Thе City of Albany (“the city”) appeals from a trial court’s order enforcing a settlement between the city and Linda and George Freeney, contending genuine issues of material fact preclude еnforcement of the alleged settlement. The city also asserts that the trial iourt erred by awarding attorney fees under OCGA § 9-15-14 without holding a hearing and without making the requisite findings of fact and conclusions of law. Fоr the reasons set forth below, we reverse.
A de novo standard of review applies to a trial court’s order on a motion to enforce a settlement agreement. DeRossett Enterprises v. Gen. Elec. Capital Corp.,
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. . . .
(Citations, punctuation and footnotes omitted.) Id.
So viewed, the record shows that the attorneys representing the opposing parties in this action disagreе as to whether the city agreed to settle the Freeneys’ property damage claims separately from their personal injury claims during a settlement conference. The attorneys agrеe that they met on May 19, 2010 to discuss settlement. Several others were also present.
The city’s attorney submitted an affidavit claiming that he “made an offer in the amount of $104,902.19 to settle all of the Freeneys’ claims” during the conference, an offer the Freeneys rejected. In his deposition, the city’s attorney testified unequivocally that there were “never any offers made by the [c]ity to bifurcate this into settling property damage . . . [separate from] personal injury. All of the offers by the [c]ity were to settle the entire claims of the Freeneys.”
The Freeneys’ attorney submitted an affidavit in which he avеrred that at the conclusion of the meeting, the city’s attorney “offered $29,902.19 for [plaintiffs’ property damage claims and $75,000 for [pllaintiffs’ personal injury claims. [The city]’s attorney did not state, and never stated, that these
A former city employee who was present at the settlement conferencе submitted an affidavit about her recollection of what was said during the conference. She claimed that the city’s attorney “plainly stated” that the city did “not dispute and agreed to pay the prоperty damages claims of the Freeneys. . . . [The city’s attorney] made it clear that the only remaining issue was how to best resolve the Freeney[s’] . . . personal injury claims.” She explained that the city’s аttorney offered $75,000 to settle the Freeneys’ personal injury claims “in addition to the amount[ ] for property damage which [was] not in dispute. The offered amounts were not stated in terms of a combined property damage and personal injury settlement.” According to the city employee, no city representative ever stated during the May 19, 2010 meeting or any other meeting that the Freeneys
had to accept the personal injury and property damage offers together, or not at all. It was very clear and understood by all in attendance, that the property damage and personal injury offers were made separately and independently of the other . . . because resolution of the property damage claims was never in issue.
Other city employees alsо present at the May 19, 2010 meeting submitted affidavits in which they averred that an offer was made during the settlement conference to settle all of the Freeneys’ claims for $104,902.19 and that the city’s attorney “never stated that the [c]ity agreed to pay solely the property damage claim[ ]....”
Following the settlement conference, the Freeneys’ attorney sent a four-page letter to the city’s attorney outlining his position on the city’s liability for the personal injury claim. At the conclusion of the letter, he stated that his clients “will accept the offer to pay off the property damage in full in the amount of $29,902.19, but regarding the personal injury claim they have requested that I reject your counteroffer of $75,000 . . . and make a counteroffer . . . for their combined personal injury claims.”
The city did not resрond to this letter or another letter sent the following day. The city’s attorney explained that he did not respond in writing to the May 19, 2010 letter because the counteroffer was too high and the city was not “interested in settling it at that price.” He considered the acceptance of the alleged property damage settlement offer as “self-serving” because “there wasn’t any offer to accept for just property damage.”
The plaintiffs’ attorney contends that during the May 26, 2010 conference call, the city’s attorney verbally acknowledged its obligation to settle the proрerty damage claim separately; the city’s attorney denies doing so. The city’s attorney contends that the city accepted the Freeneys’ offer to settle all of their claims for $58,431.24 during the сonference call. According to the city’s attorney, the parties subsequently disagreed about whether an $11,000 expense should be deducted from the $58,431.24 settlement amount, but the city ultimately agreed tо bear the cost of this expense. The Freeneys’ attorney disputes that a settlement of all claims was ever reached.
The Freeneys subsequently sued the city for specific performance to enforce the alleged $29,902.19 property damage settlement. The trial court granted summary judgment in the Freeneys’ favor, reasoning:
Here, Defendant offered to pay Plaintiffs the sum of $29,902.19 in resolutiоn of Plaintiffs’ claims for property damage. On the same date, Plaintiffs counsel accepted, in writing, the Defendant’s offer. Plaintiffs sent multiple letters confirming the existence of the settlement. Defendаnt never denied or refuted the existence of a valid property damage settlement. See Sutton v. Winn Dixie Stores,233 Ga. App. 424 , [4]26 (504 SE2d 245 ) (1998) (holding that acquiescence or silence when the circumstances require an answer or denial may amount to an admission). The Court finds that a settlement of Plaintiffs’ property damage claim was reached.
The trial court also awarded attorney fees sua sponte based upon a conclusory finding “that Defendant’s position in this matter lacked substantial justification and that there was no justiciable issue of law or fact interjected by Defendant. See OCGA § 9-15-14.”
“Oral settlement agreements are enforceable if their existence is established without dispute.” (Citation and рunctuation omitted.) Reichard v. Reichard,
This requirement of a writing goes to the certainty that an agreеment exists and to the certainty of the terms of the agreement. . . . The writing which will satisfy this requirement ideally consists of a formal written agreement signed by the parties. However, letters or documents prepared by attorneys which memorialize the terms of the agreement reached will suffice.
Brumbelow v. Northern Propane Gas Co.,
In this case, the attorneys representing both parties disagrеe about whether a settlement agreement of the property damage claim exists. The city’s attorney contends its oral settlement offer was conditioned upon the settlement of all claims (personal injury and property damage). The Freeneys’ attorney claims that he accepted the city’s oral offer to settle the property damage claim separatеly. Consequently, there are genuine issues of material fact with regard to the existence of a settlement between the parties, and the trial court erred in granting summary judgment in favor of the Freeneys. McKenna v. Capital Resource Partners,
We find no merit in the Freeneys’ argument that the city’s attorney’s failure to promptly dispute their purported acceptance of the earlier offer on May 19, 2010, mandates summary judgment in their favor. While this conduct may provide admissible evidence on the issue, any evidentiary presumption created by the city’s attorney’s failure to respond would be for the trier of fact to determine, based upon the city’s attorney’s explanation that he viewed it as a counteroffer to which no reply was needed. “[T]he presumption arising from a failure to answer a letter is not a presumption of law, but one of fact, and subject to explanation. [Cits.]” Ga. Health Care v. Loeb,
2. Based upon our holding in Division 1, we reverse the trial court’s award of attorney fees under OCGA § 9-15-14. Tavakolian v. Agio Corp.,
Judgment reversed.