Andrew James Miller v. Aaron Lee Miller ( 2020 )

THIRD DIVISION
MCFADDEN, C. J.,
DOYLE, P. J., and HODGES, J.
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.
July 2, 2020
In the Court of Appeals of Georgia
A20A0377. MILLER et al. v. MILLER. DO-013
DOYLE, Presiding Judge.
This appeal challenges the grant of a motion to enforce a settlement agreement
and the denial of a non-party’s motion to intervene. Finding no reversible error, we
affirm the order enforcing the executed settlement agreement, but we do not reach the
merits of the denial of the motion to intervene because the appellants have no
standing to challenge that ruling.
We also address the appellee’s motion to dismiss the appeal on the ground that
the superior court’s judgment was not final and directly appealable since it reserved
the issue of attorney fees. Because the only attorney fees at issue were ancillary and
post-judgment fees under OCGA § 9-15-14, we deny the motion to dismiss.
When a motion to enforce a settlement agreement is decided
without an evidentiary hearing, [as in this case,] the issues raised are
procedurally analogous to those in a motion for summary judgment.
Accordingly, [the court must] view[] the evidence in the light most
favorable to the nonmoving party, [and] the movant must show that the
documents, affidavits, depositions, and other evidence in the record
reveal that there is no evidence sufficient to create a jury issue on
whether a settlement was reached. On appeal, we apply a de novo
standard of review to the trial court’s determination to enforce the
settlement agreement.1
So viewed, the evidence shows that brothers Aaron, Andrew, and Joseph Miller
are officers and the only shareholders of American Plumbing Professionals, Inc. After
a dispute arose between the brothers, Aaron filed a complaint against Andrew and
Joseph, claiming breach of fiduciary duties and seeking dissolution of American
Plumbing or appointment of a receiver. On September 18, 2017, the brothers engaged
in mediation to resolve the case. At the close of the mediation, the mediator issued
a report indicating that the case had settled in part, and the parties initialed a
handwritten document listing 15 agreed-to settlement terms. Those terms provided
that Aaron’s brothers would purchase his interest in the company for $850,000.2
1
(Citations and punctuation omitted.) Francis v. Chavis, 345 Ga. App. 641(814 SE2d 778) (2018).
2
The written settlement terms included additional provisions such as the
absence of a non-compete clause for Aaron, a schedule for initial partial payments to
Aaron (which were made), the transfer of equipment to the company, payment of
2
As agreed to at the mediation, drafts of a Settlement, Release, and Stock
Purchase Agreement (“Purchase Agreement”) and certain other ancillary agreements
were prepared by September 22, 2017.3 The parties contemplated that the stock
transfer would close on November 3, 2017, but the mediated terms provided that
Joseph and Andrew could pay Aaron to obtain a three-month extension period in the
event that they were unable to obtain financing by that date. On November 3,
pursuant to that provision, Aaron’s brothers tendered $100,000 to Aaron’s attorney
to extend the closing date to February 2, 2018, and allow them to continue pursuing
financing.4
On December 28, 2017, defendants Andrew and Joseph signed a proposed
Purchase Agreement and sent it to Aaron, indicating that they needed him to sign and
return it by the following day in order to meet banking deadlines to close the
transaction. Aaron did not sign that proposed agreement; instead, working from an
attorney and mediation fees, and dismissal of the case upon execution of the Purchase
Agreement.
3
These other agreements included assignment of hardware, software, phone
numbers, and Internet services.
4
The Settlement Agreement provided that this payment would be applied to
payment of the purchase price.
3
earlier draft, Aaron’s attorney mistakenly requested removal of a promissory note
provision that had already been removed from the current draft. Soon thereafter,
Aaron’s attorney forwarded the December 28 draft to Aaron, who signed it on
January 10, 2018. At this point, all of the parties had signed the Purchase Agreement.
A month later, after his brothers refused to close, Aaron filed the present
motion to enforce the Purchase Agreement. American Plumbing moved to intervene,
which motion the superior court denied. After holding a non-evidentiary hearing on
the motion to enforce the purported settlement agreement, the superior court entered
an order granting the motion. Andrew and Joseph appealed from that order, but this
court dismissed the appeal since the superior court had not yet entered final judgment
on that order.
