Stephens v. Alan V. Mock Const. Co., Inc.
| Decision Date | 25 January 2010 |
| Docket Number | No. A09A1718.,A09A1718. |
| Citation | 690 S.E.2d 225,302 Ga. App. 280 |
| Parties | STEPHENS et al. v. ALAN V. MOCK CONSTRUCTION COMPANY, INC. et al. |
| Court | Georgia Court of Appeals |
Randall A. Schmidt, Savannah, for appellants.
Ellis, Painter, Ratterree & Adams, Jason Pedigo, Brennan, Harris & Rominger, Edward R. Stabell III, Savannah, Mozley, Finlayson & Loggins, Christopher N. Shuman, Lee C. Mundell, Atlanta, for appellees.
After mold infested their home, Horace and Jennifer Stephens filed a claim under their homeowners insurance policy with Liberty Mutual Fire Insurance Company. To remediate the mold, Liberty Mutual hired Alan V. Mock Construction Company, which in turn sub-contracted some of the work to a sister company, Ser-Clean, Inc.1 After a dispute arose over the remediation work, the Stephens sued Liberty Mutual and Mock Construction, asserting claims for breach of contract, negligence, and conversion. The defendants answered, and Mock Construction also counterclaimed for unpaid rental fees associated with the storage of the Stephens' belongings during the remediation. The trial court thereafter dismissed with prejudice the Stephens' claims against Liberty Mutual based on its conclusion that the parties had entered into a binding settlement agreement. The trial court also denied the Stephens' motion for reconsideration after rejecting their contention that they did not have an adequate opportunity to be heard on the settlement issue. Following further discovery, the trial court granted summary judgment in favor of Mock Construction on all of the Stephens' claims and on the counterclaim for unpaid rental fees. The Stephens now appeal these rulings. For the reasons discussed below, we affirm.
1. The Stephens contend that the trial court erred in its decision to enforce their settlement agreement with Liberty Mutual and to deny their motion for reconsideration on the same issue. We disagree.
On appeal from a trial court's order on a motion to enforce a settlement agreement, we apply a de novo standard of review, viewing the evidence in a light most favorable to the nonmoving party. The movant must demonstrate that the evidence of record is insufficient to create a jury issue on at least one essential element of the dispute.
(Citations and punctuation omitted.) Matrix Financial Svcs. v. Dean, 288 Ga.App. 666, 655 S.E.2d 290 (2007). We will uphold a trial court's decision granting or denying a motion for reconsideration absent an abuse of discretion. Cochran v. Emory Univ., 251 Ga.App. 737, 739(2), 555 S.E.2d 96 (2001). Guided by these principles, we turn to the record in the present case.
The record shows that the Stephens filed their contract and tort action against Liberty Mutual and Mock Construction in September 2005. Following discovery, Liberty Mutual filed a motion for summary judgment, arguing, among other things, that the contractual limitation period in the homeowners policy had expired prior to the lawsuit being filed.
Before the trial court ruled on the motion for summary judgment, counsel of record for the Stephens and Liberty Mutual entered into settlement negotiations through telephone and written communications. On July 5, 2006, the terms of a settlement were reached under which the Stephens would receive $21,211.89 from Liberty Mutual in exchange for a dismissal with prejudice and execution of a release of all of their claims against Liberty Mutual. The Stephens' claims against Mock Construction would remain pending. The settlement agreement was conditioned on Mock Construction releasing Liberty Mutual from any potential contribution claim.
The terms of the settlement agreement were confirmed in a July 6, 2006 letter faxed and mailed to counsel for the Stephens by Liberty Mutual. The following day, counsel for the Stephens responded by faxed letter, acknowledging that the July 6, 2006 letter had accurately set forth the terms of the settlement.
Liberty Mutual obtained a release from Mock Construction and confirmed the same in a letter to the Stephens' counsel dated July 20, 2006. In the confirmatory letter, counsel for Liberty Mutual reiterated the terms of the settlement agreement and noted that the condition placed upon the agreement had now been satisfied. Liberty Mutual later forwarded by overnight mail to the Stephens' counsel the drafted settlement documents for the Stephens to execute and the settlement check in the agreed amount.
