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Omni Builders Risk, Inc. v. Bennett

Court of Appeals of Georgia

November 21, 2013

OMNI BUILDERS RISK, INC.
v.
BENNETT. DILLARD
v.
BENNETT

Reconsiderations denied December 6, 2013.

Settlement. Barrow Superior Court. Before Judge Motes.

M. Katherine Durant , Gary Gerrard, for appellants.

Barrett & Farahany, Amanda A. Farahany , Eleanor M. Attwood, for appellee.

BRANCH, Judge. Phipps, C. J., and Ellington, P. J., concur.

OPINION

Page 500

Branch, Judge.

These companion appeals mark the second appearance of this dispute before us. Plaintiff Lori Bennett brought a discrimination charge before the Equal Employment Opportunity Commission (" EEOC" ) against her ex-employer, Omni Builders Risk, Inc. (" Omni" ), on the ground that Bennett had been terminated because she had become pregnant. After an effort at mediation, Bennett sued Omni to enforce a settlement agreement allegedly reached there and also sued James Dillard, Omni's president and majority shareholder, for fraudulent inducement because he allegedly induced her to participate in the mediation. Omni counterclaimed for breach of the mediation agreement, which had provided that the parties' negotiations could not become the subject of litigation. In Omni Builders Risk v. Bennett (" Omni Builders I " ), 313 Ga.App. 358 (721 S.E.2d 563) (2011) (physical precedent only), this Court reversed a grant of partial summary judgment to Bennett because mediation had not produced a settlement agreement in that Dillard had refused to sign a proposed agreement. Id. at 362 (1).[1] On remand, Omni moved to add Bennett's counsel and counsel's law firm as party defendants to Omni's counterclaim for breach of the mediation agreement. The trial court granted Bennett's motion for summary judgment as to Omni's counterclaim on the ground that the mediation agreement was a contract between the parties and the mediation company, and " not a contract creating obligations between [Bennett] and [Omni] or the other signatories thereto." The trial court also denied Dillard's motions to add Bennett's counsel and her law firm as party defendants to Omni's counterclaim and for attorney fees under OCGA § 9-15-14.

In Case No. A13A1137, Omni argues that the trial court erred when it dismissed Omni's counterclaim for breach of the mediation agreement and when it denied Omni's motion to add Bennett's counsel and her law firm as party defendants to that counterclaim. In Case No. A13A1138, Dillard's

Page 501

daughter[2] argues that the trial court erred when it refused to conduct an evidentiary hearing on her motion for attorney fees under OCGA § 9-15-14 and when it denied her motion to add Bennett's counsel and her law firm as parties. We [325 Ga.App. 294] affirm in Case No. A13A1137 and reverse and remand for further proceedings in Case No. A13A1138.

The underlying facts are set out in our previous opinion as follows:

During the pendency of the EEOC claim, per Bennett's employment contract with Omni, on November 2, 2008, the parties attended a mediation at which [Dillard,] Bennett and their respective attorneys were present. The four attendees signed a mediation agreement which provided guidelines for the mediation process.

Omni Builders I, supra at 359. The mediation agreement was reached by what the preamble to the document called " the undersigned parties," including Dillard, Dillard's counsel, Bennett, and Bennett's counsel. The mediation agreement specified that the mediation service's " contract for services is with the attorney(s)," from whom the mediation service " expect[ed] payment." The agreement also provided that " [a]ll that occurs during the mediation process shall be confidential and may not be recorded, and shall not be revealed in any subsequent legal proceedings or ...


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