Upon the return of the case to the superior court, the superior court entered a
final judgment on its order enforcing the purported settlement agreement. Three days
after that final judgment, the court held a hearing on an emergency motion to
withdraw certain funds filed by Aaron. At that hearing, Aaron orally raised the issue
of attorney fees he had incurred in seeking to enforce the purported settlement
agreement. The superior court judge indicated that she should have left the issue of
attorney fees open and that she would amend her final judgment to do so. The next
4
day, the judge issued an amended final order, entering judgment in favor of Aaron
and reserving the issue of attorney fees. Andrew and Joseph filed a notice of appeal
from that final judgment, and Aaron subsequently filed a motion for attorney fees
pursuant to OCGA § 9-15-14.
1. Motion to Dismiss. Appellee Aaron has moved to dismiss the appeal,
claiming that the superior court’s judgment was not a directly appealable final
judgment because it reserved the issue of attorney fees. We deny the motion to
dismiss because the only attorney fees at issue are those sought in a post-judgment
motion under OCGA § 9-15-14, an award of which would be ancillary to, and not part
of, the underlying final judgment enforcing the settlement agreement.
Two Code sections determine the method for pursuing appeals to
this [c]ourt: OCGA § 5-6-34, which describes the trial court’s judgments
and orders that may be appealed directly, and OCGA § 5-6-35, which
lists cases in which an application for appeal is required. Pursuant to
OCGA § 5-6-34 (a) (1), direct appeals are generally authorized from
lower court orders that are final, meaning that there are no issues
remaining to be resolved in the lower court.5
5
Woodruff v. Choate, 334 Ga. App. 574, 576 (1) (a) (780 SE2d 25) (2015)
(citations and punctuation omitted).
5
In Sotter v. Stephens,6 our Supreme Court considered whether a case remains
pending in a trial court which has explicitly reserved the issue of attorney fees under
OCGA § 13-6-11 and “concluded that, because the amount of [such] fees was
reserved for future determination by the trial court, one cannot claim that the case is
no longer pending in the court below as required by OCGA § 5-6-34 (a) (1).”7 But
Sotter also stated that unlike an attorney fees award under OCGA § 13-6-11, “an
attorney fees award pursuant to OCGA § 9-15-14 may be considered ancillary and
post-judgment.”8 As explained in Sotter:
Awards of attorney fees under the aegis of OCGA § 13-6-11 apply to
conduct arising from the transaction underlying the cause of action in
litigation. Conversely, OCGA § 9-15-14 . . . has been interpreted to
govern conduct occurring during the litigation. Thus, while an attorney
fees award pursuant to OCGA § 9-15-14 may be considered ancillary
and post-judgment, an award of attorney fees under OCGA § 13-6-11,
as in the present case, is considered part of the underlying case.9
6
291 Ga. 79, 84 (727 SE2d 484) (2012).
7
(Citation and punctuation omitted.) Edokpolor v. Grady Mem. Hosp. Corp.,
302 Ga. 733, 734 (808 SE2d 653) (2017).
8
(Citation and punctuation omitted.) Edokpolor, 302 Ga. at 735.
9
(Citations and punctuation omitted.) Sotter, 291 Ga. at 83-84.
6
Moreover, “a claim for attorney fees under [OCGA § 9-15-14] may be asserted
post-judgment – up to 45 days after the final disposition of the action, OCGA §
9-15-14 (e) – and appeals of awards under OCGA § 9-15-14 are among the
exceptions to OCGA § 5-6-34 (a) (1) enumerated in OCGA § 5-6-35 (a), which must
be taken by application.”10 Thus, it is error to “conclude[] that the pre-judgment filing
of a motion [for attorney fees] under [another statute] is analogous to a post-judgment
filing of a motion for attorney fees under OCGA § 9-15-14.”11
In the instant case, it is undisputed that the only attorney fees in question are
those sought by Aaron in a post-judgment motion for attorney fees under OCGA § 9-
15-14. The superior court’s reservation of the issue of such ancillary and post-
judgment attorney fees did not render the court’s final judgment non-final. Rather,
that judgment enforcing the settlement agreement was final and directly appealable
under OCGA § 5-6-34 (a) (1). Accordingly, the motion to dismiss the appeal of that
final judgment is hereby denied.
10
Edokpolor, 302 Ga. at 735.
11
Id. at 735-736.
7
2. Enforcement of settlement agreement. Appellants Andrew and Joseph
contend that the superior court erred by granting the motion to enforce the Purchase
Agreement. We disagree.
In the context of determining the enforceability of a settlement agreement, the
law is well-settled.
