FIFTH DIVISION
DILLARD, P. J.,
REESE and BETHEL, 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.
http://www.gaappeals.us/rules
March 7, 2017
In the Court of Appeals of Georgia
A16A1988. AMERICAN ACAD. OF GEN. PHYSICIANS, INC. et
al. v. LAPLANTE.
BETHEL, Judge.
American Academy of General Physicians, Inc. (the “Academy”), American
College of General Medicine, Inc. (the “College”), and American Board of General
Practice, Inc. (the “Board”), (collectively, the “Organizations”) appeal from an order
enforcing the Settlement Agreement (the “Agreement”) with Sharron Lee LaPlante
(“LaPlante”). The Organizations argue the trial court erred in enforcing the
Agreement because the Organizations’ agents exceeded their authority, an essential
provision of the Agreement is void as against public policy, and there was no meeting
of the minds between parties. For the reasons explained below, we affirm because
there existed a sufficient meeting of the minds to validate and enforce the Agreement.
On appeal from a trial court’s order to enforce a settlement agreement, this
Court applies a de novo standard of review because
the issues raised are analogous to those in a motion for summary
judgment, [and] 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[.]1
So viewed, the evidence shows that The Organizations filed a complaint
alleging libel, slander, and other claims against LaPlante on April 13, 2012. After
contentious discovery disputes, the case was ordered to mediation in October 2013.
In January 2014, LaPlante moved for summary judgment on all claims, which the trial
court granted in part and denied in part.2 Mediation occurred on August 28, 2015, at
1
Johnson v. DeKalb Cty., 314 Ga. App. 790, 791 (726 SE2d 102) (2012)
(citation and punctuation omitted).
2
Summary judgment was granted in LaPlante’s favor as to the claims for
service mark infringement, deceptive trade practices, and breach of contract.
Summary judgment was denied as to the slander and libel claims.
2
which Drs. Jose Garcia3 (“Dr. Garcia”) and George Covert4 (“Dr. Covert”) and
attorney Robert Dyer (collectively, the “Agents”) appeared on behalf of the
Organizations; LaPlante, her attorney, and a mediator were also present. The parties
reached an agreement whereby LaPlante agreed to remove her websites5 from the
Internet, not publish any future websites using the domain names identified in the
Agreement, and not publish any information on any website in the future relating to
the Organizations. In return, the Organizations agreed to remove their websites6 from
the Internet and not publish a website in the future using the domain names identified
in the Agreement. The Agreement also provided for a general release by each party
from “any and all actions, causes of action, suits, debts, sums of money, accounts,
obligation, demands and damages, of every name, kind and nature whatsoever, past
3
Dr. Garcia’s official title at the time he signed the Agreement was Chief
Financial Officer for the Board and the College.
4
Dr. Covert’s official title at the time he signed the Agreement was President
and CEO of the Academy.
5
LaPlante owned the websites with the domain names: www.aagpscam.com,
www.acgmalert.com, www.abgpalert.com, and www.aagpalert.com. The
Organizations sued LaPlante alleging in part that LaPlante used those websites to post
defamatory material about the Organizations and their members.
6
The Organizations owned the websites with the domain names:
www.abgp.org, www.aapg.org, and www.acgm.org.
3
or present, whether known or unknown, whether at law or in equity, arising or
existing on account of any action or failure to act on or before the beginning of time
to the date of this Agreement.”
The Agreement was read into the record by the mediator in the presence of the
trial judge, the parties, and their counsel, and after a short discussion in open court,
was signed by the parties. About a month later, LaPlante moved to enforce the
Agreement, alleging the Organizations failed to comply with their responsibilities. On
February 10, 2016, the trial court heard arguments on the motion and later issued an
order finding paragraphs two and four valid and enforceable. The trial court found
that there existed a sufficient meeting of the minds to validate and enforce paragraph
two of the Agreement and ordered the Organizations to take down their websites. .
