                                FIFTH DIVISION
                               MCFADDEN, P. J.,
                            BRANCH and BETHEL, 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


                                                                     March 16, 2018




In the Court of Appeals of Georgia
 A17A2005. BLANTON v. CRUMP HEATING & AIR, LLC et al.

      BETHEL, Judge.

      This appeal challenges a superior court order granting summary judgment to

defendants on the basis that the plaintiff had previously settled the same claims in a

magistrate court action. Because it is the law of this State that an attorney of record

has apparent authority to enter into an agreement on behalf of his client, and such an

agreement is enforceable against his client by other settling parties, and because the

plaintiff provided no notice of his intention to pursue his counterclaim following the

defendant’s voluntary dismissal, we find that no genuine issue of material fact

remains and affirm. See Brumbelow v. N. Propane Gas Co., 251 Ga. 674, 674 (308

SE2d 544) (1983); see also Weaver v. Reed, 282 Ga. App. 831, 832-33 (640 SE2d

351) (2006).
      OCGA § 9-11-56 (c) provides that summary judgment is proper “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of law[.]”

      Summary judgments enjoy no presumption of correctness on appeal, and
      an appellate court must satisfy itself de novo that the requirements of
      OCGA § 9-11-56 (c) have been met. In our de novo review of the grant
      of a motion for summary judgment, we must view the evidence, and all
      reasonable inferences drawn therefrom, in the light most favorable to the
      nonmovant.

Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010) (citations and

punctuation omitted).

      So viewed, the evidence shows that in December 2010, Crump Heating & Air,

LLC1 installed a new heating, ventilation, and air conditioning (“HVAC”) unit at

Arthur Blanton’s house in Valdosta. Over two years later, in February 2013, Blanton

hired Crump Heating & Air to remove the old HVAC duct work in his house and

install new duct work. After installing new duct work, Crump Heating & Air billed



      1
        We note that in the record the company was identified as both “Crump
Heating & Air” and “Crump Heating and Air.” In this opinion, consistent with the
notice of appeal and the caption of the order appealed from, we use “Crump Heating
& Air.”

                                           2
Blanton for $3,600 for that work. Blanton refused to pay the bill, claiming that there

was mold in the house due to a faulty HVAC system.

      In April 2013, Crump Heating & Air filed a lawsuit against Blanton in

magistrate court seeking payment of the $3,600 bill. Blanton filed an answer and

counterclaim, alleging negligent installation of the HVAC system and breach of

contract. The magistrate court scheduled a trial for May 29, 2013. The day before the

trial, on May 28, 2013, Blanton wrote a check for $3,600 to his attorney. Blanton’s

attorney then paid $3,600 to Crump Heating & Air and notified the magistrate court

in a letter that the trial was not necessary because the parties had settled the case. The

magistrate court then sent notice to the parties that the trial was cancelled because the

attorneys for both sides had indicated that a settlement had been reached. Several

months later, on December 4, 2013, the magistrate court notified counsel for Crump

Heating & Air that its action was still pending without a disposition and asked to be

advised of the case status. On December 9, 2013, counsel for Crump Heating & Air

responded by requesting that its claim be dismissed because it had settled. That same

day, Crump Heating & Air filed a dismissal without prejudice of its magistrate court

claim against Blanton.



                                            3
      A year later, in December 2014, Blanton and his former wife, Frances Blanton,

filed the instant action in superior court against Crump Heating & Air, Michael

Crump, Thomas Crump, and James Crump, claiming breach of contract, negligence,

and breach of implied and express warranties arising out of the installation of the

HVAC unit and duct work. Crump Heating & Air and the other defendants moved for

summary judgment. The superior court granted the motion against Arthur Blanton on

the ground that he had previously settled the same claims in magistrate court, but the

court denied the motion as to Frances Blanton. In pertinent part, the trial court found

“that plaintiff Arthur Blanton is barred from relitigating his claims against Crump

Heating [&] Air due to the settlement reached in Magistrate Court. . . . Therefore, the

Motion for Summary Judgment is hereby GRANTED as to Plaintiff Arthur Blanton.”

