SECOND DIVISION
MILLER, P. J.,
MERCIER and COOMER, 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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
October 21, 2020
In the Court of Appeals of Georgia
A20A1270. PRITCHARD v. MENDOZA.
MILLER, Presiding Judge.
In this personal injury action, Juanita Gail Pritchard appeals from the trial
court’s order granting Marite Mendoza’s motion to enforce a settlement. On appeal,
Pritchard argues that the trial court committed reversible error because Mendoza
could not prove that Progressive Mountain Insurance Company completed the acts
necessary for acceptance of Pritchard’s offer and because Progressive’s purported
acceptance of the offer was not identical, unequivocal, and without variance of any
sort when compared to the offer. We agree that the parties did not reach a binding
settlement agreement, and we therefore reverse.
We apply a de novo standard of review to a trial court’s order on a
motion to enforce a settlement agreement. 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 omitted.) Duenas v. Cook, 347 Ga. App. 436, 436-437 (818 SE2d 629)
(2018).
So viewed, in November 2016, Mendoza allegedly made an improper left turn
and collided with Pritchard. Progressive Mountain Insurance Company was
Mendoza’s liability insurance carrier. On November 20, 2018, Pritchard’s attorney
sent Progressive a time-limited settlement offer in accordance with OCGA § 9-11-
67.1. The offer of compromise provided in part:
The material terms of this written offer of compromise to Progressive
made pursuant to OCGA § 9-11-67.1 (a) are as follows:
1. The time period within which the material terms pursuant to OCGA
§ 9-11-67.1 (a) must be accepted is thirty-five (35) days from your
receipt of this offer;
2. The amount of monetary payment is Progressive’s liability policy
limit of $25,000.00 . . . ;
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3. The party that Ms. Pritchard will release is Ms. Mendoza;
4. The type of release that Ms. Pritchard will provide to Ms. Mendoza
is a General Release that releases “all personal and bodily injury claims
only,” . . . ;
5. The claims to be released by Ms. Pritchard pursuant to a General
Release are “all personal and bodily injury claims only,”. . . .
Pursuant to OCGA § 9-11-67.1 (b), acceptance of the material terms
made pursuant to OCGA § 9-11-67.1 (a) is to be made by providing
written acceptance of the material terms outlined immediately above
pursuant to OCGA § 9-11-67.1 (a) in their entirety. The offer provided,
however, that the written acceptance of the material terms enumerated
above was not sufficient to form a binding settlement contract. The offer
further stated, “the following ACTS are material to acceptance and must
be completed to form a binding settlement contract, and completion of
each and every one of the following ACTS without variance of any sort
is required as a material term of this written offer of compromise in
addition to the material terms.” It continued as follows:
Since Progressive will require Ms. Pritchard to sign a release of its
insured, that release must fully comply with each and every term and
condition of this offer (including the footnotes in this letter) . . . . In
order to accept this offer of compromise, Progressive must perform the
ACT of delivering a release that fully complies with each and every
requirement of this offer. If Progressive does not perform the ACT of
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delivering a release that fully complies with each and every requirement
of this offer, this offer has not been accepted. . . . If Progressive delivers
a release that does not comply with each and every requirement of this
offer of compromise, it will be a rejection of this offer, and it will
constitute a counteroffer. This firm will not revise or re-write the release
sent by Progressive in order to make it comply with this offer. This firm
will not strike through non-complying terms, conditions, or
representations contained in the release in order to make a
non-complying release comply with the terms and conditions of this
offer. . . . It takes work to draft and/or revise a release. Neither Ms.
Pritchard nor this firm is willing to provide the work necessary to draft
or revise a noncomplying release. Progressive has a vast number of
lawyers available to it.
A footnote in the offer stated that Pritchard
will not agree to any specific venue provisions, jurisdiction provisions,
arbitration provisions, choice of law provisions, or any alteration of the
standard six-year period of limitations of actions for written contracts.
