. Ga. Palm Beach Aluminum Window Corp., 233 Ga. App. 252, 256 (2) (504 SE2d 70) (1998) (referencing “Georgia’s equity doctrine of promissory estoppel”).

        Girardot, 251 Ga. App. at 104 (1); see also Ambrose v. Sheppard, 241 Ga. App. 835, 837 (528 SE2d 282) (2000) (“[Pjromissory estoppel requires only that the reliance by the injured party be reasonable.” (emphasis and punctuation omitted)).

        Simpson Consulting, Inc. v. Barclays Bank PLC, 227 Ga. App. 648, 657 (5) (490 SE2d 184) (1997), overruled on other grounds by Williams Gen. Corp. v. Stone, 279 Ga. 428 (614 SE2d 758) (2005); accord DPLM, Ltd. v. J.H. Harvey Co., 241 Ga. App. 219, 221-22 (1) (526 SE2d 409) (1999).

       At trial, the following colloquy took place between the Bank’s counsel and Robertson:
      COUNSEL: I’m not sure what part [of your affidavit] is not correct. Let me read it to you and you tell me which part is not correct. [“]After July 27, 2007, hut before Robertson Grading contracted with R & B to provide base and paving for the streets at Willhaven Subdivision, the deponent [Robertson] met personally with Hugh Hollar [the Bank’s representative]-!]’] Now, what part of that is not right?

        ROBERTSON: Well, we entered into an agreement for the contract in July, then in August, we started the contract. But we had already contracted—agreed to a contract in July. We didn’t start the contract until August.
      COUNSEL: So then what you’re saying is that after you had agreed and contracted with R & B, then you went to see Mr. Hollar. Is that right?
      ROBERTSON: That’s right, after we had agreed on the contract....

        Cf. Reeves, 257 Ga. at 52 (holding that when “parties entered into a contract the consideration of which was a mutual exchange of promises . . . [that] were bargained for,” promissory estoppel “is not present”); Am. Casual Dining, L.P. v. Moe’s Sw. Grill, L.L.C., 426 FSupp.2d 1356, 1371 (III) (F) (N.D. Ga. 2006) (“Where parties enter into a contract with bargained for consideration, the terms of which include the promises alleged in support of a promissory estoppel claim, promissory estoppel is not available as a remedy.”).

       Robertson testified that the agreement with R & B did not provide for interim payments but that submitting “interim bills after a period of time” was standard practice in the industry.

       In what can only be characterized as a misrepresentation of the record (or perhaps an inability to provide accurate record citations), Robertson Grading claims that the Bank “admitted that it allowed Robertson to continue working after the R & B default and [the Bank] knew R & B was out of money,” citing to pages in the trial transcript that in no way support this contention. Additionally, both on appeal and before the jury, Robertson Grading also argued that the Bank was aware that R & B was in technical default on the loan’s terms prior to the missed October 2007 interest payment because a prior paving subcontractor had filed a lien against the property. The Bank denied having any actual knowledge of this lien, which was filed on July 25, 2007, until after R & B failed to make its scheduled interest payment in October 2007. And although Robertson Grading focuses on the fact that the lien states under oath that the Bank was served with a copy by first class and certified mail on July 24, 2007, it is wholly undisputed that the lien does not contain the Bank’s proper mailing address. Accordingly, no presumption arises that the lien was received. See Bank South N.A. v. Grizzle, 218 Ga. App. 462, 462 (1) (462 SE2d 170) (1995) (“[N]o presumption arises that a letter has been received in the mail unless it is shown that the letter (1) was written; (2) was properly addressed to the party; (3) contained the correct postage; and (4) was duly mailed in the United States Post Office.”); accord Crenshaw v. Ga. Underwriting Assn., 202 Ga. App. 610, 610 (1) (414 SE2d 915) (1992); Shelton v. Rodgers, 160 Ga. App. 910, 911 (288 SE2d 619) (1982).

