1 The jur y found in the Bank ’s favo r on Rober tson Grad ing’s cl aim of

fraud. FOURTH D IVISION DOYLE , P. J., MILLER and DIL LA RD, JJ.
N O TICE: Motions for reconsideration must be p hy sically received

in our cl erk’s offi ce within ten days of the date of decision to be deemed timely filed.

http:/ /www .gaappeal s.us/rul es/ July 11, 2014



## In the Court of Appeals of Georgia
A14A0701. FI R ST BANK OF GEORGIA v. ROBERTSON GRADING, INC. D ILL ARD , Judge. Following

a trial by jury , Ro ber tson Grad ing was aw arded $448, 600.65 in damages and $149,500.00 in attorney fees against First Bank of Georgia (“the Bank”)

on the company’ s claims for prom issory estoppel, unjust enr

ichment, and ne gligent misre presenta tionrelated to paving wo rk the com pany c omple ted in a sub div ision that the Bank ultimately fore closed upon. 1 On appeal, the Bank contends that the trial court erred in, inter alia , failin g t o grant its motion for directed verdict as to each theory of recovery. Bec ause we agree w it h the Bank t hat the tri al court e rred in denying its motion for directed verdict, w e reverse.2 See, e. g. , Turnage v. Kasper , 307 Ga. App. 172, 178-79 (1) (704 SE2d 842)

(2010). 2 Viewed in the light m

ost favo rable to t

he verdic t, 2 the recor

d reflec ts that in July 2007, Robertson Grading contracted with R & B Construc tion(“R & B”), a nonparty to this action , to pave a

subdivision R

& B was d eveloping in

the Augusta area. Robertson

Grading q

uoted R & B an estimate d cost of $318 ,487.50 to compl ete the project , plus another $32 ,850.00 to compl ete a Depar tment of Tran sportation p ublic right-of- way/deceleration lane. B efore sta

rting wor k, but after agreeing t o perf orm work for R & B, Robertson Grading requested a list of credit references, which R & B provided in

late July 2007 and whi ch included the Bank ( listing Hugh

Hollar a s the Bank’s representa tive). Lewi s Robe rtson (“ Robertson” ), the ow ner of Rob ertson Grading, testifiedthat he re quested the list of references “to be able to deter mine [R & B’s] credit w orthiness” and that he

“wa nted a bank refere nce to find out who was funding the job.” Robertson

tes tifie d that he vis ited Holla r at the B ank at the b eginning of August 2007 and that he told Hol lar “how m uch the paving was going to be and [he] wanted to be sure enough funds w ere avai lable when we finis hed the paving to be able to get paid.” Ro bertson tol d Hollar t hat the pav ing would co st “up to3 Hollar testified at trial that he only assured Robertson that the loan had money alloca ted for paving, not that it contained a sufficient amount to cover the entire project , and that Ro bertson ca me to him f

or a rating on

R & B, w hich he prov ided by explaining

that the Ban k had don e busines s with the co mpany, that R & B wa s in good standing, and that R & B was a large company with projects acr o ss the state. But viewing th e evidenc e in the ligh t most favorabl e to the jury ’s verd ict, we accept Robertson’ s account of

his conver sation. 3 $400,00 0.00,” not including the cost to pave the pu

b lic right-of-way. In re sponse, Hollar did not give R

obertson a specific dollar amount but indicated that there were sufficie nt funds remaining in the loan to pay for the paving and told Robertson that the compa

ny “ would get paid fo r the pavin g.” 3 According to Robert son, Holl ar also said that he would no tify Robertso n if any proble ms arose with R & B’s acco unt. Following

that meet ing , Robert son Grading started to pave the

subdivision, doing the initial

work of l aying

a base. And on Augu st 28, 2007, Robertson Grading

s ent R & B an initial invoice for $123,963.75. However, R & B did not pay th e invoice, leading Ro bertson to contact th e R & B subd ivision superinte ndent in ea

rly S eptember

to ma ke furthe r inquiry . Accor ding to Rober

tson, the s uperint enden t informed him tha t the invoic e had not be en paid bec ause the paving pro ject was nearly finished a

nd the Bank wish ed to wait until the pa

ving was com

plete to w rite one check.4 Ro bertson testified that payment on the August invoice was his “ leverage”

because if Robert son Grading did not get pa id for laying the base, the com

pany w ould “ju ststop pavin g.” 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 befor e we did the p aving.” As f or Hollar, he testified that it was R & B who wished to issue one chec k at th e compl etion

of the paving projec t, not the B ank; that he inform ed Robert son that it was R & B’ s wish to do s o; and that from the Bank’s perspective, it would have been more benefici al to advance the m oney so that the B ank could be gin receiving intere st. But again, vi ewing theevidencein the light m ost favora ble to the jury’s verdict, we accept R obertson’ s account of

his conver sation.

