                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                 FILED
                                                                U.S. COURT OF APPEALS
                                       No. 10-12495               ELEVENTH CIRCUIT
                                                                      APRIL 5, 2011
                                   Non-Argument Calendar
                                                                       JOHN LEY
                                 ________________________               CLERK

                             D.C. Docket No. 1:06-cv-00554-GGB

DISCRETE WIRELESS, INC.,

lllllllllllllllllllll                            Plaintiff-Counter-Defendant-Appellee,



                                            versus



COLEMAN TECHNOLOGIES, INC.,

lllllllllllllllllllll                           Defendant-Counter-Claimant-Appellant.

                                ________________________

                          Appeal from the United States District Court
                             for the Northern District of Georgia
                                ________________________

                                        (April 5, 2011)

Before PRYOR, MARTIN, and FAY, Circuit Judges.

PER CURIAM:
      Coleman Technologies, Inc. appeals the District Court’s denial of its Fed. R.

Civ. P. 59(e) motion to alter or amend the judgment to award pre-judgment

interest under O.C.G.A. § 7-4-16. Coleman also appeals the District Court’s

denial of its Rule 50(b) renewed motion for judgment as a matter of law on a claim

for promissory estoppel asserted by Discrete Wireless, Inc. After thorough review,

we reverse.

                                         I.

      Discrete Wireless, Inc. (“Discrete”) contracted with Coleman Technologies,

Inc. (“Coleman”) for the design and supply of custom-made GPS vehicle tracking

devices. Discrete purchased the devices from Coleman by submitting purchase

orders, which set out specific quantity, price, and delivery terms. The parties’

relationship eventually broke down, and in early March 2006 Discrete informed

Coleman that it would not accept or pay for any future deliveries of GPS devices

from Coleman. At that time, Discrete had not paid Coleman for shipments that it

had received from September 2005 to January 2006.

      On March 8, 2006, Discrete brought suit against Coleman in the U.S.

district court in the Northern District of Georgia. In August 2006, Discrete filed a

second amended complaint asserting claims for, inter alia, breach of contract,

breach of express warranty, and promissory estoppel. Coleman answered

                                          2
Discrete’s second amended complaint and raised counterclaims for, inter alia, suit

on account and breach of contract. The District Court granted summary judgment

to Coleman on its counterclaim for suit on account and awarded Coleman

$1,017,551 in damages. The rest of the parties’ claims proceeded to a jury trial.

After an eleven day trial, the jury found for Coleman on its breach of contract

counterclaim and awarded $229,374 in damages. However, the jury also returned

a verdict for Discrete on its promissory estoppel claim and awarded $306,400 in

damages.

      After judgment was entered, Coleman moved under Federal Rule of Civil

Procedure 59(e) to alter or amend the judgment. In its motion, Coleman requested

that the judgment be amended to include the $1,017,551 that it had been awarded

on its suit on account counterclaim. Coleman also asked to be awarded pre-

judgment interest on the account award pursuant to O.C.G.A. § 7-4-16. In a

separate motion, Coleman renewed its previous motion under Fed. R. Civ. P. 50(b)

for judgment as a matter of law on Discrete’s promissory estoppel claim. The

District Court amended the judgment to include the account award but denied

Coleman’s request for pre-judment interest. The District Court also denied

Coleman’s motion for judgment as a matter of law on Discrete’s promissory

estoppel claim. Coleman now appeals those rulings.

                                         3
                                           II.

      “We review the denial of a motion to alter or amend a judgment under Rule

59(e) for abuse of discretion.” Shuford v. Fid. Nat’l Prop. & Cas. Ins. Co., 508

F.3d 1337, 1341 (11th Cir. 2007). “The only grounds for granting [a Rule 59]

motion are newly-discovered evidence or manifest errors of law or fact.” Arthur

v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (alteration in original) (quotation

marks omitted); see also Michael Linet, Inc. v. Village of Wellington, Fla., 408

F.3d 757, 763 (11th Cir. 2005) (“[A] Rule 59(e) motion [cannot be used] to

relitigate old matters, raise argument or present evidence that could have been

raised prior to the entry of judgment”).

      “We review de novo the denial of a motion for judgment as a matter of law,

applying the same standard as the district court.” Brown v. Ala. Dep’t of Transp.,

597 F.3d 1160, 1173 (11th Cir. 2010) (citations omitted). Judgment as a matter of

law is appropriate only if “the facts and inferences point overwhelmingly in favor

of one party, such that reasonable people could not arrive at a contrary verdict.”

