                              SECOND DIVISION
                               ANDREWS, P. J.,
                            DOYLE, P. J., and RAY, J.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules/


                                                                     March 27, 2015




In the Court of Appeals of Georgia
 A14A1599. TILLER v. RJJB ASSOCIATES, LLP.

      ANDREWS, Presiding Judge.

      Appellees Argo-Memorial Drive Associates, LLC (“Argo”) and J.C. Penney

Corporation, Inc. filed a motion for attorney fees and litigation expenses pursuant to

the “offer of settlement statute,” OCGA § 9-11-68, after the trial court granted their

second motion for summary judgment in Lisa Tiller’s premises liability action against

them.1 The trial court granted Appellees’ motion, and Tiller now appeals, arguing that

Appellees’ offer failed to comply with OCGA § 9-11-68 (a) and was not made in

good faith and that Appellees failed to prove the reasonableness of the fees and

      1
        Although Tiller named RJJB Associates, LLP d/b/a Argo Memorial Drive
Associates, LLC as a defendant in her action, the record reflects that RJJB Associates,
LLP (“RJJB”) and Argo are distinct entities. RJJB is a member of Argo. As discussed
below, the trial court granted summary judgment in RJJB’s favor before Appellees
made the settlement offer at issue in this case.
expenses they sought to recover. We conclude that the offer of settlement did not

meet the requirements of OCGA § 9-11-68 (a), and we therefore reverse.

      We apply a de novo standard of review when an appeal presents a question of

law regarding whether the trial court correctly interpreted and applied OCGA § 9-11-

68 (a). Great West Cas. Co. v. Bloomfield, 303 Ga. App. 26, 27 (693 SE2d 99)

(2010).

      The record reflects that Tiller filed a complaint against Appellees, RJJB, and

a fictitious ABC Corporation and John Doe on July 15, 2011 to recover for injuries

she suffered when she slipped on water on the tile floor outside of a restroom in the

building in which she worked, located at 4380 Memorial Drive in Decatur. The

complaint alleged that the defendants were negligent in failing to exercise ordinary

care in keeping the premises and approaches safe; failing to provide a safe

environment for lawful invitees; failing to maintain the property and allowing the

property to become unsafe for lawful invitees; and failing to implement procedures

that would provide for the safety of lawful invitees. Tiller thereafter filed and served

an amended complaint naming Memorial Associates, LLC (“Memorial”) in the place

of ABC Corporation.



                                           2
      On June 11, 2012, Appellees and RJJB filed a motion for summary judgment.

Shortly thereafter, Tiller filed a motion for entry of a default judgment against

Memorial for failure to timely file an answer. On July 16, 2012, the trial court granted

the motion for default judgment against Memorial as to liability, with the issue of

damages to be heard at a later time. On August 24, 2012, the trial court entered an

order granting the pending summary judgment motion as to Tiller’s claims against

RJJB but denying it as to her claims against Appellees, concluding that material

issues of fact remained as to Appellees’ liability “especially in light of the fact that

discovery is still being conducted by the parties.”

      On September 12, 2012, Appellees served Tiller with an offer to settle pursuant

to OCGA § 9-11-68 by certified mail. The offer to settle stated in pertinent part:

      2. [Appellees] hereby offers Plaintiff Ms. Lisa Tiller one thousand
      dollars ($1,000) to settle any and all claims arising out of an incident
      occurring on or about July 30, 2009 at the building located at 4380
      Memorial Drive, Decatur, DeKalb County, Georgia as alleged in
      Plaintiff’s Complaint filed on July 15, 2011 in Fulton County Superior
      Court.


      3. Plaintiff must agree to dismiss with prejudice her Complaint filed in
      Fulton County Superior Court as 2011CV203308, execute a full and
      complete release of any and all claims against Defendant, indemnify for

                                           3
      subrogation claims, rights of recovery, lien claims and any assignments,
      and execute an affidavit that there are no liens or that all liens will be
      paid from the proceeds of the settlement.


      4. The total amount of this proposal is one thousand dollars ($1,000).
      This proposal is inclusive of all claims by Plaintiff Ms. Lisa Tiller.


Tiller did not respond to the offer within 30 days, and it was thereby deemed rejected.

