### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE March 4, 1999 Session CHARLES HARDY, ET AL 

### . v. ROBERT BOND MILLER, ET AL 

### .

Appeal from the Chancery Court for Davidson County No. 96-1409-II Carol L. McCoy, Chancellor

No. M1998-00940-COA-R3-CV - Filed December 10, 2001

This appeal involves a dispute among members of a joint vent ure rega rding their rights under surety ship agreements each member signed to guarantee a loa n to the joint venture. After the joint venture default

e d, the b ank looke d to the me mbers of the joint ve

nture fo r pay ment of the

debt. After three me mbers of the joint ve

ntu re paid the b ank more than thei r prora ted shar e of the d ebt, they filed suit in the Chancery Court for Davidson C ou nt y against a former member, see king contri bution for the amount they ha d paid in excess of their prorated share. The for mer membe r counterclaimed, seeking

to recov er the pa

yme nts he had made to the bank on

the joint ve

nture’s debt. Following a bench

trial, the trial cou rt concl uded that t he members we re co-sureties, awarded the thre e members a $ 150,145.10 judgment against the former member, a nd denied the former member’s counter claim. The former member appealed, arguing that his for mer co-vent urers lo st their r

ight to contribution when the

y e xpelled him f

rom the joint ventur

e and tha t he is entitled to be reimbursed for the payments he made

to the b ank on the joint venture’s debt. We have determined that each member of the joint venture agreed to be seve rally liable to the bank f

or the joint venture’s debt and, therefore, that the members were not entitled to contribution from the former member. We have a

lso concluded that the trial court correctly dismissed the former member’s counterclaim. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part and Reversed in Part
W IL LI AM C. K OCH , J R ., J., delivered t he opinion of the court, in which W IL LIAM B. C AIN and P ATRI CIA J. C OTTRELL , JJ., joined. H. Naill Falls, Jr., Nashville, Tennessee, for the appellant, Robert B. Miller.
Grant C. Glassford and Christine J. Laird, Nashville, Tennessee, for the ap pe ll ee s, Ch ar le s H ar dy, Roy Flowers, a

nd Marvin Hopper.
OPINION
I.
In July 1 987 ten ind

ividuals , including Charles Hardy , Roy Flowers, Ma rvin Hopper, and Robert Miller, f ormed a joint venture known as Hardscuffle Associates to ac quire and develop a-2-

fourteenand one-half acre tract in Davidson County. To fund the de velopment, the joint venture borrowed $1,400,000 from

Commerce

Union Ba nk. All ten members of the joint venture signed the loan agree

ment. At the bank’sinsistenc e, each member a

lso signe d a suret

y s hip agreement guara nteeing to repay not more th an $280,0 00 of the j oint ventu re’s de bt.
Robert Miller and Georg e Gianika s were in iti ally the c o-managers of the joint venture. Ho wever, in m id-1991, t he joint ve

nture expe

lled Mr. Mi ller bec ause of h is failur e to make his required ongoing capital contributions. Mr. Gianikas, who then beca me the sole manager of Hardsc uffle

Associates, instructed the joint venture’s accountant to redistr ibute Mr. Miller’s interest to the remaining members of the joint venture.
In July 1991, Hardscuffle Associates executed a re newal and modif

ication d eed of tr ust note for $1,273, 715, which was to mature on September 15, 1992. On October 30, 1992, Har

dscuffl e Associat es signed a “for

bearance ag

reemen t” acknowledging that this note had not been paid, that Hardsc uffle

Associates was in default, and that Hards cuffle

Associat es was ind

ebted fo r the full amount of the note plus interest. NationsBank, who had acquired Commerc e Union Bank, proceede d agains tthe individual members o f the joint venture to collec t the debt . Betwe en late 1 992 and e arly 1993, Mes srs. Hardy, F

lowers, and Hopper, paid NationsBank $280,000 under the person a l guarantee they had signed in 1987. NationsB ank also l ooked to Mr . Miller f or pay ment, and he paid the bank $22,884.73 during 1994 and 1995.
In M ay 1996 Messrs. Ha rdy, Flowe

rs, and Hopper filed suit against Mr. Miller in the Chancery Court for Davidson County. They alleged that Hardscuffle Assoc iates’ debt had be e n complete ly satisfied andthat they had bee n required to pay

more than their share of its outstanding de bt. Accordingly , they sought c ontribution from Mr. Miller up to his prorated share of the debt