4 Doubting the validity

of this explanati on, Rober tson then dro ve to the Ba

nk to speakwith Holl ar. Robertson testi fied that H ollar conf irme d that the Bank wished to issue one check at the com pletion of t

he paving wor

k, and tha t he said either “when you get the last ton of asphalt dow n, send your invoice

to R & B an d I prom

ise you

we will get i t paid” or “ [w]hen you put the last

ton of asphalt down and you get a bill into R & B Cons tru ction, I pro mise you[,] you will get paid .” 4 And Rober tson informed Hollar t hat he expe cted the pa

ving work t o b e completed in two to three weeks. Thereafter, Robertson Grading c ontinued to pa ve the subdiv isi on, t he compl etion

of which w as greatl

y dela yed fr om the estim ate that R

obertson ga

ve t o Hollar during the e arly- Septem

ber visit, with the work inste ad being com pleted one or two days before Novem ber 7, 2007 . Robert son testifi ed that the compl etion date5

was delay ed because

R & B initi ally indicated t hat the p ublic right-ofway/deceleration

lane would be prepared for Roberts on Grading to just put down the rock-base and pave the area, but instead, R & B later asked Robertson

Grading t o “do t he gradi ng and shoulder” work as well. He also definitively testified that R & B requeste d the extra work, not the Bank; t

hat he did not

tell the B ank about the

extra work; and t hat he deal t exclusi vely with R & B as to this work. After the com pletion of t

he work, Robertson Grading s ent an invoic e to R& B dated Nov embe r 7, 2007, billing R & B for $324, 636.90, w hich did not in clude the $123,963.7 5 from the p rior invoice. As to the price, Robertson testified that it was only atthe very

end of the p roject , just pr ior to sending the November invoice, that Robertson

Grading realize d the quantit

y of m aterials initially

estimated to R & B had inc reased, res ulting in an increase in the total

price of

the paving pr

oject. Add iti ona lly, the cost of the deceleration laneincrease d above the estim ated cost, and again, Robertson testifie d th at the deceleration lane “was additional work that wa s added onto [the project] that wasn’t a part of the scope of our work.” Approxim

ately one to two wee ks later, t he o utstanding invoices remained

u npaid and Rober

tson calle d the subdivis ion superint endent to m ake inquiry . Afte r the superintendent indicat ed that h e did not know why t he invoiceswere unp aid,6

Robertson

called Hollar at the Bank. Hollar then told Robertson that because R & B had missed their las t inter est pay ment o n the constr

uction loan, the Bank w as not disburs ing any furthe r funds on the accoun t. According to the Bank, R & B’ s interest paym ent was du e Octobe r 10th with

a built-in 10-day grace period for late paym ent, making the ultimate due date October 20th. But because October 20th fell on a weekend, the Ba nk did not lear

n of the missed paym ent unti l Monday , October 22nd. Thereaft er, R &B assured the Bank that the y were work ing to mak e pa yment a s qu ick ly a s possib le, and although the Bank initially had confidence that pa

ym ent was f

orthcom ing, event

ually t he Bank lowered the rating on R & B’s loan in ea rly November as interes t grew each day. As for Ro ber tson Grading, the company f iled a lien against the subject pro per ty, contending t

ha t R & B owed money f or the com

pleted paving work. However, R

& B filed for bankruptcy and the bankruptcy court foun d that Robe rtson Gradi ng’s lien was invalid because it had not been properly perfe cte d. The bankruptcycourt did, however , determ ine that Ro bertson G

rading had a

valid claim against R & B and

allowed i t to seek co llection of paym ent as an un secured c reditor in the case, which rem ainedpending at t he tim e of tria l betwee n Robertson Grading and the Ban k.7

Meanwhile, th e Ba nk beg an f ore clo su re p roc eed in gs whe n i t b eca me clear that R & B would not make pay ment on the missed interest pay ment. A lthough the p roc eedings were te mpora rily interrupte d when R &B filed f or bankrupt cy, the p roperty was even

tually release d by the

bankruptcy

court in O ctober 2008 , and the Bank then fore closed on tha

t property in Dece mber

2008. And d espite wo rking with Robertson

Grading t o approve a

loan and as sist in its po tent ial purcha se of the subdivision

thro ugh forec losure, u ltima tely no thing came to fruition as a re sult of those discussions, and the Ba nk ended up be ing the solebidder at the foreclosure sale. Even tua lly, the Bank so ld all of th e lots in the subdivi sion which, it was undi sputed, would not have been possible without paved streets. And at trial, the Bank stipulated to the fact t hat it made over $ 1 million in profit from the s ale of the pr operty. Robertson

Grading f

iled suit against the

Bank in Aug us t 2 01 1, b rin gi ng cla ims for promissory

estoppel, unjust enr

ichment, negligent m

isrepres entation, and fraud

. And follow ing trial, the jury found in theBank’s favor as to the c laim for fra

ud but awarded Robertson Grading $4 48,600.65 i n damages and $149,500.00 in attorney fees against the

Bank via

a gen eral-v erdic t form th at was u sed o ver th e Bank ’s objectio ns. This a

ppeal by the Bank f

ollows.5 Turnage , 307 Ga. App. at 178 (1).

