SECOND DIVISION BARNES, P. J., MCFADDEN and MCMILLIAN, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
March 7, 2013
In the Court of Appeals of Georgia A12A2363. HUDSON v. GODOWNS et al.
BARNES, Presiding Judge.
Following a bench trial, Brenda M. Hudson appeals the final order and
judgment in this boundary line and trespass case. She contends that the trial court
erred in finding an ambiguity in the parties’ initial settlement agreement, that the
court’s order accepting the agreement was final and could not be modified outside
that term of court in which it had been entered, and that the court erred in its factual
determination of where the boundary line was located. For the reasons that follow,
we affirm the order.
Hudson filed a complaint against neighboring property owners Ricky Godowns
and Belinda Sheram (collectively, “Godowns”), seeking an injunction and to have the
boundary line between the properties established. She contended that Godowns had trespassed on her land and removed timber, for which she sought damages, and had
been stubbornly litigious. After Godowns was served, the parties appeared in court
for a hearing on the injunction and reached an apparent agreement, stipulating certain
facts in open court that were reduced to a written order (the “Stipulated Order”). The
parties agreed that the boundary line between their properties was as depicted on a
certain plat, and Godowns renounced any claim to land south of the line “with bearing
of N 69 degrees 07 minutes 05 seconds E on the plat.” The parties also agreed to each
appoint a registered forester to determine if Godowns had cut any trees on Hudson’s
land, and if so, their monetary value. If the foresters disagreed on the value of the
trees, the trial court without a jury would determine damages and the issue of
litigation costs.
At a subsequent hearing scheduled to determine damages, it became clear that,
despite the purported settlement, “the parties had a major disagreement as to the
location of the property line,” as the trial court found. Hudson thought the line would
be as shown on the plat between two points marked by “rebar found,” while Godowns
thought the line would be started at one of those points but then follow the bearing
on the plat to a different endpoint. In an order, the trial court found that the agreement
embodied by the Stipulated Order could be interpreted two ways, and that parol
2 evidence “clearly demonstrate[d] that there was no meeting of the minds and
therefore no binding or enforceable agreement” (“the Rescinding Order”). Instead,
the parties were “left where they began, with no agreement and a dispute as to the
location of the property line along with all other issues[.]”
Hudson has challenged the trial court’s Rescinding Order multiple times, in an
unsuccessful application for interlocutory appeal to this court in opposition to
Godowns’ motion to open default, in a motion for summary judgment, in a motion
titled “Plaintiff’s Request of a Court Ruling on a Jury Resolution of Extrinsic
Evidence,” and in a “motion to set aside judgment” under OCGA § 9-11-60 (b), (d)
(1). In separate, detailed orders, the trial court denied each motion, noting finally that
Hudson had expended many resources arguing the same issue on multiple grounds.
After the parties waived their right to a jury trial, the trial court held a bench
trial and the parties presented extensive testimony about the disputed boundary line.
The court reviewed the evidence, made findings of fact, and concluded that the
boundary line was located where Godowns thought it was. It also found that
Godowns’ surveyor had trespassed onto Hudson’s land and awarded her $1 in
nominal damages. Finally, the court awarded no attorney fees or costs, finding that
each party had reasonable claims and none of them had acted in bad faith.
3 1. We note initially that Hudson’s brief does not follow the form or sequences
required by Court of Appeals Rule 25 (a) and (c) (1). While she enumerates seven
errors, her argument section does not follow the order of the enumeration of errors,
is not correspondingly numbered, and does not address the issues in sequence.
Hudson’s failure to adhere to our rules has hampered our ability to ensure that all her
enumerations are addressed, but “to the extent that we are able to discern which of the
enumerations are supported in the brief by citation of authority or argument, we will
address those enumerations.” John Crane, Inc. v. Wommack, 227 Ga. App. 538 (1)
(489 SE2d 527) (1997).
2. Hudson essentially argues that the Stipulated Order accepting the parties’
agreement was final and could not be modified outside that term of court. An order
adjudicating fewer than all the claims is not final, however, and “is subject to revision
at any time before the entry of judgment adjudicating all the claims and the rights and
liabilities of all the parties.” OCGA § 9-11-54 (b). See Hubbert v. Williams, 175 Ga.
App. 393, 394 (1) (333 SE2d 425) (1985). The trial court’s Stipulated Order in this
case was clearly not final because damages were still to be determined, as Hudson
tacitly admitted by filing an application for interlocutory appeal of that order rather
than a direct appeal. Because “no final order had been entered in the matter and the
4 case remained pending, . . . the superior court had authority to reconsider the
[Stipulated Order], vacate it, and order that the matter proceed to trial.” Internal Med.