The trial court further found paragraph four to be valid and enforceable as the parties
clearly intended release one another of any and all claims which would include issues
regarding professional conduct. This appeal followed.
1. The Organizations argue the trial court erred in enforcing the Agreement
because the Agents exceeded their authority. The Organizations conceded in their
brief that the Agents were sent by the Organizations to attend court-ordered mediation
with authority to “settle the case” and contract on behalf of the Organizations. But the
4
Organizations argue that the Agents exceeded their authority if the intent of the
Agreement was to deny the Organizations a presence on the Internet. At the hearing
on LaPlante’s motion to enforce, the Organizations reiterated that the issue of
whether the Agents exceeded their authority was contingent upon whether the terms
of the Agreement prohibited the Organizations from having any presence whatsoever
on the Internet. However, on appeal, the Organizations now argue that the Agreement
itself was “extraordinary,” “entirely repugnant” and “so unreasonable” because the
Agents agreed to shut down the Organizations’ own websites without sufficient
reason, and that the Agents impliedly exceeded their authority by signing it. This
argument was not raised in the court below.
It is well settled that issues presented for the first time on appeal furnish
nothing for us to review[,] for this is a court for correction of errors of
law committed by the trial court where proper exception is taken. Nor
may [a plaintiff] alter the course of its arguments mid-stream, raising
issues on appeal that were not raised before the trial court.7
7
Pinnacle Prop. V, LLC v. Mainline Supply of Atlanta, LLC, 319 Ga. App. 94,
100, (735 SE2d 166) (2012) (citation and punctuation omitted). See also Pfeiffer v.
Ga. Dept. of Transp., 275 Ga. 827, 828-29 (2) (573 S.E.2d 389) (2002) (Court of
Appeals properly refused to review argument made in opposition to summary
judgment that was raised for the first time on appeal); CPD Plastering, Inc. v. Miller,
284 Ga. App. 172, 174(1) (643 SE2d 392) (2007) (party could not abandon an issue
in the trial court and on appeal raise questions or issues not raised below); and
5
Here, the trial court found that the Agreement did not prohibit the
Organizations from having any web presence, but only prohibited the Organizations
from using the aforementioned domain names and websites. The Organizations now
seek to alter their argument on appeal by removing the conditions upon which the
Agents exceeded their authority. This cannot be done on appeal. Accordingly, this
enumeration of error lacks merit.
But even if the Organization had raised this argument below, it would still fail
because “[i]n Georgia, settlement agreements are highly favored under the law and
will be upheld whenever possible” and the law cannot concern itself with the
Organizations lingering discontent over a bargain struck on the record and with the
benefit of counsel. Sanders v. Graves, 297 Ga. App. 779, 779 (678 SE2d 220) (2009)
(citations omitted). The trial court did not err when it enforced the Agreement.
2. The Organizations next argue that an essential element of the Agreement
contravenes federal law and is void as against public policy. Specifically, the
Organizations contend that the general release language in paragraph four of the
Venture Design v. Original Appalachian Artworks, Inc., 197 Ga. App. 432, 434(3)
(398 SE2d 781) (1990) (contractor could not argue for the first time on appeal that
an indemnity agreement was contrary to public policy under applicable statute and
was therefore invalid).
6
Agreement is unenforceable because it would illegally require the Organizations to
avoid compliance with federal law which requires healthcare entities to report
findings from their peer review actions.8 The trial court found that LaPlante had not
submitted herself to the authority of the Organizations9 because her membership with
the Organizations expired in 2010, and the Organizations did not have a right to
engage in a review of LaPlante’s professional conduct. We agree with the trial court.
The evidence shows that LaPlante was a member of the Organizations from
2005 until approximately 2010 when she stopped paying membership dues. The trial
court found that LaPlante had not been a member for a number of years and should
have been dropped from the Organizations’ membership rolls. However, the
Organizations argue LaPlante is still a member because she never formally resigned
8
Health Care Quality Improvement Act of 1986, 42 USC § 11133(a) (1) (c) (i)
(3) (“HCQIA”) provides in part that “[e]ach health care entity which. . . is a
professional society [and] takes a professional review action which adversely affects
the membership of a physician in the society, shall report to the Board of Medical
Examiners. . . the name of the physician or practitioner involved, a description of the
acts or omissions or other reasons for the action or, if known, for the surrender. . . as
the Secretary [of Health and Human Services] deems appropriate.”
