Sarah Sidhom v. Thomas Boutros

FIFTH DIVISION
REESE, P. J.,
MARKLE and COLVIN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
February 18, 2021
In the Court of Appeals of Georgia
A20A1754. SIDHOM et al. v. BOUTROS.
MARKLE, Judge.
After Thomas Boutros ended his engagement with Sarah Sidhom, Sarah and
her parents (collectively “the Sidhoms”) sued him to recover the gifts and expenses
arising from their engagement. The trial court granted summary judgment to Boutros,
and the Sidhoms now appeal. For the reasons that follow, we reverse the trial court’s
order granting summary judgment to Boutros, and remand the case for further
proceedings.
Summary judgment is appropriate when there is no genuine
issue of material fact and the movant is entitled to
judgment as a matter of law. In reviewing the grant or
denial of a motion for summary judgment, we apply a de
novo standard of review, and we view the evidence, and all
reasonable conclusions and inferences drawn from it, in the
light most favorable to the nonmovant.
(Citation omitted.) Grizzle v. Norsworthy, 292 Ga. App. 303, 303-304 (664 SE2d
296) (2008).
So viewed, the record shows that the Sidhoms are members of the Coptic
Orthodox Church. In 2017, Sarah and Boutros began dating. That same year, they got
engaged and, with the approval of the Church, they signed an engagement agreement.
Under the terms of the agreement,
[i]f either of the two parties revokes this engagement, without legal
reason, and if it is [Boutros] who revokes it, the [ring] and any
subsequent gifts become the possession of [Sarah]. However, if the
revocation is on the part of [Sarah], she must return to him [the ring],
and any subsequent non-consumable gifts or their monetary value.
In the months leading up to the wedding, Sarah and Boutros had an
engagement party and a bridal shower, resulting in numerous gifts that were then
stored at a home Boutros had purchased. The Sidhoms also purchased Sarah’s
wedding dress and furnishings for the home, and they incurred expenses for wedding
preparations.
2
Unfortunately, Boutros decided to end the engagement.1 Sarah and Boutros
then signed a revocation agreement, indicating that
[t]hey have both decided to revoke their engagement, willingly, by
choice . . . . They have completed all settlements with one another. . . .
Neither of them has any claim against the other, neither civil nor moral,
. . . neither before civil court nor other entities.
Thereafter, the Sidhoms filed the instant suit against Boutros for conversion
and breach of contract, alleging that he had not returned the wedding gifts and other
items to them despite their requests.2 They sought damages and attorney fees, a
declaratory judgment to establish ownership of the items, and a temporary injunction
to prevent Boutros from disposing of the property. They later amended their
complaint to add a claim of unjust enrichment.
1
In his response to the Sidhoms’ request to admit, and in later filings with the
court, Boutros claimed that Sarah imposed conditions on the engagement and gave
him ultimatums, which he rejected, and thus she was the one responsible for ending
the engagement. But in his statement of undisputed facts, he admitted that he ended
the engagement.
2
According to Boutros, the parties agreed that the Sidhoms would keep the
engagement ring and wedding bands, and the gifts received at the bridal shower, but
that he would be entitled to keep the remaining items stored in his home.
3
Boutros answered the complaint and filed a cross-claim for indemnification and
contribution against Sarah in the event he was liable to her parents. Thereafter, both
parties moved for summary judgment. Boutros argued that the revocation agreement
controlled the dispute and that, by its terms, it showed that all claims were settled.
The Sidhoms argued that the engagement contract and revocation agreement must be
read together, and that the revocation agreement lacked mutual assent of the parties.
Following a hearing, the trial court granted Boutros’s summary judgment
motion, and denied the Sidhoms’ cross motion, finding that the language in the
revocation agreement was plain and unambiguous and showed that the parties had
revoked the engagement agreement and settled their claims. The Sidhoms now
appeal.
In related enumerations of error, the Sidhoms argue that the trial court erred in
granting summary judgment to Boutros and denying their motion for summary
judgment because the engagement agreement and revocation agreement must be read
together, and Boutros failed to adhere to his obligations under the engagement
agreement. Alternatively, they argue that there were factual questions that precluded
summary judgment, such as whether the parties mutually assented to enter into the
revocation agreement, whether Boutros is in breach of the engagement agreement or
4
liable for conversion of the property, and whether Boutros fraudulently induced Sarah
to sign the revocation agreement.3 We conclude that summary judgment was not
warranted because there is a factual question about whether the parties had the mutual
assent to enter into the revocation agreement. And, because the parties’ mutual assent
to enter into the agreement is a threshold question, we do not reach the dispute over
the meaning of the revocation agreement. See Hudson v. Godowns, 320 Ga. App. 157,
160 (3) (739 SE2d 462) (2013).
