FIFTH DIVISION
MCFADDEN, P. J.,
GOBEIL and LAND, 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
August 22, 2022
In the Court of Appeals of Georgia
A22A0764. HODGE v. PARLOR.
LAND, Judge.
On appeal from the trial court’s orders1 granting appellee Jeffrey Parlor’s
motion to enforce a compromise settlement agreement, appellant Joseph Hodge
argues that the express terms of Hodge’s settlement offer were not met, that there was
no meeting of the minds regarding the settlement offer and terms of acceptance, and
that the arrival of the settlement check after the date demanded was fatal to the
settlement agreement. We disagree and affirm.
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The trial court granted appellee’s motion to enforce a compromise settlement
agreement on March 15, 2021 , and entered a final judgment on the motion on
November 22, 2021.
A trial court’s order on a motion to enforce a settlement agreement is reviewed
de novo. (Citation omitted.) Yim v. Carr, 349 Ga. App. 892, 900 (2) (827 SE2d 685)
(2019).
[T]o 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 [a]ppellant’s
case. Thus, we view the evidence in a light most favorable to the
nonmoving party.
(Citation omitted.) Id.
So viewed, the evidence shows that on October 12, 2019, while driving his
vehicle westbound on Highway 96 in Houston County, Parlor made a left turn into
an intersection and collided with Hodge, who was traveling eastbound on his
motorcycle on the same highway. Hodge was ejected from his motorcycle and
transported to the hospital to be treated for his injuries from the crash. Hodge filed
suit against Parlor for personal injuries on October 28, 2019. Shortly thereafter, on
November 6, 2019, Hodge’s counsel mailed a demand letter to Parlor’s insurance
company, Farmers Insurance Company/Mid-Century Insurance Company
(“Farmers”), which stated in relevant part:
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We want to get this case settled but there is no way that we are going to
settle for less than the policy limits of $50,000.00, moreover, I am going
to have to put a time limit on our offer to settle for that sum[.] Therefore,
please consider this letter as notice that our offer to settle for the full
amount of your policy, in exchange for a limited release, that will
remain open for seven (7) days from the delivery of this letter[.] At the
expiration of seven (7) days, if delivery of the same is not in our office
by 5:00 pm on November 14, 2019, our offer to settle within the policy
limits will be withdrawn and we will have to proceed to trial.
On November 11, 2019, Hodge received a response letter from Farmers stating:
By this letter, Mid-Century Insurance Company unconditionally and
unequivocally renders it’s [sic] limits of $50,000.00 on behalf of the
insured Jeffrey Parlor.
We will forward a settlement check in the amount of $50,000.00 which
represents the tender of the available per person limits under the
applicable liability policy to our defeans [sic] counsel, Evan Merest
[sic]. Mr. Merest will be in touch regarding the Limited Liability
Release.
That same day, Farmers forwarded to Parlor’s counsel a settlement check in the
amount of $50,000.00, made payable to Hodge and his counsel, stating that the check
“resolv[es] the above matter for Joseph Hodge.” However, the settlement check was
not sent to Hodge’s counsel until several days later. On November 19, Hodge’s
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counsel informed Farmers that “due to Farmers Insurance [sic] failure to comply with
the terms of our time limited demand our client has withdrawn his offer to settle
within the Defendant’s policy. We will now continue with discovery.” Hodge’s
counsel did not specify with which terms of the demand Farmers had failed to
comply.
On November 21, Parlor’s counsel, in accordance with Farmer’s instructions,
forwarded the settlement check for $50,000.00 to Hodge’s counsel. On December 6,
Hodge’s counsel returned the check to Parlor’s counsel with the explanation that
Hodge’s settlement offer had already been rescinded “for failure to fully comply the
terms [sic] set out in our time limit demand.”
On December 18, Parlor filed a motion to enforce the settlement agreement,
and after oral argument, the trial court issued an order granting Parlor’s motion. The
parties continued to disagree over finalizing the settlement agreement, and in July
2021, Parlor filed a motion for sanctions. Parlor’s motion for sanctions was denied,
but the court issued an order of final judgment as to enforcement of the compromise
settlement agreement in favor of Parlor. This appeal followed.
1. Hodge contends that there was no meeting of the minds regarding the
settlement offer and terms of acceptance, and that the express terms of his settlement
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offer were not met. Specifically, Hodge argues that the portion of the settlement offer
stating that “if delivery of the same is not in our office by 5:00 pm on November 14,
2019, our offer to settle within the policy limits will be withdrawn” required Farmers
to deliver payment of $50,000.00 to the office of Hodge’s counsel on or before 5:00
pm on November 14, 2019 to create a binding settlement agreement. We disagree.
“Settlement agreements are subject to the same requirements of formation and
enforceability as other contracts.” (Citations and punctuation omitted.) Progressive
Mountain Ins. Co. v. Butler, __ Ga. App. __, at __ (2) (Case No. A22A0322, decided
June 22, 2022). Accordingly, “an agreement to settle a pending dispute is formed only
when the minds of the parties meet at the same time, upon the same subject matter,
and in the same sense.” (Citation omitted.) Id. “When an offer to settle has been
extended, an answer to the offer will amount to an acceptance only if it is
unconditional and identical with the terms of the offer.” (Citation and punctuation
omitted.) Id. A settlement offer may be accepted “either by a promise to do the thing
contemplated therein, or by the actual doing of the thing.” (Citation omitted.) Herring
v. Dunning, 213 Ga. App. 695, 699 (446 SE2d 199) (1994). “The 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.”
