Torres v. Elkin

• Decision Date: 12 July 2012
• Docket Number: No. A12A0278.,A12A0278.
• Citation: 730 S.E.2d 518
• Parties: TORRES v. ELKIN.
• Court: Georgia Court of Appeals

730 S.E.2d 518

TORRES

v.ELKIN.

No. A12A0278.

Court of Appeals of Georgia.

July 12, 2012.

Darrell Wayne Hinson, Decatur, for Appellant.

Russell Dunn Waldon, Atlanta, and John Elliott Alday, for Appellee.

DILLARD, Judge.

In this personal-injury action arising from a motor-vehicle accident, Jason Torres appeals the trial court's order granting Cassandra Lee Elkin's motion to enforce settlement and denying his motion for partial summary judgment. Torres argues that Elkin's insurance company's purported acceptance was neither identical to the terms of his offer nor unconditional and unequivocal. For the reasons discussed infra, we conclude that the parties failed to enter into an enforceable settlement agreement and thus reverse the trial court's order.

The record in this case shows that on March 27, 2008, Torres and Elkin were involved in a motor-vehicle accident, which resulted in Torres suffering injuries so severe that he incurred over $500,000 in medical expenses. Elkin's vehicle was covered by an insurance policy issued by Infinity Standard Insurance Company (“Infinity”). After the accident, Infinity offered to settle Torres's bodily-injury claims for $25,000 in exchange for Torres executing an enclosed release and agreeing to satisfy any medical liens. Torres's attorney rejected the offer and returned the check for $25,000, indicating that his client had not yet made a decision about whether to settle the case. Subsequently, Infinity resent a check for $25,000 and proposed a new settlement agreement, according to which Infinity would settle Torres's claims in exchange for Torres's execution of a limited-liability release.

Torres's attorney rejected Infinity's proposed offer in a letter dated February 12, 2010, and made a counteroffer to settle Torres's claims if certain conditions were met by “the end of the month.” Torres's attorney's letter stated in relevant part:

We will need to [sic] a release of your insured that reserves Mr. Torres' rights to recover uninsured motorist benefits and that does not contain any language about how my client has not relied upon any representations by your side in signing the release. If you get me that described release with a check for $250.00 and all of the statements and insurance documents requested above by the end of the month, then my client will sign the release. Please note that acceptance may only occur by my timely receipt of all of the requested items.

The “documents requested above” consisted of the following: (1) any recorded statements from eyewitnesses to the accident; (2) recorded statements obtained by Infinity from Elkin; (3) verification under oath that the previously offered $25,000 represented the full amount of available bodily-injury insurance coverage; (4) a copy of each insurance policy issued by Infinity with a statement under oath from a corporate officer or claims manager verifying that the documents were complete and accurate copies of each policy; and (5) a release that reserved Torres's rights to recover uninsured-motor-vehicle benefits and that did not contain any language that Torres “had not relied upon any representations” by Infinity.

Infinity faxed Torres's attorney a letter on February 22, 2010, asking whether the $250.00 represented an additional property-damage claim. On February 24, 2010, Infinity wrote Torres's attorney, advising him that Infinity was preparing a response to his February 12, 2010 letter and asking whether his client would agree to satisfy any medical liens arising from the accident.

In a separate letter dated February 24, 2010, Infinity responded to the February 12 offer to settle Torres's claims, noting that Torres's attorney had already received the requested affidavits, a check for $25,000, and the declarations page. Infinity also attached a certified copy of Elkin's liability-insurance policy, Elkin's recorded statement, a check for $250.00, and a third proposed limited-liability release. The letter from the Infinity representative further stated, “Please note that I have included indemnification language in the release due to the hospital lien notices we have received. I have not received a response to the question in my letter faxed to you yesterday in which I asked if you intended to protect the liens.” Infinity went on to emphasize its “trust that your office will satisfy any liens arising out of this matter.” Infinity's enclosed release required Torres to indemnify Infinity for all claims for liens arising out of the accident and to pay all reasonable costs in defending against liens, including attorney's fees.¹ At the close of the letter, Infinity asked to be informed immediately “if any items are deficient in any manner” and emphasized Infinity's “intent to comply with all conditions of [Torres's] demand.” There were no further communications between the parties before the settlement offer expired on February 28, 2010.

