Gregg Gill sued his former employer B & R International, Inc., alleging that B & R breached an agreement to pay a debt and breached an agreement to provide him severance pay. Gill sought specific performance of the alleged contract, litigation expenses and reasonable attorney fees. The trial court granted B & R’s motion for summary judgment and dismissed Gill’s complaint with prejudice. From this judgment Gill appeals. We find no error and affirm.
1. The trial court did not err in granting summary judgment to B & R on Gill’s claim for breach of an agreement to pay a debt. Gill contends that B & R offered him and certain other employees an opportunity to either purchase B & R stock at a favorable price or to receive a lump sum payment of $100,000. Gill also contends that the lump sum payment was to be compensation from B & R for his continued employment with the company and for his contribution to corporate growth and success. According to Gill, the lump sum payment was conditioned upon the employee’s continued employment with B & R until B & R was sold or until the employee was terminated, so long as the termination was neither voluntary nor for cause.
Gill acknowledges that he was the only employee to accept the $100,000 lump sum payment offer from B & R; other employees elected to buy the stock. The offered stock was not owned by the cor *529 poration but by Robbie Reid, B & R’s president, CEO, and majority stockholder. In his affidavit, Gill states it was his “understanding” that the offer was made by Reid in his corporate capacity. However, Gill cannot recall whether B & R was going to issue additional stock or whether stock would be purchased directly from Reid. In his deposition, Gill admits that he does not know whether the $100,000 was to be paid by B & R or by Reid. B & R asserts that: (i) any offers were made by Reid in his personal capacity; (ii) although Reid initially suggested a lump sum payment alternative, this alternative was not offered again after each of the four employees stated an initial desire to purchase stock; and (iii) B & R did not accept any counteroffer from Gill binding it to pay him a $100,000 lump sum.
To establish his contentions, Gill substantially relies on an unsigned memorandum, dated February 22, 1993, and the response to that memorandum. The memorandum was written by Reid and addressed to Gill and three other employees; it is not written on corporate letterhead. The memorandum pertinently states: “Attached is a Shareholder’s Agreement for your review and comments. The amounts shown are the final amounts being offered for their respective values. I have reviewed this and feel this agreement to be not only equitable, but very simple. . . . My alternative offer is to give each of you a Promissory Note equal to the dollars I have earlier indicated that would become due and payable upon the sale of the company. If the company [is] never sold, or if you were terminated for cause or left at your own discretion, then there would be no value payment. This is strictly a value not tied to a percentage value by company. I would like to have your comments on the Shareholder’s Agreement before Wednesday . . . and whether or not you intend to bécome a shareholder on terms offered.” Gill stated in his response: “Given my current financial obligations, the appropriate option at this time is the $100,000 promissory note. If the stock option can remain open (Feb 22 memo), I would like to consider it at a future date.” Reid made this handwritten notation on Gill’s response: “I respect your decision — no problem — It is not fair to leave stock option open for you & not for others — We can discuss stock [at] a future date & a different price — Robbie.” It is clear from the record before us that no promissory note was ever executed or delivered to Gill by either Reid or B & R. Gill contends that genuine issues of material fact exist as to whether B & R was a party to the contract and whether there was a breach of an alleged agreement to pay the lump sum.
(a) Gill argues that ambiguity exists as to the identity of the parties, consideration and terms of the agreement. He cites the holding in
Nolley v. Maryland Cas. Ins. Co.,
In construing oral and written contracts, the court should apply the appropriate three-step process of contract construction discussed in
Duffett v. E & W Prop.,
In ruling on a motion for summary judgment, the opposing party must be given the benefit of all reasonable doubt, and the court must construe the evidence and all inferences and conclusions arising therefrom most favorably to the party opposing the motion.
Moore v. Goldome Credit Corp.,
(b) Examining the record, we find that the trial court, utilizing pertinent rules of contract construction, could conclude that no enforceable contract existed to pay Gill a lump sum for either of the following reasons: The trial court could have found there was no
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meeting of the minds or assent as to the identity of the parties to the contract. The court could have legitimately concluded that while it was Gill’s intent to enter into a contract with B & R, it was Reid’s intent only to enter into a contract in his personal capacity. “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.” OCGA § 13-3-1. Each of these essential terms must be certain.
Laverson v. Macon Bibb County Hosp. Auth.,
The trial court also could have concluded there was no mutual assent by the parties because Gill responded with a counteroffer to Reid’s offer of stock or lump sum payment. That is, the trial court could have found that Gill counteroffered that he be allowed to immediately accept lump sum payment and also that the stock option remain open indefinitely so that he could elect whether to purchase it at the offered price at some future date, which counteroffer Reid unequivocally rejected. A subsequent communication by one party to the alleged contract that varies even one term of the original contract is a counteroffer; a counteroffer rejects an offer and terminates the offeree’s power of acceptance.
Lamb v. Decatur Fed. Sav. &c. Assn.,
Either of these interpretations of the alleged contract by the trial court would cause Gill’s claim to fail. Thus, the trial court did not err as contended. A grant of summary judgment must be affirmed if it is right for any reason. See
Hanna v. McWilliams,
(c) The trial court’s order expressly refers to a motion hearing and states that the court “considered the full record and all submissions and arguments of counsel,” in determining that B & R was entitled to summary judgment. However, no hearing transcript has been included in the record on appeal and Gill has posed no objection to this Court regarding its omission. Without access to the hearing transcript, we cannot determine whether evidentiary submissions, stipulations, or statements in place by counsel were tendered at the hearing. Without this knowledge, we cannot adequately address any of the issues which Gill asserts on appeal. The burden is on an appellant to show error by the record, and when a portion of the record which is necessary for our determination of one or more appellate issues is not before the court, the trial court’s express or implicit ruling as to those issues must be affirmed.
Atlanta Cas. Ins. Co. v. Crews,
2. The trial court did not err in granting summary judgment to B & R as to Gill’s severance pay claim.
In his affidavit, Gill made the following statements surrounding B & R’s alleged promise to provide him severance pay: In April 1996, Reid terminated Gill’s employment because the company had been sold to Poe & Brown, Inc. and that company decided not to hire Gill. At that meeting, Reid acknowledged that Gill was owed a “lump sum” of money and further stated that Gill would receive severance payments of $3,500 twice a month for four months. Reid also said that payments would be made only if Gill did not solicit any B & R accounts after his termination. B & R made one payment and then stopped payments on the ground that Gill had solicited B & R accounts.
In his deposition testimony, Gill unequivocally responded “[n]o” when asked, “[n]ow, in connection with your receipt of severance, did you agree to do anything in exchange for the severance.” Thus, a contradiction exists as to Gill’s affidavit statement that the severance pay was given on condition that he not solicit B & R customers.
A promise unsupported by adequate consideration is unenforceable. OCGA § 13-3-40. Gill has given two directly contradictory statements bearing on the question whether he bargained for and gave any consideration in exchange for the payment of severance benefits. In
Prophecy Corp. v. Charles Rossignol, Inc.,
Judgment affirmed.