Compromises of doubtful rights are upheld by general policy, as tending
to prevent litigation, in all enlightened systems of jurisprudence. In
considering the enforceability of an alleged settlement agreement,
however, a trial court is obviously limited to those terms upon which the
parties themselves have mutually agreed. Absent such mutual
agreement, there is no enforceable contract as between the parties. It is
the duty of courts to construe and enforce contracts as made, and not to
make them for the parties. The settlement agreement alleged to have
been created in this case would have been the [mediation terms signed
by the parties as later memorialized by] the attorneys for the parties. As
the existence of a binding agreement is disputed, the proponent of the
settlement must establish its existence in writing. 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.12
12
(Punctuation omitted.) Pourreza v. Teel Appraisals & Advisory, Inc., 273 Ga.
App. 880, 882-883 (616 SE2d 108) (2005).
8
Further, we recognize that the standard of review requires this Court to view
“the evidence in the light most favorable to the nonmoving party, [and the party
seeking to enforce the agreement] must show that the documents, affidavits,
depositions, and other evidence in the record reveal that there is no evidence
sufficient to create a jury issue on whether a settlement was reached.”13 But this does
not mean that every factual dispute will require us to conclude that a settlement was
not reached. Rather, only “genuine issue[s] of material fact”14 require reversal. As
explained in more detail below, the factual issues identified by the dissent are not
material because they do not change the fact that the parties reached a settlement at
mediation, and those terms were memorialized in the Purchase Agreement signed by
all the parties.
As recounted above, the record shows that at the conclusion of the September
2017 mediation, the parties initialed a document containing a list of 15 items agreed
to by the parties as a result of their mediation. Although that document is handwritten,
there is no dispute as to its contents or the parties’ unequivocal acceptance of the
13
(Punctuation omitted.) Francis v. Chavis, 345 Ga. App. 641, 642 (814 SE2d
778) (2018).
14
(Emphasis supplied.) Id. at 644.
9
terms at the time of the mediation. Further, as carefully reproduced in the superior
court order, each term of the initialed mediation document is reflected in a
corresponding term in the signed Purchase Agreement. Based on this, the mediated
terms and subsequent Purchase Agreement represent a binding settlement agreement.
“[T]he parties entered into a mutual binding agreement [at the mediation]. Thereafter,
the drafting of documents necessary to effectuate the settlement agreement may have
been a condition of the performance but it was not an act necessary to acceptance of
the offer to settle.”15 For example, in a similar case, this Court reversed the denial of
a motion to enforce a settlement agreement based on an email memorializing the
settlement terms, even though, as the email stated, the “‘attorneys are currently
drafting the settlement documents.’”16
Nevertheless, Andrew and Joseph contend that the record contains two factual
disputes that preclude enforcement of the settlement agreement: (a) whether Aaron
15
(Punctuation omitted; emphasis supplied.) Johnson v. DeKalb County, 314
Ga. App. 790, 794 (1) (726 SE2d 102) (2012), quoting Pourreza, 273 Ga. App. at
883. See also Stacey v. Jones, 230 Ga. App. 213, 215 (2) (495 SE2d 665) (1998)
(reversing trial court order denying a motion to enforce a settlement agreement
despite the drafter’s “seeming inability to get the draft and the release correct,” in
light of an earlier agreement as to the terms of settlement).
16
Cumberland Contractors, Inc. v. State Bank & Trust Co., 327 Ga. App. 121,
128 (3) (755 SE2d 511) (2014).
10
made a counteroffer to the final Purchase Agreement, and (b) whether Aaron’s
signature in January 2018 was a timely acceptance. Both of these questions stem from
an exchange between attorneys in December 2017, and neither is material to the
earlier agreement by all the parties to the mediated terms.
(a) Existence of a counteroffer. In December 2017, the attorneys exchanged
several rounds of emails regarding the logistics of closing and finalizing the Purchase
Agreement for signature. In one exchange, after Andrew and Joseph’s counsel sent
a draft of the Purchase Agreement to Aaron’s counsel, Aaron’s counsel requested an
edit to remove language regarding a promissory note. Thus, the draft remained
unsigned in December 2017, and the dissent characterizes this exchange as creating
a factual issue as to whether Aaron ultimately accepted the offered Purchase
Agreement or whether he proposed a counteroffer, thereby extinguishing the offered
Purchase Agreement tendered by his brothers. But as pointed out by the superior
court, it is undisputed that Aaron’s counsel was mistakenly working from an earlier
version of the Purchase Agreement, and the language at issue had already been
removed from the current draft. Therefore, any equivocation on the part of Aaron’s
counsel in December was not substantive and did not amount to a counteroffer.
