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Sure, Inc. v. Premier Petroleum, Inc.

Court of Appeals of Georgia, First Division

October 19, 2017




         Sure, Inc. ("Sure") appeals from the trial court's grant of summary judgment on its claims against Premier Petroleum, Inc. ("Premier") arising out of a petroleum supply contract and loan documents executed by the parties. For the reasons set forth below, we reverse the trial court's grant of summary judgment on Sure's claim for breach of contract, affirm the grant of summary judgment on Sure's claim for wrongful foreclosure, and affirm in part and reverse in part the grant of summary judgment on Sure's claim of fraud.

It is well settled that
[s]ummary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. In our de novo review of the grant of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 S.E.2d 779) (2010).

         So viewed, the evidence of record shows that at the pertinent time, Sure owned and operated a convenience store and gas station in Suwanee, Georgia (the "Station"). Natt Nwokolo is the president, secretary, and majority shareholder of Sure.[1] Premier is a Georgia petroleum supplier/distributor, and Aziz Dhanani is its president. Premier conducts its business by purchasing gasoline from a branded oil company at wholesale and then providing the gasoline to various retail gas stations and convenience stores.

         Supply Agreement

         In December 2009, Nwokolo decided to rebrand the Station from a CITGO to a Shell Oil station. In conjunction with that decision, Nwokolo spoke with representatives of Premier, and on December 11, 2009, Sure and Premier entered into a Contract Supply Agreement (the "Supply Agreement"), which provided that Premier would be the exclusive supplier of petroleum products to the Station and that Sure would purchase a minimum of 60, 000 gallons of such products per month.

         Under the terms of the Supply Agreement, Premier agreed to assist Sure by processing its credit card payments, and Sure was required to pay for gasoline deliveries at the time of delivery. Additionally, Premier agreed to pay Sure a rebate of $.02 per gallon for a period of three years beginning after the Station was completely rebranded and accepted by Shell.

         Loan from Premier to Sure

         Certain renovations were required as part of the re-branding of the Station, and Nwokolo also decided to update the Station's gas pumps. Premier agreed to lend Sure money to help accomplish these changes (the "Loan"), and the parties executed loan documents, including a $56, 000 promissory note (the "Note") and a "Deed to Secure Debt, Assignment of Leases and Rents and Security Agreement" (the "Deed to Secure Debt"), both signed by Sure, as well as a personal guaranty signed by Nwokolo. The Deed to Secure Debt granted Premier a security interest in a one-acre lot owned by Sure adjacent to the Station (the "Adjacent Property").

         At or around the time of the closing on the Loan, Premier issued a check dated January 28, 2010, in the amount of $6, 000 to Sure. Then, on February 8, 2010, Premier issued a check on behalf of Sure in the amount of $14, 000 to a third-party, B & B Petroleum System Services, Inc. ("B&B"), toward the replacement or refurbishment of the gasoline pumps. Although Premier produced written documentation showing Nwokolo's authorization for Premier to pay $50, 000 of the Loan proceeds to B & B (the "Authorization"), Nwokolo asserts that he never authorized that any of the Loan proceeds be paid to B&B, he never signed the Authorization, and the signature on that document is a forgery. Rather, he believed that all the Loan proceeds would be paid to Sure directly.

         Nwokolo wrote Premier a letter dated February 25, 2010, to inform the company that Sure had decided not to accept the $56, 000 Loan, noting that Sure had only received $6, 000 of the Loan proceeds as of that date. Nwokolo represented that he had asked B&B, and it had agreed, to refund the $14, 000 payment back to Premier, and he stated that he intended to refund the $6, 000 paid to Sure. However, the letter was not mailed until March 17, 2010.

         Premier responded by letter dated March 19, 2010, noting that the first payment under the Note, due on March 1, 2010, had not been paid. The March 19 letter gave Sure five days in which to pay the $20, 000 in Loan proceeds that Premier had paid out. Premier again wrote Nwokolo and Sure on April 14, 2010, to give notice that Sure was in default under the terms of the Note and that the company could cure the default by paying the sum of $4, 515.27, representing the outstanding Loan payments for March and April 2010, including interest. Premier next wrote Sure and Nwokolo on October 13, 2010, demanding payment of all amounts due and owing under the Note and informing them that, in the absence of such payment within the next ten days, Premier intended to pursue legal action, including foreclosure under the Deed to Secure Debt. Neither Sure nor Nwokolo has ever returned the $6, 000 Sure received in January 2010 nor have they ever paid Premier any amounts under the terms of the Loan documents. Premier subsequently foreclosed on the Adjacent Property, and as the highest bidder at the foreclosure sale, Premier acquired that property (the "Foreclosure").

         Despite this Loan dispute, Premier and Sure continued to operate under the terms of the Supply Contract, with Premier continuing to supply Sure with Shell gasoline. At some point, Premier adopted the practice of withholding the credit card payments it was servicing for Sure and netting them against the cost of Sure's gasoline purchases, maintaining a running credit balance on Sure's behalf.

         Bankruptcy ...

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