9
The Academy is a “health care entity” under HCQIA. For our purposes, a
health care entity means a professional society of health care practitioners that engage
in professional review activity through a formal peer review process of its members.
See 45 CFR § 60.3.
7
her membership. This argument does not comport with the terms of the
Organizations’ membership agreement which requires members to pay annual dues
in order to maintain their membership. Those same terms also note that the peer
review of members is limited to the time in which they are members. In this case, the
peer review process was not initiated until February 2016, nearly six years after
LaPlante’s membership expired.10
It is well established under Georgia law that
[t]he cardinal rule of construction is to ascertain the intention of the
parties. If that intention is clear and it contravenes no rule of law and
sufficient words are used to arrive at the intention, it shall be enforced.
. . . Further, the construction which will uphold a contract in whole and
in every part is to be preferred, and . . . no construction is required or
even permitted when the language employed by the parties in the
contract is plain, unambiguous, and capable of only one reasonable
interpretation. It is well established that a court should avoid an
interpretation of a contract which renders portions of the language of the
contract meaningless.
Freund v. Warren, 320 Ga. App. 765, 768–69 (740 SE2d 727) (2013) (citation and
punctuation omitted).
10
The documents related to the peer review action were not included with the
record on appeal.
8
Here, the trial court found that, per the terms of the Agreement, the parties
clearly intended to have no further dealings with one another, which would include
issues regarding professional conduct. Nothing in the record suggests LaPlante is still
a member of the Organizations and therefore subject to their professional review
authority. The Organizations did not appeal the trial court’s ruling that LaPlante is no
longer a member, and as such, we agree that the Organizations are under no
obligation under federal law or have authority under the terms of their membership
agreement to review and report on the professional conduct of LaPlante.11
3. Finally, the Organizations argue that the Agreement is unenforceable
because there was no meeting of the minds. In the trial court , the Organizations
argued it was unclear from the language in the Agreement and subsequent
correspondence with LaPlante whether the Organizations were barred from ever
having any presence on the Internet. The Organizations concede that the Agreement
makes clear that the parties could not use the domain names or websites defined
11
The Organizations argue this Court’s holding Taylor v. Kennestone Hosp.,
Inc. applies because any contract to avoid the peer review reporting requirements of
HCQIA were void as against public policy. 266 Ga. App. 14, 22 (4) (b) (596 SE2d
179) (2004). The holding in Taylor is distinguished by the fact that the doctor had
submitted himself to the authority of the hospital and was therefore subject to the peer
review. Further, the agreement between the hospital and the doctor on its face
violated the reporting requirements of the completed peer review. Id.
9
therein. But the Organizations contend that the Agreement was interpreted by
LaPlante to mean the Organizations are barred from publishing “any website on any
domain name.” We disagree.
“[A]n agreement between two parties will occur only when the minds of the
parties meet at the same time, upon the same subject-matter, and in the same sense.
Cox Broad. Corp. v. Nat’l Collegiate Athletic Ass’n, 250 Ga. 391, 395 (297 SE2d
733) (1982) (citations omitted). “In determining if parties had the mutual assent or
meeting of the minds necessary to reach agreement, courts apply an objective theory
of intent whereby one party’s intention is deemed to be that meaning a reasonable
man in the position of the other contracting party would ascribe to the first party’s
manifestations of assent.” Id. “When parties to a contract . . . know that they have
different intents with respect to certain language before they enter into the contract,
there can be no meeting of the minds upon the same subject matter and in the same
sense and no agreement on that issue.” Id.
