Playnation Play Sys. Inc. v. Jackson

• Decision Date: 01 November 2011
• Docket Number: A11A1449,SM-065
• Parties: PLAYNATION PLAY SYSTEMS, INC. v. JACKSON.
• Court: Georgia Court of Appeals

PLAYNATION PLAY SYSTEMS, INC. v. JACKSON.

A11A1449

SM-065

Court of Appeals of Georgia

November 1, 2011

FIRST DIVISION

SMITH, P. J., MIKELL and DILLARD, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk's office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008)

Smith, Presiding Judge.

In this action on a personal guaranty, PlayNation Play Systems, Inc. ("PlayNation") appeals from the trial court's grant of Robert Jackson II's motion for summary judgment. For the following reasons, we affirm.

On appeal, we review a trial court's grant of summary judgment de novo, construing the evidence and all inferences drawn from it in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997). The relevant facts here are undisputed. Jackson and Gerald Flanagan¹ owned The Bottom Line, a limited liability Pennsylvania corporation, and conducted business under the fictitious name or "d/b/a" of Swingset Planet. The company sold and installed children's swing sets and operated an indoor play center. The swing sets were purchased pursuant to a 2006 dealership agreement between Swingset Planet and PlayNation, a manufacturer of children's playground equipment.

Jackson executed a personal guaranty for the debts of "Swing Set Planet" a month after the parties entered into the dealership agreement. The guaranty listed Swing Set Planet as the principal debtor. In 2008, PlayNation licensed its name and Jackson and Flanagan changed The Bottom Line's fictitious name to PlayNation Parties and Playgrounds ("PlayNation Parties") and continued to conduct the same business.

When PlayNation Parties failed to make payment on outstanding invoices, PlayNation sued for breach of Jackson's personal guaranty, interest, and attorney fees.² Following some discovery, both parties moved for summary judgment. The trial court granted Jackson's motion for summary judgment on the ground that Jackson could not be held responsible for the debt of PlayNation Parties because the debtor listed on the guaranty was Swingset Planet. It is from this order that PlayNation appeals.

"The contract of suretyship or guaranty is one whereby a person obligates himself to pay the debt of another." OCGA § 10-7-1; see Rohm & Haas Co. v. Gainesville Paint & Supply Co., 225 Ga. App. 441, 444 (3) (483 SE2d 888) (1997). The guaranty must identify the debt, the principal debtor, the guarantor, and the creditor. Cox v. U. S. Markets, 278 Ga. App. 287, 288 (1) (628 SE2d 701) (2006). "Georgia courts strictly construe guaranty agreements in favor of the guarantor. And the guarantor's liability cannot be extended by implication or interpretation." (Citations and footnotes omitted.)Caves v. Columbus Bank & Trust Co., 264 Ga. App. 107, 114-115 (3) (b) (589 SE2d 670) (2003).

Citing American Express Travel &c. v. Berlye, 202 Ga. App. 358 (414 SE2d 499) (1991), PlayNation argues that Jackson promised to pay the debts of The Bottom Line when he signed the guaranty because both Swingset Planet and PlayNation Parties were not legal entities but were merely trade names descriptive of the corporation. See id. at 360 (1). We disagree.

In Beryle, the guarantors guaranteed payment of all sums due to the creditor from the agent under a trust agreement. Id. at 359. The trust agreement named Convenient Financial Services Group, Inc. d/b/a Cashland Check Cashing as the agent. At some time after the guaranty was executed, the corporation, Convenient Financial Services Group, Inc., began operating a d/b/a under the name Associated Check Cashing. Id. at 359. This court held that the change in the description of the corporation was immaterial and did not alter the guarantor's obligation to guaranty the sums of the corporation. Id. at 360 (1). But Beryle is inapposite here because in ...