Any request for any specific venue provisions, jurisdiction provisions,
arbitration provisions, choice of law provisions, or any alteration of the
standard six-year period of limitations of actions for written contracts or
the inclusion of these provisions or alterations, directly or indirectly, in
the release you send to us will be a counteroffer and rejection of this
offer of compromise. The offer continued as follows:
This offer of compromise represents a significant concession by Ms.
Pritchard with regard to the value of this case. This offer of compromise
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is not sufficient to provide full and complete compensation to Ms.
Pritchard; the amount is not sufficient consideration to compensate Ms.
Pritchard; and this offer of compromise does not represent a satisfaction
of Ms. Pritchard’s claims. Accordingly, Progressive may not include any
language or even request to include any language in the release
indicating in any way that its payment of policy limits provides full
compensation, complete compensation, sufficient consideration,
sufficient compensation, satisfaction, accord and satisfaction, and/or any
other terms that indicate that Ms. Pritchard’s claim has been satisfied
and/or that the consideration is sufficient for any purpose and/or that
Ms. Pritchard has been completely compensated as a result of the
payment of policy limits by Progressive. . . . In other words, if this offer
of compromise is accepted through the completion of the acts stated
herein, Ms. Pritchard will sign a release acknowledging receipt of the
consideration but not the sufficiency of the consideration. . . . If
Progressive includes or even requests to include language in the release
indicating in any way that its payment of policy limits equates to full
and complete compensation and/or sufficiency of consideration and/or
satisfaction of Ms. Pritchard’s claim, it will constitute a counteroffer. .
..
In a letter to Pritchard’s attorney dated December 12, 2018, Progressive
responded that it agreed to all the terms and conditions of the offer. Progressive
attached a check for $25,000 and Mendoza’s affidavit indicating that she had no other
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insurance policy at the time of the collision under which coverage could be provided.
Progressive also attached a document titled “Georgia General Release - All Personal
and Bodily Injury Claims Only.” The release stated that, for the “sole consideration”
of $25,000, “the receipt and sufficiency of which is hereby acknowledged,” Pritchard
“does hereby remise and forever discharge, Marite Mendoza . . . of and from any and
all personal and bodily injury claims arising from, by reason of, or resulting, from a
certain accident which happened on or about November 28, 2016.” The release also
stated, “[t]he Undersigned acknowledges and represents that it is agreed that this
General Release and all its terms and provisions are to be construed in accordance
with the Law of the State of Georgia.”
In a letter dated January 10, 2019, Pritchard’s counsel informed Progressive
that it failed to deliver a release that complied with all the terms and conditions of the
offer of compromise, that Progressive had issued a counteroffer, and that Pritchard
was declining the counteroffer and returning the check. In a follow-up e-mail,
Pritchard’s attorney explained that Pritchard would not agree to any choice of law
provisions because she was confined to a rehabilitation facility in Mississippi and did
not wish to be subjected to the law of any particular state in the event of a contract
dispute. He added that the release had improperly included language that the $25,000
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was consideration “sufficient” for any purpose and that there were additional terms
that had failed to mirror the offer of compromise.
Pritchard filed the instant lawsuit, asserting that Mendoza was negligent in
causing the November 2016 traffic accident. Mendoza filed a motion to enforce
settlement, arguing that a binding settlement agreement was reached between both
parties with regard to the settlement of Pritchard’s claims. In Pritchard’s response, she
contended that no binding settlement agreement had been reached because
Progressive’s release contained prohibited language regarding the “sufficiency” of
the dollar amount and a choice of law provision, rendering it a counteroffer. Pritchard
also argued that the release included additional terms that formed a counteroffer.
After a hearing, the trial court granted Mendoza’s motion in a cursory order,
determining that the material terms of the officer of compromise were met and that
a binding settlement was reached. The trial court also dismissed Pritchard’s complaint
with prejudice. This appeal followed.
In her sole enumeration of error on appeal, Pritchard argues that the trial court
erred by enforcing a settlement contract when Mendoza could not prove that
Progressive completed the acts necessary for acceptance of the offer and when the
purported acceptance of the offer was not identical, unequivocal, and without
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variance when compared to the offer. Specifically, Pritchard asserts that Progressive’s
release contained a sufficiency-of-consideration provision and a choice of law
provision that were prohibited by her offer. We agree.
