Mid-State Advertising D/B/A The Nashville Scene v. Douglas Sarmento ( 1995 )

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT NASHVILLE
_______________________________________________
MID-STATE ADVERTISING d/b/a FROM THE DAVIDSON
THE NASHVILLE SCENE, COUNTY CIRCUIT COURT
THE HONORABLE HAMILTON
Plaintiff-Appellee, GAYDEN, JUDGE
Davidson Circuit No. 94C-2085
Vs. C.A. No. 01A01-9504-CV-00157
DOUGLAS SARMENTO, AFFIRMED AND REMANDED
Defendant-Appellant, Opinion Filed:
FILED Phillip B. Jones of Evans, Jones
& Reynolds of Nashville, For
Appellee
October 4, 1995
Steven L. Williams of Bunstine,
Cecil Crowson, Jr.
Appellate Court Clerk Watson & Williams of Knoxville,
For Appellant
_________________________________________________________________________
MEMORANDUM OPINION1
_________________________________________________________________________
CRAWFORD, J.
This appeal involves a suit on a guaranty agreement. Defendant, Douglas
Sarmento, appeals from the trial court's order granting plaintiff, Mid-State
Advertising, d/b/a "The Nashville Scene," summary judgment. The only issue on
appeal is whether the trial court erred in granting summary judgment.
Plaintiff filed suit against defendant in general sessions court for sums due
under a guaranty agreement signed by defendant. After judgment was
entered for plaintiff in general sessions court, defendant appealed to circuit
court. Plaintiff filed a motion for summary judgment supported by the affidavit
of Ms. Lara Lee Williams, defendant's answers to interrogatories, and defendant's
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Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The Court, with the
concurrence of all judges participating in the case, may affirm, reverse or
modify the actions of the trial court by memorandum opinion when a formal
opinion would have no precedential value. When a case is decided by
memorandum opinion it shall be designated "MEMORANDUM OPINION," shall
not be published, and shall not be cited or relied on for any reason in a
subsequent unrelated case.
response to request for admissions.
The supporting documents establish that defendant was employed by
Jack Webb Carpeting, Inc., (also known as Jack Webb Carpet) from August 31,
1988, to August 31, 1989, and that while employed in that capacity he made a
credit application with plaintiff on behalf of Jack Webb Carpet. Defendant
signed this credit application individually as a guarantor. The language above
the signature of defendant on the guaranty states:
This guarantee shall be enforceable as to all of
Advertiser's debts, liabilities and obligations incurred
despite Advertiser's discharge, bankruptcy or
adjustment to such debts, liabilities and obligations
pursuant to some other compromise with creditors.
This instrument shall be a continuing guarantee and
shall remain in full force and effect until written notice
is received by you from me that I desire to be released
from further or future liability hereunder.
Defendant signed the guaranty of his own free will and absent any duress.
The affidavit of Ms. Lara Lee, the accounts receivable supervisor for plaintiff.
stated that plaintiff's policy and practice require a personal guaranty for the
extension of credit for advertising except with certain exceptions. Defendant's
employer was not included as one of the exceptions.
Defendant's response to the summary judgment motion is supported by
defendant's affidavit which we quote:
1. At the time I signed exhibit 1 to this affidavit
(hereinafter referred to as the "Credit Application,") I
was an employee of Jack Webb Carpeting, Inc.; I
held no ownership interest in Jack Webb Carpeting,
Inc., nor was I a corporate officer of said corporation.
2. When I signed the Credit Application it was not my
understanding that I was signing a guaranty that
personally bound me to be responsible for all future
debts incurred by Jack Webb Carpeting, Inc. with the
plaintiff.
3. The language contained at the bottom of the
Credit Application below the heading "Statement of
Responsibility" was not pointed out to me by any
representative or agent of the plaintiff, nor were the
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terms contained therein discussed with me, nor were
the terms physically conspicuous to me.
4. The credit policy and procedures contained in
paragraph 6 of the affidavit of Ms. Lara Lee attached
to plaintiff's motion for summary judgment were never
explained to me and I first became aware of these
procedures when my attorney provided me a copy of
her affidavit in September, 1994.
5. I first became aware that the plaintiff was seeking
to bind me to this "guaranty" contained in the Credit
Application when I was served with a Civil Warrant on
January 12, 1994 more than four years after the last
payment was reportedly made on the Jack Webb
Carpeting account with the plaintiff.
A trial court should grant a motion for summary judgment when the
movant demonstrates that there are no genuine issues of material fact and that
the moving party is entitled to a judgment as a matter of law. Tenn.R.Civ.P.