Combs v. Plantation Patterns, 106 F.3d 1519, 1526 (11th Cir. 1997) (quotation

marks omitted). “In making that determination, we review all of the evidence in

the record, but we must draw all reasonable inferences in favor of the nonmoving




                                           4
party, and . . . may not make credibility determinations or weigh the evidence.”

Brown, 597 F.3d at 1173 (quotation marks omitted).

                                         III.

      Coleman contends that the District Court erred in failing to award pre-

judgment interest pursuant to O.C.G.A. § 7-4-16 on its suit on account

counterclaim. Section 7-4-16 of the Georgia Code provides, in relevant part, that:

      The owner of a commercial account may charge interest on that portion
      of a commercial account which has been due and payable for 30 days or
      more at a rate not in excess of 1 1/2 percent per month calculated on the
      amount owed from the date upon which it became due and payable until
      paid.

See also Spears v. Allied Eng’g Assocs., Inc., 368 S.E.2d 818, 819–20 (Ga. Ct.

App. 1988) (noting that § 7-4-16 “allows a maximum of 18 percent annual interest

on commercial accounts”); Prince v. Lee Roofing Co., 288 S.E.2d 135, 136–37

(Ga. Ct. App. 1982) (explaining that § 7-4-16 gives a commercial creditor the

“option to set whatever interest rate he wishes after default up to the limit

specified”).

      In order to recover pre-judgment interest under § 7-4-16, a commercial

creditor must make “a pre-trial invocation of the applicability of that provision.”

Jack V. Heard Contractors, Inc. v. Moriarity, 363 S.E.2d 822, 824 (Ga. Ct. App.

1987) (quotation marks omitted); compare Owens v. McGee & Oxford, 518

                                          5
S.E.2d 699, 701–02 (Ga. Ct. App. 1999) (pre-judgment interest available where

contract at issue “provided that any statement which remained unpaid after forty-

five days would bear interest of one-and-one-half percent interest per month” and

complaint asked for interest owed); Am. Aluminum Prods. Co. v. Binswanger

Glass Co., 391 S.E.2d 688, 694 (Ga. Ct. App. 1990) (pre-judgment interest

available where creditor “requested interest at the rate of 18 percent per annum on

damages . . . in its counterclaim and in the pretrial order”); Tench v. U.S. Tsubaki,

Inc., 381 S.E.2d 319, 320 (Ga. Ct. App. 1989) (creditor could recover pre-

judgment interest where § 7-4-16 was raised for the first time in the complaint);

Jack, 363 S.E.2d at 824 (finding pre-judgment interest available where creditor

amended its complaint approximately four months before trial to seek commercial

rate of interest); with Gold Kist Peanuts v. Alberson, 342 S.E.2d 694, 697 (Ga. Ct.

App. 1986) (pre-judgment interest unavailable where “the contract itself specified

no rate of interest, and . . . [the] complaint merely prayed for ‘interest’ without

specifying the rate thereof”); Prince, 288 S.E.2d at 137 (pre-judgment interest not

available where creditor asked for 1 1/2 percent interest per month for the first

time in jury instruction). In the invocation, the creditor must specify the exact rate

at which interest accrues. See Spears, 368 S.E.2d at 820 (pre-judgment interest

not available where creditor sought in complaint “‘interest as allowed by Georgia

                                           6
law for commercial accounts’” because “it was not clear whether [the creditor]

was seeking 1.5 percent interest per month . . . or some lesser rate which also

would have been proper under the statute”).

      On February 10, 2006, Coleman sent Discrete its “Standard Terms and

Conditions,” which provided that: “[i]f Customer fails to pay an invoice when due

per the stated payment terms, Customer shall pay interest of 1.5% per month on

the oustanding amount from the due date until the payment date.” In its

counterclaim for suit on account, Coleman sought “damages, as well as attorneys’

fees, costs, and interest.” (emphasis added). The Consolidated Pretrial Order

stated that Coleman was seeking “interest on the commercial account” and cited

O.C.G.A. § 7-4-16. By virtue of those documents, Coleman argues that it

complied with the requirement to make a pre-trial invocation of § 7-4-16.

      Discrete argues in response that none of those documents adequately

invoked § 7-4-16. Although the February 6, 2010 Standard Terms and Conditions

provided that any outstanding amount would bear 1.5% interest, Discrete asserts

that those terms and conditions do not apply to the debts underlying Coleman’s

suit on account counterclaim and therefore cannot satisfy the invocation

requirement. Discrete notes that the Standard Terms and Conditions provide that

they “supplement the corresponding Purchase Order Quote” and points out that the

                                          7
purchase orders forming the basis of Coleman’s counterclaim were submitted from

September 2005 to January 2006. Discrete also argues that Coleman’s

counterclaim and the Consolidated Pretrial Order do not comply with the

requirement to make a pre-trial invocation of § 7-4-16 because neither specified

the exact rate at which interest was to accrue.

