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, 303304 (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. 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. 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 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 § 1331; 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). 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 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 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. In the Court of Appeals of Georgia A20A1754. Sidhom et al. v. Boutros.