56.03. The party moving for summary judgment bears the burden of
demonstrating that no genuine issue of material fact exists. Byrd v. Hall, 847
S.W.2d 208, 210 (Tenn. 1993). When a motion for summary judgment is made,
the Court must consider the motion in the same manner as a motion for directed
verdict made at the close of plaintiff's proof; that is, "the court must take the
strongest legitimate view of the evidence in favor of the nonmoving party, allow
all reasonable inferences in favor of that party and discard all countervailing
evidence." Byrd, 847 S.W.2d at 210-11. The phrase "genuine issue" as stated in
Tenn.R.Civ.P. 56.03 refers to genuine, factual issues and does not include issues
involving legal conclusions to be drawn from the facts. Id. at 211 (citing Price
v. Mercury Supply Co., 682 S.W.2d 924, 929 (Tenn. App. 1984)). In Byrd, the Court
stated:
Once it is shown by the moving party that there is no
genuine issue of material fact, the nonmoving party
must then demonstrate by affidavits or discovery
materials, that there is a genuine, material fact dispute
to warrant a trial. Fowler v. Happy Goodman Family,
575 S.W.2d 496, 498 (Tenn. 1978); Merritt v. Wilson City
Bd. of Zoning Appeals, 656 S.W.2d 846, 859 (Tenn. App.
1983). In this regard, Rule 56.05 provides that the
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nonmoving party cannot simply rely upon his pleading
but must set forth specific facts showing that there is a
genuine issue of material fact for trial. "If he does not
so respond, summary judgment . . . shall be entered
against him." Rule 56.05.
Byrd, 847 S.W.2d at 211 (Emphasis in original).
Tenn.R.Civ.P. 56.05 provides in pertinent part:
56.05. Form of Affidavits; Further Testimony; Defense
Required Supporting and opposing affidavits shall be
made on personal knowledge, shall set forth such
facts as would be admissible in evidence, and shall
show affirmatively that the affiant is competent to
testify to the matters stated therein. (Emphasis
supplied).
Defendant argues that he did not intend to be personally liable when he
signed the credit application, and therefore, he should not be bound to the
terms of the agreement. As a general rule, a "guarantor in a commercial
transaction is to be held to the full extent of his engagements, and the rule in
construing such an instrument is that the words of the guaranty are to be taken
as strongly against the guarantor as the sense will admit." Wilson v. Kellwood
Co., 817 S.W.2d 313, 318 (Tenn. App. 1991) (citing Farmers-Peoples Bank v.
Clemer, 519 S.W.2d 801 (Tenn. 1975)).
The real question in this case is whether there is any admissible evidence
in defendant's affidavit which creates a genuine issue of material fact. The
agreement signed by defendant is clear and unambiguous. Parol evidence is
not admissible to vary the plain meaning of a contract's terms where there is no
ambiguity in the contract. Jones v. Brooks, 696 S.W.2d 885, 886 (Tenn. 1985). The
parol evidence rule is not merely a rule of evidence but one of substantive law.
Maddox v. Webb Constr. Co., 562 S.W.2d 198, 201 (Tenn. 1978).
The general rule is that a person's obligation in a written contract cannot
be avoided on the ground that he did not read the instrument and did not know
the terms thereof. DeFord v. Nat'l Life & Accident Ins. Co., 182 Tenn. 255, 266, 185
S.W.2d 617, 621 (1945). A succinct statement of the controlling law is found in
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Beasley v. Metropolitan Life Ins. Co., 190 Tenn. 227, 229 S.W.2d 146 (1950):
"To permit a party, when sued on a written contract, to
admit that he signed it but to deny that it expresses
the agreement he made or to allow him to admit that
he signed it but did not read it or know its stipulations
would absolutely destroy the value of all contracts."
12 Am.Jur., 629. "In this connection it has been said
that one is under a duty to learn the contents of a
written contract before he signs it, and that if, without
being the victim of fraud, he fails to read the contract
or otherwise to learn its contents, he signs the same at
his peril, and is estopped to deny his obligation, will be
conclusively presumed to know the contents of the
contract, and must suffer the consequences of his
own negligence." 17 C.J.S., Contracts, § 137, pages
489, 490.
"It will not do, for a man to enter into a contract, and,
when called upon to respond to its obligations, to say
that he did not read it when he signed it, or did not
know what it contained. If this were permitted,
contracts would not be worth the paper on which
they are written. But such is not the law." Upton v.
Tribilcock, 91 U.S. 45, 23 L. Ed. 203; Berry v. Planters
Bank, 3 Tenn. Ch., 69; Lockhart v. Moore, 25 Tenn.
App., 456, 466, 159 S.W.2d 438; Federal Land Bank of
Louisville v. Robertson, 20 Tenn. App. 58, 63, 95 S.W.2d
317.
190 Tenn. at 232, 229 S.W.2d at 148.
Since the statements in defendant's affidavit are not admissible in
evidence, there are no disputed material issues of fact; therefore, plaintiff is
entitled to a judgment as a matter of law. Accordingly, the trial court did not
err in granting summary judgment.
The order of the trial court granting summary judgment is affirmed, and
this case is remanded for such further proceedings as may be necessary. Costs
of the appeal are assessed against the appellant.
____________________________________
W. FRANK CRAWFORD, JUDGE
CONCUR:
_________________________________
HEWITT P. TOMLIN, JR.,
PRESIDING JUDGE, W.S.
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_________________________________
ALAN E. HIGHERS, JUDGE
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