                                                                     [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT           FILED
                            ________________________ U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                                                         JAN 15, 2008
                                    No. 07-11919
                                                                       THOMAS K. KAHN
                              ________________________
                                                                           CLERK

                         D. C. Docket No. 06-02764 CV-CAP-1

BANK OF NORTH GEORGIA,

                                                                         Plaintiff-Appellant,

                                            versus

REZNICK GROUP, P.C.,
A Maryland professional corporation,

                                                                       Defendant-Appellee.

                              ________________________

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

                                    (January 15, 2008)

Before ANDERSON and BLACK, Circuit Judges, and HODGES,* District Judge.

PER CURIAM:

______________
       *Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of
Florida, sitting by designation.
      After oral argument and careful consideration, we conclude that the

judgment of the district court is due to be affirmed. We glean from the entirety of

the complaint and the attached documents, especially the loan agreement with

Merrill Lynch, that the purpose of the challenged audit was to comply with the

requirement of the loan agreement that the audit be submitted to Merrill Lynch

promptly after the close of each fiscal year, so that Merrill Lynch could monitor the

financial health of PRS. The documents attached to the complaint, especially the

loan agreement and audit notes, do indicate that the line of credit would expire

each year, and had been renewed for the several past years. However, any

allegation that defendant knew that the line of credit would be refinanced with

another lender in 2004 and/or that defendant intended the audit to be used for such

other purpose is entirely speculative and finds no support in the non-conclusory

facts alleged and set forth in the documents attached to the complaint. See Griffin

Indus. Inc v. Irvin, 496 F.3d 1189, 1206 (11th Cir. 2007) (“[W]hen the exhibits

contradict the general and conclusory allegations of the pleading, the exhibits

govern.”). This court views as mere speculation plaintiff’s allegation that

defendant knew that the line of credit would be refinanced with another lender and

intended the audit to be used to induce the refinancing.

      The parties agree that the scope of the duty owed by defendant is governed

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by Georgia law. Contrary to plaintiff’s contention at oral argument, this case is not

like Robert & Company v. Rhodes-Haverty Partnership, 300 S.E.2d 503 (Ga.

1983). There, the defendant-engineer – whose report on the condition of the

building was challenged as negligent – knew that the report would be relied upon

by the limited class of prospective purchasers of the particular property. Unlike

Robert & Company, there is no non-conclusory allegation in this case that the

defendant knew that the instant audit would be relied upon by a limited class of

lenders other than Merrill Lynch. To the contrary, the complaint and the

documents attached thereto demonstrate that the purpose of the audit was to submit

it to Merrill Lynch in compliance with the loan agreement. Specifically, the loan

agreement required that an audit be submitted promptly after the close of each

fiscal year so that Merrill Lynch could monitor the financial health of PRS. It is

true that as a matter of general experience any accountant would know that the line

of credit would have to be renewed, refinanced or otherwise handled when it

expired, and thus any accountant or businessman would know that there is some

possibility that the line of credit would be refinanced by another lender. However,

that future possibility is more like the future possibility described in example ten of

the Restatement. Rest. 2d of Torts § 552 (2007). In other words, such a future

possibility is merely foreseeable, which is insufficient to sustain plaintiff’s claim

                                           3
under Georgia law.

      Plaintiff’s gross negligence claim fails for the same reasons that its negligent

misrepresentation claim fails. Because both of those claims fail, plaintiff’s claim

for punitive damages also fails.

      Accordingly, the judgment of the district court is

      AFFIRMED.




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