In this case, after the parties reached a settlement in mediation, the terms of the
Agreement were read into the record before the trial court. After the terms were read,
the following discussion occurred between the trial court and counsel for the parties:
10
COURT: Okay. May I ask a question? I know it’s probably irregular for
– in a mediation, but in the context of removing websites, is the –
without defining what that means, I guess it would be important for me
to know that the parties’ contemplation is that the websites would no
longer be active. Meaning that someone could not add content to those
websites and all parties understand that, even after these websites are
removed, there may be cached shadows of these websites forever.
MEDIATOR: And I think I can state the understanding of the parties,
Your Honor, to – to be corrected by Counsel, it’s their intent to take
these sites down – COURT: (Interposing) So they’re not active?
MEDIATOR: – not active. Completely take them down and they’re
going to have to work with the domain providers to – nobody can
provide any new content, reactivate these websites, and that’s why we
identified both the domain names that access the site and the sites
themselves. Is that an accurate statement? LAPLANTE’S COUNSEL:
That’s correct. ORGANIZATIONS’ COUNSEL: That’s our
understanding as well, Your Honor.
Nowhere in the record does LaPlante assert that the Organizations are barred from
having a presence on the Internet,12 and there is nowhere in the Agreement that
12
The Organizations references LaPlante’s November 2015 letter where
LaPlante restates the terms of the Agreement requiring the Organizations to remove
their domain names and websites from the Internet. The Organizations’ attempt to
interpret this letter to mean LaPlante implied the Organizations were barred from
having a presence on the Internet is a fallacy. The Agreement specifically defines the
websites and domain names subject to its terms, which is what LaPlante referenced
in her letter.
11
prohibits either party from ever having a presence on the Internet. The Agents, one
of whom was an attorney for the Organizations, had three opportunities (the initial
drafting of the Agreement, in open court when the Agreement was read into the
record, and after the trial court’s further inquiry) to raise any objections or ask
clarifying questions before signing the Agreement if they suspected LaPlante’s intent
differed from theirs. The trial court found the language of paragraph two of the
Agreement was specific to the domain names and particular websites identified
therein, and that it did not say the parties could not have a presence on the Internet.
We agree.
Further, the Organizations argue for the first time on appeal that under the
objective theory standard in Cox, there was no meeting of the minds because LaPlante
could not reasonably believe the Organizations would authorize the Agents to
abandon their websites and domain names. But the Organizations argued in the trial
court below that the meeting of the minds did not occur because LaPlante’s intent to
prohibit the Organizations from having any Internet presence whatsoever was not
contemplated by the parties at the time the Agreement was signed. “Routinely, this
Court refuses to review issues not raised in the trial court. To consider the case on a
completely different basis from that presented below would be contrary to the line of
12
cases holding, [plaintiffs] must stand or fall upon the position taken in the trial court.
Fairness to the trial court and to the parties demands that legal issues be asserted in
the trial court.”13 For this reason, we will not consider the Organizations’ objective
theory argument raised for the first time on appeal.
4. LaPlante seeks the imposition of $10,000 against the Organizations and their
counsel under Court of Appeals Rule 15 (b).14 Although we are not able to discern
any reasonable ground upon which the Organizations might have anticipated the
reversal of the trial court’s judgment, based on the record we cannot say that their
appeal was totally frivolous or solely to delay the enforcement of the Agreement.
Blomberg v. Cox Enterprises, Inc., 228 Ga. App. 178, 180 (2) (491 SE2d 430) (1997)
(citation omitted). Therefore, we decline to grant LaPlante’s motion for sanctions.
Judgment Affirmed. Dillard, P. J., and Reese, J., concur.
13
See Walls v. Sumter Reg’l Hosp., Inc., 292 Ga. App. 865, 867-68 (1) (666
SE2d 66) (2008)(citations omitted).
14
During the pendency of this appeal, Court of Appeals Rule 15 (b) governing
sanctions for frivolous appeals was replaced by Court of Appeals Rule 7 (e) (2).
13