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Zambetti v. Cheeley Investments, L.P.

Court of Appeals of Georgia, Fifth Division

October 31, 2017

ZAMBETTI
v.
CHEELEY INVESTMENTS, L.P., et al.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          BRANCH, JUDGE.

         In an earlier appearance of this case in this Court, we reversed the grant of summary judgment in favor of John Zambetti in this suit concerning an oral agreement by Zambetti to pay the attorney fees of his legal adversaries. See Cheeley Investments, L.P. v. Zambetti, 332 Ga.App. 115 (770 S.E.2d 350) (2015). Following the remittitur, the case was tried, and a jury returned a verdict in favor of Cheeley Investments, L.P. and others. Zambetti appeals and argues that the trial court erred by failing to instruct the jury on three legal concepts, including the Statute of Frauds. He also contends that the trial court erred by denying his motion for a directed verdict. For the reasons that follow, we affirm.

         On appeal from the denial of a motion for a directed verdict or for j.n.o.v., we construe the evidence in the light most favorable to the party opposing the motion, and the standard of review is whether there is any evidence to support the jury's verdict.

Park v. Nichols, 307 Ga.App. 841, 845 (2) (706 S.E.2d 698) (2011) (citation and punctuation omitted).

         The evidence presented at trial was similar to the evidence outlined in the earlier appeal. In 2008, JR Real Estate Development, LLC ("JRD") negotiated and entered into a "Land Purchase and Sale Agreement" to buy a tract of land in Gwinnett County from Cheeley Investments, L.P. and others.[1] The agreement included a requirement that JRD provide $900, 000 in earnest money (nonrefundable upon the default of the buyer) to secure a right to buy the property as well as to protect Cheeley Investments given that JRD was asking Cheeley Investments to give up the multifamily zoning that was on the property at the time, which had value, and to allow JRD to rezone the property as commercial. Zambetti negotiated and executed the agreement on behalf of JRD, and Robert Cheeley negotiated and executed the agreement on behalf of Cheeley Investments.

         On November 14, 2008, the final extended closing date, JRD failed to close. Cheeley Investments continued efforts with JRD to close thereafter, but on December 4, 2008, JRD filed suit against Cheeley Investments in Gwinnett County, seeking, among other things, specific performance of the agreement, a declaratory judgment stating that Cheeley Investments was not entitled to the escrow funds, and interpleader of the escrow funds. That same day, Cheeley called Zambetti to ask why he had filed the lawsuit. During the call, Zambetti told Cheeley that the lawsuit was designed to "buy [JRD] some time, " and, Zambetti added, he "would pay [Cheeley Investments'] attorneys' fees and costs." Zambetti said, "you and Ed Breedlove have been honorable men, you haven't done anything wrong. And my attorneys told me I needed to do this in order to buy me some time." Zambetti asked Cheeley to "be patient and ... we would get the thing closed." Cheeley accepted Zambetti's proposal. Later that day, Cheeley relayed the substance of the conversation to a colleague in an email: "[Zambetti] apologized for the lawsuit and said he would cover our $." On December 19, 2008, Zambetti reiterated the promise in the presence of witnesses including Edward Breedlove, whose wife was a partial owner of the property. According to Breedlove, Zambetti said "I'll pay you, I'll pay your expenses, attorneys' fees, whatever." Zambetti also boasted that he could get a "suitcase full of cash" to close the deal, which reassured Cheeley that Zambetti still intended to close.

         Cheeley testified that because of Zambetti's promise to pay Cheeley Investments' attorney fees, he was willing to continue to negotiate with JRD for the sale of the property despite the lawsuit. Negotiations between Cheeley Investments and JRD continued thereafter. At the same time, Cheeley Investments continued to incur legal fees defending the declaratory judgment action filed by JRD. Ultimately, however, JRD never closed on the land sale agreement. And on February 4, 2009, in the Gwinnett action, Cheeley Investments filed an answer, a counterclaim against JRD for attorney fees and expenses arising from the land sale agreement, and a third-party complaint against Zambetti, personally, for attorney fees and expenses based on the oral promise. On June 4, 2009, however, the Gwinnett court dismissed Cheeley Investments' attempt to add Zambetti as a third party defendant.

         Over three years passed until, on November 14, 2012, Cheeley Investments filed the present suit against Zambetti in Forsyth County Superior Court for breach of contract and promissory estoppel.[2] At about the same time, the Gwinnett County action went to trial, and a jury returned a verdict in favor of Cheeley Investments and against JRD that included awarding Cheeley Investments the $900, 000 in escrow funds as well as $334, 198.21 in attorney fees and expenses for bad faith, stubborn litigiousness, or causing unnecessary trouble and expense; as of the time of trial in the present action, JRD had not paid those fees and expenses to Cheeley Investments. Later, in the present suit in Forsyth County, the trial court granted Zambetti's motions for summary judgment, which this Court reversed in Cheeley Investments v. Zambetti, 332 Ga.App. 115. The Forsyth action eventually went to trial, the trial court denied Zambetti's motion for a directed verdict, and the jury agreed that Zambetti personally had entered into an oral contract and breached it and that he was liable in promissory estoppel as well, based on the same promise. The jury awarded Cheeley Investments all of the attorney fees and expenses it incurred in the Gwinnett County action, as well as an additional award of $170, 753.11 in expenses of litigation under OCGA § 13-6-11, [3] for a total of $522, 294.96.[4]

