Thompson v. Pulte Home Corp. , 209 Ga. App. 558 ( 1993 )

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as my examination of the record reveals evidence giving rise to genuine issues of material fact regarding the existence of a settlement contract. In fact, my examination of the record reveals proof that the parties never resolved a material issue of dispute and thereby failed to reach a binding settlement agreement. •

Apparently accepting only the testimony of Pulte’s attorney (LaChance), the majority holds that the parties entered into a binding settlement agreement at the October 2, 1991, settlement conference. This view ignores attorney Eaton’s testimony that any settlement agreement (oral or written) “was dependant upon the written agreement being suitable to all of the parties. . . .” The majority view also ignores the affidavit of Ben F. Marsh, an eyewitness to the October 2, 1991, settlement conference who deposed that the parties agreed during negotiations that settlement would not be final until execution of a written agreement. Specifically, as quoted from his affidavit, Ben F. Marsh deposed that he attended the October 2, 1991, settlement conference; that he “overheard the participants discuss the fact that no final conclusions would be reached at the meeting [and that it] was discussed that any decisions which were reached at the meeting would be put in writing, submitted by the attorneys to the parties for their review and would be signed by the parties before they would become binding.” It is my view, that the above evidence gives rise to genuine issues of material fact regarding the very existence of a settlement agreement between the parties. See Devereaux v. C & S Nat. Bank, 172 Ga. App. 53 (322 SE2d 310). However, assuming the contrary, it is my view that the unresolved issue of the Thompsons’ per diem expense allowance during renovation is proof that the parties never entered into a binding settlement agreement.

In Bridges v. Bridges, 256 Ga. 348 (349 SE2d 172), the Georgia Supreme Court held that no settlement “contract exists until all essential terms have been agreed to. OCGA § 13-3-2.” Id. at 349 (1). The Supreme Court found in Bridges that the parties’ failure to resolve a dispute over a “VCR” was material to settlement and held that the trial court erred in enforcing an intricate settlement agreement which had otherwise been approved by the opposing parties. Bridges v. Bridges, 256 Ga. App. 348, 349 (1), supra. In view of this holding, I cannot say that the Thompsons’ per diem expense allowance during the estimated 21-day renovation period was immaterial to settlement and I do not agree that Pulte’s $100 per day settlement offer (contained in the settlement contract Pulte now seeks to enforce) fills this gap.

Neither this court nor the trial court has authority to enforce a term of settlement that was never resolved by the parties. However, this is the impact of the majority holding as this court is affirming enforcement of a provision of a settlement contract (unilaterally prepared by Pulte) that was never resolved by the parties, i.e., the amount of the Thompsons’ per diem expense allowance during the estimated 21-day renovation period. Under these circumstances, I would reverse the trial court’s order enforcing settlement and awarding Pulte $500 in attorney fees pursuant to OCGA § 9-15-14.

Decided July 1, 1993 — Reconsideration denied July 16, 1993 — Robert M. Goldberg, for appellants. Peterson, Dillard, Young, Self & Asselin, Richard W. Wilson, Jr., James M. Lachance, Mayer & Beal, Andrew M. Beal, for appellee.