This appeal followed.

      Blanton argues that the trial court erred in granting summary judgment based

on a finding that the counterclaim had undisputably been settled. He contends that

there is a dispute as to whether his counterclaim was included in the settlement

agreement between the parties because the terms of an agreement were not

memorialized in a written release or a signed dismissal of his counterclaim. We

disagree because Blanton’s argument is directly contradicted by evidence in the

                                          4
record as well as Blanton’s own admission which acknowledged that his attorney

settled Crump’s magistrate court claim of $3,600 for installation of the duct work.

      As an initial matter, and despite Blanton’s arguments on appeal that based on

representations made to him by his attorney the settlement agreement did not

encompass his counterclaim against Crump Heating & Air, nowhere in the record is

it suggested that Blanton placed any limitations on his attorney’s authority to

negotiate or enter into the settlement agreement on his behalf. Brumbelow, 251 Ga.

at 675 (2) (“The authority may be considered plenary unless it is limited by the client

and that limitation is communicated to opposing parties.” (citations omitted)). Thus,

notwithstanding Blanton’s allegations of misunderstandings between him and his

attorney, throughout the pendency of the magistrate court case, Blanton’s attorney

was authorized to enter into a settlement with Crump Heating & Air on his behalf.

See Stephens v. Alan V. Mock Const. Co., 302 Ga. App. 280, 285 (1) (c) (690 SE2d

225) (2010) (“[A]n attorney of record has apparent authority to enter into an

agreement on behalf of his client and the agreement is enforceable against the client

by other settling parties.” (citation omitted)).

      Blanton argues that because there is no evidence of a dismissal or release

signed by him to show that a meeting of the minds occurred or that a the full and final

                                           5
settlement was reached, the letter sent by his attorney to the magistrate court alone is

insufficient to demonstrate that an agreement was reached between the parties to

settle both Crump Heating & Air’s claim and Blanton’s counterclaim. We are

unpersuaded by this argument.

      As this Court has previously held, the law allows letters or documents prepared

by attorneys, such as the one sent by Blanton’s attorney to the magistrate court, to

suffice as memorialized evidence of a settlement agreement. See Imerys Clays, Inc.

v. Washington Cty. Bd. of Tax Assessors, 287 Ga. App. 674, 675 (652 SE2d 580)

(2007) (letters or documents prepared by attorneys which memorialize the terms of

the agreement reached will suffice in showing the existence of a binding agreement).

      Here, the record shows that on the eve of trial, Blanton’s attorney sent a letter

to the magistrate court by which he unequivocally stated that the parties had reached

a settlement in the case and that a hearing on the matter was no longer necessary. At

the time he wrote the letter to the magistrate court, Blanton’s attorney was aware of

the existence of Blanton’s counterclaim as part of the case but made no mention of

the desire to shield that portion of the case from the settlement. Blanton admits that

he wrote a check in the amount that Crump Heating & Air claim he owed to his

attorney which was used to resolve the case. The record further shows that the

                                           6
attorney for Crump Heating & Air entered an agreement with Blanton’s attorney to

drop his client’s claims for attorney fees and expenses in exchange for payment of the

outstanding bill and the forego of Blanton’s counterclaim for damages. Although the

record suggests that Blanton’s attorney may not have informed Blanton of the details

of the settlement reached with Crump Heating & Air, there is sufficient written

evidence to establish that a settlement of all pending claims was in fact reached.

      As our Supreme Court has held:

      Therefore, from the perspective of the opposing party, in the absence of
      knowledge of express restrictions on an attorney’s authority, the
      opposing party may deal with the attorney as if with the client, and the
      client will be bound by the acts of his attorney within the scope of his
      apparent authority. The client’s remedy, where there have been
      restrictions not communicated to the opposing party, is against the
      attorney who overstepped the bounds of his agency, not against the third
      party.


