                              SECOND DIVISION
                               ANDREWS, P. J.,
                           MILLER and BRANCH, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                 November 18, 2015




In the Court of Appeals of Georgia
 A15A1167. RYMER et al. v. POLO GOLF AND COUNTRY CLUB
     HOMEOWNERS ASSOCIATION, INC.

      MILLER, Judge.

      John and Diane Rymer and the Diane L. Rymer Family Irrevocable Trust (“the

Rymers”) filed suit against Forsyth County (“the County”) and the Polo Golf and

Country Club Homeowners Association (“Polo”), asserting, inter alia, claims for

nuisance, promissory estoppel and breach of legal duty, after the basement of their

home in the Polo Fields subdivision flooded several times.1 The trial court granted

Polo’s motion for summary judgment as to all of the Rymers’ claims. The Rymers

      1
        While this case was on appeal, the Rymers settled their claims against Forsyth
County.
        The Rymers also sought punitive damages and attorney fees in their suit
against Polo. The trial court granted summary judgment to Polo on the Rymers’ claim
for punitive damages and reserved ruling on the Rymers’ claim for attorney fees. The
Rymers do not challenge these rulings on appeal and we do not address them here.
appeal, contending that the trial court erred in granting summary judgment to Polo

because (1) Polo is estopped from denying that it has a duty to undertake repairs to

the stormwater facilities, (2) Polo was obligated to either make repairs or force other

residents to make repairs, and (3) Polo is liable for maintaining a nuisance.2 For the

reasons that follow, we agree that Polo is entitled to summary judgment as to the

Rymers’ claims for promissory estoppel, nuisance and breach of a legal duty arising

under Polo’s restrictive covenants and we affirm the trial court’s order as to those

claims. We, however, find that there are genuine issues of material fact as to whether

Polo voluntarily undertook to make repairs to other homeowners’ properties and,

accordingly, we reverse the trial court’s grant of summary judgment to Polo on the

Rymers’ claim for breach of legal duty based on a voluntary undertaking.

             Summary judgment is appropriate when there is no genuine issue
      of material fact and the movant is entitled to judgment as a matter of
      law. We apply a de novo standard of appellate review and view the




      2
        This is the second appearance of this case on appeal. In Polo Golf and
Country Club Homeowners’ Assoc. v. Rymer, 294 Ga. 489, 495 (2) (754 SE2d 42)
(2014), the Georgia Supreme Court held that a 2004 County ordinance requiring a
homeowners association to maintain its subdivision’s stormwater drainage facilities
applied only to new developments and redevelopments and, therefore, did not apply
to pre-existing developments, such as Polo.

                                          2
      evidence, and all reasonable conclusions and inferences drawn from it,
      in the light most favorable to the nonmovant.


(Punctuation and footnote omitted.) Community Marketplace Properties v. SunTrust

Bank, 303 Ga. App. 403, 404 (693 SE2d 602) (2010).

      So viewed, the evidence shows that “Polo is a mandatory homeowners

association at Polo Fields, a subdivision in Forsyth County consisting of

approximately 1,000 lots. The subdivision was completed in the mid-1980’s.” Polo

Golf and Country Club Homeowners’ Assoc. v. Rymer et al., 294 Ga. 489 (754 SE2d

42) (2014) (“Rymer I”).

      Polo Fields is governed by a Declaration of Covenants, Restrictions, and

Easements, executed in 1986 (“the Covenants”). Under the Covenants, the developer

and its successors and assignees have the right to create perpetual easements for any

purpose, including stormwater drains. In 1991, the developer assigned its interest in

Polo Fields to Fairgreen Capital. In Rymer I, the Supreme Court held that the

Covenants “provide that each homeowner is to maintain and repair the structures on

his own property, including any stormwater facilities or device affecting or altering

the natural flow of surface waters on any lot.” Rymer I, supra, 294 Ga. at 489. Polo

does not own any stormwater facilities in the subdivision.

