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H&E Innnovation, LLC v. Shinhan Bank America, Inc.

Court of Appeals of Georgia, First Division

November 14, 2017



          Barnes, Presiding Judge.

         Following 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 expenses.

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 motion.

(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.

         On June 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").

         On 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."

         On 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.

         The 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 from Plaintiff;
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 intact); and
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.

         An 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.

         It is 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 ...

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