6 Id.

7 Id. at 178-79 (1).

8 Id. at 179 (1) (footnotes omitted). 8 Atthe outset, we note that a trial court’s denial of a m otion for a direct ed verdictor judgment notwithstanding the ver dict is “to be review ed using the any evidence test, and the ev id ence is to b e construe d most f avorably toward th e party opposing the motion.” 5 The ques tion before this Court, then, is “ not whethe r the verdictand

judgment of the trial court were merely authorized, but whether a contrary judgm ent was demanded.” 6 Thus, we must cons true the ev idence wi th every inference and presum ptio n in favor

of upholding t

he verdic t, even w

hen the evi dence is in conflict. 7 And so long as ther e is som e evidenc e to support the jury ’s verd ict, “ it must be upheld on appeal . . . bec ause jur

ors are t he sole and ex clusive j udges of the weight and cred it given t o evidenc e presented at trial.” 8 With the se guiding pr inciples in mind , w e will now

address th e Bank’ s enum erations o f error as to eac h theory

of

reco ver y.9 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 & n.7 ( 7) (345 SE 2d 330) (1986) (reversing di smissal of com plaint and r

eman ding f

or consi deration of case under a the ory of

promi ssory e stoppel, a

nd noting that

statute of frauds applied to the alleged promise at issue). 9 1. Promissor

y Estoppel . In sepa

rate enum erations o f error , the Ba

nk contends that the trial

court er red in deny

ing its m otion for directed verdict as t o p romis sor y estoppel when, inter alia , (1) the claim was bar red by th e st atute of f

rauds and ( 2) Robertson

Grading c ould not esta

blish exclus ive or re asonable re liance upon any statem ent made b y t he Bank. We agr ee that Ro bertson G

rading failed to esta

blish exclusiveor reason able reli ance upon a ny stat emen

t by the Bank and , furthermore, that the Bank’s failure to perform any allegedpromi se was c aused by an independ ent

occurre nce for w

hich the Ba

nk was not a

t fault ( i.e. , default on the loan by R & B). Atthe out set, we

note that a

claim for prom issory estoppel “ allows en forcem ent of promises that would otherwise b e defeated b y the statute o f frauds.” 9 Thus, to the extent that Rober

tson Grad ing argued t

hat the Ba

nk promi sed to answ er for th e debt10 See OCGA § 13-5-30 ( 2) (“ To m ake the fo llowing obli gations binding on the promisor, the promise m ust be in writing and signed by the partyto be charged therewi th or som e person la wfully authorize d by

him: . . . [a] promi se to answer for the debt, default, or miscarr iage of another.”).

11 See 20/20 V

ision Ctr. , 256 G a. at 135 ( 7); see also Ga. Invest. Int’l, Inc. v. Branch Banking &

Trust Co. , 305 Ga. App. 673, 676 n.3 (1) (700 SE2d 662) (2010) (“T he Sup reme Court has r ejecte d the argum

ent that the

statute of

frauds ba

rs a promissory estoppel claim .” (punctuation omitted)).

12 This position is, of course, legal ly inco nsis tent with R obert son Gr adin g’s theory of recovery under

promissory estoppel, which per mits recovery

even when a promi se is unenf

orceable as a contract. See Bank of Dade v. Reeves , 257 Ga. 5 1, 53 (3) (354 SE2d 131) (1987) (holding that theory of prom issory estoppel di d not apply when there w as instead

“sim ply the possibility

of a brea ch of contr

act” and n oting that “thekey dif

ference between a prom ise supporte d by con sideratio n and a prom ise supported by a pr omissor y estoppel is that in the form er case the detrim

ent is bargainedfor in exc hange for the promise; in the latter, there is no bargain”); see also Brown v. Rader , 299 Ga. App. 606, 611 (2) (a ) (683 SE 2d 1 6) (200 9). An original undertakin g “re cognized by our law a s lega l an d enforce able whe ther in wr iting or parol is an engagem

ent on the part of th e promisor to answ er for c redit extended to

10 of R & B, th e statute o f frauds would apply to su ch a prom

ise , 10 but Robert son Grading w ould not be precluded f rom br inging a claim fo r prom

issory estoppel. 11 Neverth eless, in respondin g t o the Bank’s argum ents as to th e applica tion of the statute of

frauds to R

obertson G

rading’ s claim

for prom

is sor y estoppel (and negligent misrepr esen tation, di scussed infra ), Rober tson Grad ing devotes m

uch of its appellate brief to a

rgument regard

ing an alle ged “o riginal undertaki ng.” But t his argum ent is a nonstart er becau se, am ong other r easons, 12 the recor d is entire ly devo idanother.” Holcombe v. Parker , 99 Ga. Ap p. 616, 620 (109 SE2d 348) (1959) . Put another way , an “ original und ert aking” am ounts to a ne w contra ct, the br each of which would give rise to an action for breach of contra ct. 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 valuab l e considera tionbetween

him a nd the prom

isee, sub stitutes him self

as the par

ty who is to perform, thus causing the original promisor to be re leased from the contract.’ ”); see also Wooten v. Wilc ox , 87 Ga. 474, 476 (13 SE 595) (1891) (“[ W]e

are incl ined to think that . . . this contrac t is enforce able as an orig inal undertak

ing by t he n ew f

irm, made on a valuable consideration moving to them, and entered into to s erve their o wn interest as a lead ing objec t, and

to protect property which had becom e theirs, subject to the plainti ff’s l ien, from being subj ected to th at lien at once.” ( empha sis supplied)); Burgess v. Torrence , 23 Ga. App. 193, 194 (98 SE 170) (1919) (“E

ve n if it shou ld appear that the plaintiff in the first instance rented the lan d to the husba nd, and subsequently

entered into a new and diffe rent agreem ent with th e wife, whereby she was to take ove r the land a nd becom e the tenant inst ead of the husband, su ch a proc edure could not properly be calle d an assum

ption by the wife

of the husba

nd’ s obligation, but would be

an original under

taking on her part; and u

nless it beshown that the new contrac t was brough t about by

fraud or duress practice d uponthe wife by the plainti ff, or b y anoth er with his knowledge, there would be nothing to render such an agreement on her part inval id.” (emphasis s upplied )). Cf. W hite House, Inc. , 202 Ga. A

pp. at 606- 07 (holding th at trial c ourt proper ly gra nted sum mary judgm ent on bre ach -of

-co nt rac t cl aim wh en appella nt did not pre sent “ sufficie nt evidence to createan issue for recovery based upon an original underta king”). A nd we notethat Robertson G

rading did no t pursue a b reach-o f-contra ct claim against the

Bank.