                                         3
      In 1998, the Rymers purchased a house at 5925 Polo Drive, Plat 11, in the Polo

Fields subdivision (“the Property”). On the side yard of the Property, there is a 20-

foot wide drainage easement that contains a 30-inch, metal underground pipe that

drains stormwater from upstream properties. The typical life span of a metal pipe is

25 years and the pipe that runs underneath the Property and Polo Drive was installed

more than 25 years ago.

      The side yard of the Property is the lowest point for miles, and stormwater

drains onto the Property from every direction. Surface water from approximately 12.5

acres of surrounding land, including residences, pastureland, and roads, drains into

the pipe running underneath the Property. From the Property, the pipe proceeds

underneath Polo Drive and underneath the side yard of 5920 Polo Drive, which is

across the street from and downstream of the Property. Underneath the side yard of

5920 Polo Drive, there is a junction box that connects the 30-inch pipe to a 24-inch

pipe that runs underneath several residential lots and drains into Wellington Lake.

Surface water from Polo Drive also drains from catch basins into the 30-inch pipe.

      The basement of the Property flooded in 2003. In the fall of 2004, John Rymer

first contacted Polo about the flooding. After the Property flooded again in 2005, the

Rymers contacted Polo again and asked it to address the drainage problems. In 2006,

                                          4
Polo notified the Rymers that it took the position that the County, rather than Polo or

any individual homeowner, should be responsible for maintenance of the stormwater

facilities. In 2007, however, Polo commissioned an engineer to study the stormwater

drainage facilities within Polo Fields and make recommendations for repairs. Polo

then collected funds from homeowners to make repairs.

       In July 2009, Polo notified the Rymers that it had identified the Property as

needing minor repair work, which Polo offered to undertake as part of its efforts to

address the drainage issues, provided that the Rymers agreed to release Polo from

liability. Although the Rymers provided a release, these repairs were never made. The

Rymers’ basement flooded again in September 2009. In February 2010, the Rymers

filed their initial complaint in this suit.

       The Rymers basement flooded again on July 16 and 17, 2010. On July 17,

2010, the pipe that runs from the Property underneath Polo Drive collapsed in the

yard of 5920 Polo Drive and a large sinkhole developed. Thereafter, the owner of

5920 Polo Drive repaired the collapsed pipe on her property and the County replaced

the portion of pipe underneath the shoulder of Polo Drive. No flooding has occurred

on the Property since July 17, 2010.



                                              5
      1. The Rymers contend that the trial court erred in granting summary judgment

to Polo because, under the law of the case, Polo is estopped from denying that it

assumed a duty to make repairs to the Property and there was some evidence that the

Rymers relied on Polo’s promises to make repairs. We disagree.

      (a) With regard to the posture of this case, we note that after the Rymers filed

their initial complaint, Polo counter-claimed against the Rymers for violation of the

Covenants on the ground that the Rymers failed to maintain and repair the stormwater

facilities on the Property. In Rymer I, the Supreme Court of Georgia affirmed the

denial of summary judgment to Polo on its counterclaim seeking to compel the

Rymers to make repairs. See Rymer I, supra, 294 Ga. at 492 (1).

      Although the law of the case has generally been abolished in Georgia, “any

ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all

subsequent proceedings in that case in the lower court and in the Supreme Court or

the Court of Appeals as the case may be.” OCGA § 9-11-60 (h). If, however,

“subsequent to an appellate decision, the evidentiary posture of the case changes in

the trial court, the law of the case rule does not limit or negate the effect that such

change would otherwise mandate.” (Citation omitted.) Brown v. Piggly Wiggly

Southern, Inc., 228 Ga. App. 629 (1) (493 SE2d 196) (1997). The posture of the case

                                          6
can be changed by an amendment to the complaint or by the submission of additional

evidence. See id.; May v. Macioce, 200 Ga. App. 542, 544 (2) (409 SE2d 45) (1991).