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(Citation omitted.) Id. However, “[t]he law favors compromise, and when parties have
entered into a definite, certain, and unambiguous agreement to settle, it should be
enforced.” (Citation and punctuation omitted.) Cumberland Contractors, Inc. v. State
Bank and Trust Co., 327 Ga. App. 121, 127 (3) (755 SE2d 511) (2014). “In
determining if parties had the mutual assent or meeting of the minds necessary to
reach agreement, courts apply an objective theory of intent[.]” (Citation and
punctuation omitted.) Yim v. Carr, 349 Ga. App. at 904 (2). When applying this
theory, “one party’s intention is deemed to be that meaning a reasonable person in the
position of the other contracting party would ascribe to the first party’s manifestations
of assent.” Id.
While Hodge could have specified that acceptance of the settlement offer
required the delivery of a check to his counsel before November 14, he did not.
Hodge’s settlement offer first presented the settlement amount demanded: “there is
no way that we are going to settle for less than the policy limits of $50,000.00.”
Hodge then stated that there would be a “time limit” on the “offer to settle for that
sum.” Finally, Hodge stated that the letter should be considered as “notice that our
offer to settle for the full amount of your policy, in exchange for a limited release, that
will remain open for seven (7) days from the delivery of this letter”; and that the offer
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would be withdrawn “if delivery of the same is not in our office by 5:00 pm on
November 14, 2019.”
Hodge argues that “delivery of same” meant delivery of payment, but the only
payment provision in Hodge’s settlement offer is to the amount of payment. Hodge
refers to historical uses of the phrase “delivery of same” to bolster his argument that
“same” should be understood as “payment,” but the cited cases instead show that the
phrase is commonly used to refer back to a subject identified earlier in the sentence
or paragraph. See, e. g., Anderson v. Baker, 1 Ga. 595, 595 (1846) (“To constitute a
valid parol-gift of a chattel, there must be an immediate delivery of the same”)
(emphases supplied); Brown v. White, 73 Ga. App. 524, 525 (37 SE2d 213) (1946)
(“Petitioner shows further that the said Mildred Rice Sagal was at all times at the
signing of the contract of sale . . . after the signing of the same by Mrs. Mildred Rice
Sagal and after the delivery of the same . . . “) (emphases supplied). However,
Hodge’s settlement offer refers only to the agreement to settle for the fully policy
limits, and therefore, “delivery of same” cannot refer back to any required deadline
for payment of the settlement amount. As such, a reasonable person in Farmers’
position would have understood that “delivery of same” referred back to the “offer
to settle” used earlier in the letter, and that the offer required an acceptance of
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Hodge’s settlement offer within seven days, not the delivery of payment.
Accordingly, there was no requirement in Hodge’s settlement offer that payment be
delivered on or before 5:00 pm on November 14, 2019.
Farmers’ November 11 response, which “unconditionally and unequivocally”
accepted Hodge’s settlement offer, was sent within the seven-day time frame for
acceptance. The additional information that Farmers included in the letter, including
that a check would be forwarded to Parlor’s counsel and that he would be in touch
regarding the release agreement, did not impose any additional conditions and did not
convert the acceptance into a counteroffer. See Progressive Mountain Ins. Co., __ Ga.
App. at __ (2) (letter was not a counteroffer where additional instructions were
“purely informational and did not impose any additional conditions”). Thus, the
required offer and unconditional acceptance were present, and a binding settlement
agreement was created. See e. g., id. (counsel’s letter unconditionally accepting
insurers’s offer to settle claims for $17,500 created binding settlement agreement);
Turner v. Williamson, 321 Ga. App. 209, 213 (2) (738 SE2d 712) (2013) (binding
settlement agreement formed where insurance-claims handler’s written and oral
communications showed unequivocal acceptance of an offer to settle for insurance
policy limits in exchange for execution of statutory release form); Vildibill v. Palmer
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Johnson of Savannah, Inc., 244 Ga. App. 747, 749 (1) (536 SE2d 779) (2000) (letter
accepting offer to settle for specific dollar amount in return for “any release you deem
appropriate” created a binding settlement agreement); Herring, 213 Ga. App. at
698-699 (attorney’s letter accepting plaintiff’s offer to settle claims for $15,000 in
exchange for full and final release created binding settlement agreement).
2. Hodge also argues that the arrival of the settlement check after the date
demanded was fatal to the settlement agreement. As explained above, the settlement
offer only required acceptance of the offer by the date demanded, not delivery of
payment. Because a party’s “failure to tender payment of the settlement amount bears
on [the party’s] performance of the settlement agreement, not its existence or
validity,” this contention fails. Progressive Mountain Ins. Co., __ Ga. App. at __ (3).
Accordingly, the trial court did not err.
Judgment affirmed. McFadden, P. J., and Gobeil, J., concur.
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