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First Bank of Georgia v. Robertson Grading, Inc.

Court of Appeals of Georgia

July 11, 2014


Page 629

Cert. applied for.

Promissory estoppel, etc. Richmond State Court. Before Judge Booker.

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

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

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


Page 630

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

Page 631

foreclosed upon.[1] 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,[2] 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."

[328 Ga.App. 237] 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." [3] 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." [4] And Robertson informed Hollar that he expected the paving work to be completed in two to three weeks.

Page 632

[328 Ga.App. 238] 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 project. Additionally, the cost of the deceleration lane increased above the estimated cost, and again, ...

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