FIRST DIVISION
DOYLE, C. J.,
PHIPPS, P. J., and BOGGS, J.
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 16, 2015
In the Court of Appeals of Georgia
A15A1310. BENTON v. GAILEY, et al. BO-064
BOGGS, Judge.
In this interlocutory appeal, Lucille Benton appeals from the trial court’s order
denying her motion to enforce a settlement with Cara and Howard Gailey,
individually and as natural parents of Ayden Gailey, a minor. For the reasons
explained below, we affirm.
“On appeal from a trial court’s order on a motion to enforce a settlement
agreement, we apply a de novo standard of review.” (Citation and footnote omitted.)
Lamb v. Fulton-DeKalb Hosp. Auth., 297 Ga. App. 529 (677 SE2d 328) (2009).
Because the issues raised are analogous to those in a motion for
summary judgment, in order to succeed on a motion to enforce a
settlement agreement, a party must show the court that the documents,
affidavits, depositions and other evidence in the record reveal that there
is no evidence sufficient to create a jury issue on at least one essential
element of the appellant[‘]s case. Thus, we view the evidence in a light
most favorable to the nonmoving party.
(Citation, punctuation and footnote omitted.) Tillman v. Mejabi, 331 Ga. App. 415
(771 SE2d 110) (2015).
So viewed, the record shows that the settlement relates to an incident in which
Benton struck the minor Gailey while driving a car insured by Encompass Insurance
Company (“Encompass”). The child’s injuries were significant and it is alleged his
medical expenses exceed $500,000; Benton’s policy with Encompass had a $50,000
bodily injury liability limit.
A claim representative with Encompass submitted an affidavit averring that she
spoke with Howard Gailey by telephone on October 26, 2010 and he accepted her
offer to pay “$50,000 for settlement of Aiden Gailey’s claims.” In an affidavit
submitted in opposition to the motion to enforce settlement, Howard Gailey denied
that he orally agreed to accept the $50,000 settlement offer. According to Mr. Gailey,
he “never told [the claim representative] during that telephone conversation nor at
anytime after that conversation that I accepted or would agree to accept Ms. Benton’s
$50,000 policy limit in settlement of any claims.” It is undisputed that the claim
2
representative did not send a letter to Mr. Gailey confirming the purported settlement.
Instead, she sent “the file” to counsel, Kelley Webb, “to assist with the settlement
documents.” Webb spoke with Mr. Gailey and later his attorney, Steven Carter, about
the process to finalize a settlement involving a minor and averred in her affidavit that
Carter never asserted a settlement had not been reached. According to Webb,
finalizing the settlement through probate court was delayed for over a year while
Carter attempted to negotiate down various healthcare liens.
On October 1, 2012, almost two years after the purported oral settlement on
October 26, 2010, Carter sent a “Time Limited Settlement Demand” letter to Webb
stating, in pertinent part, that he was authorized to extend an offer to settle the claims
of the parents and the minor “on the following terms:” payment of $49,250.00 to the
parents and payment of $750.00 to the minor, through his natural guardians and
parents. The letter also provides:
For this settlement offer and opportunity to be timely accepted, I must
receive each of the following into my office by the stated deadline
[October 15, 2012 at 5:00 p.m.], provided their settlement offer has not
otherwise been previously rejected as contemplated by law:
1. $49,250.00 check from Encompass made jointly payable to
“Howard Gailey and Cara Gailey, in their capacity of
3
parents of Ayden Gailey, a minor and Stephen C.
Carter, P. C., their attorney”;
2. $750.00 check from Encompass made jointly payable to
“Howard Gailey and Cara Gailey as Guardians of the
Property of Ayden Gailey, a minor, and Stephen C.
Carter, P. C., their attorney”;
3. A certified copy of the declarations page of each policy of
insurance providing coverage to your insured applicable to
my clients’ respective claims; and
4. [Statement under oath by corporate officer or claim
manager regarding available insurance] (Emphasis in
original.)
After an exchange of letters between counsel about whether probate court approval
was required for the settlement, on October 15, 2012, before the deadline for
acceptance expired, Webb sent Carter a letter stating, in pertinent part:
Encompass Insurance Company on behalf of Lucille Benton accepts
your October 1, 2012 offer but is statutorily required to have Probate
Court approval of this settlement pursuant to OCGA § 29-3-1 et seq.,
and therefore our acceptance is subject to Probate Court approval. . . .
Per your October 1, 2012 correspondence, also enclosed please find an
4
“Affidavit of Insurance” and a certified declaration page for Encompass
Insurance policy 186924014. (Emphasis supplied.)
It is undisputed that Encompass never delivered to Carter the checks specified in the
October 1, 2012 demand letter.