13 In order

for a promise to be considered an original undertaking, “the new promisor, for valua

ble conside ration, m

ust s ub stitute him self as the party who is to per for m, and the origin al promisor m ust be rele ased. ” Litland v. Smith , 247 Ga. App. 277, 278 (2) (543 SE2d 468) (2000) ( emphas is supplied) . Thus, whether a prom ise to assum e the debt o f

anothe r is an o rig in al u nd ert aki ng or a col lat era l o ne i s “a

11 of anyevidence that R & B was released from the original contractso as to form an original und ertaking be tween Ro bertson G rading and t

he Bank. 13question

of intent a

nd whether

the partie s mea

nt for the promi sor to stand in the place of the third party.” B.J. Howard Corp. v. Skinne r, Wil

son & Strickland

, 172 Ga. App. 180, 181 (1) (322 SE2d 306) (1984) (p unctuation o mitte d). And h ere, the record i s entirely devoid of any evidence that R & B, the original promisor, was re leasedfrom its obligation un der the contract with Robe rtson Grading to pave the su bdivisi on. See Ross v. W

. P. Step hens Lumber Co. , 138 Ga. App. 748 , 749- 50 (227 SE 2d 486) (1976) (“T

he evide nce on this appeal will not support a finding that the original debtor . . . was release d by

the appell ee, for

suit was br

ought agains t it as a j oint defendant to recove r on the unpaid acc ount; there was no subs titution of [ appellant] as the sole pa

rty to perform .”); see also P almetto M fg. Co. v. Parke r & Anderson , 123 Ga. 798, 798 (51 SE 714 ) (1905) (“[I] t must be shown that the person substituted as the debtor in

the place of the person released became such as the result of an agreem ent in which all three c oncurred. ”). Th e record reflec ts that, w ith the exception of Lewis R obertson’ s two meetings w ith Hugh H ollar at t he Bank, Robertson G

rading continued to exclusively comm unicate with R & B, undertook e xtra paving work in the subdivision a

t R & B’ s beh est, sent

the two relevant in

voices 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 m

aterialm an’s lien and , ultimately, as an unsecuredcreditor

in R & B’ s bankruptc y case . Accor dingly, there is no evidence that the Bank’s st atements to Rob ertson Grad ing amounted to an orig inal und ertaking

. 12 Havingdisposed of Robertson Grading’s argument as to original un dertaking,

we now consider whether there is any legally rele vant evidence to support a recovery undera theory

of prom issory estoppel. To prevail ona claim of prom issory estoppel, Robertson

Grading was req uired to show

that (1) t he Bank m

ade cert ain prom

ises; (2) the Bank should have expected Robertson Grading to re ly on t hose prom

ises; (3) Robertson

Gradi ng did in f

act rely on those prom

ises to its de trim ent; and (4 )14 Sun-Pacif ic Enters. , Inc. v. Girar

dot , 251 Ga. App. 101, 103 (1) (55 3 SE2d 638 ) (20 01); accord Insi lco Corp. v. Firs t Nat. B ank of Dalt on , 248 Ga. 3 22, 322 (283 SE2d 262) (1981 ); see als o OCGA § 13-3-44 (a) (“ A prom ise which the promi sor should rea sonably

expect to induce action or forbearance on

the part of

the promisee or a third

person and which does ind uce such a ction or fo rbearan ce is binding if injustic e can be a

voided only

by enf orcem ent of thepromi se. The rem edy granted for breach may

be limited as justice requires.”)

. 15 See DeK

alb County Sc hool Dist. v. Gold , 318 Ga. A

pp. 633, 640 (1) (b) (734 SE2d 466) (2012) (“P romis sory e stoppel is a n equitable

doctrine. ”); D.N. Garner Co. v. Ga. Pa lm Beac h Aluminu m Wind ow Corp. , 233 Ga. App. 252, 256 (2) (50 4 SE2d 70) (1998) (referencing “Georgia’ s equity doctrine of promissory estoppel”).

16 Girardot , 251 Ga. App. at 104 (1); see also Ambrose v. Sheppar

d , 241 Ga. App. 835, 837 (52 8 SE2d 282) (2000) (“[P] romissory estoppel requires onl

y that the reliance by the injured party be reasonable.” (emphasis and punctuation omitted)).

17 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); acc ord DP LM, Lt d. v. J .H. H arvey, C o. , 241 GA. App. 219, 221-22 (1) (526 SE2d 409) (1999). 13 injustice could be av oided only by enf orcem ent of the p romis es. 14 And b ecause promissory

estoppel is an equitable doctrine, 15 the third requirement is one of reasonable

reliance, 16 which means that “ the plaint if

f relied exclusively on such promi se and not on his or her ow n preconce ived intent or knowled ge; that th e plaintiff exercised due diligence, so as t o jus tif y suc h rel ian ce as a matt er of equ ity; and that there was nothing under the circumstances which would prevent the plaintiff from relying to his detriment.” 1718 At trial , the fol lowing coll oquy took place between

the Bank’ s counsel a

nd Robertson: COUNSEL: I’m

not sure w

hat part [ of your

affidavi t] is not

correct
. Let me read it to you and

you tel l me w

hich part i s not

correct . [“ ]After July 2 7, 2007, but be fore Robertson Grading contra cted with R & B to provide base and paving for t he stre ets at W illhaven S ubdivision, the deponen t [Robe rtso n] met per sona lly with Hugh H olla r [the Bank’s repr esent ative ].[ “] Now, what part of tha t is no t righ

t?