OCGA § 9-11-68 (c). Appellees filed their second motion for summary judgment on

March 11, 2013. The trial court granted the motion in an order entered on June 3,

2013. Approximately one month later, Appellees filed their motion for attorney fees

and litigation expenses pursuant to OCGA § 9-11-68. Following a hearing, the trial

court entered an order granting the motion and concluding that Appellees were

entitled to attorney fees and costs in the amount of $24,696.28. In addition, after a

trial on the issue of damages, the trial court entered a final judgment in Tiller’s favor

against Memorial in the amount of $245,588.

      1. Tiller argues that the offer of judgment failed to comply with the

requirements of OCGA § 9-11-68 (a).

      We first set forth the statutory framework. If a defendant makes a valid offer

of settlement pursuant to OCGA § 9-11-68 (a) and the plaintiff rejects the offer, “the


                                           4
defendant shall be entitled to recover reasonable attorney’s fees and expenses of

litigation incurred by the defendant or on the defendant’s behalf from the date of the

rejection of the offer of settlement through the entry of judgment if the final judgment

is one of no liability.” OCGA § 9-11-68 (b) (1). Upon receipt of proof that the

provisions of OCGA § 9-11-68 (b) (1) apply to a judgment, “[t]he court shall order

the payment of attorney’s fees and expenses of litigation.” OCGA § 9-11-68 (d) (1).

The trial court, however, may disallow an award of attorney fees and costs upon

determining “that an offer was not made in good faith [and] setting forth the basis for

such a determination” in a written order. OCGA § 9-11-68 (d) (2).

       Of particular relevance here, OCGA § 9-11-68 (a), provides that the offer of

settlement must “[i]dentify generally the claim or claims the proposal is attempting

to resolve” and “[s]tate with particularity any relevant conditions.” OCGA § 9-11-68

(a) (3) and (4). We agree with Tiller that Appellees’ settlement offer did not comply

with these requirements. As a consequence, the offer was unclear and ambiguous as

to whether accepting Appellees’ offer would require Tiller to relinquish her claims

against co-defendant Memorial, against whom Tiller already held a default judgment

as to liability.



                                           5
      (a) As to the claims the proposal was attempting to resolve, paragraph 2 of the

offer stated that Appellees “hereby offer[] . . . Tiller one thousand dollars ($1,000) to

settle any and all claims arising out of an incident occurring on or about July 30, 2009

at the building located at 4380 Memorial Drive . . . as alleged in Plaintiff’s Complaint

filed on July 15, 2011.” Although Tiller had filed an amended complaint, this

provision of the settlement proposal refers to Tiller’s original complaint. Appellees

assert on appeal that by referencing the initial complaint, paragraph 2 expressed a

clear intent to settle only the claims Tiller asserted against them. Contrary to

Appellees’ argument, paragraph 2 is ambiguous in this regard. Paragraph 2 is not

clearly worded, and a plausible reading of it is that the phrase “as alleged in

Plaintiff’s Complaint filed on July 15, 2011,” refers to and modifies the phrase “an

incident occurring on or about July 30, 2009.” Under that reading, paragraph 2 would

mean that the settlement proposal applies to any claim arising out of the incident

described in the complaint, whether or not the claim is included in the complaint. In

addition, uncertainty arises given that Tiller’s initial complaint contemplated potential

claims against other parties by naming a fictitious ABC Corporation and John Doe.

The uncertainty in paragraph 2 is compounded by paragraph 4, which broadly states

“[t]his proposal is inclusive of claims by . . . Tiller.”

                                            6
      Although OCGA § 9-11-68 (a) (3) states that the settlement proposal must only

“[i]dentify generally the claim or claims the proposal is attempting to resolve,”

(emphasis supplied), we cannot conclude that § 9-11-68 (a) (3) is satisfied here.

Among the definitions of “general” is the following: “of, pertaining to, or affecting

all persons or things belonging to a group, category, or system.” See

TheFreeDictionary.com, http://www.thefreedictionary.com/general (citing Random

House Kernerman Webster’s College Dictionary (2010)) (last visited March 20,

2015). While it was not incumbent upon Appellees to specify or enumerate each

actual or potential claim that the settlement would cover, the offer here did not clearly

identify the claim or group or category of claims that the proposal covered, leaving

uncertainty about whether Appellees wished to resolve and terminate only the claims

Tiller asserted against them or some broader category of claims.

      (b) We also find that Appellees’ offer did not “[s]tate with particularity [its]

relevant conditions.” OCGA § 9-11-68 (a) (4).

      Paragraph 3, which sets forth the conditions of the settlement offer, states:

      Plaintiff must agree to dismiss with prejudice her Complaint filed in
      Fulton County Superior Court as 2011CV203308 [and] execute a full
      and complete release of any and all claims against Defendant.