1. Benton asserts that the trial court erred by failing to enforce the alleged oral
agreement on October 26, 2010. We disagree.
Compromises of doubtful rights are upheld by general policy, as tending
to prevent litigation, in all enlightened systems of jurisprudence. In
considering the enforceability of an alleged settlement agreement,
however, a trial court is obviously limited to those terms upon which the
parties themselves have mutually agreed. Absent such mutual
agreement, there is no enforceable contract as between the parties. It is
the duty of courts to construe and enforce contracts as made, and not to
make them for the parties. . . . While an agreement may be oral, if the
parties disagree on whether an agreement was reached, the agreement
must be memorialized in a writing to be enforceable, and the absence of
a writing prevents enforcement.
Imerys Clays, Inc. v. Washington County Bd. of Tax Assessors, 287 Ga. App. 674,
675 (652 SE2d 580) (2007). Here, Benton has not produced a writing memorializing
the terms of the alleged settlement reached on October 26, 2010. As a result, the trial
court did not err by denying this portion of Benton’s motion to enforce an alleged
5
settlement. See id.; Ellerin & Assoc. v. Brawley, 263 Ga. App. 860, 865 (5) (589 SE2d
626) (2003).
2. Benton asserts, in the alternative, that the trial court erred by concluding
Encompass failed to accept the Gaileys’ October 1, 2012 settlement offer. Again, we
disagree.
It is well-settled that
An answer to an offer will not amount to an acceptance, so as to result
in a contract, unless it is unconditional and identical with the terms of
the offer. To constitute a contract, the offer must be accepted
unequivocally and without variance of any sort. A purported acceptance
of a plaintiff’s settlement offer which imposes conditions will be
construed as a counter-offer to the offer to settle. . . . (Punctuation
omitted.) Herring v. Dunning, 213 Ga. App. 695, 698 (446 SE2d 199)
(1994).
(Punctuation omitted.) Frickey v. Jones, 280 Ga. 573, 574 (630 SE2d 374) (2006).
And “[t]he offer must be accepted in the manner specified by it; and if it calls for a
promise, then a promise must be made; or if it calls for an act, it can be accepted only
by the doing of the act.” (Citation and punctuation omitted.) Herring, supra, 213 Ga.
App. at 699. Here, Encompass’s October 15, 2012 letter did not accept the offer
“unequivocally and without variance of any sort.” Id. at 698. Instead, it expressly
6
stated that “our acceptance is subject to Probate Court approval.” (Emphasis
supplied.) Additionally, Encompass failed to deliver the check as specified in the
offer. While Encompass’s position that probate court approval was required for the
settlement may be a defense to any potential claim for bad faith failure to settle,1 it
cannot be used to alter the terms for acceptance outlined in the Gaileys’ offer letter.
See Kitchens v. Ezell, 315 Ga. App. 444, 449 (1) (a) (726 SE2d 461) (2012) (physical
precedent only) (party “entitled to specify the manner of acceptance”). For these
reasons, we affirm the trial court’s denial of Benton’s motion to enforce an alleged
settlement on October 15, 2012. See Kemper v. Brown, 325 Ga. App. 806, 808 (1)
(754 SE2d 141) (2014) (insurer’s demand that plaintiff place settlement funds into
an escrow account to protect interests of any pending liens “clearly constituted a
counteroffer” and rejection of plaintiff’s offer).
3. In her remaining enumeration of error, Benton asserts that “the trial court
disregarded OCGA § 29-3-3 (f), requiring that the gross settlement of a minor’s claim
must be approved by court should it exceed $15,000.” In its order denying Benton’s
motion to enforce the purported settlements, the trial court also rejected “Benton’s
contention that Encompass could not accept the settlement opportunities provided by
1
We express no opinion on the merits of this position.
7
the Demand Letter by delivering checks as demanded without first obtaining court
approval.” Based upon our holding in Division 2, it is not necessary for this court to
address whether the trial court properly concluded that probate court approval was
not required for the settlement of the minor’s claim. “The fact that appellants might
possibly derive some future benefit from a favorable adjudication on an abstract
question will not require this court to . . . decide the case.” (Citation and punctuation
omitted.) Merrill v. Eiberger, 198 Ga. App. 806 (403 SE2d 91) (1991). Whether
probate court approval was necessary for a valid settlement of the minor’s claim is
immaterial to our analysis of whether the Gaileys’ offer was accepted. We therefore
decline to issue an advisory opinion on this issue. Huff v. The Harpagon Co., 286 Ga.
809, 811 (2) (692 SE2d 336) (2010) (“Georgia appellate courts are not authorized to
render advisory opinions as to potential error. [Cits.]”).
Judgment affirmed. Doyle, C. J. and Phipps, P. J., concur.
8