      After thorough review, we conclude that Coleman was not entitled to pre-

judgment interest under O.C.G.A. § 7-4-16 on its suit on account counterclaim

because Coleman did not comply with the requirement that a commercial creditor

make a “pre-trial invocation of the applicability of that provision.” Gold Kist

Peanuts, 342 S.E.2d at 697. While the February 6, 2010 Standard Terms and

Conditions provided that outstanding amounts would bear 1.5% interest, it did not

apply to the debts underlying Coleman’s counterclaim. Cf. Owens, 518 S.E.2d at

702 (contract sued upon stated that “any statement which remained unpaid after

forty-five days would bear interest of one-and-one half percent per month”).

      It is true that under Georgia law “[i]f the rate allowed under . . . § 7-4-16 is

sought before trial, the trial court is authorized to grant pre-judgment interest at

that rate.” Spears, 368 S.E.2d at 820 (rejecting argument that pre-judgment

interest under § 7-4-16 was not available because the agreement between the

creditor and debtor and creditor’s invoices did not specify that interest would be

                                           8
charged on past due accounts). However, Coleman’s pre-trial efforts to seek

interest under § 7-4-16 did not specify the rate of interest being sought. See id. at

820 (concluding that trial court erred in awarding pre-judgment interest where

creditor sought in complaint “interest as allowed by Georgia law for commercial

accounts” because creditor did not state the exact rate of interest requested under §

7-4-16). In its suit on account counterclaim, Coleman merely prayed for

“interest,” and in the Consolidated Pretrial Order, Coleman sought as damages

“interest on the commercial account” citing § 7-4-16 as the basis for its request.

Neither document “specif[ied] the interest rate sought.” Id. (emphasis added).

The Consolidated Pretrial Order, while referencing § 7-4-16, did not make it “clear

whether [Coleman] was seeking 1.5 percent interest per month, the maximum

allowable rate for commercial accounts, or some lesser rate which also would have

been proper under the statute.” Id. Under these circumstances, the failure to

award Coleman pre-judgment interest under § 7-4-16 was not error.

      Coleman argues in the alternative that it was entitled to prejudgment interest

at the “legal rate” under O.C.G.A. § 7-4-2(a)(1)(A), which provides that “[t]he

legal rate of interest shall be 7 percent per annum simple interest where the rate




                                          9
percent is not established by written contract.”1 Under Georgia law, “[a]ll

liquidated demands, where by agreement or otherwise the sum to be paid is fixed

or certain bear interest from the time the party shall become liable and bound to

pay them.” O.C.G.A. § 7-4-15; see also Colonial Bank v. Boulder Bankcard

Processing, Inc., 563 S.E.2d 492, 498 (Ga. Ct. App. 2002) (explaining that

“[d]amages are liquidated when they are an amount certain and fixed, either by the

act and agreement of the parties, or by operation of law; a sum which cannot be

changed by the proof” (quotation marks omitted)). “The award of prejudgment

interest pursuant to O.C.G.A. § 7-4-15 is mandatory rather than discretionary, and

is awarded by a judge as a matter of law.” Consulting Constr. Corp. v. Edwards,

427 S.E.2d 789, 792–93 (Ga. Ct. App. 1993) (citation omitted).

       Here, Coleman’s damages on its suit on account counterclaim were fixed,

certain, and ascertainable making them liquidated. See Colonial Bank, 563 S.E.2d


       1
          Coleman did not raise this argument in its Rule 59(e) motion. However, the
Consolidated Pretrial Order provided that Coleman was seeking as damages “[i]nterest on
contract and commercial account pursuant to O.C.G.A. §§ 7-4-2 and 7-4-16.” We conclude that
the reference to § 7-4-2 in the pre-trial order adequately preserved this issue for appellate review.
Cf. Millennium Partners, L.P. v. Colmar Storage, LLC, 494 F.3d 1293, 1304 (11th Cir. 2007)
(concluding that argument not raised in Rule 59(e) motion was not subject to appellate review
because the argument was raised for the first time on appeal); see also Hutches v. Renfroe, 200
F.2d 337, 340–41 (5th Cir. 1953) (concluding that district court’s failure to apply the proper
measure of damages was a manifest error of law even though the plaintiff relied on the wrong
legal theory in motion to amend the judgment). In Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of the former
Fifth Circuit handed down before October 1, 1981.

