                Case: 11-13744         Date Filed: 07/13/2012             Page: 1 of 5

                                                                             [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             ________________________

                                     No. 11-13744
                                 Non-Argument Calendar
                               ________________________

                         D.C. Docket No. 1:10-cv-02586-HTW

GE COMMERCIAL DISTRIBUTION
FINANCE CORPORATION,
d.b.a. Capital Solutions for the
Home Products Industry,

lllllllllllll        llllllllllllllllllllllllll                                 Plaintiff - Appellee,

                                                  versus

HOWARD BALL,

                              lllllllllllllllll lllllllllllllllllllllll      Defendant - Appellant.

                               ________________________

                     Appeal from the United States District Court
                        for the Northern District of Georgia
                           ________________________
                                  (July 13, 2012)

Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.

PER CURIAM:

         Howard Ball appeals the confirmation of a binding arbitration award and the
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denial of a motion to enforce an alleged settlement between GE Commercial

Division Finance Corporation (“GECDF”) and Ball. On appeal, Ball contends that

he accepted GECDF’s settlement offer in a Stay Agreement, but GECDF then

repudiated it. Ball also argues he and GECDF have a binding settlement

agreement to negotiate the forbearance of the execution and collection of any

judgment.

      According to the applicable Georgia law, “[t]o constitute a valid contract,

there must be parties able to contract, a consideration moving to the contract, the

assent of the parties to the terms of the contract, and a subject matter upon which

the contract can operate.” O.C.G.A. § 13-3-1 (2011). “The consent of the parties

being essential to a contract, until each has assented to all the terms, there is no

binding contract; until assented to, each party may withdraw his bid or

proposition.” O.C.G.A. § 13-3-2 (2011).

      A district court’s determination regarding the existence of a valid contract
      will not be set aside unless clearly erroneous. The clearly erroneous
      standard of review applies to both subsidiary and ultimate facts.
      Concerning the existence of a contract, this court has recognized that it is
      logical for the reviewing court to treat ultimate facts as matters of law that it
      may determine independently.

Devlin v. Ingrum, 928 F.2d 1084, 1090 (11th Cir. 1991) (citations and quotations

omitted).



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       Ball first argues that he and GECDF both assented to the terms of the Stay

Agreement and that GECDF repudiated it. This argument was not raised below

and thus is waived. See BUC Int’l Corp. v. Int’l Yacht Council Ltd., 489 F.3d

1129, 1140 (11th Cir. 2007) (“As a general rule, we do not consider issues not

presented in the first instance to the trial court.”). However, even considering the

merits, we easily find that there was no enforceable agreement here because

GECDF withdrew the Stay Agreement almost two weeks before Ball tried to

accept it.1 This was too late to create a contract because, “until assented to, each

party may withdraw his bid or proposition.” O.C.G.A. § 13-3-2.

       Ball next argues that he and GECDF entered into a binding agreement to

negotiate the forbearance of the arbitration judgment, as described in a July 29,

2010, email from GECDF’s counsel to Ball’s counsel. We agree with the district

court that Ball never assented to the terms of an enforceable settlement agreement.

GECDF merely stated it was willing to “negotiate some type of forbearance of the



       1
               GECDF’s counsel sent the Stay Agreement to Ball’s counsel on June 24, 2010,
then emailed Ball’s counsel on July 7, 2010, to indicate that GECDF had changed its mind and
had decided to confirm the arbitration award. On July 19, 2010, Ball tried to accept the Stay
Agreement. GECDF then made a new proposition: Ball would have to pay $8,000 by July 23,
2010, and a new Stay Agreement would be created. Ball’s response did not come until July 29,
2010, when he indicated that he had signed the original Stay Agreement and had a check for only
$2,000. At that point, GECDF sought to begin negotiations on a forbearance agreement, as
discussed above. Clearly, there was never a meeting of the minds on any version of the Stay
Agreement.

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execution.” While the July 29, 2010, email mentioned an initial $2,000 payment

and “continued $2,000 payments,” crucial terms (i.e., the duration and conditions

of the payments) were still missing from the email. On August 4, 2010, GECDF’s

counsel stated via email that she would need to “discuss this further with GECDF

and get more specifics on terms that would be acceptable. I assume that so long as

$2,000 monthly payments are made, GECDF would agree not to enforce any

judgment, but I will confirm that with you. If that is the case, we will draft a new

agreement for your client’s signature.” The next day, GECDF’s counsel emailed

Ball’s counsel and said that GECDF had decided “to confirm the arbitration award

and terminate any settlement negotiations.”

      Under Georgia law, “[i]t is well established that no contract exists until all

essential terms have been agreed to, and the failure to agree to even one essential

term means that there is no agreement to be enforced. If a contract fails to

establish an essential term, and leaves the settling of that term to be agreed upon

later by the parties to the contract, the contract is deemed an unenforceable

‘agreement to agree.’” Kreimer v. Kreimer, 552 S.E.2d 826, 829 (Ga. 2001)

(quotations omitted). In this case, the parties had, at most, an agreement to agree

on the terms of the forbearance. The parties never agreed on how long Ball would

have to make payments or what other conditions he would need to meet in order

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for GECDF to ensure payment of the arbitration award. Although GECDF’s

counsel later suggested that continuous $2,000 payments would be satisfactory,

she specifically conditioned that on receiving approval from GECDF; and in any

event, she emailed the next day to state that GECDF had declined to make such an

offer. Because there was never a meeting of the minds on the specific terms of any

forbearance agreement, we agree with the district court that there was no

enforceable contract. See O.C.G.A. § 13-3-1; id. § 13-3-2.

      AFFIRMED.




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