OF JUDGMENT: 08/22/2016
JUDGE: HON. JAMES SETH ANDREW POUNDS LEE COUNTY CIRCUIT COURT
COURT ATTORNEYS: MARTHA B. STEGALL WILLIAM C. SPENCER WILLIAM
C. SPENCER, JR. MICHAEL D. GREER MICHAEL P. MILLS, JR.
ATTORNEYS FOR APPELLANT: WALTER D. WILLSON RANDY L. DEAN
KEVIN A. ROGERS
ATTORNEYS FOR APPELLEES: WILLIAM C. SPENCER, JR. WILLIAM C.
SPENCER MICHAEL D. GREER MICHAEL P. MILLS, JR.
WALLER, C.J., CHAMBERLIN AND ISHEE, JJ.
Tommy Brooks Oil Co. ("Brooks Oil") challenges the
trial court's grant of summary judgment in favor of Jerry
Wilburn. The party moving for summary judgment
bears the burden to demonstrate that there is no genuine
issue as to any material fact and that judgment should be
rendered as a matter of law. Wilburn did not meet this
burden, and the trial court erred in granting summary
According to Brooks Oil, Wilburn Oil Co., Inc. ("Wilburn
Oil") had amassed nearly $1 million in unpaid fuel bills
before Brooks Oil refused to sell Wilburn Oil any more fuel
until Wilburn executed two personal guaranties for $250, 000.
After Brooks Oil sued Wilburn to enforce the guaranties,
Wilburn moved for summary judgment, claiming a unilateral or
mutual mistake concerning the guaranties. According to
Wilburn, the parties never intended the guaranties to include
Wilburn Oil's past debt. The trial court agreed and
granted summary judgment, dismissing Brooks Oil's suit
against Wilburn with prejudice. As Wilburn did not meet his
summary-judgment burden, we reverse the trial court's
judgment and remand the case for further proceedings.
AND PROCEDURAL HISTORY
Through the years, Brooks Oil supplied Wilburn Oil with fuel
products at a number of Wilburn Oil's gas stations. Since
late 2012, though, Wilburn Oil-according to Brooks Oil-had
failed to pay all the fuel invoices sent by Brooks Oil.
Brooks Oil claimed that Wilburn Oil owed it nearly $1 million
in unpaid fuel bills by 2013. In order for Brooks Oil to
resume selling Wilburn Oil fuel products, Wilburn signed two
personal guaranties to Brooks Oil's benefit. The first
guaranty, executed on June 20, 2013, was for $100, 000. The
second guaranty, executed on August 29, 2013, was for $150,
000. Aside from the amount guaranteed, the language of the
guaranties was identical and provided that Wilburn guaranteed
to Brooks Oil that he personally would be liable for Wilburn
Oil's debt "due or to become due . . . now existing
or hereafter arising. . . ." Before resuming delivery,
Brooks Oil had Wilburn Oil also agree to a
two-cent-per-gallon increase in the purchase prices for fuel
products. The increase was to be applied to Wilburn Oil's
Guaranties Suit by Brooks Oil against Wilburn
On May 8, 2014, Brooks Oil sued Wilburn (the "guaranties
suit"). Brooks Oil claimed that Wilburn Oil was not
paying the outstanding invoices and sought to collect from
Wilburn on the personal guaranties. Wilburn answered the
complaint, claiming that Wilburn Oil had not defaulted on any
obligation to Brooks Oil. He also claimed that he had not
breached any of the guaranties' obligations. Wilburn
maintained that if there were any ambiguities in the
guaranties, they should be resolved in his favor.
After engaging in discovery, Wilburn moved for summary
judgment. In his brief in support of his motion, Wilburn
argued that neither party intended for the guaranties to
apply to past debt. He claimed that there was either a mutual
mistake or a unilateral mistake. To support his motion,
Wilburn quoted portions of his own deposition testimony as
well as Brooks's deposition testimony. Wilburn cited the
following exchange in Brooks's deposition:
Attorney: Okay. At what point did you ask Mr. Wilburn for a
Brooks: When he come to me and needed more money. He said he
had some accounts that he had to get gas to, and I said,
"Jerry, I can't let you have any more." And
that's when ...