        See Fid. & Deposit Co. of Md. v. W. Point Const. Co., 178 Ga. App. 578, 580 (1) (344 SE2d 268) (1986) (noting that “[promissory estoppel cannot be applied unless the promisee reasonably relied on the promise,” and holding, under facts of case, that “there could be no reasonable reliance on [alleged promise] because its enforceability is fraught with legal impediments”); see also Gerdes v. Russell Rowe Commc’ns, Inc., 232 Ga. App. 534, 536 (2) (502 SE2d 352) (1998) (holding that summary judgment was properly granted when appellant could not have reasonably relied upon alleged oral promise).

       See, e.g., Bedsole v. Action Outdoor Adver. JV, LLC, 325 Ga. App. 194, 199 (2) (750 SE2d 445) (2013) (“The elements of the equitable doctrine of promissory estoppel are that the defendant made a promise upon which he reasonably should have expected the plaintiff to rely, the plaintiff relied on the promise to his detriment, and injustice can he avoided only by enforcing the promise because the plaintiff forwent a valuable right.” (punctuation omitted)).

        See Doll v. Grand Union Co., 925 F2d 1363, 1373 (II) (B) (11th Cir. 1991) (holding that appellee’s “decision to pull out of the negotiations was due not to bad faith, but to the occurrence of an independent event, unforeseen by either party, which destroyed one of the essential elements of the negotiation”).

        See AgriCommodities, Inc. v. J.D. Heiskell & Co., 297 Ga. App. 210, 216 (2) (676 SE2d 847) (2009) (finding that, based upon appellant’s own admitted knowledge of how industry operated, reliance on alleged promise was unreasonable) (physical precedent only).

        See Griffin v. State Bank of Cochran, 312 Ga. App. 87, 96 (2) (a) (718 SE2d 35) (2011) (“Promissory estoppel does not, however, apply to vague or indefinite promises, or promises of uncertain duration.” (punctuation omitted)); accord Lovell v. Ga. Trust Bank, 318 Ga. App. 860, 865 (3) (734 SE2d 847) (2012); see also Mariner Healthcare, Inc. v. Foster, 280 Ga. App. 406, 412 (5) (634 SE2d 162) (2006) (holding that undefined term in alleged promise was too vague and indefinite for promissory estoppel to apply).

        Hendon Props., LLC v. Cinema Dev., LLC, 275 Ga. App. 434, 439 (2) (620 SE2d 644) (2005) (punctuation omitted).

        U. S. Fidelity & Guar. Co. v. Paul Assocs., Inc., 230 Ga. App. 243, 252 (9) (496 SE2d 283) (1998).

        Cf. Dowdell v. Wilhelm, 305 Ga. App. 102, 104, 106 (699 SE2d 30) (2010) (reversing denial of motion for summary judgment when intervening criminal act was superseding proximate cause of death, and noting that “[njormally, questions of proximate cause are for the jury, hut plain and indisputable cases such as this may be decided by the court as a matter of law”). We also note that it is undisputed that the terms of the loan permitted the Bank to demand prompt deposit from R & B of funds “in an amount equal to... excess costs.” Essentially, the Bank could require R & B to deposit additional money with the Bank to cover items in the budget, but Hollar testified that the Bank had never done this “because we were very comfortable with R & B,” which was “in good standing” and “had always performed as agreed.” Nevertheless, assuming that R & B had never defaulted upon the loan, it is at least conceivable that the Bank could have demanded the deposit of additional funds to cover any cost overages on Robertson Grading’s ultimate invoice.

        P.P.G. Indust., Inc. v. Hayes Constr. Co., 162 Ga. App. 151, 152 (1) (290 SE2d 347) (1982); see also Lynn v. Miller Lumber Co., 146 Ga. App. 230, 230 (1) (246 SE2d 137) (1978) (“One who has furnished materials pursuant to a relationship with a contractor but who has no contractual relationship with the owner of realty cannot recover a general judgment against the owner for the material furnished.”).

        Reid v. Saul, 146 Ga. App. 264, 265 (246 SE2d 121) (1978); see also Light v. Equitable Mortg. Res., Inc., 191 Ga. App. 816, 817 (2) (383 SE2d 142) (1989); Beacon Co. v. Cherokee Fed’l Savings & Loan Ass’n of Canton, 150 Ga. App. 654, 656 (258 SE2d 304) (1979).

