                              FIRST DIVISION
                               BARNES, P. J.,
                          MCMILLIAN and REESE, JJ.

                   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


                                                                       May 8, 2018




In the Court of Appeals of Georgia
 A18A0317. FRANCIS v. CHAVIS.

      MCMILLIAN, Judge.

      In this personal-injury action arising from a motor-vehicle accident, Sabrina

Francis appeals the trial court’s order granting Robert Chavis’ motion to enforce a

settlement agreement. For the reasons explained below, we reverse.

      At the outset, we must expound on the applicable standard of review. When a

motion to enforce a settlement agreement is decided without an evidentiary hearing,

the issues raised are procedurally analogous to those in a motion for summary

judgment. See Tillman v. Mejabi, 331 Ga. App. 415, 415 (771 SE2d 110) (2015);

Brooks v. Ironstone Bank, 314 Ga. App. 879, 881 (726 SE2d 419) (2012) (where trial

court decides the case on motion and not by bench trial, issues raised are analogous

to those in a motion for summary judgment). Accordingly, viewing the evidence in
the light most favorable to the nonmoving party, the movant must show that the

“documents, affidavits, depositions, and other evidence in the record reveal that there

is no evidence sufficient to create a jury issue” on whether a settlement was reached.

Tillman, 331 Ga. App. at 415. On appeal, we apply a de novo standard of review to

the trial court’s determination to enforce the settlement agreement.1

      So viewed, the record shows that on November 13, 2014, Francis was driving

her Henry County Sheriff’s Department vehicle when she was rear-ended by Robert

Chavis’s vehicle. Chavis admitted liability for causing the accident. In October 2016,

Francis retained counsel and filed suit, claiming she had already incurred medical

expenses exceeding $7,000 and expected significant future medical expenses based

on her doctor’s recommendation for surgery to correct herniated discs aggravated by

the accident. Chavis then filed a motion to enforce settlement agreement. In support

of the motion, Donna Madison, a claims associate at State Farm Mutual Automobile

Insurance Company (“State Farm”), Chavis’ liability carrier, submitted an affidavit

stating that on July 29, 2016, she spoke to Francis on the phone regarding the claim


      1
        We note that, had the trial court heard testimony and acted as the finder of fact
regarding Chavis’ motion to enforce settlement agreement, we would instead review
the order under a clearly erroneous standard. See Brooks, 314 Ga. App. at 881; Griffin
v. Wallace, 260 Ga. App. 857, 859 (581 SE2d 375) (2003).

                                           2
she had filed following the accident. According to Madison, during their

conversation, Francis purportedly agreed to settle her claims for $3,433, which

equaled her medical expenses at that time plus $1,000 for pain and suffering. She also

averred that she explained to Francis that State Farm would be required to pay the

applicable workers’ compensation lien of $890.70 out of the settlement proceeds and

that Francis agreed that she and her husband would sign and date the Release, which

Francis requested be sent to her via postal mail. That same day, Madison mailed

Francis a release and cover letter confirming the terms of their settlement agreement.

The telephone conversation was apparently not recorded.

      By affidavit, Francis admitted to speaking with Madison on July 29, 2016, but

denied agreeing to the terms of State Farm’s settlement offer. After receiving the

cover letter and release agreement, Francis averred that she threw the documents in

the trash because she did not agree to the terms. Following a hearing, the trial court

granted Chavis’ motion, finding that the correspondence between Madison and

Francis, together with Madison’s affidavit, were sufficient to establish the existence

of an enforceable oral settlement agreement. This appeal followed.

      In related enumerations of error on appeal, Francis asserts the trial court erred

in granting the motion to enforce because genuine issues of material fact exist as to

                                          3
whether there was an agreement to settle. In considering whether to enforce a

settlement agreement, we first turn to the principle that “[t]he law favors compromise,

and when parties have entered into a definite, certain, and unambiguous agreement

to settle, it should be enforced.” (Punctuation and citation omitted.) Johnson v.

DeKalb County, 314 Ga. App. 790, 793 (1) (726 SE2d 102) (2012). See also

Pourreza v. Teel Appraisals & Advisory, Inc., 273 Ga. App. 880, 882 (616 SE2d 108)

(2005) (“Compromises of doubtful rights are upheld by general policy, as tending to

prevent litigation, in all enlightened systems of jurisprudence.”) (citation omitted).

“Under Georgia law, an agreement alleged to be in settlement and compromise of a

pending lawsuit must meet the same requisites of formation and enforceability as any

other contract.” S. Medial Corp. v. Liberty Mut. Ins. Co., 216 Ga. App. 289, 291 (2)

(454 SE2d 180) (1995). “In this regard, it is well settled that an agreement between

two parties will occur only when the minds of the parties meet at the same time, upon

the same subject matter, and in the same sense.” (Citation and punctuation omitted.)

Id. Thus, “[a]bsent [a] mutual agreement, there is no enforceable contract as between

the parties.” Anderson, 295 Ga. App. at 854 (1) (“It is the duty of courts to construe

and enforce contracts as made, and not to make them for the parties.”) (citation

omitted).

                                          4
      Where, as here, “the existence of a binding agreement is disputed, the

proponent of the settlement must establish its existence in writing.” (Citation

omitted.) Pourreza, 273 Ga. App. at 882. We have often explained that “[t]he writing

which will satisfy this requirement ideally consists of a formal written agreement

signed by the parties. However, letters or documents prepared by attorneys which

memorialize the terms of the agreement will suffice.” (Citation omitted.) Id.

      Here, Chavis contends that, notwithstanding Francis’ denial that she agreed to

settle the case, the documents prepared by Madison in response to the conversation

and Madison’s affidavit establish as a matter of law that a binding settlement

agreement was reached. But because the trial court did not conduct an evidentiary

hearing, Chavis’ burden to show that a settlement was reached is similar to that on

summary judgment: viewing the evidence in the light most favorable to Francis as the

nonmoving party, was there a genuine issue of material fact on any element of

Chavis’ case? Clearly, there was here when each party submitted opposing affidavits

about whether there was a settlement reached at all during the oral, unrecorded

conversation.2

      2
         More typically, written correspondence exists between the parties, and the
court is left to determine from the writings whether a settlement was reached. See,
e.g., Johnson v. DeKalb County, 314 Ga. App. 790, 793 (1) (726 SE2d 102) (2012);

                                         5
      Moreover, although Madison’s July 29, 2016 letter purported to memorialize

the parties’ oral agreement to settle, viewing the evidence in the light most favorable

to Francis as the nonmoving party, particularly given Francis’ affidavit that directly

contradicted Madison’s assertion that they had reached an agreement at all, a genuine

issue of material fact exists as to whether the letter memorialized the parties’

agreement to settle or was an offer by Madison to settle for the terms set out in the

letter and release.3 Accordingly, the trial court erred in granting Chavis’ motion to

enforce the parties’ settlement agreement. See City of Albany v. Freeney, 313 Ga.

App. 24, 28 (1) (720 SE2d 349) (2011).

      Judgment reversed and case remanded. Barnes, P. J., and Reese, J., concur.




DeRossett Enters. v. GE Capital Corp., 275 Ga. App. 728, 730-31 (2) (621 SE2d 755)
(2005).
      3
         We emphasize that the procedural posture and standard of review is critical
in this appeal. If the trial court had conducted an evidentiary hearing and determined
that an oral agreement to settle had been reached, the outcome of this appeal may
have very well turned out differently.

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