. Mr. Miller responded that his former joint venturers has waived their rig ht to seek contribution from him when the

y e xpelled him f

rom the joint ventur

e in 1991 w ithout retur ning his capital contributions. He also sought to recover the $22,884.73 he had pa id to NationsBank. Following a bench trial in May 1998, the trial court filed a judgment on June 11, 1998. Based on the essentially undisputed facts, the trial court found the members of the joint venture were “co-sur eties” and were, therefore, “bound to a nswer for the same duty

of the pri n cipal.” The trial court also found that Mes srs. Har dy, Flower s, and Hopper had each paid the bank $280,000, eve n thou gh their prorat ed sha re of t he joi nt ven ture’ s debt was on ly $105, 000. A ccordi ngl y, after allowing Mr. Mil l er credit for the $22,884.73 he had alrea dy paid NationsBa

nk, the trial court ordered Mr. Miller to pay Messrs. Ha rdy, Flowe

rs, andH opper $96,418.23 plus pre-judgment interest in the amount of

$53,726.87. The court also dismissed Mr. Miller’s counterclaim seeking to recove r the pay ments he h ad alre ady

made to the bank. M

r. Miller has appe ale d from this judgmen t.
II. T HE S TATUS OF THE M EMBERS OF THE J OINT V ENTUR E AS C O - SURETIES
We turn firs t to the trial court’s conclusion that Mr. Miller and the other members of the joint venture became

“co-sur eties” w hen they signed t he suret ysh ip agreements required by NationsBank.-3-

Mr. Miller as serts on th

is appea l that th e tr ial cour

t erred as a matte

r of law b y ba sing his l

iability on the rules governing contribution among co-sureties. We agree.
A.
A suretyship ag

reement necessarily

involves three parties – the debtor who is primarily

liable for the debt, the cre ditor to whom the deb t is owed, a nd the sur ety who agrees to pay

the debt if the debtor does not. A.J. Kellos Constr. Co., Inc. v. Balboa Ins. Co. , 495 F. Supp. 408, 412 (S.D. Ga. 1980); First Va. Bank-Colonial v. Baker , 301 S.E.2d 8, 11 (Va. 1983); Restatement of Security § 82 (1941); Peter

A. Alces, Law of Suret

yship and G

uaranty ¶¶ 1.01, 2.02[1] (1997) (“ Law of Suret yship and Guaranty ”). A surety , by agree ing tobe responsible for another’s debt, Knox County v. Fourth & First Nat’l Bank , 181 Tenn. 569, 589, 182 S.W.2d 980, 987 (1944), becomesseconda rily liable to the creditor. As Professo r Neil Cohen explain s, the “c ore” of surety ship is that

the oblig ee is entitled to performanc e not only from the principa l obligor but also from a third party – the secon dary obligor.” Neil B. Cohen, Striking th e Balanc e: The Evolving Natu re of Sure tyship Defenses , 34 Wm. & Mary L . Rev. 1025, 1027 (1993).
A debtor cannot be its own surety. State Bd. of Equalization v. Naylor , 161 Cal. Rptr. 280, 283 (Ct. App. 1980); Hamilton v. Harida , 421 A.2d 396, 399 (P a. Su pe r. Ct . 1 98 0) . A cc or di ng ly, a true suretyship requires that the debtor and the surety

be two distinct legal entities. Universal Auto. Ins. Co. v. Culberson , 51 S.W.2d 1071, 1073 (Tex. Civ. App. 1932). A surety ship agreement cannot exist when one of the three distinct parties is missing . Stabs v. C ity of Tower , 40 N.W.2d 362, 370 (Minn. 1949).
B.
The trial co urt’s i nvocatio n of sure tys hip princ iples wasappropr iate only if a sure tys hip agreement

existed between these parties. Accordingly , our task is to examine the transac ti on betwee n Hardsc uffle As sociate s, NationsBank, and the individual members o f the joint venture to determine whether it qualifies as a surety ship. This examination essentially calls upon us to identify the debtor, the creditor, and the surety or sureties. Chada v. Trapp , 558 P.2d 1225, 1226 (Or. 1977) (determining the existence of a surety ship by identify ing the three required parties).
In this case, id enti fying the f irst two necessar

y pa rties – the

debtor a nd the cr editor – is straightforward

and easy. T

he debtor or principa

l obligor is the per son who is li able in the first instance to the creditor. Restatement of Security § 82 c mts. c & e; Law of Suret yship and G