Alliance v. Budell, 290 Ga. App. 231, 235 (1) (659 SE2d 668) (2008).
3. Hudson argues that the trial court erred in finding an ambiguity in the
parties’ initial settlement agreement, and in resolving that ambiguity without a jury.
“Whether a settlement is an enforceable agreement is a question of law for the
trial court to decide.” Auto-Owners Ins. Co. v. Crawford, 240 Ga. App. 748, 749 (1)
(525 SE2d 118) (1999). To be enforceable, the settlement agreement must be
“definite, certain, unambiguous and satisfy the same requisites of formation and
enforceability as any other contract[, and a] meeting of the minds is the first
requirement of law relative to contracts.” (Citations and punctuation omitted.) Id. at
749-750 (1). A purported settlement agreement in which the parties did not actually
agree on the essential terms is not a settlement agreement at all. Pourreza v. Teel
Appraisals & Advisory, 273 Ga. App. 880, 882-883 (616 SE2d 108) (2005).
When the trial court began the damages hearing in this case, it was immediately
apparent that the parties had not actually agreed to the location of the boundary line
between their properties. Hudson thought they had agreed to place the boundary line
as it was drawn on her plat, from one marker to another marker, and Godowns
5 thought they had agreed to place the boundary line starting at a marker and using the
compass direction written on the plat to locate the line. Applying the different
Free access — add to your briefcase to read the full text and ask questions with AI
SECOND DIVISION BARNES, P. J., MCFADDEN and MCMILLIAN, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
March 7, 2013
In the Court of Appeals of Georgia A12A2363. HUDSON v. GODOWNS et al.
BARNES, Presiding Judge.
Following a bench trial, Brenda M. Hudson appeals the final order and
judgment in this boundary line and trespass case. She contends that the trial court
erred in finding an ambiguity in the parties’ initial settlement agreement, that the
court’s order accepting the agreement was final and could not be modified outside
that term of court in which it had been entered, and that the court erred in its factual
determination of where the boundary line was located. For the reasons that follow,
we affirm the order.
Hudson filed a complaint against neighboring property owners Ricky Godowns
and Belinda Sheram (collectively, “Godowns”), seeking an injunction and to have the
boundary line between the properties established. She contended that Godowns had trespassed on her land and removed timber, for which she sought damages, and had
been stubbornly litigious. After Godowns was served, the parties appeared in court
for a hearing on the injunction and reached an apparent agreement, stipulating certain
facts in open court that were reduced to a written order (the “Stipulated Order”). The
parties agreed that the boundary line between their properties was as depicted on a
certain plat, and Godowns renounced any claim to land south of the line “with bearing
of N 69 degrees 07 minutes 05 seconds E on the plat.” The parties also agreed to each
appoint a registered forester to determine if Godowns had cut any trees on Hudson’s
land, and if so, their monetary value. If the foresters disagreed on the value of the
trees, the trial court without a jury would determine damages and the issue of
litigation costs.
At a subsequent hearing scheduled to determine damages, it became clear that,
despite the purported settlement, “the parties had a major disagreement as to the
location of the property line,” as the trial court found. Hudson thought the line would
be as shown on the plat between two points marked by “rebar found,” while Godowns
thought the line would be started at one of those points but then follow the bearing
on the plat to a different endpoint. In an order, the trial court found that the agreement
embodied by the Stipulated Order could be interpreted two ways, and that parol
2 evidence “clearly demonstrate[d] that there was no meeting of the minds and
therefore no binding or enforceable agreement” (“the Rescinding Order”). Instead,
the parties were “left where they began, with no agreement and a dispute as to the
location of the property line along with all other issues[.]”
Hudson has challenged the trial court’s Rescinding Order multiple times, in an
unsuccessful application for interlocutory appeal to this court in opposition to
Godowns’ motion to open default, in a motion for summary judgment, in a motion
titled “Plaintiff’s Request of a Court Ruling on a Jury Resolution of Extrinsic
Evidence,” and in a “motion to set aside judgment” under OCGA § 9-11-60 (b), (d)
(1). In separate, detailed orders, the trial court denied each motion, noting finally that
Hudson had expended many resources arguing the same issue on multiple grounds.
After the parties waived their right to a jury trial, the trial court held a bench
trial and the parties presented extensive testimony about the disputed boundary line.
The court reviewed the evidence, made findings of fact, and concluded that the
boundary line was located where Godowns thought it was. It also found that
Godowns’ surveyor had trespassed onto Hudson’s land and awarded her $1 in
nominal damages. Finally, the court awarded no attorney fees or costs, finding that
each party had reasonable claims and none of them had acted in bad faith.
3 1. We note initially that Hudson’s brief does not follow the form or sequences
required by Court of Appeals Rule 25 (a) and (c) (1). While she enumerates seven
errors, her argument section does not follow the order of the enumeration of errors,
is not correspondingly numbered, and does not address the issues in sequence.