      In concluding that the trial court properly denied Polo’s motion for summary

judgment on its counterclaim against the Rymers, the Supreme Court of Georgia

found that:

      [w]hen the Rymers brought their flooding problems to the attention of
      Polo, it took the position that neither the Rymers nor Polo was
      responsible for the management and upkeep of the stormwater facilities.
      Instead, Polo asserted responsibility rested with the [C]ounty. Moreover,
      Polo notified the Rymers that it was commissioning a study of the
      stormwater facilities in the subdivision seeking recommendations for
      repairs and it assured the Rymers that it would make repairs to the
      stormwater facilities at its own expense. John Rymer averred that he
      relied on Polo’s promises to make the necessary repairs, that the repairs
      were never made, and that the Rymers experienced additional flooding.
      Under these facts, a jury could find that the Rymers reasonably relied
      upon Polo’s promise.


(Citation omitted.) Rymer I, supra, 294 Ga. at 492 (1).

      The Supreme Court’s ruling concerned the Rymers’ promissory estoppel

defense to Polo’s counterclaim against the Rymers for their failure to make repairs

pursuant to the Covenants. See Rymer I, supra, 294 Ga. at 491 (1). Upon remand,


                                         7
Polo dismissed its counterclaim against the Rymers and the Rymers filed an amended

complaint, asserting a new claim against Polo for promissory estoppel based on

Polo’s promise to make repairs to the Property. New evidence, namely, the Rymers’

2014 depositions, was also submitted after remand. Since the posture of the case

changed in the trial court, both because the Rymers added a new, distinct claim and

because new evidence was submitted, the law of the case is inapplicable and the

Supreme Court’s prior ruling is no longer binding. See Brown, supra, 228 Ga. App.

at 629 (1).

      (b) As to the merits of the Rymers’ claim, to prevail on a claim of promissory

estoppel, the Rymers are required to show that (1) Polo made certain promises; (2)

Polo should have expected the Rymers to rely on those promises; (3) the Rymers did

in fact rely on those promises to their detriment; and (4) injustice could be avoided

only by enforcement of the promises. See First Bank of Ga. v. Robertson Grading,

Inc., 328 Ga. App. 236, 241-242 (1) (761 SE2d 628) (2014).

      In July 2009, Polo notified the Rymers that it had identified the Property as

needing minor repair work, which Polo offered to undertake after the Rymers signed

a release giving the contractor permission to make repairs on the Property. Polo,

however, never made any repairs to the Property. The trial court found that there was

                                         8
no evidence that the Rymers detrimentally relied on Polo’s assurances because they

failed to provide Polo with access to the Property to make repairs. John Rymer,

however, deposed that he signed a release. As Polo concedes, John Rymer’s statement

creates a question of fact as to whether the Rymers executed a release to provide Polo

with access to the Property.

      Even if there is a question of fact as to the release, we may nevertheless affirm

the trial court’s grant of summary judgment if it is right for any reason, whether stated

or unstated, so long as the legal basis was fairly presented in the court below. See

Georgia-Pacific, LLC v. Fields, 293 Ga. 499, 504 (2) (748 SE2d 407) (2013). As Polo

argued in its motion for summary judgment, the Rymers’ 2014 deposition testimony

shows that they did not detrimentally rely on Polo’s representations that it would

make repairs to the Property.

      In 2011, John Rymer averred that he and his wife relied on Polo’s

representations that Polo was taking care of the stormwater drainage problems.

During his 2014 deposition, however, John Rymer said that there were no repairs that

could be made to the Property that would prevent flooding and that making minor

repairs with hand tools to the Property, as Polo had offered to do, would not have



                                           9
fixed the flooding. Diane Rymer deposed that any repairs to the Property would not

have fixed the flooding.

      Under the rule set forth in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga.