14 Here, based on Robertson’s testimony at trial, Ro bertson Gra ding contends that itrelied upo n the Bank’ s statements that “ the funds w ere avai lable in [t he Bank’ s] loan proceeds to pay for the pa ving” and tha

t the com pany would be “pai d when [it ] finished the paving. ” Roberts on Grading contends tha

t its “ decision to undertake the project was excl usively based on the se assura

nces and pro mi ses.” A

nd Robertso n Grading contends tha

t the Bank k

new or sho uld have know n at its first

meeting that the funds left

in the loan w ere inade quate to pa y for the paving w ork. But R

obertson Grading simply ca

nno t establish

a claim for prom

issory estoppel ba sed on these statem ents because, as Robert son himself testifie d, th e com

pany ha d already contracted

with R & B to pave the

subdivision before mee ti ng with theBank as a credit reference. 18 Acco rdi ngl y, Robertson Grading had already form ed the inte nttoROBERTSON: Well, we entered i nto an agre emen

t for the c ontract in Jul y, then in Aug

ust, we started th e con tract. But we ha d already contracted—agreed

to a con tract in July. We didn’t start the contract until August

. COUNSEL: So then what y ou’re s aying i s that aft er you had agree d and contract ed with R & B, then you went to see Mr . Hollar . Is that right? ROBERTSON: That’s righ t, after we had ag reed on the contract . . . .
19 Cf. Reeves , 257 Ga. at 52 (holding that when “parties entered into a contract the consideration of which was a mutual exchange of prom ises . . . [that] w ere bargainedfor,” p romis sory e stoppel “is not pr esent”); Am. Casual Dining, L.P. v. Moe’s Sw. Grill, L.L.C. , 426 FSupp2d 1356, 1371 (III) (F) (N.D. Ga. 2006) (“Where parties enter into a contrac t with bar gained for

considera

tion, the t erms o f whic h include the promises alleged in supportof apromissory estoppel claim , promissory estoppel is not available as a remedy. ”). 15 enter into a con tract to per form the paving work and, in fact, had ent ered i nto a contractto perfor

m the paving wor

k, which complet ely e viscerat es any ability to establis h reasonab le, exclusive reliance upon any statem ents m ade by

the Bank. 19 Next, Robertson

Grading a

rgues that it also re asonably

and exclusively relied upon the Bank’s promise that, af ter the initial invoice was unpaid by R & B, Robertson

Grading w ould be paid at the compl etion of the

projec t if it submitted an invoice to R & B. Th us, acco rding to Robertson Grading, it co mplet ed the paving20 Robertson testified that the agreement with R & B di d not provide for inter im paym ents bu t th at s ub mitt in g “i nt eri m b ills after a period of time” wa s standard practice in the indu stry.

21 In what c an only

be chara cterize d as a mis represe ntation of t he recor d (or perhaps an inabilit

y to provide accurate record cit ati on s), Rob ert so n Gr adi ng cla ims that the Bank “adm

itted 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 transcri ptthat in no w ay supp ort t his content ion. Additional ly, bo th on appeal and before the jury , Robert son Grading also arg ued that the

Bank was aware that R & B was in technic al default on the loan’s terms prior to the m issed October

2007 intere st paym ent because a

prior paving subco ntr acto r had fil ed a lie n ag ain st t he p rop erty. The Bank denie d having any actual kno wledge of

this lien, w

hich was f

iled on July 25, 2007, until after

R & B fai led to m ake its sch eduled inte rest payment in October 2007. And althoug

h Robertson

Grading focuses on the fact that the lien states under 16 work in the subdivi sionbecause of this promise. 20 Robertson Grading contends that itwas har

med by the repr esentation s made by the Bank at th is second m eeting because it continued work ing on t he p avi ng p roje ct u nti l co mplet ion . Spe cifi call y, Robertson

Grading ( both at tria

l and on appeal) focuses e xclusively upon the am

ount of mo n ey that r emained in th e loan at var ious poin ts th roug hout Rober tson ’s

comm unications with Hugh

Hollar (the Bank’ s representative), arguing tha t the loan

never contain ed enough funds to fully cover the

cost of the

paving wor

k. A dd iti ona lly, Robertson Grading a rgues that , despite

promi sing to infor

m it of any issue s with R & B’s account, the Bank failed to notify the company of the O ctobe r 2007 default by R & B. 21oaththat the B ank was ser ved with a

copy by first cla ss and cer

tified m ail on July

24, 2007, it is wholl

y undispu ted that the

lien does no t contain th e Bank’ s proper m ailing address. Accordingl y, no presumption arises that the lien was received. S e e Bank South NA v. G

rizzle , 218 G a. App. 462, 4 62 (1 ) (462 SE2d 1 70) (1 995) (“[N]o presum ption arises thata letter

has been received in the m ail unless i t is shown that the letter (1) was wr

itten; (2) was properly

addresse d to the par

ty; (3 ) containe d the correct postage; a

nd (4) was duly

mail ed in the Unite d States P ost Offi ce.”); accord Crenshaw

v. Ga. Underwri ting Assn. , 202 Ga

. App. 610, 610 (1) (41 4 SE2d 915) (1992); Shelton v. Rodgers , 160 Ga. App. 910, 911 (288 SE2d 619) (1982). 17 In addressing this aspect of Rob ertso n Grad ing’s argum ent, we begin by noting that it was undisputed between the parti es that at the tim e this seco nd conversa tion betwe en Robertson Grading a nd the Bank occurre d in early Septem ber 20 07 , Robertson