uaranty ¶ 2.02[1]. In cases involving the loan of money, the de btor will ordinarily be the entity that received the loan proceeds. Here, Hardscuf fle Associates, as the signatory “borrower” in the loan agreement is unquestionably the debtor or pr incipal obligor. By

the sa me token, the cre ditor is the person to whomthe debt is owed. Restatement of Security § 82 cmt. d. Without question, NationsBank is a creditor of Hardscuffle Associates. The 1987 loan agreement and deed of trust notes make plain that NationsBank

lent Hardscuffle Assoc iates $1,400,000 and that Hardsc uffle A ssociates agreed to repay the loan i n accor

dance w ith the ter

ms of the n ote and a

greem ent.1 Louis K. Li ggett Co. v. Lee , 288 U.S. 517 , 565, 53 S. Ct. 481, 496 (1933) (B randeis, J., dissenti ng).
2 The Tenness ee Supr eme Court , quot ing Dean Will iam L. Pros ser, has ch aracterized a joi nt vent ure as “something lik e a partn ershi p, for a more li mited peri od of ti me and a more li mited purpos e.” Fa in v. O ’Co nne ll , 909 S.W.2d 790, 792 ( Tenn. 1995) . As the Courtvie ws i t, a joi nt vent ure i s “an asso ciation of pe rsons with intent . . . to engage in and car

ry out a sin gle busi ness adven ture for jo int profit, for which purpo se they comb ine their efforts, pro perty, money, s kil l, an d knowledge,

. . . and they agr ee that there shall

be a community of in teres t among them as to the purpose of t

he undert aking, and that each coadvent

urer shal l s tand in t

he re lation of pri ncipal , as we ll a s agent , as to each of th e othercoadv enturers, with an equa l right of control of the mean s employe d to carry ou t the comm on purp ose of the adven ture. ” Spencer Kellogg & Sons, Inc. v. Lobban , 204 Tenn. 79, 92- 93, 315 S.W.2d 514, 520 (1958). Even though joint vent ures a re not technical ly partners hips, they are governed by the same rules of l aw that govern partnerships. Federat ed Stores Real ty, Inc. v. Huddl est on , 852 S. W.2d 206, 212 (Tenn. 199 2); Me sser G rieshe im In dus ., Inc. v. Cryotech of Ki ngsport, Inc. , 45 S .W .3d 5 88, 6 05-0 6 (T enn. C t. App . 200 1). -4- The controlling question in this case is whether any party or pa

rties other

than Har dscuffl e Associates stepped into the role of surety . The answer to this question turns on the differenc es in the legal status of the various “tool[s] employed by individuals in the conduct of private business.” 1 The most common

of these tools are sole prop rietorsh ips, part nerships , limited partnerships, limited liability companies and partnerships, and corporations. Each of these has significant

ly different legal attribute s. Some are legal entities in their own right; while others, in the e yes of the law, are nothing but extensio ns of thei

r princip als.
Busines s organ

izations wit

h a separ ate leg al identit

y and their owners or shareholders may be sureties. It is well-set tled that a corp oration may serve as surety for

the debts of another corporation. David S. Walls, Promises to Keep: Intercorporate Gua rante es and Fraudulent Transfers in Bankruptcy , 19 UCC L.J. 219, 220-28 (1987). Shareh older s in closely- held corporations can stand as sureties or guarantor s of the corporation’s debts. See , e.g. , Squibb v. Smith , 948 S.W.2d 752, 754 (Tenn. Ct

. App. 1997 ); Frank Ler ner & Assoc. v . Vassy , 599 N.E.2d 734, 736, 740 (Ohio Ct. App. 1991). Similarly, promissory notes executed by

th e partners in a limited partnership can be guara

nteed by an entity separate from the partnership. See , e.g. , Indemni ty Ins. Co. v. American Deseret Ltd. , 887 F. Supp. 521, 522-24 (S.D.N.Y. 1993). However, the rule s that app ly to corpora tions do not

apply with the sa

me force to partnerships or joint ventures 2 because

they do not have a

separate legal identity

independent of their partners or members. William D. Lewis, The Unifor m Partner

ship Act — A Reply to M

r. Cra ne’s Criticism , 29 Harv. L. Rev. 158, 158-74 (1915); Note, The Inter est of a Partne r in Partne rship Prope rty , 19 Colum. L. Rev. 404, 405 (1919). Bec ause partnerships lack a separate legal identity , all partners are individua lly liable, jointly and severa lly, for the partne