        First Fed’l Savings Bank of Brunswick v. Fretthold, 195 Ga. App. 482, 485 (394 SE2d 128) (1990).

        See Troncalli v. Jones, 237 Ga. App. 10, 13 (1) (514 SE2d 478) (1999) (“[Because] the jury found a general verdict for the plaintiff against the defendant, the verdict cannot stand for the reason that this court cannot determine whether the verdict was entered upon a proper basis.” (punctuation omitted)); see also Ford Motor Co. v. Reese, 300 Ga. App. 82, 87 (1) (b) (684 SE2d 279) (2009).

        See Smith v. Stuckey, 233 Ga. App. 103, 107-08 (3) (503 SE2d 284) (1998) (“Since there was no evidence from which a jury could find that the contract was made in bad faith or [had been] breached ... as a result of some sinister motive, the award of attorney’s fees cannot be sustained on the basis of bad faith . . . .”).


author: Phipps, Chief Judge.

text:
    A14A0545.
    FIRST AMERICAN TITLE INSURANCE COMPANY v. DJ MORTGAGE, LLC.
    (761 SE2d 811)
   Phipps, Chief Judge.

After D J Mortgage, LLC (“D J Mortgage”) asserted claims under numerous title insurance policies issued by First American Title Insurance Company (“First American”), First American filed a complaint seeking a declaration that D J Mortgage’s claims were excluded from coverage under the policies. DJ Mortgage, which counterclaimed for breach of contract, bad faith, and attorney fees, filed a motion for partial summary judgment on the issue of First American’s liability under the policies. First American filed a cross-motion for summary judgment. The trial court entered an order granting DJ Mortgage’s motion for partial summary judgment and denying First American’s motion for summary judgment. First American appeals from this order. For the reasons set forth below, we affirm in part and reverse in part.

It is well established that “summary judgment is appropriate when the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.” A defendant may meet this burden when “the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case.” If the moving party meets this burden, “the nonmoving party cannot rest on its pleadings, but must point to specific evidence giving rise to a triable issue.”

The evidence shows that in 2007, Twelve Oaks JV, LLC (“Twelve Oaks”) contracted to sell 14 units (the “Units”) in aRiverdale, Georgia condominium complex to Darius Ashlock (“Ashlock”). DJ Mortgage agreed to extend purchase money loans to Ashlock to buy the Units. The sales were closed in March and April 2007 (the “2007 Closings”), and DJ Mortgage was represented at those closings by attorney Jackson Jones, and his law firm, Morris, Hardwick & Schneider. DJ Mortgage did not have a corporate representative physically present at the 2007 Closings.

Jones deposed that he had received instructions from David Dick, who “ran DJ [Mortgage],” to withhold $10,000 from the proceeds of each loan. In light of the withholdings, Twelve Oaks’s representative requested that Jones draft security deeds to memorialize the withheld amounts and then demanded that Twelve Oaks “be placed in the first position on those $10,000 mortgages.” According to Jones, he telephoned Dick, who, although initially unwilling, ultimately agreed to allow Twelve Oaks “to be placed in the first lien position.” First American admits, however, that it remains a disputed issue of fact whether Jones advised Dick that DJ Mortgage’s loans would not be filed in the first-priority position.

Jones further testified that “the biggest reason” Dick consented to Twelve Oaks’s demand was that “we would get at closing an agreement by [Twelve Oaks] that it would not be paid off unless DJ Mortgage was paid off.” Jones assessed that such an agreement would “essentially . . . place DJ [Mortgage] in the first position.” According to Jones, he prepared a short document, which was then signed by a representative of Twelve Oaks, to the effect that “Twelve Oaks would not be paid off on any of their mortgages until DJ [Mortgage] is paid off.” However, neither an original nor a copy of the alleged side agreement was produced by Jones or a party to the transaction, nor is it shown to be referenced in any other document. Twelve Oaks denies that such an agreement was ever made, signed or otherwise. Rather, Twelve Oaks’s closing representative deposed that his understanding was that Twelve Oaks “had a first of $10,000” such that it would be “paid $ 10,000 before anybody on all those units.”

