Doyle, Presiding Judge. John Nelson filed this personal injury suit against Howard Wright and three John Does, seeking damages for injuries allegedly caused by Wright in an automobile collision. Wright now appeals from the trial court’s denial of his motion to enforce a settlement agreement, contending that the trial court erred by ruling that he did not accept Nelson’s offer of settlement demanding the insurance policy limit in exchange for a limited liability release containing certain terms specified by Nelson. Specifically, Wright argues that he accepted the offer of settlement when he tendered the requested policy limit and indicated his intent to follow up with a release, thereby rendering the parties’ subsequent failure to execute the release a matter of contract performance, not contract formation. We agree and reverse. We apply a de novo standard of review to a trial court’s order on a motion to enforce a settlement agreement. Because the issues raised are analogous to those in a motion for summary judgment, in order to succeed on a motion to enforce a settlement agreement, a party must show the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the appellant['s] case. Thus, we view the evidence in a light most favorable to the nonmoving party.[1] So viewed, the record shows that on April 18, 2019, Nelson filed a complaint seeking damages from Wright and three John Doe defendants based on a car collision involving Nelson and Wright. The same day, Nelson’s attorney sent an offer of settlement via fax and certified mail to Wright’s insurance carrier, Allstate Metro MCO, offering “to settle Mr. Nelson’s claim for . . . $25,000.” The offer letter requested Allstate to “immediately notify your insured that it is presently possible to settle the claims that my client has against him within the limits of available insurance coverage” and stated that the offer would remain open for acceptance until May 28, 2019, after which time it would be deemed automatically withdrawn. In exchange for accepting the $25,000 policy limit, the letter stated that Nelson would “sign a ‘Limited Liability Release’ as that term is used and contemplated under Georgia law.” The letter contained explicit conditions upon which the offer was contingent: (1) my client will only release and discharge Howard Wright, Allstate Metro MCO, including its agents, employees and the like, pursuant to a limited liability release; (2) my client will execute a limited liability release and only release and discharge the above named individual and Allstate Metro MCO Policy No. 803170759, and no-one else, from any claims, demands, rights and causes of action for injury as a result of this loss — meaning all claims for underinsured motorist coverage, excess coverage or umbrella coverage, to the extent any such claims exist, are not released; (3) my client will only agree to provide an indemnification for “legally enforceable” liens asserted by any hospital, nursing home, physician practice or traumatic burn care medical practice who is subject to the [Hospital Lien Statute]; (4) my client will only agree to provide an indemnification for “legally enforceable” liens asserted by any governmental agency such as Medicaid, Medicare, Champus, Tri-Care or the like; (5) my client will not agree to affirm or warrant to pay any liens, rights of reimbursement or subrogation because he has not been made whole; (6) my client will not waive any rights discussed in Posev v. Medical Center West, Inc., 257 Ga. 55 (354 SE2d 417) (1987) as this is contrary to the law established by Posey; (7) my client will not agree to any language indicating that [he] has been counseled or encouraged to either review or to execute any release as this recitation would introduce a conflict of interest; (8) the undersigned will only witness the executed release and will not supply a recital purporting to ratify, approve, explain or guarantee signature of said release as this recitation would introduce a conflict of interest; (9) my client will only execute an affidavit verifying his knowledge of any “properly filed” liens asserted by any hospital, nursing home, physician practice or traumatic burn care medical practice who is subject to the provisions of OCGA § 44-14-470. On May 15, 2019, an Allstate representative sent a letter stating “Allstate has agreed to pay our policy limits of $25,000. We will have one of our defense attorneys contact you about the release.” A week later, on May 22, Nelson’s attorney wrote a letter confirming receipt of the check and stating, “You indicated that Allstate will have a defense attorney contact me about a Release. I have not heard from anyone on this issue and do not have a Release. Can you please follow up?” Receiving no immediate response, Nelson’s attorney sent additional requests for the release on May 30, June 5, and June 13. On June 17, Allstate’s attorney sent an email with an attached release (“Allstate Release”), stating, “Please find Allstate’s proposed LLR attached to this email. A hard copy is being mailed to you today. If this meets with your approval, please have your client sign it and return the original to me.” Approximately two weeks later, on July 3, Wright’s attorney filed an answer to