rship de bts. Tenn. Code Ann. § 61-1-114 (Supp. 2001); Mahoney-Jones Co. v. Sams Br os. , 128 Tenn. 207, 210, 159 S.W. 1094, 1094 (1913); Production Credit Ass’n v. W ard , No. 1, 1990 WL 39350, at *3 (Tenn. Ct. App. Apr. 9, 1990), perm. app. denied , (Tenn. July 23. 1990). Thus, when money is lentto a partnership, each partner bec omes a primary oblig or, even when one or more of the partne rs have guaranteed the de bt ind ividually

. Dominion Bank v. Crane , 843 S.W.2d 14, 19 (Tenn. Ct. App. 1992).
Becau se a partne

r is alre ady

a primar y ob ligor on

a partne rship debt, the general

rule is that a partner cannot also be

a surety or g

uarantor of a partnership debt. Cooperative Fin. Assoc., Inc.
v. Garst , 917 F. Supp. 1356, 1384 (N.D. I owa 1996) ; Resolutio n Trust Corp. v. Teem P ’ship , 8353 The suretyship agree men ts bene fitt ed the mem bers o f Har dscu ffle Asso ciates b ecau se they ca ppe d their

indiv idual liability at $28 0,000 . Witho ut these agree men ts each mem ber w ould have b een ind ividua lly liable for the full
amo unt of the deb t.

4 A perso n is not en titled to co ntributio n until he o r she ha s paid mor e th an his or her fair s hare of a joint oblig ation. Frazier

v. Frazi er , 221 Te nn. 70 5, 71 6, 43 0 S.W .2d 6 55, 6 60 ( 196 8); You ng v . Kittrell , 833 S. W.2d 505, 508 (Te nn. Ct. A pp. 1 992 ). -5- F. Supp. 563, 5 69 (D. Colo . 1993); In re Prestige Ltd. P’s hip - Co ncord , 205 B.R. 427, 433-34 (Ban kr. N. D. Cal. 199 7); Rock Island Bank &Trust Co. v. Stauduhar , 375 N.E.2d 1383, 1389-90 (Ill

. App. Ct. 1978); Boatmen’ s First Nat’ l Bank v. Bogina Pe troleum E ng’rs , 794 S.W.2d 703, 705 n.2 (Mo. Ct. App. 1990). The Tennessee Supreme Court has compared a partner acting as surety of a partnership debt to a “man wh o tr ied to lift himself by his own boot straps.” Knox County v. Fourth & First Nat’l Bank , 181 Tenn. at 589, 182 S.W.2d at 987.
The gener al rule th at a

partner cannot be

a surety of partnership de

bts contr ols the out

come of the sure tys hip issues in this cas e. The pa rties-in -intere st, Hards cuffle Associat es, its members, and the bank did not establish a sur et ys hip in the July 1987 transaction. I n reality, the so-c alled surety ship agreements executed by Hardsc

uffle Associates’ members had the leg al effect of altering what otherwise would have been each member ’s unlimited joint and several liabili ty for the joint venture’s debts. As a result of these agreeme nts, e ach mem ber’s individual liability was made several only and w as capped at $280,000. Accordingly , these agreements actually served as “limitation of liability”agree ments benefitt

ing the individual me mbers of the joint venture. 3 Becau se no s uretyship was eve

r created, the trial court erre d by classify ing the members of Hardscuffl e Associat es as “c o-suret

ies” and by b asing it s decisio n on suret ysh ip princip les.
III. M ESS RS . H ARDY ’ S , F LOWERS ’ S , AND H OPPER ’ S R IGHT T O C ONTRIB UTION
Our conclusion that the trial court erroneously relied on principles of

suretyship law

to decide this case does not end our

task. The trial cou

rt also ba sed its de cision on t he princ iple of pa

rtnersh ip law that per

mits partners to obt

ain contr ibution fr om other p artner s. Mr. Miller asserts that the trial court erred o n this point a s wellbecause the members of Hardscuff le Associates were not jointly and severa lly l iable to N ationsBa

nk for Ha rdscuff le Associ ates’s d

ebt.
A.
Contribution is an equitable principle that requires persons u nder common obligation to share that obligation equally. William H. I nman, Gibson’s Suits in Chancery § 419 (7th ed. 1988). A claim for contribution arises when one of several par ties jointly liable for a common debt pays more than his o r her sh are to d ischa rge the debt for the benefit of all. Once a person has paid more than his or her fair share of a common debt, 4 he or she

may usean action for contribution as a vehicle for obta ining restitution from the other persons who are equally liable on the debt. Newson v