It is undisputed, however, that as part of the 2007 Closings, DJ Mortgage held back $10,000 per unit, or $140,000 in total, from the loan proceeds. Ashlock also executed 14 security deeds to Twelve Oaks (the “Twelve Oaks Security Deeds”), each secured by a Unit, and each in the amount of $10,000. By special stipulation in each of the purchase contracts, Ashlock and Twelve Oaks agreed: “Seller to be in 1st position with lender for an amount of $10,000.” Jones then recorded the Twelve Oaks Security Deeds first, followed by the 14 security deeds from Ashlock to DJ Mortgage (the “2007 DJ Mortgage Security Deeds”).

In connection with the 2007 Closings, First American issued 14 lender’s title insurance policies (the “2007 Policies”) corresponding to the 2007 D J Mortgage Security Deeds. Jones signed the 2007 Policies for Landcastle Title, LLC, which in turn was designated as the authorized agent for First American. According to Jones, Landcastle Title was the title insurance arm of his law firm. The 2007 Policies excluded from coverage “[d]efects, liens, encumbrances, adverse claims or other matters: . . . created, suffered, assumed or agreed to by the insured claimant.” The 2007 Policies did not contain a specific exception for the Twelve Oaks Security Deeds.

Ashlock subsequently defaulted on the purchase money loans, and D J Mortgage foreclosed on each of the Units. On or about July 1, 2008 (the “2008 Closing”), DJ Mortgage sold the Units to Capital Marketing Firm, LLC and Premier Partners & Associates, Inc. DJ Mortgage financed a portion of the sale and took back a security deed to secure repayment of a $1,157,320 purchase money note (the “2008 DJ Mortgage Security Deed”). Jones again represented DJ Mortgage in connection with the 2008 Closing. The Twelve Oaks Security Deeds remained of record and were not extinguished.

Also in connection with the 2008 Closing, First American issued a lender’s title insurance policy to DJ Mortgage (the “2008 Policy”) insuring the 2008 DJ Mortgage Security Deed. As with the 2007 Policies, the 2008 Policy did not contain an exception for the Twelve Oaks Security Deeds, but excluded from coverage “[d]efects, liens, encumbrances, adverse claims or other matters ... created, suffered, assumed or agreed to by the insured____” Jones signed the 2008 Policy for Landcastle Title, which in turn was the designated agent for First American.

Capital Marketing and Premier Partners defaulted on the purchase money note, and, in February 2010, DJ Mortgage foreclosed on the Units. Several months thereafter, in July 2010, Twelve Oaks foreclosed on the Twelve Oaks Security Deeds. More specifically, Twelve Oaks exercised the powers of sale in the Twelve Oaks Security Deeds and, after submitting the highest bid at the foreclosure sales, recorded a deed under power from Ashlock to Twelve Oaks for each of the Units.

On July 27, 2010, DJ Mortgage sued Twelve Oaks (the “Twelve Oaks Litigation”) seeking, among other things, a declaratory judgment that D J Mortgage’s interest in the Units was superior to that of Twelve Oaks, and that Twelve Oaks’s foreclosures were void and of no effect. Twelve Oaks counterclaimed seeking a declaration that its foreclosures were valid and that it was the fee simple owner of the Units.

After it filed the Twelve Oaks Litigation, DJ Mortgage notified First American that it had a claim under the 2007 Policies and the 2008 Policy (the “Policies”). First American then retained counsel to represent DJ Mortgage in the Twelve Oaks Litigation. While the Twelve Oaks Litigation remained pending, First American filed this action against D J Mortgage seeking a declaration that D J Mortgage’s claims were excluded from coverage under the Policies. In its answer, DJ Mortgage denied First American’s declaratory judgment claim and counterclaimed for breach of contract, bad faith, and attorney fees. The trial court then stayed the Twelve Oaks Litigation until this action was concluded.

