LYNCHAR, INC. et al.
COLONIAL OIL INDUSTRIES, INC.
DILLARD, P. J., RAY and SELF, JJ.
Oil Industries, Inc. ("Colonial") filed the instant
suit on an account against Lynchar, Inc. d/b/a T&W Oil
Company ("Lynchar") and two of its shareholders,
Lawrence M. Derby, Sr. and Charles G. Thompson, Jr.
(collectively, "appellants"), alleging that
appellants owed $1, 406, 194.61 in principal, plus interest,
on an open account for the sale and delivery of fuel products
and other goods by Colonial. Colonial alleged that Derby and
Thompson signed personal guaranties for the debts of Lynchar
and were therefore liable for the same. The trial court
entered an order granting Colonial's motion for partial
summary judgment and denying appellants' motion for
partial summary judgment. Appellants appeal both rulings. For
the reasons that follow, we reverse.
Summary judgment is proper when there is no genuine issue of
material fact and the movant is entitled to judgment as a
matter of law. A de novo standard of review applies to an
appeal from a grant of summary judgment, and we view the
evidence, and all reasonable conclusions and inferences drawn
from it, in the light most favorable to the nonmovant.
(Footnote omitted.) Community Magazine v. Color
Xpress, 326 Ga.App. 330 (756 S.E.2d 564) (2014). So
viewed, the record reflects that Colonial entered into an
account agreement with Lynchar whereby Colonial would sell
and deliver fuel products and other goods. A "New
Account Data Sheet" signed December 10, 1986, lists
"Lynchar Inc. d/b/a T&W Oil Co." as the billing
name on the account. An updated "Account Data Sheet and
Agreement" signed August 18, 1997, lists "T&W
Oil Co." as the billing name on the account. The
signature block of the 1997 agreement lists the "Company
Name" as "T&W Oil." In 2007 and 2008,
Thompson and Derby executed personal guaranties. Both
guaranties identify Colonial as the "Holder" and
T&W Oil, Inc. as the "Debtor, " and Derby's
guaranty provides as follows:
On this the 23[rd] day of April, 2008[, ] in consideration of
and as inducement for Colonial Oil Industries, Inc.
(hereinafter, "Colonial" or "Holder") to
sell product to T&W Oil, Inc. ("Debtor" or
"Borrower") on credit or delayed payment terms, to
extend to Debtor existing or new credit or indebtedness,
and/or to otherwise assume a credit risk with respect to
Debtor whereby Debtor will owe to Colonial money, each of the
undersigned guarantors (hereinafter, collectively and
individually a "Guarantor") do hereby agree,
jointly and severally, as follows:
1. Guarantor hereby unconditionally and absolutely guarantees
to the Holder the full and prompt payment, when due, of all
of the "Obligations." "Obligations" shall
mean and include all indebtedness and liability of whatsoever
nature of the Borrower to the Holder. . . together with any
and all costs and expenses of and incidental to the
collection any of the foregoing or the enforcement of this
Guaranty, including, but not limited to, reasonable
[attorney] fees and costs and expenses of litigation
. . .
16. . . . In the event Guarantor breaches this Guaranty, then
Guarantor shall pay to Holder all costs of the Holder in
enforcing this Guaranty and collection of the Liabilities,
including but not limited to reasonable [attorney] fees and
the costs and expenses of litigation. . . .
and Derby are shareholders in Lynchar, Inc., and both aver
that they have never been associated with an entity known as
"T&W Oil, Inc."
Lynchar failed to meet its obligations under the agreements,
Colonial sued appellants asserting claims for breach of the
account agreement, promissory estoppel, breach of both
guaranties, and attorney fees. The complaint alleged as
Pursuant to an agreement with Defendant T&W Oil and
personal guaranty agreements with Defendant Lawrence M.
Derby, Sr. and Defendant Charles G. Thompson, Jr., Plaintiff
sold and delivered fuel products and other goods to Defendant
T&W Oil on account. The outstanding balance on this
account for product sold is $1, 406, 194.61 plus interest.
Defendant. . . Derby. . . signed a Guaranty Agreement through
which he bound himself to be personally liable for any
amounts owed Plaintiff by Defendant T&W Oil. . . .
Defendant. . . Thompson. . . signed a Guaranty Agreement
through which he bound himself to be personally liable for
any amounts owed Plaintiff by Defendant T&W Oil. . . .
filed an answer, admitting these allegations, but disputing
the amount owed. . In an amended answer, appellants later
denied these allegations and raised a new affirmative defense
based on the Statute of Frauds. Thereafter, appellants moved
for partial summary judgment on Colonial's claims for
breach of the guaranties and attorney fees, arguing that the
guaranties were not enforceable because they failed to
identify the correct principal debtor, Lynchar, Inc.
meantime, Colonial amended its complaint to include a claim
for fraud.Colonial also moved for partial summary
judgment on all of its remaining claims with the exception of
its claim for promissory estoppel. In support of its
contention that summary judgment was proper, Colonial pointed
to appellants' admissions in their original answer as
well as various emails between Derby as "President of
T&W Oil Company" and Colonial's credit manager
evincing Lynchar's inability to satisfy its payment
obligations as well as its desire to continue doing business
with Colonial and pay off its account "in full."
Colonial also pointed to Derby's deposition testimony and
Lynchar's federal tax return in support of its motion.
During his deposition, Derby confirmed that the 2011 federal
tax return listed the corporate name as "LYNCHAR, INC.
D/B/A T&W OIL COMPANY, INC." Regarding the guaranty,
Derby testified as follows:
Q: What was your understanding of what this document, this
guaranty, was supposed to do?
A: Personal guaranty, you know, for ...