27 (343 SE2d 680) (1986), a party’s unexplained self-contradictory testimony must

be construed against him for purposes of summary judgment. See Thompson v. Ezor,

272 Ga. 849, 851 (1) (536 SE2d 749) (2000). Since the Rymers’ 2014 deposition

testimony contradicts John Rymer’s 2011 averment, we must construe this evidence

against the Rymers to mean that they do not believe that there are repairs that could

be done on the Property that would fix the flooding problem and, thus, they could not

have relied to their detriment on Polo’s promise to make repairs to the Property. See

Prophecy Corp., supra, 256 Ga. at 30 (2). Accordingly, Polo is entitled to summary

judgment on the Rymers’ promissory estoppel claim, and we affirm the trial court’s

grant of summary judgment as to that claim.

      2. The Rymers contend that the trial court erred in granting summary judgment

to Polo as to their claim for breach of legal duty because Polo was required to enforce

maintenance obligations on individual property owners and undertook its own

obligation to make repairs itself. For the reasons that follow, we agree in part.

      (a) The Covenants.

                                          10
      Although the Rymers have abandoned their earlier claim that the Covenants

impose an affirmative duty on Polo to maintain the drainage easements and

stormwater facilities itself, they contend on appeal that the Covenants require Polo

to force other homeowners to undertake necessary repairs. We disagree.

             Restrictive covenants on real estate run with the title to the land
      and are specialized contracts that inure to the benefit of all property
      owners affected. The construction, interpretation and legal effect of such
      a contract is an issue of law to which the appellate court applies the
      plain legal error standard of review. In construing a restrictive covenant,
      the trial court must decide whether the language is clear and
      unambiguous. If it is, the court simply enforces the contract according
      to its clear terms; the contract alone is looked to for its meaning.


(Citations omitted.) Crouch v. Bent Tree Community, 310 Ga. App. 319, 320 (1) (713

SE2d 402) (2011).

      The Covenants establish an Architectural Control Committee (the “ACC”) with

“the power and duty to approve or disapprove plans and specifications for any

installation, construction or alteration of any [s]tructure on any [l]ot.” The ACC is

also tasked with adopting design standards, both governing the form, content, and

procedure for the submission of plans and specifications and “establishing guidelines

with respect to the approval or disapproval of design features, architectural styles,

                                          11
exterior color and materials, details of construction, location and size of [s]tructures

and all other matters that require” ACC approval , as well as “assuring the conformity

and harmony of external design and general quality of” Polo Fields. The Covenants

give Polo and the ACC the right to enter any lot or structure, after giving reasonable

notice, to inspect it in order to determine whether it is being maintained in

compliance with the Covenants. The ACC may impose and collect fees to cover the

cost of inspections.

      As set forth above, sections 1.12 and 6.14 of the Covenants “provide that each

homeowner is to maintain and repair the structures on his own property, including

any stormwater facilities or device affecting or altering the natural flow of surface

waters on any lot.” Rymer I, supra, 294 Ga. at 489. Section 6.14 of the Covenants —

the maintenance provision — further provides that:

      If in the opinion of the ACC, any Owner shall fail to perform the duties
      imposed by this Section, the ACC shall notify [Polo]. If the Board shall
      agree with the determination of the ACC with respect to the failure of
      said Owner to perform the duties imposed by this Section, then [the]
      Board shall give written notice to the Owner to remedy the condition in
      question . . . . If the Owner shall fail to take reasonable steps to remedy
      the condition within [30] days . . ., then [Polo] shall have the Right of
      Abatement as provided in Section 8.02[.]


                                          12
(Emphasis supplied.) The ACC and the Board are similarly empowered to request

owners to take remedial action if any structure that is not in accordance with the plans

and specifications approved by the ACC is placed or maintained on a homeowner’s

property.

      The Covenants set forth various enforcement methods, including the right of

enforcement and the right of abatement. Section 8.01 states that the Covenants are

enforceable (1) by the declarant as long as it is an owner, (2) by each owner, and (3)

by the holder of any deed to secure debt upon any lot. As set forth above, the

declarant assigned its interest in Polo Fields to Fairgreen Capital. Accordingly, Polo

is neither a declarant, a property owner, not a holder of any deed to secure debt.