Mr. Stephens executed the settlement agreement, but Mrs. Stephens refused to do so. Consequently, Liberty Mutual filed a motion to enforce the settlement agreement and to have the claims against it dismissed with prejudice. Along with the motion, Liberty Mutual submitted an affidavit from its counsel who had negotiated the settlement, and the correspondence between her and the Stephens' counsel confirming that a settlement had been reached and its terms. In her affidavit, Liberty Mutual's counsel averred that no limitations on the authority of the Stephens' counsel to negotiate or enter into the settlement agreement were ever expressed to her. Liberty Mutual's counsel further averred that she had proceeded with the settlement negotiations with the understanding that the Stephens had authorized their counsel to settle the case under the terms ultimately reached. The Stephens did not file a responsive brief or submit any affidavits or documentary evidence to rebut these assertions.
After Liberty Mutual filed its motion to enforce the settlement agreement, counsel for the Stephens moved to withdraw from the case and filed a notice of attorney's fee lien. The trial court granted counsel's motion to withdraw.
A hearing subsequently was held on Liberty Mutual's motion to enforce the settlement agreement in the trial judge's chambers, but the Stephens, who were now proceeding pro se, did not attend. Following the hearing, the trial court entered its order enforcing the settlement agreement and dismissing all of the Stephens' claims against Liberty Mutual with prejudice.
The Stephens moved for the trial court to reconsider its order. The Stephens submitted affidavits in which they averred that they had been present in the courtroom on the day of the hearing but had never been informed that the hearing would be conducted in the trial judge's chambers. As such, they asserted in their motion for reconsideration that they had not been given an opportunity to be heard on Liberty Mutual's motion to enforce the settlement agreement. The Stephens further averred in their respective affidavits that their former counsel did not have authority to enter into a settlement agreement on the terms proposed by Liberty Mutual. Accordingly, they argued in their motion that the settlement agreement was not binding and should not be enforced against them.
Former counsel for the Stephens then filed an affidavit in which, among other things, he averred that the Stephens had given him authority to negotiate and enter into the settlement agreement with Liberty Mutual. He also submitted the contract for legal representation he entered into with the Stephens which did not place any limitations on his authority to act on their behalf in the litigation.
In turn, Liberty Mutual filed a brief arguing that the Stephens' motion for reconsideration should not be granted, even if the Stephens' failure to appear at the in-chambers hearing was no fault of their own. Liberty Mutual argued that even if the Stephens had attended the hearing, their affidavits and exhibits submitted in support of their motion for reconsideration showed that the motion to enforce the settlement agreement still would have been granted by the trial court. Liberty Mutual argued that nothing in the evidence now brought forward by the Stephens called into question the uncontroverted fact that their former counsel had negotiated and accepted Liberty Mutual's offer of settlement while acting with the plenary apparent authority vested in him by law. According to Liberty Mutual, the affidavits of the Stephens, at most, reflected a dispute between the Stephens and their former counsel that did not affect the validity of the settlement agreement.
The trial court agreed with Liberty Mutual and denied the motion for reconsideration. The court noted that its decision was based upon a consideration of the Stephens' motion and all argument and evidence of record.
(a) As an initial matter, Liberty Mutual contends that the Stephens cannot challenge the trial court's order granting the motion to enforce the settlement and its order denying the motion for reconsideration because they were final orders that were not appealed within 30 days of their entry. The orders in question, however, were not final because the case remained pending against Mock Construction, and the trial court did not expressly determine that there was no just reason for delay and designate the orders as final judgments pursuant to OCGA § 9-11-54(b).2 See Lawson v. Athens Auto Supply & Elec., 200 Ga.App. 609, 611(1), 409 S.E.2d 60 (1991); Chadwick v. Miller, 165 Ga.App. 20, 21-22, 299 S.E.2d 93 (1983). Compare Lewis v. Carscallen, 274 Ga.App. 711, 713(1), 618 S.E.2d 618 (2005). As such, the Stephens were not required to appeal the orders within 30 days of their entry. Rather, the Stephens were entitled to challenge the orders pertaining to the settlement agreement upon their timely direct appeal from the trial court's subsequent entry of summary judgment in favor of Mock Construction. See OCGA § 9-11-56(h) (); Southeast Ceramics v. Klem, 246 Ga. 294, 295(1), 271 S.E.2d 199 (1980) ().
(b) We now turn to the merits of the Stephens' appeal. The Stephens first contend that the trial court erred in...
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