                                           7
It is unclear if paragraph 3 (like paragraph 2) refers to the initial rather than amended

complaint, thereby signaling an intent that Tiller would only be required to dismiss

her claims against Appellees (and not Memorial). Such an intent would have been

more clearly expressed, however, by a reference to the claims in the initial complaint

rather than the complaint generally. Further, paragraph 3 goes on to mention the civil

action number, which may indicate that Tiller would have to dismiss the entire case.

Appellees’ intent is further muddied by the request for a release of any and all claims

against “Defendant,” in the singular.

      In Great West Cas. Co. v. Bloomfield, supra, we looked to precedents

concerning the formation of binding settlement agreements in determining whether

an insurer’s offer of settlement satisfied the particularity requirement. 303 Ga. App.

at 29 (2).2 Under Georgia law, “[n]o contract exists until all essential terms have been

      2
         The issue in Bloomfield, was whether an insurer’s offer to settle the plaintiffs’
tort claims satisfied the particularity requirement although it did not convey the
precise terms of the documents the plaintiffs in a personal injury case would be
required to execute or attach the proposed documentation. Id. at 27-29 (1). We held
that the offer was sufficiently particular because, under Georgia law, “so long as there
is a meeting of the minds between the parties as to the essential terms of the
settlement,” a binding agreement may be reached before the parties draft or establish
the specific terms of the releases or other documents to be executed. Id. at 28 (1). We
note that Tiller’s argument in this case is that she could not ascertain the scope of the
settlement in terms of the parties or claims affected, not that Appellees should have
provided her with specific terms or drafts of certain documents.

                                            8
agreed to, and the failure to agree to even one essential term means there is no

agreement to be enforced.” (Citation and punctuation omitted.) Reichard v. Reichard,

262 Ga. 561, 564 (2) (423 SE2d 241) (1992). Especially given that Tiller already had

procured a default judgment as to liability against Memorial, the scope of the claims

she would be required to relinquish was material. See Moore v. Hecker, 250 F.R.D.

682, 685 (S.D. Fla. 2008) (concluding that “[t]he scope of the settlement and released

parties” was a material element of the defendant’s offer of judgment under Fed. R.

Civ. P. 68). Since the offer was ambiguous in this regard, a court would not be able

to conclude that its acceptance would create a binding contract by virtue of mutual

assent to all material terms. See Graham v. HHC St. Simons, 322 Ga. App. 693, 695

(2) (746 SE2d 157) (2013) (“‘A contract is unenforceable where there is no meeting

of the minds between the parties regarding a material element thereof.’ And all

essential elements, including the element of consideration, must be certain.”)

(citations omitted). Under the circumstances, we also conclude that the offer to settle

did not meet the particularity requirement of OCGA § 9-11-68 (a) (4).

      (c) “[T]he clear purpose of the [offer of settlement] statute is to encourage

litigants in tort cases to make and accept good faith settlement proposals in order to

avoid unnecessary litigation, thereby advancing this State’s strong public policy of

                                          9
encouraging negotiations and settlements.” (Citations and punctuation omitted.) Ga.

Dept. of Corrections v. Couch, 295 Ga. 469, 471 (759 SE2d 804) (2014). We do not

believe that the statute effectively serves this goal if the recipient of a settlement offer

must guess at the offer’s meaning or scope in attempting to weigh the risks and

advantages of accepting a proposal as opposed to continuing litigation. See Basha v.

Mitsubishi Motor Credit of America, 336 F3d 451, 455 (5th Cir. 2003) (to serve Fed.

R. Civ. P. 68’s goal of encouraging settlement and avoiding litigation, offers of

judgment “must provide a clear baseline from which plaintiffs may evaluate the

merits of their case relative to the value of the offer.”) (citation and punctuation

omitted). Significantly, in this case, Tiller may have been legitimately confused about

whether she was being asked to relinquish her right to recover damages against

Memorial, against whom she held a default judgment as to liability. The requirements

of OCGA § 9-11-68 (a) help to ensure that offerees will not have to labor under

confusion in deciding whether to accept a settlement offer. Because the requirements

of OCGA § 9-11-68 (a) were not satisfied here, the trial court erred in awarding

attorney fees and litigation expenses to Appellees.

       2. Given our disposition in Division 1, we need not address Tiller’s remaining

enumerations of error.

                                            10
Judgment reversed. Doyle, P. J., and Ray, J., concur.




                                 11
