H&E INNNOVATION, LLC et al.
SHINHAN BANK AMERICA, INC.
BARNES, P. J., MCMILLIAN and MERCIER, JJ.
Barnes, Presiding Judge.
the grant of their application for interlocutory appeal,
H&E Innovation, LLC ("H&E") and its
managing member, Eun Gu Kim, appeal the trial court's
order denying their motion to enforce a settlement agreement
with Shinhan Bank America, Inc. (the "Bank"). The
primary question in this appeal is whether the parties
intended for the release of a second mortgage on certain
property to be included as part of the settlement. For the
reasons discussed below, we conclude that while the language
of the parties' settlement agreement is ambiguous as to
whether the parties intended to release the second mortgage,
the rules of contract construction and the uncontroverted
parol evidence resolve the ambiguity and demonstrate that the
parties intended for the mortgage to be released. Because the
trial court concluded otherwise, we reverse the trial
court's denial of H&E and Kim's motion to enforce
the settlement agreement and remand this case for
consideration of their request for attorney fees and
We apply a de novo standard of review to a trial court's
order on a motion to enforce a settlement agreement. . . .
The issues raised are analogous to those in a motion for
summary judgment. The opposing party should be given the
benefit of all reasonable doubt, and the court should
construe the evidence and all inferences and conclusions
therefrom most favorably toward the party opposing the
(Citations and punctuation omitted.) Cone v.
Dickenson, 335 Ga.App. 835, 835 (783 S.E.2d 358) (2016).
See also DeRossett Enterprises v. Gen. Elec. Capital
Corp., 275 Ga.App. 728, 729 (1) (621 S.E.2d 755) (2005).
"A settlement agreement is a contract, " Lamb
v. Fulton-DeKalb Hosp. Auth., 297 Ga.App. 529, 533 (2)
(677 S.E.2d 328) (2009), and "[c]ontract disputes are
particularly well suited for summary adjudication because the
construction of contracts is ordinarily a matter of law for
the court." Riverview Condo. Assn. v. Ocwen Fed.
Bank, FSB, 285 Ga.App. 7, 9 (2) (a) (645 S.E.2d 5)
(2007). Guided by these principles, we turn to the record in
the present case.
30, 2008, Kim obtained a $750, 000 business loan from the
Bank (the "Kim Loan") and executed a promissory
note in favor of the Bank in that amount (the
"Note"). On February 4, 2011, the parties entered
into an agreement modifying the terms of the Kim Loan (the
"Change in Terms Agreement"), and H&E executed
a commercial guaranty for repayment of the Note (the
"Guaranty"). That same day, to further secure
payment of the indebtedness, H&E conveyed a second
mortgage to the Bank on certain real property located in
Greenville, South Carolina (the "Second Mortgage").
H&E had granted a first mortgage on the same property to
the Bank as part of a prior, unrelated commercial loan
transaction (the "SBA Loan").
September 9, 2014, the three parties executed a forbearance
agreement pertaining to the Kim Loan in which the Bank agreed
to refrain from commencing any legal action under "the
Note and the Loan Documents" based on Kim's and
H&E's failure to comply with their payment
obligations so long as certain conditions were met (the
"Forbearance Agreement"). The Forbearance Agreement
identified the "Loan Documents" as including the
Guaranty and other documents executed "on or about
February 4, 2011."
March 28, 2016, the Bank filed the present lawsuit against
the defendants, Kim and H&E, for "breach of the
Forbearance Agreement, the Note, and Guaranty, "
alleging that the defendants had defaulted on the Kim Loan by
failing to keep current on their payments of the outstanding
debt. The Bank's Complaint referred to the "Loan
Documents" as "the Note, Security Deed, Change in
Terms Agreement, Guaranty, and other related document
[sic]." Attached to the Complaint was an exhibit of
"Loan Documents, " which included several documents
related to the Kim Loan, but not the Guaranty or the Second
Mortgage. The Bank sought a monetary judgment jointly and
severally against the defendants in the amount of the $177,
097.24 principal balance remaining on the Note, plus 11
percent interest from the date of default, reasonable
attorney fees, and court costs.
defendants answered, denying that they were in default under
the Kim Loan. The parties thereafter engaged in settlement
negotiations, and on February 1, 2017, counsel for the Bank
emailed the defendants' counsel an offer that contained
the following terms:
Defendants will pay, or cause to be paid, a lump-sum amount
of $50, 000.00 to Plaintiff within five business days from
receiving a signed copy of the final Settlement Agreement
Plaintiff and Defendants agree to a full, final, general
mutual release of any and all claims and counterclaims
arising from the loan documents sued upon in the lawsuit
(i.e., the first mortgage on Greenville property remains
Within 5 business days from receipt of a fully executed
Settlement Agreement, the parties will file a joint dismissal
of the lawsuit (including counterclaims) with prejudice.
earlier, unaccepted offer made by the Bank had included the
same general release language found in the second paragraph
of the February 1, 2017 email, and the defendants'
counsel had confirmed with the Bank's counsel during a
phone conversation about the prior offer that the language
was intended to include the release of the Second Mortgage.
undisputed that on February 2, 2017, the defendants, through
an email sent by their counsel, accepted the offer of
settlement as set out in the February 1, 2017 email (the
"Settlement"). Upon acceptance, the defendants'
counsel asked the Bank's counsel via email to
"[p]lease prepare the settlement agreement consistent
with the terms outlined in your email and a release for the
second position mortgage on the South Carolina Property in
relation to this loan." Plaintiff's ...