This section contains the nature of the case and procedural background.

D was the general contractor under an agreement with Thomas Enterprises/Fourth Quarter Properties (Owner) to build the Ashley Park shopping center (Project). D contracted with P to install drywall and drop ceilings, and to perform other work on the Project. The Subcontract contained a pay-if-paid provision, payments to P were expressly and unequivocally contingent upon and subject to Owner's acceptance of all Subcontract Work and D's receipt of payment from Owner for the Subcontract Work. P expressly acknowledged that it relies on payment under the Subcontract on the creditworthiness of Owner, and not that of D. It is expressly understood that any other basis for such non-payment by Owner, including the bankruptcy or insolvency of Owner, will not excuse this condition precedent to payment from D to P. P further agreed that Owner's acceptance of the Subcontract Work and Owner's payment to D for the Subcontract Work are express, independent conditions precedent to any obligation of Dto make any payments to P and are not merely expressions of the time or manner of such payments. D paid P's first three payment applications. Rumors started swirling about the solvency of the Owner. Gadi Gal-a co-owner of P-requested a meeting with D's project manager. During that meeting, Gal expressed concern about the Owner's ability to pay for the Project. D told Gal not to worry about the Owner's finances and to keep working, stating that D would pay P from its “own pocket” if necessary. P continued work and submitted a fourth payment application to D, who paid P the entire outstanding balance (via two separate checks-one issued in November and one issued in February), despite not having been paid in full for that work by the Owner. D refused to pay subsequent payment applications. P finished work on the Project with seven unpaid applications totaling approximately $465,888. The Owner did not pay any monies to D after September 2007, despite the continuing work and ultimate completion of the Project. D tendered no payment to P after the February 2008 check. P sued D, claiming that D waived the pay-if-paid provision through its conduct when D's employee assured P that D would pay. Plus D paid P's fourth payment application despite not having been paid in full by the Owner. The jury returned a verdict in favor of P for $465,888 plus interest, and the trial court entered judgment on the verdict. D appealed.

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