Further, even if there was a material edit requested, the December emails, at most,
11
merely reflect an exchange of revisions seeking to accurately capture the terms
already agreed to at the mediation.17
(b) Timeliness of acceptance. The dissent also points to evidence that Aaron
did not accept the formal settlement agreement within the brief turnaround time
specified by his brothers in December 2017 email due to the timing of bank deadlines.
But it is undisputed that the mediated terms included the extension provision such
that if defendants Andrew and Joseph were unable to obtain financing for the
transaction by November 3, 2017, they would pursue other financing and Aaron
would accept the $100,000 payment for a three-month closing extension. This
payment was made, so the closing deadline was extended to February 2, 2018.
Accordingly, when the Purchase Agreement was signed by all of the parties as of
January 10, 2018, it was well within the agreed-to time frame for closing, and the
exchange in December did not render the mediated agreement unenforceable.
17
See Pourreza, 273 Ga. App. at 883. See also Johnson, 314 Ga. App. at 794
(1) (“[A] rejected offer does not put an end to negotiation where the party who made
the original offer renews it or assents to the modification requested in a
counteroffer.”); Herring v. Dunning, 213 Ga. App. 695, 699 (446 SE2d 199) (1994)
(“[T]he bare fact that [an] acceptance of [an] offer to settle suggested one form of
terminating the controversy over another does not render such acceptance a
counteroffer which rejects the plaintiff’s offer.”) (punctuation omitted).
12
3. Motion to intervene. Andrew and Joseph complain that the trial court erred
by denying American Plumbing’s motion to intervene. But the appellants were not
parties to that motion and have no standing to complain of the disposition of a motion
filed by a non-party who did not appeal the court’s order.18 Accordingly, that ruling
is affirmed.
Judgment affirmed. Hodges, J., concurs in Divisions 1, 3, and in the judgment.
McFadden, C. J., concurs in Divisions 1 and 3 and dissents to Division 2.*
*DIVISION 2 OF THIS OPINION IS PHYSICAL PRECENDENT ONLY. SEE
COURT OF APPEALS RULE 33.2.
18
See In the Interest of J. C. H., 224 Ga. App. 708, 710 (2) (482 SE2d 707)
(1997) (appellant lacked standing to challenge denial of motion to intervene to which
she was not a party).
13
A20A0377. MILLER et al. v. MILLER.
MCFADDEN, Chief Judge, concurring in part and dissenting in part.
I concur in Divisions 1 and 3 of the majority opinion. But I disagree with the
majority’s decision in Division 2 to affirm the trial court’s grant of the motion to
enforce the purported settlement agreement. Because there are genuine issues of
material fact, the trial court erred in granting the motion to enforce the settlement
agreement. So I dissent as to Division 2.
Aaron Miller contends that the parties reached a settlement agreement at
mediation and subsequently agreed to one material change, which was reflected in a
formal settlement agreement: removal of a provision for a promissory note. And
indeed, after four months of post-mediation negotiations, his brothers did present to
him for his signature a proposed formal settlement agreement to that effect. But,
explaining that “the bank needs signed documents today” in order to close the loan
which would have supplied to the funds to pay him in cash, they imposed a very short
deadline. It expired on December 29, 2017. Apparently Aaron Miller let it expire
because he mistakenly believed that the promissory note provision had not been
removed. He undertook to accept the offer eleven days later. So a jury would be
authorized to find that the acceptance did not mirror the offer and so that no contract
formed.
When a motion to enforce a settlement agreement is decided
without an evidentiary hearing, [as in this case,] the issues raised are
procedurally analogous to those in a motion for summary judgment.
Accordingly, [the court must] view[] the evidence in the light most
favorable to the nonmoving party, [and] the movant must show that the
documents, affidavits, depositions, and other evidence in the record
reveal that there is no evidence sufficient to create a jury issue on
whether a settlement was reached. On appeal, we apply a de novo
standard of review to the trial court’s determination to enforce the
settlement agreement.
Francis v. Chavis, 345 Ga. App. 641 (814 SE2d 778) (2018) (citations and
punctuation omitted).
2
As the party moving to enforce a settlement agreement, Aaron Miller was
required to show the absence of any genuine issues of material fact, and the trial court
was required to view the evidence in the light most favorable to his brothers, Andrew
and Joseph Miller, as the parties opposing the motion. See Francis, supra; Brooks v.