[W]ell-established principles guide our inquiry into whether the parties
entered into a settlement agreement. In order to prevent litigation,
compromises of doubtful rights are upheld by general policy. At the
same time, courts are certainly limited to those terms upon which the
parties themselves have mutually agreed. Indeed, apart from such mutual
agreement, no enforceable contract exists between the parties. And
settlement agreements must meet the same requirements of formation
and enforceability as other contracts. Thus, 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. The offer must
be accepted unequivocally and without variance of any sort. And if a
purported acceptance of the plaintiff’s settlement offer imposes any new
conditions, it constitutes a counteroffer rather than an acceptance.
Furthermore, the party asserting the existence of a contract has the
burden of proving its existence and its terms.
(Citation omitted.) Hansen v. Doan, 320 Ga. App. 609, 611-612 (740 SE2d 338)
(2013). “Given that under the common law an offeror is free to set the terms of his of
her offer, . . . every Pre-Suit Offer must contain the five enumerated terms [in OCGA
§ 9-11-67 (a)], but additional terms are not prohibited.” Grange Mut. Cas. Co. v.
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Woodard, 300 Ga. 848, 855 (2) (B) (797 SE2d 814) (2017). Thus, “a claimant may
ask the recipient of a Pre-Suit Offer to do something to accept the offer beyond
stating the recipient’s acceptance in writing.” Id. “The offer must be accepted in the
manner specified by it; and if it calls for an act, it can be accepted only by the doing
of the act.” (Citation and punctuation omitted.) Partain v. Pitts, 338 Ga. App. 298,
300 (787 SE2d 354) (2016). Therefore, “if the recipient of a Pre-Suit Offer is asked
to do something more to accept, the parties do not have a meeting of the minds if the
recipient does not also perform that action.” Woodard, supra, 300 Ga. at 856 (2) (B).
“A purported acceptance of an offer that varies even one term of the original offer is
a counteroffer.” (Emphasis supplied.) Kemper v. Brown, 325 Ga. App. 806, 808 (1)
(754 SE2d 141) (2014).
Here, Pritchard unambiguously stated in her offer that, in addition to an
agreement to the material terms in OCGA § 9-11-67 (a), additional acts were required
to form a binding agreement, including the delivery of a particular release. Pritchard
was explicit that she would not agree to any jurisdiction, venue, or choice of law
provisions and that the inclusion of any such provisions in the release would render
the release a counteroffer and a rejection of her offer. Similarly, Pritchard made clear
that (1) she would not sign a release acknowledging the sufficiency of the
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consideration; and (2) the inclusion of any language in the release regarding the full
payment of the policy limit equating to sufficient consideration would render the
release a counteroffer. Yet, Progressive tendered a release that included sufficiency-
of-consideration language and a choice of law provision, which was contrary to
Pritchard’s offer. It also bears emphasizing that the offer explained that Pritchard
would neither revise the release nor strike any non-complying terms. Compare
Hansen, supra, 320 Ga. App. at 614 (1) (binding settlement agreement formed where
plaintiff’s offer requested the exclusion of indemnification language from the release
and Liberty Mutual tendered the policy limits and delivered a draft release “with the
clear understanding that [the plaintiff’s] attorney could tailor the release to fit his
demand”). When viewed in the light most favorable to Pritchard as the non-moving
party, the release in this case was not “identical with the terms of the offer,” nor was
it unvarying from the precise terms of the offer. Id. at 612. Therefore, Progressive did
not perform an act that was required for acceptance of Pritchard’s offer, and the
parties did not reach a binding settlement agreement. Yim v. Carr, 349 Ga. App. 892,
908 (2) (827 SE2d 685) (2019) (“[W]here, as here, the offer specifies a particular
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release that is necessary for effectuating the settlement, there is no acceptance if the
responding party does not accept that release.”).1
Accordingly, we reverse the trial court’s grant of the motion to enforce
settlement.
Judgment reversed. Mercier and Coomer, JJ., concur.
1
Given our conclusion, we do not address Pritchard’s additional arguments
regarding why the grant of the motion was error.
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