Grading b elieved th at the paving work w ould be com pleted in tw o to three weeks’ time , putting th e com pletion date

somew here to ward the mi ddle or end of September, and Robertson Grading made t hat represe ntation to the Bank. Neverth eless, Robertson testified at trial that the pr oject’ s comp letion

was dela yed by extrawork the c ompany

took on to com

plete the p ubl ic ri ght-of-w ay/de celerat ion lane, all at R &B’s re quest, push ing the ultim ate compl etion dateto one or t wo d ays be fore November 7, 2007. To sum up, then, Robertson Grading mad e tw o represe ntations 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 com pleted wi thin to two t o three w eeks ( i.e. , by t he middle or end of22 See Fid. & Deposit C o. of Md. v. W. Point Cons t. Co. , 178 Ga. App. 578, 580 (1) (344 SE2d 268) (1986) (noting that “[p]rom issory estoppel cannot be applied unless the promisee reas onably relied on the pro mise,” andholding, under facts o f case, that “there could be n o reasonab le relia nce on [al leged prom

ise] be cause its enforce ability

is fraught with legal impedim ents”); see also Gerdes v. Russell Rowe Commc’ n, Inc. , 232 Ga. App. 534, 536 (2) (502 SE2d 352) ( holdi ng that summary judgm ent was properly

granted w

hen appella

nt could not

have rea sonably

relied upo n alleged oral promise).

23 See, e. g. , Bedsole

v. Action Outd oor Adver. JV, LLC , 325 Ga. App. 194, 199 (2) (750 SE2d 445) (2013) ( “Theele ments of the equitable doctrine of promissory estopp el are that

the defen dant m ade a prom ise upon whi ch he rea sonably sh oul d have expected

the plainti ff to rel

y, the plaintiff relied on t

he prom ise to his detrim ent, and injustice can be avoided only by enforcing the prom ise because the plaintiff forwent a valuable right.” (punctuation omitted)). 18 September); and (2) tha

t it would be

perform ing paving w ork. But a s it turns out, neither of these represe ntations by Robertson Grading ended up being accurat e, and Robertson

admitted at trial that he did n ot have any additional meet

ings with the Bank

or otherwis e advise it about the work delay or agree ment b etween R

obertson G

rading and R & B to ex pand the scope and expe nse of the w ork to inclu de grading- andshoulder w ork. Suf

fice it to s ay, Robertson Grading c annot clai m that it reasona

bly relied upon an assur

ance of pa

ym ent by t

he Bank w

hen i t unilaterally c hanged the

ve ryter ms upon which t hat assura

nce was b ased. 22 Nor can Robertson G rading possibly argue tha t, given th e foregoing, “ injustice can be avoided only by

enforcin g the promise.” 2324 See Doll v. Grand Unio n Co. , 925 F2d 136 3, 1373 (I I) (B) ( 11th Cir. 1991)

(holdingthat a ppel lee’s “dec ision to pull out of the negotiations was due not to bad faith, but to the occurrence of anindependent event, unforeseen by either party, which destroyed one of the essential elements of the negotiation”).

25 See AgriC

ommoditie

s, Inc. v. J.D . Heisk

ell & Co. , 297 Ga. App. 210, 216 (2) ( 676 SE2d 847) (2009) (f inding that, based upon a ppellant’ s own adm

itte d 19 Furthermore, even if

Robertson

Grading w ere entit

led to rea sonably

rely on the represe ntations made

by the Bank to Robertson during this s econd and la stmee ting, Robertson

Grading’ s prom issory -estoppel claim still fail s. Indeed, while Rob ertson Grading focuses on the am ount of loan money available for disbur seme nt at vario us times , the evidence at trial establishedthat the f inal invoice

was unpai d not

because of a lack of funds in the l oan (even if the remaining loan funds would have been insuffici ent

to cover the total co st) but as a dir ect result of R & B d efaulting on its paym ents to the Bank , which w as an independent, unf o reseen occurrence. 24 And to the extent that Robertson Grading claims that it expected th e Bank to di sburse paym ents even if R

& B defa

ulted, re liance on s uch a promi se would be wholly unreasonable, as Robertson himself testified that he expect ed pay

ment to be made

by R & B from

funds the B ank provide d to R & B, that h e wished t o know if a ny pro bl ems arose wi th the lo an, and that he understood that defaulting on the loan

wou ld e nti tle the Ban k to sto p ad van cin g mon ey. 25knowledgeof how industry operated, reliance on alleged promise wa s unreasonable) (physical precedent only).

