                              FIRST DIVISION
                                DOYLE, C. J.,
                         PHIPPS, P. J., and BOGGS, 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


                                                                 November 16, 2015




In the Court of Appeals of Georgia
 A15A1310. BENTON v. GAILEY, et al.                                          BO-064

      BOGGS, Judge.

      In this interlocutory appeal, Lucille Benton appeals from the trial court’s order

denying her motion to enforce a settlement with Cara and Howard Gailey,

individually and as natural parents of Ayden Gailey, a minor. For the reasons

explained below, we affirm.

      “On appeal from a trial court’s order on a motion to enforce a settlement

agreement, we apply a de novo standard of review.” (Citation and footnote omitted.)

Lamb v. Fulton-DeKalb Hosp. Auth., 297 Ga. App. 529 (677 SE2d 328) (2009).

      Because the issues raised are analogous to those in a motion for
      summary judgment, in order to succeed on a motion to enforce a
      settlement agreement, a party must show the court that the documents,
      affidavits, depositions and other evidence in the record reveal that there
       is no evidence sufficient to create a jury issue on at least one essential
       element of the appellant[‘]s case. Thus, we view the evidence in a light
       most favorable to the nonmoving party.


(Citation, punctuation and footnote omitted.) Tillman v. Mejabi, 331 Ga. App. 415

(771 SE2d 110) (2015).

       So viewed, the record shows that the settlement relates to an incident in which

Benton struck the minor Gailey while driving a car insured by Encompass Insurance

Company (“Encompass”). The child’s injuries were significant and it is alleged his

medical expenses exceed $500,000; Benton’s policy with Encompass had a $50,000

bodily injury liability limit.

       A claim representative with Encompass submitted an affidavit averring that she

spoke with Howard Gailey by telephone on October 26, 2010 and he accepted her

offer to pay “$50,000 for settlement of Aiden Gailey’s claims.” In an affidavit

submitted in opposition to the motion to enforce settlement, Howard Gailey denied

that he orally agreed to accept the $50,000 settlement offer. According to Mr. Gailey,

he “never told [the claim representative] during that telephone conversation nor at

anytime after that conversation that I accepted or would agree to accept Ms. Benton’s

$50,000 policy limit in settlement of any claims.” It is undisputed that the claim


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representative did not send a letter to Mr. Gailey confirming the purported settlement.

Instead, she sent “the file” to counsel, Kelley Webb, “to assist with the settlement

documents.” Webb spoke with Mr. Gailey and later his attorney, Steven Carter, about

the process to finalize a settlement involving a minor and averred in her affidavit that

Carter never asserted a settlement had not been reached. According to Webb,

finalizing the settlement through probate court was delayed for over a year while

Carter attempted to negotiate down various healthcare liens.

      On October 1, 2012, almost two years after the purported oral settlement on

October 26, 2010, Carter sent a “Time Limited Settlement Demand” letter to Webb

stating, in pertinent part, that he was authorized to extend an offer to settle the claims

of the parents and the minor “on the following terms:” payment of $49,250.00 to the

parents and payment of $750.00 to the minor, through his natural guardians and

parents. The letter also provides:

      For this settlement offer and opportunity to be timely accepted, I must
      receive each of the following into my office by the stated deadline
      [October 15, 2012 at 5:00 p.m.], provided their settlement offer has not
      otherwise been previously rejected as contemplated by law:


             1.     $49,250.00 check from Encompass made jointly payable to
                    “Howard Gailey and Cara Gailey, in their capacity of

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                   parents of Ayden Gailey, a minor and Stephen C.
                   Carter, P. C., their attorney”;


             2.    $750.00 check from Encompass made jointly payable to
                   “Howard Gailey and Cara Gailey as Guardians of the
                   Property of Ayden Gailey, a minor, and Stephen C.
                   Carter, P. C., their attorney”;


             3.    A certified copy of the declarations page of each policy of
                   insurance providing coverage to your insured applicable to
                   my clients’ respective claims; and


             4.    [Statement under oath by corporate officer or claim
                   manager regarding available insurance] (Emphasis in
                   original.)


After an exchange of letters between counsel about whether probate court approval

was required for the settlement, on October 15, 2012, before the deadline for

acceptance expired, Webb sent Carter a letter stating, in pertinent part:

      Encompass Insurance Company on behalf of Lucille Benton accepts
      your October 1, 2012 offer but is statutorily required to have Probate
      Court approval of this settlement pursuant to OCGA § 29-3-1 et seq.,
      and therefore our acceptance is subject to Probate Court approval. . . .
      Per your October 1, 2012 correspondence, also enclosed please find an



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      “Affidavit of Insurance” and a certified declaration page for Encompass
      Insurance policy 186924014. (Emphasis supplied.)


It is undisputed that Encompass never delivered to Carter the checks specified in the

October 1, 2012 demand letter.