                                                 10
at 498. Discrete conceded that it received and never paid for $1,017,551 worth of

GPS units from Coleman. For that reason, the District Court erred in failing to

award Coleman pre-judgment interest at the legal rate established by O.C.G.A. §

7-4-2. See Gold Kist Peanuts, 342 S.E.2d at 697 (concluding that creditor not

entitled to pre-judgment interest under § 7-4-16 was entitled to pre-judgment

interest at the legal rate under § 7-4-2). The District Court’s denial of Coleman’s

Rule 59(e) motion was error.

                                           IV.

      Coleman also argues that the District Court erred by denying its motion for

judgment as a matter of law on Discrete’s promissory estoppel claim. Under

Georgia law, the elements of a claim for promissory estoppel are:

      (1) the defendant made a promise or promises; (2) the defendant should
      have reasonably expected the plaintiff[ ] to rely on such promise; (3) the
      plaintiff[ ] relied on such promise to [its] detriment; and (4) an injustice
      can only be avoided by the enforcement of the promise, because as a
      result of the reliance, plaintiff[ ] changed [its] position to [its] detriment
      by surrendering, forgoing, or rendering a valuable right.

Brown v. Rader, 683 S.E.2d 16, 21 (Ga. Ct. App. 2009) (quotation marks omitted);

see also Mooney v. Mooney, 538 S.E.2d 864, 868 (Ga. Ct. App. 2000) (“A

promise is a manifestion of an intention to act or refrain from acting in a specified

way, so made as to justify a promisee in understanding that a commitment has



                                           11
been made.”) (quotation marks omitted). “Promissory estoppel does not apply to a

promise that is vague, indefinite, or of uncertain duration.” Mariner Healthcare,

Inc. v. Foster, 634 S.E.2d 162, 168 (Ga. Ct. App. 2006); see, e.g., Ga. Invs. Int’l,

Inc. v. Branch Banking & Trust Co., 700 S.E.2d 662, 664–65 (Ga. Ct. App. 2010)

(promise to refinance loan or provide a line of credit for 12 months with no

specified interest rate was too vague and indefinite to sustain promissory estoppel

claim); Mariner Healthcare, Inc., 634 S.E.2d at 168 (promise “‘that the terms and

conditions of the Lease would continue as long as [the plaintiff] paid rent and

continued to negotiate” was too vague to support a claim for promissory estoppel).

      Discrete based its promissory estoppel claim on an August 24, 2005 email

from Mike Nicoloff, Coleman’s technical director, to Nick Legg, a Discrete

employee. In the email, Nicoloff stated:

      Below (a screen or 2) is the fix Enfora recommends, I can probably get
      it done by noon tomorrow. I suggest we incorporate this fix into the
      firmware that contains the GPS filter fix. What do you think? I would
      like to get these into a couple of units in Charlotte that are currently
      locked up and see if this fixes the problem vs. what we did today which
      was to have Joey manually issue commands to the modem via the serial
      console application to clear the lock-up.

Coleman argues that Nicoloff’s promise was too vague and indefinite to serve as

the basis for a promissory estoppel claim. Coleman asserts that Nicoloff’s

statements that: “I can probably get it done by noon tomorrow” and that “I suggest

                                           12
we incorporate this fix” are equivocal precluding Discrete’s claim. In response,

Discrete argues that Nicoloff’s equivocal statements only related to when the fix

would be performed—not whether it would be performed—and therefore his

promise is sufficiently definite to support its promissory estoppel claim.

      Drawing all reasonable inferences in favor of Discrete, the non-moving

party, we conclude that Nicoloff’s promise was too vague and indefinite to form

the basis of a promisory estoppel claim. See Brown, 597 F.3d at 1173. Under

Georgia law, a claim for promisory estoppel arises from promises “which the

promisor should reasonably expect to induce action or forbearance on the part of

the promisee.” Ga. Invs. Int’l, Inc., 700 S.E.2d at 664 (emphasis added). Here,

Nicoloff’s purported promise was uncertain as to material terms such as what act

was being promised to be performed and when. His email stated: “I suggest we

incorporate this fix into the firmware that contains the GPS filter fix. What do you

think?” and that “I can probably get it done by noon tomorrow.” The equivocal

nature of Nicoloff’s representations made it unreasonable for Discrete to rely on

them. See W.R. Grace Company-Conn v. Taco Tico Acquisition Corp., 454

S.E.2d 789, 791 (Ga. Ct. App. 1995) (explaining that if plaintiff could not

reasonably rely on any of the defendant’s representations, promissory estoppel

does not apply). For that reason, we conclude that the District Court erred in

                                         13
denying Coleman’s motion for judgment as a matter of law on Discrete’s

promissory estoppel claim.

      REVERSED and REMANDED.




                                      14
