PREMIER PETROLEUM, INC.
BARNES, P. J., MCMILLIAN and MERCIER, JJ.
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)
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. 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
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
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
from Premier to Sure
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").
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.
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.
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").
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.