H & E Innovation, LLC v. Shinhan Bank America (Inc.)
H & E Innovation, LLC v. Shinhan Bank America (Inc.)
Opinion
*881 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
,
*882
Lamb v. Fulton-DeKalb Hosp. Auth.
,
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 *261 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 *883 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 counsel replied, "Good news. I will report the settlement to the bank and work on the settlement documents."
On February 14, 2017, the defendants' counsel emailed the Bank's counsel, asking for an update on the preparation of the settlement documents. The Bank's counsel replied: "Yeah, I will send something by COB today. I will leave it to your end, however, to determine what cancellations/releases are necessary for the secondary lien re Greenville, SC property given it is a SC issue." Defendants' counsel responded that it would be better for the Bank to prepare the release of the Second Mortgage, given its prior experience with liens in South Carolina.
A week later, on February 21, 2017, the Bank's counsel informed defendant's counsel in an email that the Bank was taking the position that the Second Mortgage had not been released by the Settlement. The defendants' counsel replied by email that the parties had already reached an agreement that the Second Mortgage *884 would be released as part of the Settlement and that the Bank was *262 trying to modify those terms. The Bank's counsel did not respond to the email but later reiterated that the Bank "stands by its position" that the Second Mortgage would not be released.
The defendants' counsel subsequently presented the Bank's counsel with formal settlement and release documents that included a requirement that the Bank "execute and cause to be filed in the Greenville, SC real estate records the Cancellation of the Second Mortgage" and attached a mortgage release as an exhibit. The Bank refused to sign the draft settlement and release documents on the ground that the parties had never agreed to release of the Second Mortgage as part of the Settlement.
On March 14, 2017, the defendants filed a motion to enforce the Settlement. The defendants contended that the terms of the Settlement clearly and unambiguously released the Second Mortgage from the Greenville property. The defendants further contended that even if the terms of the Settlement were ambiguous, parol evidence in the form of an affidavit from the defendants' counsel and emails between counsel reflected that the parties intended for the release of the Second Mortgage to be part of the Settlement. The defendants also argued that even if the terms of the Settlement did not obligate the Bank to release the Second Mortgage, Georgia and South Carolina law required the Bank to do so once the indebtedness was satisfied as part of the Settlement. Lastly, as part of their motion, the defendants requested an award of attorney fees and expenses of litigation under OCGA § 9-15-14.
In opposing the defendants' motion, the Bank did not contest that the Settlement was binding and enforceable or that its terms were plain and unambiguous. However, the Bank contended that the unambiguous terms of the Settlement did not require the release of the Second Mortgage from the Greenville property.
The trial court denied the defendants' motion to enforce the Settlement. However, the trial court granted a certificate of immediate review of its order, and the defendants filed an application for interlocutory appeal, which this Court granted. This appeal followed.
1. The defendants argue that the trial court should have granted their motion to enforce the Settlement because it required the release of the Second Mortgage from the Greenville Property. Although the language of the Settlement is ambiguous as to whether the parties intended to release the Second Mortgage, we conclude that the applicable rules of construction and uncontroverted parol evidence *885 demonstrate that the parties intended to release it. 1
Because a settlement agreement is a contract, it is subject to the usual rules of statutory construction. While the cardinal rule of construction is to determine the intention of the parties, no construction is required or permitted when the language employed by the parties in the contract is plain, unambiguous, and capable of only one reasonable interpretation.
(Citation and punctuation omitted.)
Lamb
,
*263
. Thus, "a word or phrase is ambiguous when its meaning is uncertain and it may be fairly understood in more ways than one." (Citation and punctuation omitted.) Id."The existence or nonexistence of ambiguity in a contract is a question of law for the court." (Citations and punctuation omitted.)
Safe Shield Workwear v. Shubee, Inc.