         1. Zambetti contends the trial court erred by failing to charge the jury (1) that an oral promise to answer for the debt or default of another must be in writing, i.e., a Statute of Frauds defense; (2) that a corporation is a separate legal entity that insulates its representatives from personal liability; and (3) that promissory estoppel requires evidence of "forbearance as consideration, " reasonable reliance, and due diligence. Cheeley Investments counters that court's charge was proper and that the charges about which Zambetti complains either were inapplicable to the case presented to the jury, were waived, were precluded by the law of the case from the earlier opinion in Cheeley Investments v. Zambetti, or were not adjusted to the facts presented at trial.

         "A trial court has a duty to charge the jury on the law applicable to issues which are supported by the evidence. If there is even slight evidence on a specific issue, it is not error for the court to charge the jury on the law related to that issue." Jones v. Sperau, 275 Ga. 213, 214 (2) (563 S.E.2d 863) (2002). "Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law." Davis v. State, 269 Ga. 276, 279 (3) (496 S.E.2d 699) (1998). We therefore review the issue de novo. See Jordan v. State, 322 Ga.App. 252, 256 (4) (a) (744 S.E.2d 447) (2013).

         (a) Zambetti contends the trial court should have charged the jury that an oral promise to answer for the debt or default of another must be in writing. Zambetti did not file a written request for such a charge but it came up in colloquy with the court. Zambetti had requested a charge on the concept of an "original undertaking agreement" because Cheeley Investments had averred that Zambetti's promise was "an original undertaking in which [he was] furthering his own interest rather than underwriting the debt of another."[5] Following the close of the evidence, the court refused to give the proposed charge on an original undertaking on the ground that it was not adjusted to the facts of the case.[6]

         Zambetti countered that without a charge on original undertaking, he should be able to argue the Statute of Frauds to the jury, that is, he should be able to argue that the agreement to pay attorney fees was in fact a guarantee by Zambetti to pay Cheeley Investments' attorney fees, and that such a promise must be in writing under the Statute of Frauds as a promise to pay the debt of another. See OCGA § 13-5-30 (2) ("A promise to answer for the debt, default, or miscarriage of another" must be in writing). Cheeley Investments noted that Zambetti did not include this defense in the consolidated pretrial order. And the court disagreed with Zambetti's contention that he had implicitly raised the defense in the pretrial order and ruled: "If you have not raised it in your pretrial, you would be precluded." We find no reversible error.

         "It is the duty of the court, whether requested or not, to give the jury appropriate instructions on every substantial and vital issue presented by the evidence, and on every theory of the case." Robinson v. State, 278 Ga. 836, 838 (5) n. 7 (607 S.E.2d 559) (2005), quoting Davis & Shulman, Georgia Practice & Procedure, § 21-3. Nevertheless, "[a] party in a civil case generally must present written requests for jury instructions and complain of the giving or failure to give an instruction before the jury returns its verdict in order to preserve the issue for appeal. OCGA § 5-5-24 (a), (b)." Pearson v. Tippmann Pneumatics, 281 Ga. 740, 742 (1) (642 S.E.2d 691) (2007). Here, while he made an oral, non-specific request, Zambetti did not offer a written charge on the Statute of Frauds adjusted to the facts of the case such that the court did not err in refusing the charge. See Kersey v. Williamson, 284 Ga. 660, 663 (4) (670 S.E.2d 405) (2008) ("It was not error to refuse the oral request to charge.") (citation omitted); Jones, Martin, Parris & Tessener Law Offices v. Westrex Corp., 310 Ga.App. 192, 198 (3) (b) (712 S.E.2d 603) (2011) ("Without knowing the precise charge requested, we cannot review the trial court's denial of that request."); Colbert v. State, 263 Ga.App. 193, 194 (2) (587 S.E.2d 300) (2003) ("Absent a written request, it is not error for the trial court to fail to give an instruction.") (footnote omitted).

         Second, Zambetti did not include the defense of Statute of Frauds in the pretrial order and did not move to modify the pretrial order. "The Civil Practice Act provides that once entered, the pretrial order 'controls the subsequent course of the action unless modified at the trial to prevent manifest injustice.'" Ga. Dept. of Human Resources v. Phillips,268 Ga. 316, 318 (1) (486 S.E.2d 851) (1997), quoting OCGA § 9-11-16 (b)). "If a claim or issue is omitted from the order, it is waived." Long v. Marion,257 Ga. 431, 433-434 (2) (360 S.E.2d 255) (1987) (citation and punctuation omitted). And we agree with the trial court that Zambetti did not raise the defense of the Statute of Frauds simply by stating that he intended to rely on "[a]ll applicable ...


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