. Shackle ford , 163 Tenn. 358, 361, 4 3 S.W.2d 384, 385 (1931 ); Rhea v. W hite , 40 Tenn. (3 Head) 121, 122 (1859 ); Winebarger v. W inebarger , 653 S.W.2d 746, 748 (Tenn. Ct. App. 1983).-6-

A right of contribu tion pres upposes c ommon or jo int liabilit y a mong the parties. When an obligation is not joint, its discharge does not give rise to a claim for contribution against others. Jobe v. O’Brien , 21 Tenn. (2 Hum.) 3 4, 36 (184 0); Squibb v. Smith , 948 S.W.2d a t 754; TRW- Title Ins. Co. v. Stewart Title Guar. Co. , 83 2 S .W .2 d 3 44 , 3 46 (T en n. Ct . A pp . 1 99 1) . A cc or di ng ly, contribu tion, w hose purpose is to equalize a common burden, is inconsistent with several or individua l liability . As the I

llinois Cour

t of Appe als has e

xplained:
when individuals are severally oblig ated, the relationship between them is dist

inctly divided. Wh

ether one individu al fulfills a several obligation or not hasno effe ct upon the duty of any other

obligor. His obligation is strictly

individ ual. On the other hand, an action for contribution is depend ent upon a

common obl

igati on and p erformance

by one or more

than his aliquot share of the burden

. Since this is impossible where the obligation is several, [where t hat is the case,] there can be no action for contribution. Shapiro v. Chernoff

, 279 N.E.2d 454, 461 (Ill. App. Ct. 1972).
These contribution principleshave been repe ated ly invok ed in the c onte xtof partnerships. Becau se partners are jointly and severally

liable for partnership debts, a partner who pay s a partner ship debt out of his or her own funds is entitled to contribution from the other partners when the partnership assets are insufficient to reimburse the partner. Equitable

Trust Co. v. Central Trus t Co. , 145 Tenn. 148, 184, 239 S.W. 171, 181 (1922); see also Shemper v. Hancock Bank, 40 So. 2d 742, 744 (Miss. 1949) ; State ex rel. Angle

v. Hull , 930 S.W.2d 25, 29 (Mo. Ct. App. 1996).
B. Determining whether the members of Hardscuffle Associates are jointly and severa

lly l iable for the jointven ture’s debts requires us to examine the documents embody ing the July 1987 loan transaction. Our goa

l is to give the fullest possible effect to the par

ties’ ag reemen t consiste nt with the applicable legal principles. Bob Pearsall Motors, Inc . v. R egal Chrysler-Plymouth, Inc. , 521 S.W.2d 578, 580 (Tenn. 1 975); Gredig v . Tenness ee Farme rs Mut. Ins. Co. , 891 S.W.2d 909, 912 (Tenn. Ct. App. 1994). When several documents are integral parts of the same transaction, we will construe each of

the docum

ents and t he terms in the document s in light o f the othe r docume nts memorial i zing the transaction. McCall v. Towne Square, Inc. , 503 S.W.2d 180, 182-83 (Tenn

. 1973); Oman Constr. Co. v. Tennessee Cent. Ry. , 212 Tenn. 556, 573-74, 370 S.W.2d 563, 570-71 (1963 ); Realty Shop, Inc. v. RR Westminster Holding, Inc. , 7 S.W.3d 581 , 599 (Te nn. Ct . App

. 1999).
Hadthe parties not executed the surety ship agreements as part of the July 1987 fina ncing transaction, the original ten members of the Hard scuffle

Associat es joint ve

nture wouldhave been jointly and severally

liable for the bank’s $1,400,000 loan to Hardscuffle Associates. However , for reasons not entire

ly evident in the record, the bank and the members of Har dscuffle Associates modified this liability

when the y si gned the surety ship agr eements

. These agreements chang ed each member’s otherwis e joint an d severa l liability to several liability ca

pped at $280,000. The effect of-7-

these agreements was spelled out in an August 24, 1988 letter to the members in which one of the bank’s vice presidents wrote:

Please accept this letter as [NationsBank’s] acknowledgment that the person al gua

rantees of the individual joint venture partners who executed the . . . note are not on a joint and several basis. The extent to which each joint venture partne r is liable was established in the surety ship agreements . . . [executed] at the i nitial c losing in July 1987. Pe r the terms of the suretyship ag reements, the right of recovery agains tthe individual partners is limited to $280,000 each, plus i nter est a nd [co llec tion c osts].
The actions of the parties following Hardscuffle Associates’ default are consistent withthe interpretation that the suretyship ag reements changed eac

h member’s liability from joint and sever al to several. Following the default, the bank dealt with each of its members, not as if they were jointly liable, but as if each one of them was individually liable up to $280,000. The bank never pursued any of the members o f Hardsc uffle As sociate s as if an

y one of them

was jointl

y a nd sever ally liable for the whole

debt. I nstead, it went af

ter eac h member

separa tely for the $ 280,000 ma

ximu m liability under the surety ship agreement. For example, accor ding to the compl a int, the bank can celledand returned Mr. Flowers’s surety ship agreement after he pa id the bank $280, 000

. Si mi la rl y, after Mr. Hopper paid the bank $100,000 in October 1 992, the bank modif ied his suretyship ag

reement by r

educing his liability to $180,000.
Based on the essentially undisputed facts, Messrs. Hardy, F lowers, and Hopper did not pay an obligation that was common to all members of the joint venture. Rather, each of them paid the bank in accor dance w ith the sepa

rate co ntractu al oblig ation in their sur ety ship agr

eements . Beca

use these obligations were individual rather than common, Messrs. Hardy , Flowers, and Hopper never paid more than their share of a common obligation. Therefore, the trial court erred by concluding that they had a r

ight to seek contribution from Mr. Miller.
IV. M R . M ILLER ’ S C OUN TERC LAIM
Fi na ll y, Mr. Miller asserts that the trial court erred by denying his claim for reimbursement of the $22,884.73 he paid to NationsB ank unde

r his July 1987 sure

tys hip agr eement. He insiststhat he was no lo nger pers onally liable for the joint venture ’s debts after his fellow members expelled him in mid-1991 and, therefore, that he was entitled to reimbursement for the payments he made

on the joint venture’s behalf. Mr. Miller’s argument is not well-taken because he became directly

and primarily liable to the bank whe n he signed the surety ship agreement in July 1986.
The law implie s a

contract betwee

n debtorsand their

suretiesthat if the

surety is compelled to pay part or

all of the debtor’s debt

to a creditor, the surety

is entitled to reimbursement from the debtor. See Sparkle Laundry & Cleaners, Inc. v. Kelton , 595 S.W.2d 88, 95 (Tenn. Ct. App. 1979); Akers v. Gillentine , 33 Tenn. App. 212 , 21 4-17, 231 S.W.2d 372, 373-74 (1950); Restatement (Third) of Surety ship and G

uaranty § 22 (1996 ); Law of Surety ship and Guaranty

¶ 6.03. The law-8-

deems the d uty to reimburse as fa stening on the principal at the time the surety ship is made. S e e United States v. Tilleraas , 709 F.2d 1088, 1091 (6th Cir. 1 983); In re De al’s Estate , 46 N.E.2d 643, 647 (Ohio Ct. App. 1942).
Section II of our opinion dictates the dispo sition of this issue. None of the members of Hardsc uffle

Associat es beca me sureties for the partnership’s debt because, a s a matter of law, they could not stand a s suretie s on the sa me debt they

simultane ously

owed as p

rincipa l obligor s. Be cause Mr. Miller

was not a

surety , we conc lude that the $22,8 84.73 he p aid was in parti a l satisfaction of

his own several lia

bility to Nations Bank und

er his July

1987 sure

tys hip agree

ment. He has no right of

reimbursement for pay

ing his own debt. Therefore, we affi rm the dism

issal of hi s reimburs ement countercl aim.
V.
For the rea sons state d herein, we reverse the judg ment against Robert Bond Miller for $150,145.10 and affirm the dismissal of Mr. Miller’s counterclaim for reimbursement. We remand the case to the trial court for whatever further pr oceedings are require d, and we tax one-half of the costs of this appeal to Robert B. Miller and his surety and one- half, jointly and severa lly, to Charles Hardy, Roy

C. Flowers, and Marvin Hopper for which execution, if nec essary, may issue.

_____________________________ WILL IAM C. KOCH, JR., JUDGE