After the stay was entered, DJ Mortgage moved for partial summary judgment on the issue of First American’s liability on the Policies. First American filed a cross-motion for summary judgment and contended that it was entitled to a declaration that DJ Mortgage’s title claims were excluded from coverage under the Policies as a matter of law. In its order, the trial court (i) denied First American’s motion for summary judgment, and (ii) found that the Policies did not exclude coverage for DJ Mortgage’s title claims and so granted DJ Mortgage’s motion for partial summary judgment. First American appeals.

1. First American contends that the trial court erred in denying its motion for summary judgment. In doing so, it acknowledges that there remain disputed issues of fact as to (i) whether DJ Mortgage was aware that its liens would not be filed in first position and (ii) the existence of the “side agreement” in which Twelve Oaks allegedly agreed that it would receive the $10,000 holdback from the purchase price of each Unit only after DJ Mortgage’s loan was paid. First American contends, however, that these issues of fact are not material to its motion for summary judgment because DJ Mortgage’s agent and attorney, Jones, intentionally filed the Twelve Oaks Security Deeds in a first lien position. We disagree with First American that there are no genuine issues of material fact remaining and so affirm the trial court’s denial of its motion for summary judgment.

As noted above, the Policies excluded from coverage “[djefects, liens, encumbrances, adverse claims or other matters . . . created, suffered, assumed or agreed to by the insured----” Policy exclusions are construed “most strongly against the insurer and in favor of providing the indemnity sought.” Although exclusions in insurance policies are strictly construed against the insurer, an exclusion “that is plain and unambiguous binds the parties to its terms and must be given effect, even if beneficial to the insurer and detrimental to the insured.”

In context, “suffered” or “agreed to” requires the permission or consent by the insured to the “[d] efects, liens, encumbrances, adverse claims or other matters.”* The plain meaning of “create” is to “bring into being; to cause to exist.” And in construing an identical exclusion in a First American title insurance policy, the Eleventh Circuit Court of Appeals in Cynergy, LLC v. First American Title Ins. Co. defined “assume” as requiring that the insured “must have had actual, subjective knowledge of the . . . issue and appreciated its effect.” We find Cynergy to be persuasive and discern no good reason to adopt a different meaning of “assume” for purposes of this dispute. However, absent from the Policies’ exclusion is the insured’s “knowledge” of defects, liens, encumbrances, adverse claims or other matters. It follows that “created, suffered, assumed or agreed to” cannot be deemed synonymous with the insured’s mere knowledge, either actual or constructive.

With the foregoing in mind, we turn to First American’s argument that in light of attorney Jones’s “knowledge and actions,” DJ Mortgage agreed to or created the priority of the Twelve Oaks Security Deeds and that its title claims are excluded under the Policies. It is true that Jones’s knowledge, gained in the course of his duties as D J Mortgage’s attorney, can be attributed to D J Mortgage. However, as we found above, for purposes of the exclusion D J Mortgage’s knowledge would not be sufficient to show that it “created, suffered, assumed or agreed to” the priority of the Twelve Oaks Security Deeds. Thus, we cannot conclude that, because Jones represented D J Mortgage at the 2007 Closings and the 2008 Closing and knew about the Twelve Oaks Security Deeds, DJ Mortgage thereby created, suffered, assumed or agreed to any defects, liens, encumbrances, or adverse claims attributable thereto for purposes of the Policies.

Jones, however, also intentionally filed the Twelve Oaks Security Deeds in first priority position, and it follows, First American contends, that such act bound DJ Mortgage and established that DJ Mortgage created, agreed to, suffered, or assumed the title defect giving rise to its claims. However, we cannot agree that D J Mortgage created the alleged defect. The filing of the Twelve Oaks Security Deeds in the first priority position was required by the purchase agreements between Ashlock and Twelve Oaks. DJ Mortgage is not shown to be a party to the purchase agreements or the Twelve Oaks Security Deeds and, construing the term strictly for purposes of the exclusion, was not the entity that brought into existence, or “created,” the liens contemplated thereby.

