Moreno v. Strickland, A02A0915.
| Decision Date | 17 June 2002 |
| Docket Number | No. A02A0915.,A02A0915. |
| Citation | 255 Ga. App. 850,567 S.E.2d 90 |
| Parties | MORENO v. STRICKLAND. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Downey & Cleveland, Joseph C. Parker, Sean L. Hynes, Marietta, Gambrell & Stolz, Irwin W. Stolz, Jr., Atlanta, for appellant.
McNally, Edwards, Bailey & Lander, Donald W. Osborne, Vinson, Talley, Richardson & Cable, James G. Richardson, Dallas, Michael T. Camp, Douglasville, for appellee. BARNES, Judge.
Jeremy David Strickland, an incapacitated adult represented by his guardian Shree Strickland, sued Brigido Servin Moreno for personal injuries he suffered while riding a motorcycle that collided with Moreno's truck. In his answer, Moreno asserted the affirmative defense of accord and satisfaction. Strickland moved for partial summary judgment on Moreno's accord and satisfaction defense, and after a hearing, the trial court granted partial summary judgment on this issue to Strickland. The court held that, as a matter of law, the parties did not reach a settlement agreement in this case.
On appeal, Moreno makes four arguments: (1) whether the parties reached a settlement agreement is a jury question, (2) no writing was required to make the agreement effective, but if one were, a writing exists; (3) the trial court improperly shifted the burden of production to the nonmovant, Moreno; and (4) a motion for summary judgment is not the proper avenue to defeat the affirmative defense of accord and satisfaction. Because we agree that, under these facts, whether the parties reached a settlement agreement is a jury question, we reverse the trial court's grant of partial summary judgment to Strickland.
On appeal from the grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga.App. 802-803, 500 S.E.2d 591 (1998).
Viewed in that light, the evidence shows that, on June 22, 2000, Strickland offered by letter to settle his claim with Moreno for liability insurance limits of $25,000, $500 property damages, $432 for a guardian bond, an affidavit that Moreno had no assets, and certain release language, specifying that the offer would expire on July 21, 2000. The attorneys for Strickland and Moreno agree that they spoke on the phone on July 18, 2000, but disagree on exactly what was said. Moreno's attorney testified at deposition that the insurance company offered to pay policy limits before a demand was even made, and that he called Strickland's attorney on July 18, 2000, to tell him he was authorized to accept the terms of the settlement offer, but did not have Moreno's affidavit of no assets in hand.1 Moreno's attorney further testified that he made a note to file on July 18, 2000, that said:
On July 26, 2000, Strickland sent another letter that stated:
On July 27, 2000, Moreno hand-delivered a letter to Strickland, the contents of which are as follows:
This will confirm our conversation of Thursday, July 27, 2000. Furthermore, please find a draft and the settlement documents which you requested in the above-referenced case. Specifically, there is a Limited Release and three drafts, one for $25,000 for Shree Strickland, one for $500.00 for property damage and one for $432.00 for the Bond. As I told you when we spoke on July 18, 2000, I accepted all of the terms and conditions of your letter of June 22, 2000, and I was waiting to receive the Affidavit back from my clients. I received the Affidavit back, but it was not notarized. I am hand delivering this package to you today, and I certainly feel like with all the great lengths that we have gone to in this case, we have reached an amicable settlement. I am sorry if you misconstrued any of my statements to you, and I hope this resolves any and all issues. Please keep any and all settlement monies in your escrow account until the necessary approval is obtained from the Probate Court.
Moreno's attorney sent another letter on September 13, 2000, enclosing the affidavit he "finally received back" from his client, and continuing:
I have heard nothing from you since our last meeting, and it was my understanding that your clients were going to discuss whether of not they would settle this case pursuant to a Limited Release as we agreed upon earlier and get back with me. On behalf of the defendant, Progressive still stands ready to pay your clients the policy limits in exchange for a Limited Release.
Finally, on September 19, 2000, Strickland's lawyer replied to Moreno's lawyer, stating among other things that Moreno failed to tender a release and affidavit "within the time limit set out in the offer." He further stated, "I could not agree to a settlement without seeing the language of the limited liability release and affidavit to ensure their compliance with our offer of settlement." Strickland filed suit against Moreno on October 12, 2000.
1. An accord and satisfaction is a contract, which requires a meeting of the minds to render it valid and binding. Woodstock Road & c. v. Lacy, 149 Ga.App. 593, 594(1), 254 S.E.2d 910 (1979)....
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