26 See Griff

in v. State Bank of Co chran , 312 Ga. App. 87, 96 (2) (a) (718 SE2d 35) (2011) (“Prom

issory estoppel does not, however , apply to vague or

indefinite promi ses, or prom

ises of uncertain duration. ” (punctua tion om itted)); accord Lov ell v. Ga. Trust. B ank , 318 Ga. App. 860, 865 (3) (73 4 SE2d 847) (2012); see als o Mariner Healthcare, Inc. v. Foster , 280 Ga. A pp. 406, 41 2 (5) (634 S E2d 162) (2006) (holdingthat undef

ined term in allege d promi se was too vague and indefinite for promissory estoppel to apply)

. 20 Fin all y, although

Robertson Grading a

rgues that the Bank f

ailed to notify it

of R & B’s de fault, t

he statem ent upon whi ch this alle ged prom ise was based— i.e. , the statem ent th at t he B ank wou ld no ti fy Ro ber ts on if “a ny p rob lems arose” — is sim ply too vague and indefinite to be enforc eable by promi ssory e stoppel. 26 Additional ly, t he evidence establishe d that the c omple tion of the project was greatly delayed by extra work that Rober

tsonGrading u

ndertook upon

the decel eration la

ne at R & B’ s request without any

notificat ion to the Ba

nk, delay ing the anti cipated c omple tion date by a month t o one or tw o days be fore Nov embe r 7, 2007; t hat, due t o the tim

ing of the missed paym ent and a built-in 10-d ay grace period , the Bank did n ot lea rn of R & B’s misse d paym

ent until Octo ber 22, 200 7; that R & B assured the Bank that p ayment

was forthcoming; and that when paym en t was not m

ade, the Bank ree valuated a

nd reclassified

R & B’ s loan, dow

ngrading its rating, all at som e point after submis sion21

of a me mora

ndum to the Bank’ s Loan com mitte e (dated N ov ember 9, 2 007), and determined

at that time that the “loan was goi ng into d efault.” Robertson testifiedthat of the $448,000 that he believed the Bank owed to Robertson Grading, approxim ately $80,000 was the r

esult o f work

performed after O ctober 10th ; however , Robert son did not definitively testify that Robertson Grading would have stopped working if he had been imm ediatel y inform ed of the m issed pay ment, testify

ing instead that the compa ny “[m]ore t han lik ely” would have stopped. And

Robertson himself testified that he thought Hollar “should have notified [h im] that there

was a pr oblem ” in a “tim ely fashion, ” which, in his opinion, would have been to “[m ]aybe give [R & B ] two or threedays t o make the pay ment o r whatev er the Ba nk term s are.”

But the evid ence establishe d that the B ank, pursu ant to its ow n operating

standards and ongoing discussions with R & B, considered the loan in default only af ter Rober tson Grading completed

its work, at which point Rober tson Grad ing was notified of t

he default aft er it inqu ired as to wh y R & B had not pai d the final invoice. Acco rdi ngl y, for all of the foregoing reasons, we conclude that the trial court erred in failing to grant the Bank’s motion for d irected verd ict as to promissory estoppel.27 Hendon Props., LLC v. Cinema D ev., LLC , 275 Ga. App. 434, 439 (2) (620 SE2d 644) (2005) (punctuation omitted). 22 2. Negligen t Misrepre sentati on. As to negligent m isrepres entation, the Bank contends that the trial court erred in d enying its mot

ion for directed ver

dict when , inter alia , there is no evidence of any damages proxim ately resulting f

rom t he alleged misrepresentation. We

agree. To prevail on

a claim of neglige nt misr

eprese ntation , a party

must pr ove the following essen tial e leme nts: “ (1) the de fendant’ s negligent supply of false inform ation

to forese eable per sons, known or unk nown; (2) such persons’ r

easonable reliance upon that false inform

ation; and ( 3) econom

ic injury proxim ately

resulting from such reliance.” 27 Robertson Grading c ontends that the Bank misrepres ented the funds rem aining in

the loan fo r

disbursem

ent, whi ch induced R

obertson G

rading to enter into the con

tract to perform

services and to continue perfor ming und er the contract
. Howeve r, for t

he sam e reasons why a

ny such statem ent cannot support a claim for promissory e stoppel, those same stat emen ts cannot suppor

t Robertso n Grading’ s claim

for neglig ent mi srepresentation. First, as discusse d supra , Robert son testif ied that Robertson Grading had already contracted

to perfor m thepaving work for R & B prior to me eting with

the28 U. S . Fidelity &Guar. Co. v. Paul Assocs., Inc. , 230 Ga. App. 243, 252 (9)

(496 SE2d 283) (1998).

29 Cf. Dowdell v . Wilh elm , 305 Ga. A pp. 102, 10 4, 106 (699 S E2d 30) (2 010) (revers ing denial of

motion for summ

ary judgm ent when intervening criminal act was supersedin g proximate caus e of death, an d noting that “[n]ormally, questions of proxim ate cause are for the jury, but plain and indisputable cases such as this may be decided by the court

as a m atter of

law”). We als o note that i t is undisputed th at the ter ms of the loan permitted the B ank to dem and prom pt deposit f

rom R & B of fun ds “in an am ount equal to

. . . excess costs.” Essentially, the Bank could require R & B to deposit addi tional money w ith the Ban k to cover i tems in the budget , bu t Hollar testifiedthat the Bank had ne ver done thi s “bec ause we w ere very comf ortable w ith R & B,” whi c h was “in good s tanding ” and “had always perfo rmed as agreed.” Ne verth eless, assum ing that R &B had neve r default ed upon the lo an, it is a t least conceivab le that the Bank could have d eman ded the deposit of additional f unds to cover any cost overages on Robertson Grading’s ultim ate invoice. 23 Bank. Second, even ass uming t hat the Ba

