Warren v. Jenkins, 77286
| Decision Date | 23 February 1989 |
| Docket Number | No. 77286,77286 |
| Citation | 379 S.E.2d 19,190 Ga.App. 442 |
| Parties | WARREN v. JENKINS. |
| Court | Georgia Court of Appeals |
Robert E. Robinson & Associates and Robert E. Robinson, Savannah, for appellant.
H. Gregory Fowler, Savannah, for appellee.
Defendant Warren appeals the trial court's judgment in effect enforcing a verbal settlement and terminating the litigation.
In November 1985, Warren entered into a purchase order with Jenkins which provided that Jenkins would provide "damage and restoration" services for the contents of Warren's house which had been damaged in a fire.
Jenkins sued in March of 1986, alleging breach of contract, quantum meruit, and intentional infliction of emotional distress. Defendant Warren's answer, filed May 1, 1986, contained a counterclaim in which he contended that plaintiff had breached the agreement by not returning certain items which had been removed from the premises for cleaning. He also alleged intentional infliction of emotional distress.
Later in May, counsel for Jenkins met with defendant's wife and counsel for defendant to discuss settlement of the matter. Defendant testified that the "meeting was held with my permission." He also acknowledged that
Warren does not dispute that Allstate, his insurer, issued a check payable to him, his wife and plaintiff Jenkins for $8,344 and that the check was endorsed by him and his wife. Nor does he dispute that Jenkins returned the items which he had been holding. Defendant's contention appears to be that, after the settlement, he went through additional documents and determined that he had overpaid Jenkins and therefore did not want to settle.
On October 1, 1987, plaintiff filed his Motion To Enforce Settlement Agreement including the affidavit of his counsel setting out the specific terms of the agreement, which included the payment to plaintiff of the $8,344, return by plaintiff to defendant of the retained property, and dismissal of the action with prejudice by the parties. Counsel further stated that after defendant's counsel had withdrawn in July, he had talked with defendant and they had again agreed on these settlement terms. While defendant recalled the phone call, he did not recall the agreement. Nothing was filed in opposition to the motion, defendant apparently relying on his deposition.
Thereafter, plaintiff amended his complaint to add a demand for attorney fees.
The trial court granted the motion to enforce settlement and entered judgment for Jenkins in accordance with it.
1. Defendant's second enumeration contends that his former attorney was not authorized to agree to a settlement. This assertion, however, is refuted by defendant's own sworn statement in his deposition that he gave his attorney "authority hopefully to bring the matter to a conclusion." Thus, the trial court's reliance on the affidavit of plaintiff's attorney and defendant's own evidence supported his conclusion that the attorney was authorized. USCR 4.12; Brumbelow v. Northern Propane Gas Co., 251 Ga. 674, 308 S.E.2d 544 (1983).
The affidavit of plaintiff's attorney provides another basis for the court's ruling. The attorney unequivocally...
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Dover Realty, Inc. v. Butts County Bd. of Tax Assessors, A91A2011
...and that a promise made in extinguishment of a doubtful claim is sufficient to support a valid contract. Warren v. Jenkins, 190 Ga.App. 442, 443(1), 379 S.E.2d 19. Nevertheless, it is in those instances " ' "[w]here parties to litigation have entered into a definite, certain, and unambiguou......
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Southern Cellular Telecom, Inc. v. Banks, s. A92A2052
...Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived. Warren v. Jenkins, 190 Ga.App. 442, 443(2), 379 S.E.2d 19 (1989). 3. Appellants contend that the trial court erred in denying their motions for directed verdict and j.n.o.v. on Banks' fr......
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Emory Rent-All, Inc. v. Lisle Associates General Contractors, Inc.
...447, 448, 326 S.E.2d 812 (1985). Compare Topa Ins. Co. v. Acree, 209 Ga.App. 234, 235, 433 S.E.2d 312 (1993); Warren v. Jenkins, 190 Ga.App. 442, 443(1), 379 S.E.2d 19 (1989); Dover Realty v. Butts County Bd. of Tax Assessors, 202 Ga.App. 787(2), 415 S.E.2d 666 Judgment reversed. POPE, C.J.......
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Foskey v. Williams Bros. Trucking Co., Inc.
...reversing the verdict and ordering a new trial. The plaintiffs did not make this precise objection below (see Warren v. Jenkins, 190 Ga.App. 442, 443, 379 S.E.2d 19); and, in any case, the jury was otherwise properly charged as to the defendant's burden of proof on its own In view of the ju......