COLONIAL OIL INDUSTRIES, INC.
LYNCHAR, INC. d/b/a T&W OIL COMPANY et al.
MELTON, Presiding Justice.
Lynchar, Inc. v. Colonial Oil Industries, Inc., 341
Ga.App. 489 (801 S.E.2d 576) (2017), the Court of Appeals
found that certain individual guaranties of Lynchar,
Inc.'s debt to Colonial Oil Industries, Inc. were
unenforceable under Georgia's Statute of Frauds. See OCGA
§ 13-5-30. Specifically, the Court of Appeals held that
the guaranties were unenforceable because they do not
reference the legal name of the corporate debtor
("Lynchar, Inc. d/b/a T & W Oil Company"), but
instead reference only the corporate debtor's trade name
("T&W Oil, Inc."). We granted a petition for
certiorari filed by Colonial Oil and posed two questions: (1)
To what extent does a misnomer or other defect in the
identification of the principal debtor render a contract of
suretyship or guaranty unenforceable? Playnation Play
Systems, Inc. v. Jackson, 312 Ga.App. 340 (718 S.E.2d
568) (2011); (2) Did the Court of Appeals err in holding that
the guaranties sought to be enforced against appellees are
unenforceable? For the reasons set forth below, we reverse.
facts of this case, which are largely undisputed, were
exhaustively recounted by the Court of Appeals as follows:
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, [Charles G.] Thompson[, Jr.] and
[Lawrence M.] Derby[, Sr.] 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
generally. . . .
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. . . .
Thompson 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."
When Lynchar failed to meet its obligations under the
agreements, Colonial sued [the guarantors] asserting claims
for breach of the account agreement, promissory estoppel,
breach of both guaranties, and attorney fees. The complaint
alleged as follows:
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. . . .
[The guarantors] filed an answer, admitting these
allegations, but disputing the amount owed. In an amended
answer, [the guarantors] later denied these allegations and
raised a new affirmative defense based on the Statute of
Frauds. Thereafter, guarantors 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.
In the 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 [the guarantors'] admissions in their original answer
as well as various e-mails 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 the debt.
Q: And what does that mean?
A: That I'd be held responsible.
Q: And what debt were you going to be personally responsible
A: From Colonial.
Q: Whose debt were you covering ...