Brumbelow, 251 Ga. at 674-75 (2) (citations omitted).

      While we are mindful that this Court has previously raised concerns about the

harshness of a doctrine binding a client to a settlement he did not explicitly authorize,

Blanton is bound by his attorney’s actions within the scope of his apparent authority.

See generally, Vandiver v. McFarland, 179 Ga. App. 411 (346 SE2d 854) (1986).

                                           7
Blanton’s only remedy, if any, in relation to his argument that his attorney exceeded

his authority by settling the entire case, including his counterclaim, without his

permission is with his attorney.

      The record shows that nearly a year had passed between the time the voluntary

dismissal of the magistrate court case was filed and when Blanton filed the instant

action. During that time, he made no effort to preserve his counterclaim for

independent adjudication nor did he provide notice that he intended to pursue his

counterclaim. See Howell, 337 Ga. App. at 901 (“A defendant may sometimes

preserve his counterclaim through actions short of a formal objection to a voluntary

dismissal of the main claim.” (citation and punctuation omitted)); see also Weaver,

282 Ga. App. at 832-33. Aside from his own self-serving affidavit, nothing in the

record suggests that Blanton believed his counterclaim, which initially sought

damages in excess of $5,000, remained pending for over a year and over 18 months

after the settlement.2 Thus, because Blanton did not object or make any indication of



      2
        We note that the superior court action was filed 12 months after the dismissal
of the magistrate court action. There is no record evidence that any action was taken
by Blanton in the intervening time indicating that any claim from the original suit in
magistrate court survived. Indeed, the superior court action giving rise to this appeal
did not reference the prior action or Blanton’s claims therein.

                                          8
his intent to pursue his counterclaim, the entire action was dismissed. See Mize v.

First Citizens Bank & Tr. Co., 297 Ga. App. 6, 8 (676 SE2d 402) (2009).

      Judgment affirmed. Branch, J., concurs. McFadden, P. J., dissents.*



*THIS OPINION IS PHYSICAL PRECEDENT ONLY. SEE COURT OF

APPEALS RULE 33.2 (a).




                                        9
 A17A2005. BLANTON v. CRUMP HEATING & AIR, LLC et al.



      MCFADDEN, Presiding Judge, dissenting.

      Weighing the evidence and choosing between conflicting plausible inferences

is the province of the jury. Because the majority invades the province of the jury I

respectfully dissent.

      Summary judgment is proper only when there is no genuine issue of material

fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c).

In this case, the dispositive question is whether there is a genuine issue of material

fact as to whether the settlement reached by Arthur Blanton and Crump Heating &

Air, LLC in magistrate court included the counterclaims brought by Blanton against
Crump Heating & Air. There plainly is such a genuine issue of material fact. So the

majority has erred in granting summary judgment against Blanton.

      The majority has given short shrift to this dispositive issue of fact and has

instead mistakenly focused on the ancillary question of whether Blanton’s attorney

had authority to settle on behalf of his client. Of course he had that authority. That

question is not in dispute.

      What is in dispute is whether or not Blanton’s attorney — in exercising that

authority — included Blanton’s counterclaim in the magistrate court settlement. That

issue can only be resolved by looking at the evidence in the record.

      In support of their motion for summary judgment, the Crump Heating & Air

filed the affidavit of Michael Crump, one of the owners of Crump Heating & Air,

who stated that the attorneys for both sides had “reached a full and final settlement

of the Magistrate Court case, wherein we agreed to drop our claim for attorney fees

and expenses if Mr. Blanton would pay the outstanding $3,600.00 bill in full and

forego his counterclaim for damages to his home allegedly caused by our negligence

and breach of contract.”

