Walls v. Walls, No. A02A2068.

• Decision Date: 05 March 2003
• Docket Number: No. A02A2068.
• Citation: 260 Ga. App. 673,580 S.E.2d 564
• Parties: WALLS v. WALLS.
• Court: Georgia Court of Appeals

580 S.E.2d 564

260 Ga. App. 673

WALLS v. WALLS.

No. A02A2068.

Court of Appeals of Georgia.

March 5, 2003.

Reconsideration Denied March 31, 2003.

Certiorari Denied July 14, 2003.

Joseph E. East, Waycross, for appellant.

Douglas W. Mitchell III, Douglas, for appellee.

BARNES, Judge.

Ben David Walls ("B.D. Walls") appeals the grant of Herman Ashley Walls's ("H.A. Walls") motion to enforce a settlement. The parties are first cousins.

H.A. Walls filed a complaint for equitable relief and damages to resolve a dispute that had arisen with B.D. Walls over a mobile home park they were operating under a partnership agreement. The partnership operated for several years until B.D. Walls gave notice to H.A. Walls that he was taking physical and financial control of the business. This action led to H.A. Walls's lawsuit. B.D. Walls answered the complaint denying liability.

The only issue before us is whether the parties reached an enforceable settlement of their dispute. H.A. Walls asserts that they did, and moved below to enforce the settlement.

According to H.A. Walls's affidavit in support of that motion, the parties and counsel agreed that H.A. Walls should receive from B.D. Walls one-half the profits from the mobile home park for his life expectancy as determined from the annuity mortality table. The profits would be determined from the full rental income from the park less a designated amount for expenses. This amount would be $667.50 for each month of his life expectancy or a total of $ 196,885.80. This figure would be reduced to present value by an accountant using the rate of seven percent per year, and an amount for indebtedness of $19,023 would be subtracted from the present value of the amount due H.A. Walls under the settlement.

According to this affidavit, all the terms of the settlement were agreed upon, and no issue was left unresolved, except for an accountant to determine the present value of the settlement. After the total amount was reduced to present value by an accountant and the indebtedness was subtracted, the amount due H.A. Walls would be $75,377.21.

H.A. Walls's affidavit further states that B.D. Walls was aware of all the terms of the settlement and consented to them in the presence of H.A. Walls, H.A. Walls's wife, and counsel for both parties. Linda K. Walls, the wife of H.A. Walls, also submitted an affidavit that confirmed her husband's affidavit.

H.A. Walls also submitted an affidavit from Dwayne H. Gillis, the attorney who represented B.D. Walls at the time of the settlement. The affidavit recited facts confirming the settlement terms set out above in H.A. Walls's affidavit, and further recites that B.D. Walls was aware of the settlement formula and consented to all the terms. The affidavit also states that "[a]t a calendar call subsequent to the settlement, this case was announced by Affiant and Plaintiff's attorney as settled, pending the figures from the Plaintiff and an opportunity for Defendant to have same reviewed."

B.D. Walls, however, denies that a settlement was reached. His response to the motion contends that, although a settlement was discussed, no settlement was reached because the specific terms of the settlement had not been agreed upon. Attached to the response was an unsworn copy of a letter that B.D. Walls sent to his first attorney terminating that attorney's employment and stating that he never agreed to settle the case. These statements were later confirmed in an affidavit from B.D. Walls stating that "no settlement [was] agreed upon concerning [this] case that I consented to. I appeared for depositions ... and a settlement formula had been discussed, but I did not agree to all of the specifics." B.D. Walls's former attorney submitted a second affidavit to "clarify" his previous affidavit. He stated that it was his "recollection that the parties agreed upon a settlement formula. Once this had been done this figure was to be reduced to present value minus the present debt. The present value figure had not been determined at the settlement conference."

Later, this attorney submitted yet a third affidavit. This affidavit recited that he had been again contacted by B.D. Walls's current counsel, and that,

[u]pon reflection, the settlement amount once agreed upon, had to be paid over a period of time. A payment plan was to be agreed upon once a final figure was determined. It is my recollection that the income from the property was just covering the debts and payments thereon. There was not to be a judgment for a set amount without an agreed upon

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