the complaint along with a counterclaim. On July 21, Nelson’s attorney sent a letter to Allstate stating that the Allstate Release “varies certain material terms and constitutes a rejection/counteroffer.” The letter identified the alleged inconsistent terms, including: releasing Allstate Fire and Casualty Insurance Company “in its entirety” (as opposed to only Allstate Metro MCO), adding a release of property damage not included in the settlement offer, and adding an affirmation that there are no unpaid liens or claims for benefits “of any kind” (not just legally enforceable hospital liens). On September 26, Allstate’s attorney replied by email, purporting to attach an edited version with revisions pertinent to the first two issues and addressing the third issue by pointing out that the release of Allstate was to the extent of its liability for its insured, but not to the extent of any uninsured/underinsured motorist coverage or other insurance. Despite this description in the email, the attached release was identical to the first version Allstate sent, apparently included by mistake. In October 2019, Wright’s attorney filed a motion to enforce the settlement agreement. Nelson opposed the motion, and following a hearing, the trial court denied the motion, giving rise to this appeal. Wright contends that the trial court erred by ruling that Allstate’s May 15 response was not an unequivocal acceptance of Nelson’s offer to settle the case for the policy limits. We agree. Under Georgia law, an agreement alleged to be in settlement and compromise of a pending lawsuit must meet the same requisites of formation and enforceability as any other contract. In this regard, it is well settled that an agreement between two parties will occur only when the minds of the parties meet at the same time, upon the same subject matter, and in the same sense. An answer to an offer will not amount to an acceptance, so as to result in a contract, unless it is unconditional and identical with the terms of the offer. To constitute a contract, the offer must be accepted unequivocally and without variance of any sort. No contract exists until all essential terms have been agreed to, and the failure to agree to even one essential term means there is no agreement to be enforced. In determining if parties had the mutual assent or meeting of the minds necessary to reach agreement, courts apply an objective theory of intent whereby one party’s intention is deemed to be that meaning a reasonable person in the position of the other contracting party would ascribe to the first party’s manifestations of assent.[2] Here, it is undisputed that Nelson offered to settle the case for $25,000 in exchange for a limited liability release meeting certain specified conditions outlined in his April 18 letter to Allstate. The offer referenced OGGA § 9-11-67.1 and included the essential terms contemplated by that Code section: time period of acceptance, amount of payment, a release requirement, the type of release, and the claims to be released. Allstate timely responded that it “agreed to pay our policy limits of $25,000,” listed the claim number and insured, tendered the check, and stated that it would have its attorney contact Nelson’s attorney about the release. Allstate’s response did not add any conditions to its agreement to pay the policy limits, nor did it indicate any objection to the release terms requested by Nelson. Under these circumstances, the parties had reached an enforceable settlement agreement: “An offer may be accepted . . . either by a promise to do the thing contemplated therein, or by the actual doing of the thing.”[3] Allstate paid the $25,000 and indicated its intent to begin the process of executing a release. From that moment on, the presentation of a proper release in a form acceptable to plaintiff may have been a condition of [Allstate's] performance but [absent an explicit requirement from Nelson, Allstate's actual tender of an acceptable release] was not an act necessary to acceptance of [Nelson's] offer to settle for the policy limits. Moreover, since the agreement to terminate the controversy already had been created, [Allstate's] subsequent proffer of a release form which [Nelson] believed was not in compliance with the understanding of the parties [was] not . . . a rejection of the previously accepted offer.[4] This is true particularly in light of the language accompanying Allstate’s first proposed release: “If this meets with your approval, please have your client sign. . . .”[5] An objectively reasonable person would understand by this precatory language that Allstate was seeking Nelson’s approval, not objecting to the terms of the offered release agreement.[6] The subsequent correspondence further indicates that Allstate attempted to capture Nelson’s specified release terms in a revised draft, even if the original draft was erroneously substituted for the revised version. Because the undisputed record shows that Allstate accepted Nelson’s settlement offer, the trial court erred by denying Wright’s motion to enforce the settlement agreement according to those terms. Judgment reversed. Hodges, J., concurs. McFadden, C. J., concurs fully and specially. A20A1868. Wright v. Nelson.