nk misr epresent ed the am

ount of funds

rema ining i n th e loan for

disbursem

ent, the u ndisputed ev idence show s that the proxim ate cause of Robertson G rading’ s dama

ges was not

a lack of paym ent by t he Bank due to insufficient funds but was instead R & B’s default upon the loan, which Robertson

himself a dmit

ted would entitle the B ank to discon tinue disbur seme nts. Proxim ate cause is, gen erally, “a jury issue except i n plain, c lear, and palpabl e cases,” 28 and th is is such a case. Thus, the tr ial co urt er red in denyin g the Bank’s motion for direc ted verdic t as to negli gent m isrepres entation. 2930 P. P. G. Indus t., Inc . v. H ayes Constr

. Co. , 162 Ga. App. 151, 152 (1) (29 0 SE2d 34 7) (1982); see also Ly nn v. Mil ler Lumbe r Co. , 146 Ga. App. 230, 230 (1 ) (246 SE2d 137) (1978) (“ One who h as furnish ed ma terials pu rsuant to a

relations hip with a contractor but who has no contractual rel at ionship with the owner

of realt y cannot recover a general judgment against the owner f or the material furnished.”). 24 3. Unjust Enrichm ent . The Bank argues that the trial court erred in deny ing its motion for directed

verdi ct as t o unju st en richmen t when the Geo rgia mat erial man’s lien statute pr

ovided Rob erts on Grading ’s sole r emed y and be cause any

“enr ichment” cannot be “u njust” be cause it w as received by t he Bank through its r

ight to foreclose. Once again we agree. As noted in Division 1, supra , there w as no eviden ce that the Bank ente red into

an “ori ginal under

taking” w ith Robert son Grading. Conseq uentl y, there was no contractual relations hip betwe en the Ban k and Rob erts on Grading. And under Georgia l aw, a materialm an or subcon tractor may

not recover against a

n owner or general contractor with whom it has no contractualrelationship, based on the theory of unjust enr

ichment or im

plied contr

act; “ rather, it is limit ed to the statutory remedies prov ided by Georg ia’s lien stat ute.” 30 And there is no obligation

arising by operation of law requirin g a lender to “ protect th e subcontra ctors from the risks of31 Reid v. Saul , 146 Ga. App. 264, 265 (246 SE 2d121) (1978) ; see also Li ght v. Equi t able Mortg. Res., Inc. , 191 Ga. App. 816, 817 (2) (383 SE2d 142) (1989); Beacon Co.. v . Cherok

ee Fed’l Savings &

Loan Ass’

n of Canton , 150 Ga. App. 654, 656 (258 SE2d 304) (1979).

32 First Fed’l Savings B ank of Bruns wick v. Fretthold , 195 Ga. App. 482, 485 (394 SE2d 1 28) (1990 ). 25 doing business with its borrower . . . .” 31 Indee d, giv en th at the lend er’s prim ary r ole is to pro tect its int eres t in the secu red pro per ty, we find no basis for “im posing upon the lender the

duties of th e owner a

nd general

cont ractor to pay

for labor

and materials supp lied to th e project.” 32 As such, Robertson Grading could not purs ue a clai m of u njust enr ichment against the Bank when Robertson Grading had no contra ctual relationship whatsoever with the Bank. Instead, Robertson Grading m aintained a contrac t with R &B, and Robertson

Grading w as entitle d to seek a r emed y via t he Georg i a material man’s statute (which it

did , although u

nsuccessf ully due to its failure to perfect that lien). Accordingly, the trial

court er red in deny

ing the Bank’s motion for directed verdict as to unjus t enrichm

ent. 4. Finally , we note

that although we have

held that th e trial c o urt erre d in failing to direct a verdict as to each of Robertson Grading’s theories of recovery , even if one of thetheories of recovery were valid, w e would sti ll be required to re verse and33 See Troncalli v. Jones , 2 37 Ga. A pp. 10, 13 ( 1) (514 SE 2d 478) (1999) (“[Because] the jury found a general verdict for the plaintiff against the

defendant , the verdictcannot sta

nd for the r

eason that this court c annot deter mine w hether the verdictwas ente red up on a proper basis.” ( punctuation omitte d)); see also F ord Motor Co. v. Ree

se , 300 Ga. App. 82, 87 (1) (b) (684 SE2d 279) (2009).

34 See Smith v. Stuc key , 233 Ga. A pp. 103, 10 7 (3) (503 S E2d 284) ( 1998) (“Since there w as no eviden ce from which a j ury co uld find th at the contract was made in bad fait

h or [had be en] breache d . . . a s a result of som e sinister

motive , the award of attorney’ s fees cannot be sustained on the basis of bad faith . . . .”). 26 rema ndfor a new trial because the jury returned its verdict via a general-verdict form (at Ro berts on Gra ding ’s request and over the Bank’s objections). 33 Our holdin gs in Div isi ons 1 th rou gh 3 , ho weve r, mak e su ch a reman d un nec ess ary. 5. In light of our dispositi on of this case i n Divi sion s 1 th roug h 3, th e jury’s award of attorney fees to R obertson G

rading purs uant to OCGA § 13-6-11 m

ust also be rever sed. 34 Judgment r

eversed. Doyle, P. J. , and Mill er, J., concur .