“[T]he party asserting the existence of a contract has the burden of proving its
existence and its terms.” Sherman v. Dickey, 322 Ga. App. 228, 232 (1) (744 SE2d
408) (2013). A valid contract requires mutual assent, and if such assent is lacking, the
contract is not enforceable.4 OCGA § 13-3-1; TranSouth Financial Corp. v. Rooks,
269 Ga. App. 321, 324 (1) (604 SE2d 562) (2004); see also Vildibill v. Palmer
Johnson of Savannah, Inc., 244 Ga. App. 747, 749 (3) (536 SE2d 779) (2000)
(“parties to a contract may rescind it by mutual agreement”) (citation omitted).
3
The Sidhoms did not allege fraudulent inducement in their complaint. Instead,
they requested equitable relief due to Boutros’s failure to adhere to the terms of the
engagement contract and revocation agreement.
4
The Sidhoms do not argue that the other elements of contract formation were
lacking.
5
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. In making that determination, the
circumstances surrounding the making of the contract, such as
correspondence and discussions, are relevant in deciding if there was a
mutual assent to an agreement, and courts are free to consider such
extrinsic evidence.
(Citations and punctuation omitted.) Hart v. Hart, 297 Ga. 709, 711 (777 SE2d 431)
(2015); see also Graham v. HHC St. Simons, Inc., 322 Ga. App. 693, 695-696 (2)
(746 SE2d 157) (2013) (physical precedent only) (“the circumstances surrounding the
making of the contract, such as correspondence and discussions, are relevant in
deciding if there was a mutual assent to an agreement, and courts are free to consider
such extrinsic evidence.”) (citation omitted). “[M]utual assent is to be judged only by
overt acts and words rather than by the hidden, subjective or secret intention of the
parties.” (Citation omitted.) Extremity Healthcare, Inc. v. Access To Care America,
LLC, 339 Ga. App. 246, 252 (1) (793 SE2d 529) (2016). But, “where such extrinsic
evidence exists and is disputed, the question of whether a party has assented to the
contract is generally a matter for the jury.” (Citation omitted.) Moreno v. Smith, 299
6
Ga. 443, 445 (1) (788 SE2d 349) (2016); see also Bedsole v. Action Outdoor
Advertising JV, LLC, 325 Ga. App. 194, 198 (1) (750 SE2d 445) (2013).
Here, the trial court did not address the Sidhoms’ claim that there was a lack
of mutual assent. Our review of the limited record here shows that there is a question
of fact as to the parties’ mutual assent. In her affidavit, Sarah avers that Boutros orally
agreed to return certain items as set forth in the engagement agreement before they
signed the revocation agreement, but that he subsequently failed to follow through.
She stated that “it was [her] further understanding that the Revocation Agreement was
a conditional document that incorporated the Engagement Agreement in the event the
marriage plans were terminated[.]”5 In response to interrogatories, Boutros admitted
that the parties made a verbal agreement regarding the return of various items the day
they signed the revocation agreement.
The affidavit was sufficient to create a factual issue as to whether there was
mutual assent to all the terms of the revocation agreement, and therefore summary
judgment was improper. See Moreno, 299 Ga. at 444 (1) (party’s affidavit in
5
The record also contains a single e-mail from Sarah to the religious officiant
the day after the parties signed the revocation agreement. In this e-mail, Sarah
indicates that she expects Boutros to return certain items. We express no opinion as
to whether this is admissible evidence to oppose summary judgment.
7
opposition to motion for summary judgment created factual question about mutual
assent to contract); see also Hudson, 320 Ga. App. at 160 (3) (parties’ disagreement
over property boundary lines showed lack of meeting of the minds despite signed
settlement agreement). Compare Extremity Healthcare, Inc., 339 Ga. App. at 255-256
(1) (parole evidence that occurred after the contract was signed cannot by itself show
lack of mutual assent). Although we cannot consider the affidavit to change the terms
of the revocation agreement, we can consider it to determine whether the parties
reached a valid agreement in the first place. See Moreno, 299 Ga. at 445 (1). Indeed,
Boutros admits that there was a verbal agreement regarding the return of at least some
of the items. Thus, Sarah’s affidavit creates a factual question whether she and
Boutros had mutually assented to the terms of the revocation agreement, and Boutros
was not entitled to summary judgment.6
Accordingly, we must reverse the trial court’s award of summary judgment, and
remand the case for further proceedings consistent with this opinion.
Judgment reversed and case remanded. Reese, P. J. concurs. Colvin, J.
dissents.
6
For this same reason, the Sidhoms were not entitled to summary judgment.
8
In the Court of Appeals of Georgia
A20A1754. SIDHOM et al. v. BOUTROS.
COLVIN, Judge, dissenting.