      1. Benton asserts that the trial court erred by failing to enforce the alleged oral

agreement on October 26, 2010. We disagree.

      Compromises of doubtful rights are upheld by general policy, as tending
      to prevent litigation, in all enlightened systems of jurisprudence. In
      considering the enforceability of an alleged settlement agreement,
      however, a trial court is obviously limited to those terms upon which the
      parties themselves have mutually agreed. Absent such mutual
      agreement, there is no enforceable contract as between the parties. It is
      the duty of courts to construe and enforce contracts as made, and not to
      make them for the parties. . . . While an agreement may be oral, if the
      parties disagree on whether an agreement was reached, the agreement
      must be memorialized in a writing to be enforceable, and the absence of
      a writing prevents enforcement.


Imerys Clays, Inc. v. Washington County Bd. of Tax Assessors, 287 Ga. App. 674,

675 (652 SE2d 580) (2007). Here, Benton has not produced a writing memorializing

the terms of the alleged settlement reached on October 26, 2010. As a result, the trial

court did not err by denying this portion of Benton’s motion to enforce an alleged


                                           5
settlement. See id.; Ellerin & Assoc. v. Brawley, 263 Ga. App. 860, 865 (5) (589 SE2d

626) (2003).

      2. Benton asserts, in the alternative, that the trial court erred by concluding

Encompass failed to accept the Gaileys’ October 1, 2012 settlement offer. Again, we

disagree.

      It is well-settled that

      An answer to an offer will not amount to an acceptance, so as to result
      in a contract, unless it is unconditional and identical with the terms of
      the offer. To constitute a contract, the offer must be accepted
      unequivocally and without variance of any sort. A purported acceptance
      of a plaintiff’s settlement offer which imposes conditions will be
      construed as a counter-offer to the offer to settle. . . . (Punctuation
      omitted.) Herring v. Dunning, 213 Ga. App. 695, 698 (446 SE2d 199)
      (1994).


(Punctuation omitted.) Frickey v. Jones, 280 Ga. 573, 574 (630 SE2d 374) (2006).

And “[t]he offer must be accepted in the manner specified by it; and if it calls for a

promise, then a promise must be made; or if it calls for an act, it can be accepted only

by the doing of the act.” (Citation and punctuation omitted.) Herring, supra, 213 Ga.

App. at 699. Here, Encompass’s October 15, 2012 letter did not accept the offer

“unequivocally and without variance of any sort.” Id. at 698. Instead, it expressly

                                           6
stated that “our acceptance is subject to Probate Court approval.” (Emphasis

supplied.) Additionally, Encompass failed to deliver the check as specified in the

offer. While Encompass’s position that probate court approval was required for the

settlement may be a defense to any potential claim for bad faith failure to settle,1 it

cannot be used to alter the terms for acceptance outlined in the Gaileys’ offer letter.

See Kitchens v. Ezell, 315 Ga. App. 444, 449 (1) (a) (726 SE2d 461) (2012) (physical

precedent only) (party “entitled to specify the manner of acceptance”). For these

reasons, we affirm the trial court’s denial of Benton’s motion to enforce an alleged

settlement on October 15, 2012. See Kemper v. Brown, 325 Ga. App. 806, 808 (1)

(754 SE2d 141) (2014) (insurer’s demand that plaintiff place settlement funds into

an escrow account to protect interests of any pending liens “clearly constituted a

counteroffer” and rejection of plaintiff’s offer).

      3. In her remaining enumeration of error, Benton asserts that “the trial court

disregarded OCGA § 29-3-3 (f), requiring that the gross settlement of a minor’s claim

must be approved by court should it exceed $15,000.” In its order denying Benton’s

motion to enforce the purported settlements, the trial court also rejected “Benton’s

contention that Encompass could not accept the settlement opportunities provided by

      1
          We express no opinion on the merits of this position.

                                           7
the Demand Letter by delivering checks as demanded without first obtaining court

approval.” Based upon our holding in Division 2, it is not necessary for this court to

address whether the trial court properly concluded that probate court approval was

not required for the settlement of the minor’s claim. “The fact that appellants might

possibly derive some future benefit from a favorable adjudication on an abstract

question will not require this court to . . . decide the case.” (Citation and punctuation

omitted.) Merrill v. Eiberger, 198 Ga. App. 806 (403 SE2d 91) (1991). Whether

probate court approval was necessary for a valid settlement of the minor’s claim is

immaterial to our analysis of whether the Gaileys’ offer was accepted. We therefore

decline to issue an advisory opinion on this issue. Huff v. The Harpagon Co., 286 Ga.

809, 811 (2) (692 SE2d 336) (2010) (“Georgia appellate courts are not authorized to

render advisory opinions as to potential error. [Cits.]”).

      Judgment affirmed. Doyle, C. J. and Phipps, P. J., concur.




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