United States District Court, M.D. Georgia, Valdosta Division
HUGH LAWSON, Senior District Judge.
Before the Court are the Motion for Summary Judgment (Doc. 17) by Plaintiff Phillips 66 Company ("Phillips 66" or "Plaintiff") and the Motion for Summary Judgment (Doc. 20) by Defendants Gish Oil Company, Raymon Gish,  and Helen Gish (collectively "Defendants"). For the reasons stated below, the Gish Defendants' motion is denied, and Phillips 66's motion is granted in part, with the Court reserving its ruling on the remainder of the motion.
I. Summary Judgment Standard
Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show there is no genuine issue as to any material fact and... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact arises only when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
When considering a motion for summary judgment, the court must evaluate all of the evidence, together with any logical inferences, in the light most favorable to the nonmoving party. Id. at 254-55. The court may not, however, make credibility determinations or weigh the evidence. Id. at 255; see also Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
The party seeking summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of a material fact." Celotex , 477 U.S. at 323 (internal quotation omitted). If the movant meets this burden, the burden shifts to the party opposing summary judgment to go beyond the pleadings and present specific evidence showing that there is a genuine issue of material fact, or that the movant is not entitled to judgment as a matter of law. Id. at 324-26. This evidence must consist of more than conclusory allegations. See Avirgan v. Hull , 932 F.2d 1572, 1577 (11th Cir. 1991). In sum, summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex , 477 U.S. at 322.
II. Factual Background
This case arises from a contract between Phillips Petroleum ("Phillips"), a predecessor to Phillips 66, and the Gish Oil Company ("Gish Oil"). The material facts in this case are straightforward and undisputed. Gish Oil is a petroleum supplier or "marketer, " meaning that it is a wholesale distributor. Gish Oil has been a marketer for Phillips Petroleum or one of its affiliated companies since 1968. Until recently, Gish Oil's primary business was purchasing gasoline from a branded oil company, such as Phillips, at fuel terminals for the wholesale price or "rack rate" price, and then providing the gasoline to its customers, known as "dealers, " who are the owners and/or operators of retail gas stations and convenience stores. (Defendants' Statement of Material Facts ("Defendants' SMF"), Doc. 20-1, ¶¶ 1-3). In 1985, Raymon and Helen Gish executed a guaranty ("the Gish Guaranty") for all of Gish Oil's present or future indebtedness to Phillips in exchange for Phillips's entering into agreements with Gish Oil, among other things. The Gish Guaranty applied to all agreements between Gish Oil and Phillips unless and until Raymon and Helen Gish notified Phillips in writing not to enter future agreements based on the guaranty. (Facts and Procedural History in Phillips 66's Motion for Summary Judgment Brief ("Plaintiff's Facts"), Doc. 18, ¶ 3).
Around February 1998, Phillips approached Gish Oil about participating in a New Construction Incentive Program ("NCIP Program") for one of the businesses to which it was supplying gasoline. This store, known as the "Baytree Convenience Store, " is located at 911 Baytree Road, Valdosta, Georgia. It was already a Phillips-branded gas station in 1998. By entering the NCIP Program, Gish Oil would be required to make extensive improvements to the Baytree Convenience Store, including installing multiple fuel pumps, building a free-standing canopy, erecting light poles and additional signs, adding brick and stone materials to the existing building, displaying Phillips insignia and imaging, and utilizing credit card machines that would accept Phillips-branded credit cards. As incentives for Gish Oil's improvements to the Baytree store, Phillips offered to pay rebates on gasoline Gish Oil purchased from Phillips over a certain period of time. (Defendants' SMF, ¶¶ 4-6, 11).
Gish Oil decided to enter the NCIP Program for the Baytree Convenience Store, and on February 24, 1998, Raymon Gish, as president of Gish Oil, signed a contract ("the NCIP Agreement") with Phillips to that end. The Gish Guaranty was still in place at that time. Under the terms of the NCIP Agreement, Gish Oil committed to improving the Baytree Convenience Store as described above, and Phillips agreed to provide rebate payments to Gish Oil as an incentive for undertaking the costs of improving the Baytree store. The NCIP Agreement provided a range of options for how these rebate payments would be calculated. Gish Oil chose the option in which Phillips paid a rebate of two cents ($0.02) for every gallon of Phillips-branded gasoline sold at the Baytree store for the first thirty-six months that the NCIP Program was in place. (Id. at ¶¶ 8-11; Plaintiff's Facts, ¶¶ 4-5; Phillips 66's Statement of Additional Facts ("Plaintiff's Additional Facts"), Doc. 29, ¶¶ 1-4; NCIP Agreement Letter ("NCIP Agreement"), Doc. 20-4).
The NCIP Agreement also required Gish Oil to reimburse Phillips for the incentive payments under certain conditions. The contract stated:
If for any reason, (1) the unit [the Baytree Convenience Store] ceases to be branded Phillips, or (2) the Branded Marketer Sales Contract between us is terminated, or (3) the lease of Phillips signs and imprinters for this unit is terminated, by either party during the ten-year period which begins with the first month in which payment is made pursuant to this NCIP Program, then Phillips' obligations to pay you... shall cease... and you shall refund to Phillips a portion of any sums Phillips has already paid....
If any of the three conditions occurred in the first seven years of the NCIP Program, then Gish Oil was obligated to refund 100% of the incentive payments. Gish Oil had to reimburse 75% of the payments if an event triggering repayment occurred in the eighth or ninth year of the program and 50% of the payments if such an event took place in the tenth year. (NCIP Agreement, ¶ 6).
Gish Oil and Phillips began fulfilling the terms of the NCIP Agreement. In order to meet the contract's demands, Gish Oil decided to raze the existing structure at the Baytree location and construct a new building. Gish Oil used its own money to hire Phillips-approved contractors and vendors to comply with the specifications of the NCIP Program. For its part, Phillips had paid Gish Oil $162, 013.93 by the end of February 2003 as incentive payments under the NCIP Agreement. Gish Oil believed that this money was paid to ...