Peacock v. Spivey

• Decision Date: 22 March 2006
• Docket Number: No. A05A1823.,A05A1823.
• Citation: 629 S.E.2d 48,278 Ga. App. 338
• Parties: PEACOCK v. SPIVEY et al.
• Court: Georgia Court of Appeals

278 Ga. App. 338

629 S.E.2d 48

PEACOCK v. SPIVEY et al.

No. A05A1823.

Court of Appeals of Georgia.

March 22, 2006.

COPYRIGHT MATERIAL OMITTED

William F. Rucker, Decatur, for appellant.

Thurbert E. Baker, Attorney General, John E. Hennelly, James D. Coots, Assistant Attorneys General, LaMalva, Read & Oeland, Theresa K. Read, Conyers, for appellees.

BERNES, Judge.

William Peacock appeals from the Superior Court of DeKalb County's orders enforcing a settlement agreement reached by the parties during mediation and dismissing Peacock's case with prejudice. Finding no error, we affirm.

The instant appeal arises from appellant Peacock's suit alleging that employees of appellee Douglas Asphalt Company, Inc. ("DAC") spilled diesel fuel, causing damage and contamination to his property. Peacock also sued several State of Georgia employees, alleging, inter alia, that they violated the Georgia Open Records Act (OCGA § 50-18-70 et seq.) by failing to properly respond to his request for records pertaining to the alleged contamination of his property by DAC.

The parties, through their respective counsel, entered into a consent order staying discovery pending mediation. The mediation took place on July 3, 2003 and resulted in an agreement signed by Peacock, as well as counsel for the parties and the mediator. The mediation agreement provided for the "good faith cleanup of the spills" on Peacock's property within 90 days by DAC with supervision by the "appropriate governmental agency"; the payment of mediation costs by the State of Georgia and DAC; the payment of $25,000 to Peacock "as settlement in full of all claims arising out of [the] matter" by the State and DAC; and, Peacock's voluntary dismissal of "the lawsuit that is the subject of this agreement."

Appellees subsequently filed a motion to enforce the agreement, which the trial court granted over Peacock's objection. Following cleanup efforts taken by DAC pursuant to the mediation agreement, Peacock filed a motion to enforce the trial court's previous order, alleging that the cleanup had not been properly performed and supervised. The trial court denied Peacock's motion and closed the case.

On appeal, Peacock challenges the trial court's order granting appellees' motion to enforce the mediation agreement and its subsequent order denying Peacock's motion to enforce. Peacock contends that the trial court erred (1) in construing the mediation agreement to require a voluntary dismissal with prejudice of all claims; (2) in finding that Peacock entered into the mediation agreement voluntarily; (3) in appointing Dr. Albert Langley, a defendant, to supervise the cleanup and in relying on his affidavit to determine whether a good faith cleanup of the property had occurred; and (4) in failing to allow a jury trial on the issues of whether he voluntarily entered into the mediation agreement and whether the cleanup of the property complied with the trial court's order enforcing the mediation agreement. We will address each of these contentions in turn.

1. Peacock claims the trial court erroneously expanded the mediation agreement by construing it to require a dismissal with prejudice of his claims against all of the defendants. Peacock contends the agreement only required him to voluntarily dismiss DAC and the State of Georgia, not the employees of the State named individually in the lawsuit. Based on the plain language of the agreement, we disagree.

"The trial court's construction of [a] settlement agreement is a matter of law subject to de novo review." (Footnote omitted.) Greenwald v. Kersh, 275 Ga.App. 724, 725, 621 S.E.2d 465 (2005). A mediation or settlement agreement is a contract subject to the usual rules of statutory construction. Carey v. Houston Oral Surgeons, 265 Ga.App. 812, 815-816(1), 595 S.E.2d 633 (2004). While the cardinal rule of construction is to determine the intention of the parties, no construction is required or permitted when the language employed by the parties in the contract is plain, unambiguous, and capable of only one reasonable interpretation. Id.

Here, the mediation agreement provides that Peacock "will finally, forever and immediately voluntarily dismiss the lawsuit that is the subject of this agreement." (Emphasis supplied.) Based on the clear and unambiguous terms of the agreement, Peacock was required to dismiss "the lawsuit" in its entirety and not certain claims against particular parties.

Peacock also contends the trial court erred in construing the mediation agreement as requiring a dismissal with prejudice. We cannot agree.

Settlement is, in and of itself, generally construed to be a final disposition of any claim against a party to settlement by a party to the settlement arising out of the subject incident, unless remaining claims are specifically reserved by any of the parties. Such compromises are upheld by general policy, as tending to prevent litigation, in all enlightened systems of jurisprudence.