Ironstone Bank, 314 Ga. App. 879, 881 (726 SE2d 419) (2012). But Aaron Miller did
not meet his burden and the trial court, though it recited the proper standard of review
in its order, erred by engaging in fact-finding and construing evidence in favor of the
movant.
There are genuine issues of material fact as to whether the offer to settle was
timely accepted. See Stephens v. Castano-Castano, 346 Ga. App. 284, 287 (1) (a)
(814 SE2d 434) (2018) (offer to settle not timely accepted). As noted above, the
record contains evidence that Aaron Miller did not sign and return the offered
settlement agreement within a time deadline set by his brothers. Instead of finding
that such evidence created, the trial court relied on other evidence in the record to
find that the deadline was not enforceable.
Perhaps so. But it was error to so find as a matter of law. It is not for the trial
court or this court to construe the conflicting evidence to make a finding of fact in
favor of the movant. Rather, the trial court should have construed the evidence in the
3
light most favorable to the non-movants and found genuine issues of material fact
regarding the timeliness of the purported acceptance of the settlement offer.
Likewise, as also noted above, there was evidence that Aaron Miller did not
initially respond to the proposed settlement agreement with an unequivocal
acceptance and that he instead suggested changes to that offer. It is well-settled that
in order “[t]o constitute a contract, the offer must be accepted unequivocally and
without variance of any sort. A purported acceptance of a [party’s] settlement offer
which imposes conditions will be construed as a counter-offer to the offer to settle[.]”
McReynolds v. Krebs, 290 Ga. 850, 853 (2) (725 SE2d 584) (2012) (citations and
punctuation omitted). Aaron Miller’s response on the December 29 deadline raised
not only the issue of the promissory note but also issues related to a tax indemnity and
a non-compete provision.
But the trial court relied on other evidence to find as a matter of fact that Aaron
Miller had not rejected the offer by making a counter-offer. That reliance was
misplaced. Any evidence in the record which would support such a finding by the
trial court merely creates “genuine issues of material fact with regard to the existence
of a settlement between the parties[.]” City of Albany v. Freeney, 313 Ga. App. 24,
28 (1) (720 SE2d 349) (2011). See McKenna v. Capital Resources Partners, IV, 286
4
Ga. App. 828, 832 (1) (650 SE2d 580) (2007) (“[I]n cases such as this one, the
circumstances surrounding the making of the contract, such as correspondence and
discussions, are relevant in deciding if there was a mutual assent to an agreement.
Where such extrinsic evidence exists and is disputed, the question of whether a party
has assented to the contract is generally a matter for the jury.”) (citation omitted).
Because there are genuine issue of material fact, the trial court erred in granting the
motion to enforce the purported settlement agreement. Francis, supra at 644; Brooks,
supra at 882-883.
In finding that these factual disputes do not preclude enforcement of the
purported settlement agreement, the majority has engaged in the same fact-finding as
the trial court and has failed to view the evidence in the light most favorable to the
non-movants. In concluding that Aaron Miller did not make a counter-offer to his
brothers’ proposed settlement agreement, the majority has adopted, as the trial court
did, an argument put forth by Aaron Miller’s attorney that the counter-offer should
not really be considered a counter-offer because he was mistakenly working from an
earlier version of another proposed settlement agreement (which Aaron had not
accepted) when he made the counter-offer. While this self-serving argument might
create genuine issues of material fact regarding the counter-offer, it does not
5
authorize us to engage in fact-finding and resolve that question of fact in favor of the
party moving to enforce the settlement agreement.
Moreover, the fundamental premise of the majority and the trial court’s
decision – that the handwritten document initialed by the parties after mediation
constituted a full settlement agreement that was merely memorialized in the purported
settlement agreement – is unsound. As an initial matter, the mediator’s final report
stated only that the parties had settled in part, which is evidence that there was not a
full and final settlement agreement reached at mediation. Also, Aaron Miller did not
move to enforce the handwritten document; rather, he moved to enforce the purported
full and final settlement agreement that he signed four months after mediation. And
to find that the handwritten document amounted to a full settlement ignores the
ensuing four months of back-and-forth settlement negotiations by the parties and the
fact that at least one essential term listed in the handwritten document, the promissory
note provision, was not included in the purported formal settlement agreement sought
to be enforced. Viewing the record in favor of the non-moving parties, there exist
genuine issues of material fact that preclude enforcement of the purported settlement
agreement. Accordingly, the trial court’s order enforcing the settlement agreement
should be reversed.
6