Further, although Jones acted as D J Mortgage’s closing attorney, he was not a general agent of DJ Mortgage. Rather, an attorney’s “authority is limited to the particular purpose for which he was retained.” And an attorney “has no ‘inherent power’ to dispose of his client’s property or legal right, but must obtain special authority.” First American points out that, as a rule, the client is nevertheless bound by the acts of his attorney within the scope of his apparent authority, which in this case, it contends, included acting as DJ Mortgage’s sole representative at the closings and recording documents on DJ Mortgage’s behalf. However,

[ajpparent authority to do an act is created as to a third person by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.

First American fails to show that DJ Mortgage led it to believe anything with respect to Jones’s authority. “Any apparent authority that might otherwise exist vanishes in the presence of the person’s actual or constructive knowledge of what the agent is or is not empowered to do.” Although Jones acted as DJ Mortgage’s closing attorney, the evidence also shows that it was Jones who signed the Policies for Landcastle Title and so bound First American (for whom Landcastle Title was an authorized agent). And “[t]he knowledge of the dual agent is imputable to his principals.” Thus, a trier of fact could conclude that First American had reason to know that Jones was not authorized by DJ Mortgage to give priority to the Twelve Oaks Security Deeds and that First American would not have been justified in assuming that he was so authorized. Under the circumstances, DJ Mortgage would not be precluded from showing that Jones acted without authority and that it never created, suffered, assumed, or agreed to the priority of the Twelve Oaks Security Deeds.

In light of the foregoing, we find that the undisputed material facts do not show, as a matter of law, that DJ Mortgage’s title insurance claims are excluded under the Policies. Accordingly, the trial court did not err in denying First American’s motion for summary judgment.

2. First American also contends that the trial court erred in granting DJ Mortgage’s motion for partial summary judgment. As issues of material fact remain, we agree that the trial court erred in granting summary judgment to DJ Mortgage as to the availability of coverage under the 2007 Policies. We also find, however, that there is no evidence by which DJ Mortgage’s claims may be excluded under the 2008 Policy, and so affirm the trial court’s grant of summary judgment in connection with that policy.

In granting partial summary judgment to D J Mortgage, the trial court concluded that if D J Mortgage acquiesced to the Twelve Oaks Security Deeds it did so conditioned on Twelve Oaks’s signing the side agreement, which the trial court characterized as a subordination agreement, such that D J Mortgage’s “security interest was protected over Twelve Oaks’s record liens.” There was, the trial court found, “no evidence to suggest that DJ [Mortgage] agreed to be in a position junior to Twelve Oaks.” Consistent with the trial court’s reasoning, D J Mortgage argues that the deciding question is whether D J Mortgage “believed” that the Twelve Oaks Security Deeds were superior to DJ Mortgage’s interest when the Policies were issued.

We cannot agree with D J Mortgage that what it “believed” about the priority of the Twelve Oaks Security Deeds determines whether the exclusion applies. If the exclusion applied only to “defects,” then it might be more persuasively argued that, in order to apply, the insured must have intended the insured’s title to be subject to a defect. The exclusion, however, is more broad, applying to “[d]efects, liens, encumbrances, adverse claims or other matters.” Even strictly construed, the plain language of the exclusion did not require DJ Mortgage to subjectively perceive that its liens were inferior to the Twelve Oaks Security Deeds. Rather, viewed in a light most favorable to First American, as the respondent on summary judgment, the evidence shows that, as to the 2007 Closings, Jones had informed D J Mortgage, through Dick, that Twelve Oaks had demanded that its liens be filed in the first position and that Dick “ultimately agreed to allowing [the Twelve Oaks Security Deeds] to be placed in the first lien position.” According to Jones, Dick made that decision with an understanding that “we would get at closing an agreement by [Twelve Oaks] that it would not be paid unless DJ Mortgage was paid off,” such that DJ Mortgage was “essentially” in first position. But even if DJ Mortgage thought that its risks were low or even non-existent, a trier of fact could conclude that D J Mortgage nevertheless made a considered decision to accede to Twelve Oaks’s demands and, rather than refuse to go forward with the 2007 Closings, authorized the Twelve Oaks Security Deeds to be filed in the first priority position with respect to the 2007 DJ Mortgage Security Deeds. We conclude, therefore, that, as to the 2007 Policies, there remains a genuine issue of material fact as to whether D J Mortgage “suffered,” “assumed,” or “agreed to” the priority of the Twelve Oaks Security Deeds.