Hudson’s failure to adhere to our rules has hampered our ability to ensure that all her
enumerations are addressed, but “to the extent that we are able to discern which of the
enumerations are supported in the brief by citation of authority or argument, we will
address those enumerations.” John Crane, Inc. v. Wommack, 227 Ga. App. 538 (1)
(489 SE2d 527) (1997).
2. Hudson essentially argues that the Stipulated Order accepting the parties’
agreement was final and could not be modified outside that term of court. An order
adjudicating fewer than all the claims is not final, however, and “is subject to revision
at any time before the entry of judgment adjudicating all the claims and the rights and
liabilities of all the parties.” OCGA § 9-11-54 (b). See Hubbert v. Williams, 175 Ga.
App. 393, 394 (1) (333 SE2d 425) (1985). The trial court’s Stipulated Order in this
case was clearly not final because damages were still to be determined, as Hudson
tacitly admitted by filing an application for interlocutory appeal of that order rather
than a direct appeal. Because “no final order had been entered in the matter and the
4 case remained pending, . . . the superior court had authority to reconsider the
[Stipulated Order], vacate it, and order that the matter proceed to trial.” Internal Med.
Alliance v. Budell, 290 Ga. App. 231, 235 (1) (659 SE2d 668) (2008).
3. Hudson argues that the trial court erred in finding an ambiguity in the
parties’ initial settlement agreement, and in resolving that ambiguity without a jury.
“Whether a settlement is an enforceable agreement is a question of law for the
trial court to decide.” Auto-Owners Ins. Co. v. Crawford, 240 Ga. App. 748, 749 (1)
(525 SE2d 118) (1999). To be enforceable, the settlement agreement must be
“definite, certain, unambiguous and satisfy the same requisites of formation and
enforceability as any other contract[, and a] meeting of the minds is the first
requirement of law relative to contracts.” (Citations and punctuation omitted.) Id. at
749-750 (1). A purported settlement agreement in which the parties did not actually
agree on the essential terms is not a settlement agreement at all. Pourreza v. Teel
Appraisals & Advisory, 273 Ga. App. 880, 882-883 (616 SE2d 108) (2005).
When the trial court began the damages hearing in this case, it was immediately
apparent that the parties had not actually agreed to the location of the boundary line
between their properties. Hudson thought they had agreed to place the boundary line
as it was drawn on her plat, from one marker to another marker, and Godowns
5 thought they had agreed to place the boundary line starting at a marker and using the
compass direction written on the plat to locate the line. Applying the different
interpretations resulted in different boundary lines.
On appeal, Hudson does not argue that the parties had actually agreed to the
property line placement in the Stipulated Order. She argues instead that if the terms
of the Stipulated Order are ambiguous, then a jury should have determined which
party’s interpretation of the ambiguity was correct.
Hudson confuses the issue of whether a settlement ever existed with the issue
of interpreting a standard contract. In standard contract interpretation, if the parties
agree to the existence of a contract, the trial court then determines whether the
contract terms are ambiguous. McKinley v. Coliseum Health Group, 308 Ga. App.
768, 770 (1) (708 SE2d 682) (2011). If they are, the court then applies the rules of
contract construction to resolve the ambiguity, and if the court cannot resolve the
ambiguity, then a jury question exists over the meaning and intent of the parties. But
the issue here is the threshold one of contract formation, not contract interpretation.
The first issue to determine when considering the enforceability of a contract,
here the settlement agreement, is whether the parties actually agreed. “[A] trial court
is obviously limited to those terms upon which the parties themselves have mutually
6 agreed. Absent such mutual agreement, there is no enforceable contract as between
the parties.” (Citations and punctuation omitted.) Herring v. Dunning, 213 Ga. App.
695, 696-697 (446 SE2d 199) (1994). Here, the trial court found that uncontroverted
evidence showed that the parties had made a mutual mistake of fact and that there had
been no meeting of the minds. Our review of the record leads us to conclude that the
trial court was correct in this regard. Thus, the trial court did not err in determining
that the parties failed to reach an agreement about the location of the boundary line
between their properties.
4. Finally, Hudson asserts that the court erred in its factual determination of
where the boundary line was located. “Factual findings and credibility determinations
by the trial court will be upheld on appeal if there appears in the record any evidence
to support them.” Dudley v. Snead, 250 Ga. 804, 805 (1) (301 SE2d 480) (1983).
Having reviewed the entire record, including the transcripts and exhibits, we conclude
that some evidence supports the trial court’s determination of the boundary line
location, and thus affirm.
Judgment affirmed. McFadden and McMillian, JJ., concur.