The man and the woman who entered into this written agreement to marry
subsequently revoked that agreement in a writing, signed by both, which stated that
they “ha[d] completed all settlements with one another” and that neither “ha[d] any
claim against the other[.]” Because this revocation was a conclusive and binding
termination of the parties’ relationship, reached by mutual assent, I dissent to the
majority’s reversal of the trial court’s grant of summary judgment to this defendant.
The only question facing us is whether the parties’ revocation agreement is
enforceable as a settlement agreement, which
must meet the same requirements of formation and enforceability as
other contracts. Thus, 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. The offer must be accepted
unequivocally and without variance of any sort.
(Citation and punctuation omitted.) Hansen v. Doan, 320 Ga. App. 609, 612 (740
SE2d 338) (2013). “When it is undisputed that a settlement agreement is definite,
certain, and unambiguous, the court is obligated to put an end to the litigation by
making the settlement its own judgment.” (Citation and punctuation omitted.)
Sanders v. Graves, 297 Ga. App. 779, 779 (678 SE2d 220) (2009). I understand that
“the question of whether a party has assented to [a] contract is generally a matter for
the jury.” Bedsole v. Action Outdoor Advertising JV, LLC, 325 Ga. App. 194 (750
SE2d 445) (2013). But the same law provides that we “apply an objective theory of
intent whereby one party’s intention is deemed to be that meaning a reasonable man
in the position of the other contracting party would ascribe to the first party’s
manifestations of assent[.]” Id. See also Hansen, 320 Ga. App. at 612-613 (1); Cox
Broadcasting Corp. v. Nat. Collegiate Athletic Assn., 250 Ga. 391, 395 (297 SE2d
733) (1982). And there remains “‘no rule of law better settled or more salutary in its
application, than that which refuses to admit oral testimony to contradict, vary, or
2
materially affect, written agreements.’” AgSouth Farm Credit v. Gowen Timber Co.,
336 Ga. App. 581, 590 (2) (b) (i) (784 SE2d 913) (2016), quoting Weintraub v. Cobb
Bank & Trust Co., 249 Ga. 148, 148-149 (1) (288 SE2d 553) (1982).
Here, plaintiffs’ evidence shows that the couple’s disagreements over property
continued up to the day of the revocation agreement. I understand that as of that day,
Boutros may not have returned all of the items Sidhom sought, though he dropped
some off a few days later. By any objective standard, however, the agreement
unequivocally ended the ongoing dispute when it provided, before three witnesses,
that both parties had “decided to revoke their engagement, willingly, by choice,
without being compelled or imposed upon”; that they had “completed all settlements
with one another”; and that neither party had “any claim against the other, neither
civil nor moral,” and “neither before civil courts nor other entities.” See AgSouth, 336
Ga. App. at 592 (2) (reversing denial of motion for j.n.o.v. when lender’s oral promise
to allow cutting of timber was insufficient to vary the unambiguous written terms of
the loan, which barred such cutting without permission).
Plaintiffs attempt to escape the failure of their contract claim by asserting (on
the last full page of their brief) that Boutros fraudulently induced Sidhom to sign the
revocation agreement. In fact, plaintiffs have never asserted a claim for fraud. But
3
even if they had, and even if Boutros had assured Sidhom that he would return some
or all of the property to her and failed to do so after the fact, “statements that directly
contradict the terms of the agreement simply cannot form the basis of a fraud claim
for the purpose of cancelling or rescinding a contract.” Legacy Academy, Inc. v.
Mamilove, LLC, 297 Ga. 15, 18 (1) (771 SE2d 868) (2015), quoting Novare Group,
Inc. v. Sarif, 290 Ga. 186, 188-189 (718 SE2d 304) (2011). Only evidence that
Sidhom was somehow deprived of the capacity to read and assent to the revocation
agreement itself could authorize a claim arising from that agreement’s subject matter.
As the Georgia Supreme Court has held:
“The law will not excuse [a plaintiff] for failing to read the instrument
because of her confidence in the defendant, upon whom she had no legal
right to rely, and who the allegations show employed no trick or artifice
that caused her to fail to do her duty in reading before signing. No one
can truthfully claim to have been defrauded in a matter about which that
one has full knowledge and opportunity to exercise his free choice. . . .
It is essential to all business relationships that the validity and solemnity
of written contracts, freely and voluntarily executed, be upheld.”
(Emphasis supplied.) Id. at 19 (1), quoting Lewis v. Foy, 189 Ga. 596, 601 (6 SE2d
788) (1940).
4
The written expression of these parties’ intent to settle is unequivocal, and
there is no evidence that this plaintiff was fraudulently prevented from reading the
contract. Under these circumstances, the trial court properly granted summary
judgment to Boutros on plaintiffs’ claims for breach of contract and conversion.
Hansen, 320 Ga. App. at 614 (1) (affirming trial court’s enforcement of a settlement
agreement where a party accepted an offer of settlement “‘unequivocally and without
variance of any sort’”). I therefore dissent.
5