Nonetheless, as to the 2008 Policy, we agree with DJ Mortgage that First American cannot show that D J Mortgage’s coverage claims are excluded. As with the 2007 Closings, Jones acted as DJ Mortgage’s attorney in the 2008 Closing and signed the 2008 Policy, which did not expressly exclude the Twelve Oaks Security Deeds. But unlike with the 2007 Closings, there is no evidence that a general agent of DJ Mortgage knowingly agreed to go forward with the 2008 Closing on the basis that the security for its loan would be in a lower priority position than the Twelve Oaks Security Deeds. And, as we found in Division l, even if Jones knew that the Twelve Oaks Security Deeds remained of record, his knowledge cannot establish that DJ Mortgage “created, suffered, assumed or agreed to” the priority of the Twelve Oaks Security Deed over its newly insured security title. As there is an absence of evidence whereby a trier of fact could find that DJ Mortgage’s claims are excluded as to the 2008 Policy, we affirm the trial court’s grant of summary judgment to the extent that it found that, as a matter of law, the 2008 Policy does not exclude coverage for DJ Mortgage’s title claims.

In sum, we affirm the trial court’s denial of First American’s motion for summary judgment. We also affirm the trial court’s grant of DJ Mortgage’s motion for partial summary judgment to the extent it found that D J Mortgage’s claims were not excluded under the 2008 Policy. However, we reverse the trial court’s grant of DJ Mortgage’s motion for partial summary judgment to the extent that it found that DJ Mortgage’s claims were not excluded under the 2007 Policies.

Decided July 14, 2014.

Coles Barton, Thomas M. Barton, Aaron P. M. Tady, for appellant.

Clark Caskey, John C. Clark, for appellee.

Judgment affirmed in part and reversed in part.

Ellington, P. J., concurs. McMillian, J., concurs in judgment only.

        Bd. of Commrs. of Putnam County v. Barefoot, 313 Ga. App. 406, 408 (721 SE2d 612) (2011) (punctuation and footnote omitted).

       Id. (punctuation and footnote omitted).

       Id. (punctuation and footnote omitted).

       Dick averred that before the 2007 Closings he had reached an agreement with a representative of Twelve Oaks “providing that $10,000.00 from DJ Mortgage’s mortgage loan funds for each Unit would be withheld at closing and not paid to Twelve Oaks” and that they had “agreed that D J Mortgage would retain these amounts until its mortgage loans to Ashlock had been repaid.”

       First American’s complaint also characterizes Jones as having “issued” the 2007 Policies.

       Accordingly, it remained unresolved whether Twelve Oaks’s foreclosure on the Twelve Oaks Security Deeds was valid.

       D J Mortgage also contended that First American undertook the defense of D J Mortgage’s title in the Twelve Oaks Litigation without reserving the right to later deny coverage and was thereby estopped from denying coverage under the Policies. The trial court ruled that First American had reserved its rights and rejected DJ Mortgage’s argument that First American was estopped from denying coverage. DJ Mortgage has not cross-appealed from this ruling.

       For purposes of the appeal, there appears to be no dispute that the Policies, absent exclusions, exceptions, and subject to conditions and stipulations, provide coverage for claims based on the lack of priority of the lien of insured security instruments over any other lien or encumbrance. In other words, First American relies on the exclusion, and not other language of the Policies concerning coverage, as the basis for its declaratory judgment action.

        Fidelity Nat. Title Ins. Co. v. Matrix Financial Svcs. Corp., 255 Ga. App. 874, 878 (1) (b) (567 SE2d 96) (2002) (punctuation and footnote omitted).