      Pursuant to section 8.02, “in the event of a violation or breach” of the

Covenants, Polo “shall give written notice” to the owner setting forth the violation

and required remedial actions. If the owner fails to take reasonable steps to remedy

the violation, then Polo has the right of abatement. The right of abatement is defined

as Polo’s right to “enter at all reasonable times” a lot or structure that is in violation

of the Covenants and take the remedial actions specified in the notice previously sent

to the homeowner. Pursuant to the right of abatement, if Polo takes remedial action,

it is not deemed to have committed a trespass and may file suit to collect the costs of

                                           13
the remedial action, as well as the costs of collection, reasonable attorney fees and

interest.

       The Covenants do not limit the rights of the declarant, Polo, or any homeowner

to file suit seeking money damages or an injunction in an effort to enforce the

Covenants. Polo also has the power to impose reasonable monetary fines on

homeowners for violations of the Covenants. If any cost is not paid as required under

the Covenants, Polo may enforce a lien or bring suit.

       The Rymers argue that because Polo has the right to abate violations of the

Covenants, it had an obligation to force homeowners to make repairs to the

stormwater drainage facilities within Polo Fields, or make the necessary repairs itself.

The Covenants, however, do not impose on Polo a mandatory duty to abate. Rather,

the Covenants permit Polo the right to abate. See Rymer I, supra, 294 Ga. at 489 (“If

the covenants are violated by a homeowner, Polo can pursue these remedies: file suit

against the homeowner; levy fines against the homeowner; [or] enter the

homeowner’s lot to make necessary repairs at the homeowner’s expense.”) (emphasis

supplied).

       Pursuant to the Covenants, Polo can exercise its right to abatement only after

it has determined that a homeowner is in violation of the Covenants’ maintenance

                                          14
provision, notified the homeowner of the violation at issue and asked the homeowner

to remedy the violation. “No principle of law is more firmly fixed in our

jurisprudence than the one which declares that the courts will not interfere in matters

involving merely the judgment of the majority in exercising control over corporate

affairs.” (Citation and punctuation omitted.) Vernon Bowdish Builder, Inc. v.

Spalding Lake Homeowners Assn., 196 Ga. App. 370 (396 SE2d 24) (1990).

Moreover, the Covenants vest the decision as to whether homeowners are in violation

of the maintenance provision of the Covenants with Polo. Accordingly, this Court

cannot substitute its judgment for that of Polo. See King v. Baker, 214 Ga. App. 229,

235 (5) (447 SE2d 129) (1994) (where restrictive covenants gave neighborhood

committee discretion to determine whether the number of animals on a particular

property is reasonable, trial court cannot substitute its own judgment).

      The essence of the Rymers’ complaint is that Polo should have exercised its

right of abatement by forcing other homeowners to make repairs to the stormwater

drainage facilities. Thus, the controversy turns on a difference in judgment between

the Rymers and Polo and does not create a cause of action in favor of the Rymers. See

Vernon Bowdish Builder, supra, 196 Ga. App. at 370 (controversy between

homeowner and homeowners’ association over whether association had done enough

                                          15
to maintain common area was not actionable). Accordingly, the trial court did not err

in granting summary judgment to Polo on the Rymers’ claim that Polo violated its

duty, under the Covenants, to force other homeowners to undertake necessary repairs.

      (b) Voluntary Undertaking.

      The Rymers also argue that, aside from the Covenants, Polo breached a legal

duty to make repairs when it announced that it was going to repair the drainage

facilities and then did not do so. We agree.

      Under well-established Georgia law, a person may be held liable for the

negligent performance of a voluntary undertaking. See Osowski v. Smith, 262 Ga.

App. 538, 540 (1) (586 SE2d 71) (2003).