      In response, Blanton filed his own affidavit. He averred that, although Crump’s

magistrate court claim for $3,600 had been settled by his attorney, he had not signed


                                          2
a dismissal or release of his own claims and “[t]here was never any meeting of minds

of [him] and the Defendants to settles his losses in the total amount of $335,268.23

for basically nothing.” Blanton also deposed that he did not know his attorney was

going to use the $3,600 check to pay Crump Heating & Air for its claim and he

instead thought the money would be used to transfer the case from magistrate court

to superior court. Moreover, approximately five months after Crump Heating & Air

had dismissed its magistrate court action, Blanton filed a pro se statement of claim in

magistrate court against his attorney, seeking to recover the $3,600 on the basis that

the attorney had said he would have the case transferred to superior court.

      The majority disregards this evidence, dismissing Blanton’s affidavit as “self-

serving.” That is improper. The majority is weighing the credibility of the evidence.

“[D]espite the apparent self-serving nature of [Blanton’s] affidavit, whether his

testimony is credible is not an issue that the trial court can determine on summary

judgment.” Southern States-Bartow County, Inc. v. Riverwood Farm Prop. Owners

Assn., 331 Ga. App. 878, 886 (5) (769 SE2d 823) (2015) (citations and punctuation

omitted). Blanton had introduced at least some evidence from which a jury could find

that he believed his case had not been settled.




                                          3
       Perhaps a contrary inference can be drawn from the amount of time it took

Blanton to bring the superior court action — although any experienced lawyer knows

all too well that the press of other business and the challenges of investigation and

preparation often frustrate efforts to file before a deadline is imminent. It is for a jury,

not this court, to weigh the evidence and decide what inferences to draw.

       The law favors compromise, and when parties have entered into a
       definite, certain, and unambiguous agreement to settle, it should be
       enforced. 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. The settlement agreement alleged
       to have been created in this case would have been the product of the
       attorneys for the parties. As the existence of a binding agreement is
       disputed, the proponent of the settlement must establish its existence in
       writing. The 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 reached will suffice.

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

(citations and punctuation omitted).

       In this case, the existence of a binding settlement agreement is disputed. There

are letters prepared by the attorneys indicating that Crump Heating & Air’s magistrate

court claim was settled, and the authority of the attorneys who prepared them is not


                                             4
in question. But those letters do not memorialize the terms of the agreement reached

and do not specify that Blanton’s counterclaim was also settled. Contrary to the

conclusion of the majority, that letter completely fails to state any terms of the

settlement agreement reached. It merely states: “The parties have reached a settlement

in the above-styled case. Therefore, the hearing scheduled for Wednesday, May 29,

2013 at 1:30 p.m. is no longer necessary.” It is true, as noted above, that letters

prepared by attorneys which memorialize the terms of a settlement agreement will

suffice. Johnson, supra. But the brief letter sent by Blanton’s attorney, which contains

no terms of the agreement, is not such a letter memorializing any settlement terms.

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

(2005) (letters between attorneys memorializing the essential terms of a settlement

offer and acceptance were sufficient to authorize court to grant motion to enforce the

settlement agreement. Herring v. Dunning, 213 Ga. App. 695 (446 SE2d 199) (1994)

(accord).

             While a [settlement] 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. If the parties agree that a settlement was
      reached but disagree as to its terms, the proponents of the settlement
      must establish its existence in writing. Ordinarily, for an attorney to bind
      his client to a settlement agreement where there is a dispute as to terms,


                                           5
      the agreement must be in writing. This requirement of a writing goes to
      the certainty that an agreement exists and to the certainty of the terms of
      the agreement, not to the question of consent of the client to the
      agreement.

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

675-676 (652 SE2d 580) (2007).

      In this case, no writing, including the letter from Blanton’s attorney to the

magistrate court, shows the terms of any settlement agreement. Because there are

genuine issues of material fact as to whether the counterclaim was included in the

apparently oral settlement, the superior court’s summary judgment ruling, premised

on a finding that the counterclaim had in fact been settled, was erroneous. The

majority’s affirmance of that ruling, in light of the existing genuine issues of material

fact, is likewise erroneous.




                                           6
