J.A. Childs Const. Co. v. Gemini Const. Co., Inc.

• Decision Date: 15 March 1984
• Docket Number: No. 67667,67667
• Citation: 316 S.E.2d 606,170 Ga.App. 314
• Parties: J.A. CHILDS CONSTRUCTION COMPANY et al. v. GEMINI CONSTRUCTION COMPANY, INC.
• Court: Georgia Court of Appeals

Page 606

316 S.E.2d 606

170 Ga.App. 314

J.A. CHILDS CONSTRUCTION COMPANY et al. v. GEMINI CONSTRUCTION COMPANY, INC.

No. 67667.

Court of Appeals of Georgia.

March 15, 1984.

Donald D. Smith, Marietta, for appellants.

J. Ed Segraves, Decatur, Tony L. Axam, Atlanta, for appellee.

McMURRAY, Chief Judge.

This action began as a suit on a contract by a subcontractor (Bacchus Company, Inc.) against a number of defendants pursuant to a contract between Metropolitan Atlanta Rapid Transit Authority (MARTA) and J.A. Childs Construction Company (Childs). United States Fidelity and Guaranty Company (U.S.F. & G.) was surety for work performed with reference to Childs' contract. The case came on for trial as to which of the parties owed the other with reference to the claims, counterclaims and cross-claims by and between the various defendants although MARTA was dismissed prior to the trial. The jury reached a verdict in favor of defendant Gemini Construction Company, Inc. (Gemini) against defendant Childs and its surety U.S.F. & G. in the amount of $22,532.66. In rendering judgment the trial court in its final judgment stated that a settlement was reached by all parties with respect to the claims of the plaintiff and that under the terms of that settlement the defendant Childs agreed to pay the plaintiff, Bacchus Company, Inc., the sum of $5,000 in full and final settlement of all claims it had against defendants Gemini, Childs and U.S.F. & G. Gemini did, therefore, receive the $5,000 credit against any judgment subsequently entered against defendant Gemini and defendants Childs and U.S.F. & G. The $5,000 payment was made by Childs to the plaintiff, and the principal amount of the judgment was reduced from $22,532.66 to $17,532.66 with legal interest as provided by law against defendants Childs and U.S.F. & G. in favor of the defendant Gemini. This order was dated January 25, 1982. The defendants (Childs and U.S.F. & G.) moved for a new trial and also for judgment notwithstanding the verdict. Both motions were denied by the trial court on November 19, 1982. In Case No. 66410 (later dismissed) these defendants appealed.

Thereafter on December 16, 1982, the attorneys for the defendants Childs and U.S.F. & G. orally by telephone reached a settlement of the case for the sum of $12,500, that is, the defendants Childs and U.S.F. & G. contend that each attorney had received authority from his respective client to enter into the settlement in consideration of which Gemini was to execute a general release agreement in favor of the defendants and dismiss with prejudice the above captioned case. The settlement proceeds and form of release agreement were to be delivered to the offices of Gemini's attorney on December 20, 1982. However, Gemini's attorney contends there were certain remaining details of the settlement which had not been negotiated and these were to be negotiated on December 20, 1982, contending there were express restrictions placed upon this attorney, one of which was that the defendant Gemini did not give its attorney authority to waive the right to prosecute for the delinquency in payment. On December 20, 1982, counsel for this defendant refused to execute the settlement agreement.

A motion for enforcement of settlement was filed in the same case. The motion states that the notice of appeal shown above was then filed and was still pending. However, we note here that same (Case No. 66410) was withdrawn in this court, dated April 14, 1983. The motion seeks to require that Gemini be required to complete the settlement and compromise on the terms and conditions heretofore described. A hearing before the trial court was held although no rule nisi issued with respect to same. On May 13, 1983, after argument of counsel and consideration of the matter the motion was overruled and denied. The defendants Childs and U.S.F. & G. appeal. Held:

In the hearing counsel for the opposing parties stated in their place as to what occurred with reference to the oral settlement agreement. However, counsel for defendant Gemini contends that counsel had authority to consummate the settlement but "the completion of the agreement was not going to be perfected and had until the clients ... signed and approved the dismissal with prejudice, accepted the tendered consideration [$12,500] ... and also received the release." These...