,
Under the Settlement, the parties agreed 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)." We conclude that this contractual language is ambiguous as to whether the parties intended for the Settlement to include the release of the Second Mortgage from the Greenville property. The Settlement does not define the phrase "loan documents sued upon in the lawsuit," which could mean the
*886
specific loan documents that the Bank alleged that the defendants had breached (the Note, Guaranty, and Forbearance Agreement), or apply more broadly to all of the documents associated with the Kim Loan (which would include the Second Mortgage), given that the Bank's complaint refers to the "Loan Documents" as "the Note, Security Deed, Change in Term Agreement, Guaranty, and other related document [sic]." Furthermore, the statement in the same sentence of the Settlement that "the first mortgage on Greenville property remains intact" could be construed to simply mean that the Settlement does not apply to the SBA Loan, or it could be construed to more specifically mean that the Second Mortgage would
not
remain intact. In light of these conflicting possible interpretations of the contractual language, we conclude that the Settlement is ambiguous regarding the release of the Second Mortgage on the Greenville property. See
Pace Constr. Corp. v. Houdaille-Duvall-Wright Div., Houdaille Indus.
,
Although an ambiguity exists in the Settlement regarding the release of the Second Mortgage, it does not automatically follow that a jury must resolve the issue.
Shepherd
,
The rules of construction require us "to construe any ambiguities most strongly against the party who drafted the agreement." (Citations and punctuation omitted).
Shepherd
,
Furthermore, we construe a contract in a manner that does not render any of its language meaningless or mere surplusage,
Duke Galish, LLC v. Manton
,
Even if the rules of construction could not resolve the ambiguity, the uncontroverted parol evidence shows that the parties intended for the Settlement to release the Second Mortgage. "[A]lthough parol evidence is generally not admissible to add to, take from, or vary a written contract, because the language of the provision in issue is not clear, we may consider all the attendant and surrounding circumstances to explain the ambiguity." (Citation and punctuation omitted.)
CareAmercia v. Southern Care Corp.
,
The defendants presented evidence, through the affidavit of their counsel who negotiated the settlement and emails attached to the affidavit, that a prior offer of settlement made by the Bank on January 18, 2017, also had included the language that the parties agreed to "a full, final, general mutual release of any and all claims and counterclaims arising from the loan documents sued upon in the lawsuit (the first mortgage on Greenville property remains intact)." In her affidavit, the defendants' counsel averred that during a phone conversation with the Bank's counsel about the prior settlement offer, *888 the Bank's counsel had confirmed that the aforementioned language was intended to release the Second Mortgage on the Greenville property. The Bank did not submit any affidavits or other evidence contradicting the account of the phone conversation provided by the defendants' counsel in her affidavit.
The emails that followed the defendants' acceptance of the Settlement provide additional parol evidence in support of the defendants' position that the parties intended to release the Second Mortgage. When defendants' counsel asked, upon the defendants' acceptance of the Settlement, for the Bank's counsel to prepare a release of the Second Mortgage, the Bank's counsel did not object and instead stated that he would work on the settlement documents. The Bank's counsel also did not object when the defendants' counsel asked for an update on preparation of the settlement documents, but instead proposed that the defendants' counsel prepare the release because she was more familiar with South Carolina law. It was not until later, approximately three weeks after the Settlement had been accepted, that the Bank's counsel for the first time indicated that the Bank objected to such a release. The Bank offered no parol evidence that contradicted the defendants' account of the correspondence between counsel upon acceptance of the Settlement.
In light of the applicable rules of construction and uncontroverted parol evidence, the ambiguity in the Settlement is resolved in the defendants' favor, and we therefore conclude that the Settlement was intended by the parties to release the Second Mortgage as a matter of law. See
McKinley v. Coliseum Health Group
,
2. The defendants also argue that the trial court erred in denying their request for
*265
attorney fees and expenses of litigation under OCGA § 9-15-14. In light of our decision in Division 1 that the trial court erred in denying the defendants' motion to enforce the Settlement, we remand for the trial court to consider the defendants' request for attorney fees and expenses. See
Cracker Barrel Old Country Store v. Robinson
,
Judgment reversed, and case remanded with direction.
McMillian and Mercier, JJ., concur.
We note that the parties agree that the Settlement constituted a valid, binding contract. See generally OCGA § 13-3-1 ("To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate.");
Paul Dean Corp. v. Kilgore
,
Reference
- Full Case Name
- H&E INNOVATION, LLC Et Al. v. SHINHAN BANK AMERICA, INC.
- Cited By
- 10 cases
- Status
- Published