      Under this principle, one who undertakes to do an act or perform a
      service for another has the duty to exercise care, and is liable for injury
      resulting from his failure to do so, even though his undertaking is purely
      voluntary or even though it was completely gratuitous, and he was not
      under any obligation to do such act or perform such service, or there was
      no consideration for the promise or undertaking sufficient to support an
      action ex contractu based thereon. When one undertakes an act that he
      has no duty to perform and another person reasonably relies upon that
      undertaking, the act must generally be performed with ordinary or
      reasonable care.


(Citations omitted.) Id.; see also Restatement (Second) of Torts § 323 (1965).

                                          16
      Contrary to the Rymers’ argument, Polo did not undertake a legal duty to repair

the drainage facilities in its 2006 letter to the Rymers since Polo disavowed any

responsibility for repairs in that letter. Nevertheless, there is evidence that in 2004,

a homeowner whose lot was downstream of the Rymers’ lot developed sinkholes on

his property. Some time later, Polo indicated that it would replace pipes on the

homeowner’s property, and although that homeowner consented to allow Polo to

inspect his property, it made no repairs. Additionally, in 2007, Polo commissioned

a study of the stormwater drainage facilities and began collecting funds to make

repairs to these facilities within Polo Fields.

      Moreover, in the 2009 letter to the Rymers, discussed above in Division (1) (b),

Polo not only promised to make repairs to the Property, it also indicated that it had

“worked extensively to evaluate and address [stormwater drainage] issues affecting

our neighborhood.” Polo also wrote that it was finalizing the selection of a contractor,

and would “soon be ready to move forward with a number of repairs.” As set forth

above, John Rymer averred that he and his wife relied on these representations and,

unlike Polo’s promise to repair the Property, there is no record evidence that the

Rymers did not rely on Polo’s promise to make repairs to other properties in Polo

Fields. Thus, the evidence is sufficient to raise a genuine issue of material fact as to

                                           17
whether Polo promised and voluntarily undertook to make repairs to other Polo Fields

homeowners’ properties by commissioning a study, collecting funds, identifying

properties, selecting a contractor, and obtaining the homeowners’ consent for

inspection. Accordingly, we reverse the trial court’s grant of summary judgment to

Polo on the Rymers’ claim for breach of legal duty based on a voluntary undertaking.

      3. The Rymers contend that the trial court erred in granting summary judgment

to Polo on their nuisance claim because Polo was obligated to repair the stormwater

facilities. We disagree.

      “The essential element of nuisance is control over the cause of the harm. The

tortfeasor must be either the cause or a concurrent cause of the creation, continuance,

or maintenance of the nuisance.” (Citation and punctuation omitted.) Grinold v.

Farist, 284 Ga. App. 120, 122 (2) (643 SE2d 253) (2007). Here, although there is a

genuine issue of material fact as to whether Polo promised to make repairs to the

stormwater drainage facilities within Polo Fields, there is no evidence that Polo

actually made any repairs to those facilities. Nor is Polo obligated, under the

Covenants, to make such repairs, since the evidence clearly shows that Polo does not

own or control any drainage facilities within Polo Fields. Accordingly, there is no

evidence that Polo exercised control over the alleged cause of the harm and the trial

                                          18
court did not err in granting summary judgment to Polo on the Rymers’ nuisance

claim. See Futch v. Lowndes County, 297 Ga. App. 308, 313 (5) (676 SE2d 892)

(2009) (holding that defendant was entitled to summary judgment where it exercised

no control over any nuisance-creating instrumentality).

         Thus, we affirm the trial court’s grant of summary judgment to Polo on the

Rymers’ promissory estoppel claim; we affirm the trial court’s grant of summary

judgment to Polo on the Rymers’ claim for breach of legal duty based on the

Covenants; we reverse the trial court’s grant of summary judgment to Polo on the

Rymers’ claim for breach of legal duty based on a voluntary undertaking; and we

affirm the trial court’s grant of summary judgment to Polo on the Rymers’ nuisance

claim.

         Judgement affirmed in part and reversed in part. Andrews, P. J., and Branch,

J., concur.




                                          19