        Garland, Samuel & Loeb, P.C. v. American Safety Cas. Ins. Co., 287 Ga. App. 254, 256 (651 SE2d 177) (2007) (citation and punctuation omitted).

       For example, a plain meaning of “agree” is to “[t]o admit; concede,” and a plain meaning of “suffer” is “[t]o allow; to permit.” Webster’s New International Dictionary of the English Language, pp. 51, 2520 (2d Ed. 1961).

       Webster’s New International Dictionary of the English Language, p. 621 (2d Ed. 1961).

       706 F3d 1321 (11th Cir. 2013).

       Id. at 1325 (B).

       See, e.g., Miller County Bd. of Ed. v. McIntosh, 326 Ga. App. 408, 413 (1) (756 SE2d 641) (2014) (noting that “as a principle of construction (applicable to statutes and contracts alike), ‘(e)xpressio unius est exclusio alterius,’ or ‘(t)he express mention of one thing implies the exclusion of another’ ”). The 2007 Policies also provided that “knowledge” meant “actual knowledge, not constructive knowledge.”

       See William Goldberg & Co. v. Cohen, 219 Ga. App. 628, 631 (1) (a) (466 SE2d 872) (1995) (noting that “ [i] t is well settled... that knowledge of an attorney is knowledge of his client, when such notice and knowledge come to the attorney in and about the subject matter of his employment”) (citation and punctuation omitted).

        Addley v. Beizer, 205 Ga. App. 714, 719 (423 SE2d 398) (1992) (punctuation omitted). See OCGA § 10-6-50.

        Addley, supra (citation omitted).

        Wilen v. Murray, 292 Ga. App. 30, 32 (1) (663 SE2d 403) (2008).

       See, e.g., Brady v. Sappington, 40 Ga. App. 781 (151 SE 525) (1930) (finding that “[t]he authority of a special agent will be construed to include all necessary and usual means for effectually executing it”).

        Holcomb v. Evans, 176 Ga. App. 654, 655-656 (1) (337 SE2d 435) (1985) (citation and punctuation omitted).

        Gosule v. Bestco, Inc., 227 Ga. App. 863, 864 (1) (490 SE2d 532) (1997) (citation and punctuation omitted).

        Herron v. Interstate Life & Accident Co., 55 Ga. App. 534, 536 (190 SE 631) (1937).

       See, e.g., Gosule, supra at 864-865 (1) (noting that only innocent parties may rely on doctrine of apparent authority).

       First American also argues that the trial court erred in relying on the alleged side agreement because the agreement was not material and, if relevant, was not competent evidence. Pretermitting whether the trial court erred as First American alleges, we find no grounds for reversal. See, e.g., Groover v. Johnston, 277 Ga. App. 12, 17 (2) (625 SE2d 406) (2005) (denial of summary judgment will be affirmed if right for any reason).

       See First American Title Ins. Co. v. Action Acquisitions, LLC, 187 P3d 1107, 1112-1113 (III) (Ariz. 2008) (finding that exclusion for loss resulting from risks “created, allowed, or agreed to by” an insured “applies whenever the insured intended the act causing the defect, not only when the insured intended the defect or when the insured engaged in misconduct. Title insurance principally protects against unknown and unknowable risks caused by third-party conduct, not intentional acts of the policyholder.”).

       See, e.g., Cameron v. Churchill Mtg. Corp., 249 Ga. 362, 363-364 (290 SE2d 474) (1982) (finding that “the legal order of priority as between mortgages and other liens or claims may be fixed, reversed, or modified by an agreement of the parties or by a waiver or release on the part of the senior lienholder” (punctuation omitted)).

       See Cynergy, supra at 1331-1333 (where insured lender was aware that the property lacked a dedicated right of access, but nevertheless took steps to safeguard its interests before making the loan, the insured “assumed” that condition within the meaning of the title insurance policy).

       Supra.

       Given this finding, we need not reach DJ Mortgage’s argument that in light of Jones’s testimony, First American is bound by its decision not to except the Twelve Oaks Security Deeds from the 2008 Policy and is estopped from denying coverage thereunder.