(Footnote omitted.) Carey, 265 Ga.App. at 817(1), 595 S.E.2d 633. Peacock not only failed to specifically reserve any claims in the mediation agreement, he agreed to accept payment "as settlement in full of all claims arising out of this matter" and to voluntarily dismiss the lawsuit "finally" and "forever." Thus, the trial court did not err in construing the mediation agreement as a final disposition which required Peacock to dismiss with prejudice all claims arising out of the lawsuit.

2. Peacock further contends that the trial court erred in enforcing the mediation agreement in light of his claim of duress. Specifically, Peacock contends that the trial court erred by failing to conclude that he was forced to sign the mediation agreement as a result of physical duress. Again, we disagree.

"On a motion to enforce a settlement agreement, we construe the evidence to uphold the trial court's judgment. We will not disturb a trial court's findings thereon unless clearly erroneous." (Citations and punctuation omitted.) Griffin v. Wallace, 260 Ga.App. 857, 581 S.E.2d 375 (2003). See also Morrow v. Vineville United Methodist Church, 227 Ga.App. 313, 317(2), 489 S.E.2d 310 (1997).¹

At the hearing on appellees' motion to enforce the mediation agreement, the trial court heard from Peacock, who asserted that he was subject to duress during the mediation because he is diabetic and his blood sugar went up, he was in severe physical pain, he was prevented from leaving the building when he wanted to terminate the negotiations, and his ex-attorney refused to let him leave the mediation session without signing the agreement. However, the trial court also heard from Peacock's ex-attorney, who contradicted Peacock's version of the mediation and testified that the conditions under which the mediation was conducted were comfortable and that Peacock "agreed to and signed off" on the mediation agreement. Based on the evidence presented, the trial court rejected Peacock's claim of duress, finding that "adequate precautions were taken to ensure the health and comfort of [Peacock], and that [Peacock] was not subject to coercion of any kind."

Construing the evidence to uphold the trial court's judgment, we conclude that the trial court did not clearly err in finding that Peacock voluntarily signed the mediation agreement. The trial court, sitting in its role as factfinder, was entitled to credit the testimony of Peacock's ex-attorney and reject any conflicting testimony presented by Peacock himself. See, e.g., In the Interest of C.S., 275 Ga.App. 562, 565(1), 621 S.E.2d 483 (2005). Accordingly, we affirm the trial court's conclusion that the mediation agreement was entered into voluntarily and, therefore, was enforceable.

3. Peacock also argues that because Dr. Albert Langley was a named defendant in the lawsuit, the trial court erred in appointing him to supervise the cleanup of the property and in relying upon his affidavit to later determine whether the cleanup had been performed in good faith as required by the mediation agreement. We conclude that Peacock has waived his argument.

The mediation agreement provided that DAC's "cleanup [would] be supervised in good faith by the appropriate governmental agency." To enforce this provision, the trial court ordered Dr. Langley to supervise the cleanup. Dr. Langley, a program manager with the Georgia Environmental Protection Division, had supervised hundreds of cleanups, including many oil spills, pursuant to Georgia's environmental-protection-related statutes. His experience and expert qualifications have not been challenged.

The trial court's order enforcing the mediation agreement and appointing Dr. Langley to supervise the cleanup was issued on March 4, 2004. The cleanup thereafter took place under Dr. Langley's supervision on April 12, 2004 and on May 29, 2004. Peacock made no objection to Dr. Langley's alleged disqualification until October 11, 2004, nearly five months after the cleanup and after the filing of Dr. Langley's affidavit discussing the cleanup.

"[A] motion to disqualify should be made with reasonable promptness after a party discovers the facts which lead to the motion. A failure to make a reasonably prompt motion to disqualify may result in the conflict being waived." (Citations and punctuation omitted.) Head v. CSX Transp., 259 Ga.App. 396, 398, 577 S.E.2d 12 (2003); Ga. Baptist Health Care System v. Hanafi, 253 Ga.App. 540, 541-542, 559 S.E.2d 746 (2002). See also Miller v. State, 233 Ga.App. 814(1), 506 S.E.2d 136 (1998); Jackson v. State, 146 Ga.App. 736(2), 247 S.E.2d 512 (1978). "A party is not allowed to remain silent regarding an objection or grounds for error and gamble on a favorable [outcome], expecting that he can raise such objection later. . . . Such tactics result in the alleged error being waived." (Citations omitted.) Head, 259 Ga.App. at 397-398, 577 S.E.2d 12. "No matter how erroneous a ruling of a trial court might be, a...