448 S.E.2d 787 | Ga. Ct. App. | 1994
Blanche Bagley McMullen and Marie Bagley Roper are the co- \ executrices of the estate of the late Garland C. Bagley. A provision in | Garland Bagley’s will purportedly forgave certain debts but the For-syth County Superior Court refused to probate this will. Seeking to I collect on a promissory note owed by Penny Profit Foods, Inc., I (“PPF”) to Garland Bagley, the executrices commenced foreclosure! on certain realty securing that debt. After PPF’s petition to enjoin! foreclosure was denied by the superior court, the parties engaged ini settlement discussions. Subsequently, the executrices moved to en-| force an alleged settlement agreement.
In support of their motion to enforce settlement, the executricesl introduced a handwritten document captioned: “Penny Profit Foods Inc. et al v. McMullen & Roper, co-admini ... of Bagley” and whicl recites the following: “(1) Check to Forsyth Forum for $192 — Toda
The trial court granted the motion to enforce settlement, concluding that the attorneys for the parties did not dispute the existence of an oral agreement to settle and that the terms of the agreement were memorialized in the handwritten document signed by counsel and PPF. Consequently, the trial court ordered that PPF’s appeal from the probate case be dismissed and further ordered that the estate of Garland C. Bagley be released from any claims of PPF. PPF filed a notice of appeal to the Supreme Court of Georgia, which transferred the case to the Court of Appeals of Georgia. Held:
1. The trial court was not deprived of jurisdiction to consider this motion to enforce settlement due to the filing of a notice of appeal in the related probate case between the same parties, where all costs in the trial court had not been paid. OCGA § 5-6-46 (a); Chappelaer v. General GMC Trucks, 130 Ga. App. 664, 665 (1) (204 SE2d 326). PPF’s fifth enumeration is without merit.
2. In its first and second enumerations, PPF contends the trial court erred holding that the parties entered into a “binding settlement agreement” and “in finding that there was a meeting of the minds between the parties as to the terms of any settlement[,]” arguing that PPF “never understood that the pending legal actions between them had been settled.”
“Under Georgia law an attorney of record has apparent authority to enter into an agreement on behalf of his client and the agreement is enforceable against the client by other settling parties. Stone Mountain Confederate Monumental Assn. v. Smith, 170 Ga. 515 (153 SE 209) (1930)[.]” Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (2) (308 SE2d 544). “Ordinarily, for an attorney to bind his client
3. PPF’s fourth enumeration is without merit. The alleged failure of the executrices to file a copy of any dismissal of the appeal to the Supreme Court of Georgia in the related probate case with the clerk of that court in compliance with Georgia Supreme Court Rule 13 is not a good ground for refusing to enforce this settlement agreement. The estate performed its part of the bargain when it refrained from enforcing its immediate right of foreclosure. It would permit a gross fraud on the estate to allow PPF to repudiate its bargain after such detrimental reliance. Stone Mountain Confederate Monumental Assn., 170 Ga. 515, 523, supra.
4. PPF’s remaining six enumerations have been considered. PPF’s third enumeration is rendered moot by our holding in Division 2. Enumerations six through ten, regarding the validity of Garland C. Bagley’s last will, have been rendered moot by the transfer of this appeal by the Supreme Court of Georgia to the Court of Appeals of
Judgment affirmed.