Summary
holding that unenforceable promises cannot form the basis for a claim of promissory estoppel
Summary of this case from Johnson v. University Health Services, Inc.Opinion
A89A1258.
DECIDED NOVEMBER 8, 1989. REHEARING DENIED NOVEMBER 21, 1989.
Wrongful termination. Gwinnett Superior Court. Before Judge Huff.
Charles A. Presto, pro se.
Kilpatrick Cody, Susan A. Cahoon, Michael W. Tyler, for appellee.
This appeal is from the grant of summary judgment to appellee-employer in a suit having its basis in a claim of wrongful termination. The trial court found that the uncontradicted evidence demanded the conclusion that appellant had no enforceable contract of employment and that his employment was, therefore, terminable at will. We agree and affirm.
1. In his first two enumerations of error, appellant complains of the trial court's findings that there was no written contract of employment and that the asserted oral contract was barred by the Statute of Frauds. Although he admits that there was no single signed document on which he could rely as a contract of employment, appellant contends that his oral acceptance of a written offer of employment constituted a written contract of employment. However, as was the case in American Standard v. Jessee, 150 Ga. App. 663 (1) ( 258 S.E.2d 240) (1979), the purported contract was within the Statute of Frauds because it was not to be performed within a year of the date it was alleged to have been made. That being so, it was necessary that the essential terms, such as the duration of the contract, be included in the writing. Gatins v. NCR Corp., 180 Ga. App. 595, 596-597 ( 349 S.E.2d 818) (1986). The writing on which appellant relies does not include the duration of the contract, so the contract is incomplete and unenforceable. American Standard v. Jessee, supra. The trial court was correct, therefore, in ruling that the asserted contract of employment was within the Statute of Frauds and that since there was no written contract, there was no contract of employment which appellant could enforce.
2. In his third enumeration of error, appellant contends that a provision in a stock option granted him by appellee constituted an implied promise to continue appellant's employment for three years. The stock option provided that it could be exercised only if appellant remained employed by appellee for three years. Essentially the same argument, without the title of implied promise, was rejected by this court in Lowe v. Royal Crown Cola, 132 Ga. App. 37 (1) ( 207 S.E.2d 620) (1974), and we do not find any new vigor added to the argument by the new name.
3. Appellant's fourth and sixth enumerations of error concern the trial court's rejection of claims based on theories of promissory estoppel and fraud. Reasonable reliance is an element of both promissory estoppel ( Fidelity c. of Md. v. West Point Constr. Co., 178 Ga. App. 578 (1) ( 344 S.E.2d 268) (1986)) and fraud. Godwin v. City of Bainbridge, 172 Ga. App. 290 (2) ( 322 S.E.2d 733) (1984). Promises which are wholly unenforceable, as we have held appellant's purported contract of employment to be, may not be relied upon. Id. Insofar as appellant's claims based on promissory estoppel and fraud are premised on the promises in the purported employment contract, the claims must fail. There is no question that the promissory estoppel claim is based on the purported contract, so that claim was properly resolved against appellant. As appellee correctly points out, appellant's position in the trial court on the fraud claim was that misrepresentations about the level of business conducted by appellee misled him about the amount of compensation which would be due him. It is clear, therefore, that the fraud claim is also based on the promises alleged to be in the contract of employment, and was also properly resolved adversely to appellant.
4. In his fifth enumeration of error, appellant asserts that his act of leaving another job to take the job with appellee was such part performance of his contract as would take it out of the Statute of Frauds. That contention is controlled adversely to him by Hudson v. Venture Indus., 243 Ga. 116, 119 ( 252 S.E.2d 606) (1979), where it was held that giving up another job, moving to a new location, and starting employment are not such part performance as will take a contract of employment out of the Statute of Frauds because those acts are not inconsistent with employment terminable at will without a contract.
5. After the time for filing a brief and enumeration of errors, and after an extension of that time, appellant filed two additional enumerations of error. He contends that he should be permitted to assert those additional enumerations of error because the entire record had not been sent to this court before docketing as required by the rules of this court. Rule 21 (a), Rules of the Court of Appeals. However, the supplemental record contains a single exhibit to which appellant made specific reference in his original brief. It is clear, then, that any delay in completing the record had no part to play in appellant's failure to include in his original brief and enumeration of errors the issues he sought to raise in his additional enumeration of errors. We see no reason, therefore, to depart from the rule that an enumeration of error may not be amended after the time for filing has expired. In re Crudup, 149 Ga. App. 214, 215 ( 253 S.E.2d 802) (1979).
Judgment affirmed. Deen, P. J., and Birdsong, J., concur.