On March 4, 2010, Torres's attorney wrote to Infinity, acknowledging the receipt of what he described as Infinity's “counteroffer to settle [his] client's bodily injury claims” and insisting that his client would not agree to defend Infinity or Elkin against claims by third parties. The next day Infinity sent another release that did not contain indemnification language, but which did contain language stating that Torres had not relied on any representations outside of the agreement. The parties communicated further regarding the documentation Infinity provided, but they were unable to resolve the matter.

On March 9, 2010, Torres filed suit against Elkins and the other motorists involved, Cathy Isola and Michael Carter, for injuries and other damages that he suffered as a result of the motor-vehicle accident.² Shortly thereafter, uninsured-motorist carriers Progressive Max Insurance Company and Progressive Premier Insurance Company of Illinois entered appearances as unnamed defendants in this suit. On February 1, 2011, Elkin filed a motion to enforce settlement, contending that Infinity had settled with Torres on Elkin's behalf by its letter of February 24, 2010. Torres opposed the settlement motion and moved for partial summary judgment on the same issue. The trial court granted Elkin's motion to enforce the settlement and denied Torres's motion for partial summary judgment on April 18, 2011, holding that Infinity had accepted Torres's settlement offer via its February 24, 2010 letter.

On May 13, 2011, Torres filed a notice of appeal from the April 18 order. However, this Court dismissed the appeal because the April 18 order did not dispose of all claims against all parties. A few months later, Torres filed a motion to dismiss defendant Isola and the two defendant insurance carriers and for entry of final judgment, and on August 15, 2011, the trial court granted this motion, stating, “[t]he issues having been duly heard and a decision having been rendered, it is hereby ordered and adjudged that judgment is entered in favor of Defendant Elkin, and that Plaintiff takes nothing by this action.”

On September 14, 2011, Torres filed a notice of appeal from the trial court's August 15, 2011 order. But this Court again dismissed the appeal on the ground that a plaintiff's voluntary dismissal of a party is not a decision that a plaintiff may then appeal.³ We further noted that a voluntary dismissal cannot be used to obtain appellate review of a ruling entered by the trial court more than 30 days from the filing of the notice of appeal. ⁴ Torres then moved for reconsideration. Consequently, we reinstated the case and directed the parties to address the jurisdictional issue as well as the merits. This appeal follows.

1. We first address the issue of whether we have jurisdiction in this case. It is well established that this Court has a solemn duty to inquire into our jurisdiction to review the errors enumerated on appeal,⁵ and it is a duty we do not take lightly.⁶ At the same time, this Court is also charged with avoiding the dismissal of an appeal and reaching the merits of a case whenever it is reasonable to do so.⁷ After conducting such an inquiry in this matter, we find that we have jurisdiction over this appeal.

OCGA § 5–6–34(a)(1) provides that direct appeal may be had from all final judgments of the trial court.⁸ A final judgment exists only “[when] the case is no longer pending in the court below....” ⁹ A party has 30 days after entry of an appealable judgment to file its notice of appeal.¹⁰ And once a final judgment is appealed, all judgments, rulings, or orders rendered in the case which are raised on appeal and may affect the proceedings below may be appealed regardless of whether they would be appealable standing alone.¹¹ In the case of an order granting a motion to enforce a settlement agreement, the order is not final until the trial court expressly enters final judgment on that order.¹² The Supreme Court of Georgia has held that “notwithstanding the trial court's grant of a motion to enforce a settlement, a case is not at an end until such a time as the agreement has been made the judgment of the court, thereby terminating the litigation.” ¹³ And our Supreme Court has further held that the 30–day period for filing a notice of appeal begins to run only when the trial court explicitly enters final judgment, rather than when the trial court grants the motion to enforce the settlement agreement.¹⁴

And here, no final judgment was entered simultaneously with the trial court's April 18, 2011 order granting Elkin's motion to enforce settlement and denying Torres's motion for partial summary judgment. In fact, the trial court entered final judgment with respect to its April 18 order only on August 15, 2011, when it also granted Torres's motion to dismiss his claims against the other remaining defendants, and thus, the 30–day time period for filing his notice of appeal did not begin to run until that point.¹⁵

Nevertheless, our conclusion that the trial court's August 15,...