John Zambetti v. Cheeley Investments, L. P.
343 Ga. App. 637
| Ga. Ct. App. | 2017Background
- In 2008 JRD entered a purchase agreement to buy land from Cheeley Investments; JRD failed to close and Cheeley retained $900,000 escrow and incurred defense attorney fees in resulting litigation.
- On December 4, 2008, Zambetti (JRD representative) orally told Robert Cheeley he would pay Cheeley Investments’ attorneys’ fees and costs to induce Cheeley to continue negotiating despite the lawsuit.
- Cheeley relied on that promise and continued to negotiate; Cheeley Investments later incurred substantial fees in the Gwinnett County action and was awarded fees against JRD by a jury there.
- Cheeley Investments sued Zambetti personally in Forsyth County (breach of contract and promissory estoppel) seeking the fees; after remand from an earlier appellate reversal of summary judgment, the Forsyth jury found Zambetti liable and awarded $522,294.96.
- Zambetti appealed, arguing the trial court erred by (1) failing to instruct on the Statute of Frauds/original undertaking, (2) failing to instruct that a corporation is a separate entity insulating agents, (3) failing to include certain elements of promissory estoppel, and (4) denying his directed verdict motion for insufficient evidence of consideration/original undertaking.
Issues
| Issue | Plaintiff's Argument (Cheeley) | Defendant's Argument (Zambetti) | Held |
|---|---|---|---|
| Whether jury should have been charged that an oral promise to answer for another must be in writing (Statute of Frauds/original undertaking) | Charge unnecessary because promise was indemnity/original undertaking exception applied; trial evidence supported enforcement | Needed instruction so jury could apply Statute of Frauds and find writing required; original undertaking instruction required | Court affirmed: no reversible error — defendant failed to preserve a written request, did not raise it in pretrial order, and evidence showed indemnity (outside Statute) not a guarantee requiring writing |
| Whether jury should have been charged that corporate form protects agents from personal liability | Corporate-separate-entity charge unnecessary; evidence supported personal promise to Cheeley and jury could find no personal liability if appropriate | Charge required to prevent jurors from piercing corporate veil and imposing personal liability on Zambetti | Court affirmed: defendant waived specific charge/objection and overall contract instructions allowed jury to resolve personal liability question |
| Whether promissory estoppel instruction should include forbearance as consideration, reasonable reliance, and due diligence | Standard statutory promissory estoppel instruction sufficed; jury was charged with statutory definition | Court should have separately instructed on forbearance, reliance, and diligence | Court affirmed: defendant requested/promulgated promissory estoppel charge used by court; he waived new formulations and statutory charge covered those concepts |
| Whether directed verdict should have been granted for lack of consideration/original undertaking evidence | No evidence of consideration or original undertaking to sustain contract or estoppel; directed verdict required | Plaintiffs presented evidence (Cheeley continued negotiations relying on promise) sufficient for jury | Court affirmed denial of directed verdict: evidence supported consideration (law of the case) and alternative estoppel claim moot given contract ruling |
Key Cases Cited
- Cheeley Investments v. Zambetti, 332 Ga. App. 115 (Ga. Ct. App. 2015) (prior appellate decision reversing summary judgment and framing law-of-the-case on consideration)
- Park v. Nichols, 307 Ga. App. 841 (Ga. Ct. App. 2011) (standard of review for directed verdict/j.n.o.v.; view evidence in light most favorable to nonmoving party)
- Hathaway v. Bishop, 214 Ga. App. 870 (Ga. Ct. App. 1994) (distinguishable Statute of Frauds guaranty example where oral guarantee required writing)
- Progressive Elec. Svcs. v. Task Force Constr., 327 Ga. App. 608 (Ga. Ct. App. 2014) (contracts of indemnity generally fall outside the Statute of Frauds)
- Lee v. Swain, 291 Ga. 799 (Ga. 2012) (appellate review will not reverse where charge as a whole substantially covered issues to be decided)