# FILED November 25, 1998 Cecil W. Crowson Appellate Cou rt Clerk CREATIVE RESOURCE ) MANAGEMENT, INC., ) ) Plaintiff/Appell

ant, ) Appeal No.

) 01-A-01-9808-CH-00016 v. ) ) Davidson Chancery BARRY SOSKI

N, et al, ) No. 96-4024-III

) Defendants/Appel

lees. )

COURT OF APPEALS OF TENNESSEE APPEAL FROM THE DAV IDSON COUNTY CHANCE RY COURT AT NASHVILLE, TENNESSEE THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR
WINSTON S. EVANS PHILLIP BYRON JONES Evans, Jones & Rey

nolds 1810 First Union Tower 150 Fourth Avenue, N

orth Nashville, Tennessee 37219 ATTORNEYS FOR PLAINTIFF/APPELLANT THOR Y. URNESS JULIE C. MURPHY Boult, Cummings, Conners & Berry 414 Union Street, Suite 1600 P. O. Box 198062 Nashville, Tennessee 37219 ATTORNEYS FOR DEFENDANTS/APPELLEES

REVERSED AND REMANDED

WILLIAM B. CAIN, JUDGE-2- 

## O P I N I O N Creative Resource Ma nagement, Inc. appeals a summary jud gment granted in the trial court to the individual defenda nt, Barry Sos

kin. The defendant, Nashvill e Pro Hockey, LL C, was a Lim ited Liability C ompany under the laws of T

ennessee, with pe

rsonal liability

of offic ers , members, and other agents lim

ited by Tennesse

e Code Ann otated section 48- 217-101. Creative Resource Management,

Inc. was a

corporation under th

e laws of South Carolina qua lified to do busi ness in Tennessee. BarrySoskinwas president of N ashville Pro Hockey, LLC which owned the Na shvi lle Ni ghth awks, a minor leagu e prof essio nal ho ckey te am. On September 4, 1996, Nashvill e Pro Hockey, LLC contracted with Creative Resource Man agem ent, Inc. whereby CRM, for fees and other considerations

s et forth in the contract, pr

ovided employ

ee leasing services to Nashville Pro Hockey,

LLC. This cont

ract provi ded in sec tion XI(f): "In t he body of the contract the pronouns 'we' a nd 'yo u' refer to 'CR M' and the 'client

' respectively." The contr act fu rther provi ded in parag raph V II(d) : "By af fixin g my hand and seal to this agreemen t, I personally

guarantee any

and all paym

ents payable as represente d and outl ined in this agreem ent including but not lim ited to payrolls, taxes (state and fe deral), insuranc

e premiu ms, and all other fees aforementioned in paragr aph VII." BarrySoskin signed the contract for the "c lient" N ashvil le Pro Ho ckey, LLC. Thomas H. D

emoss signed t

he contract for Creative Resource Management,

Inc. These signa

tures are reproduc

ed as follows:-3- Nashville Pro Hockey, LLC failed owing Creative Resource M anagement, Inc. $29,626.41. Creativ e R esource Management brought suit against Nashville Pro Hockey, LL

C and certain of its

officers including B arry Soskin. The complaint charged Soskin as a guarantor under the terms of the agreement

and thus individually

liable for Nashville Pro Hockey, LLC debt for $29,626.41. Both parties filed motions fo r summary judgment, a nd after hearing, t he trial court granted the m

otion for summ

ary judgm

entof Barry Soski

n, thereby holding that his signature on the contract was in a representative ca pacity only and not in his i ndivi dual ca pacity. The only issue on appea l is whether or not B arry Soskin sig ned the contract only in a corporate capacity and not as a guarantor. We conclude from the language of the instrument itse

lf that Barry So skin is a gua rantor and is l iable o n his gu aranty. First of all, a specifi

c provision

of the contract provides th at the pronouns "we" and "you" refe

r specifically

to "CRM " (Creative Resou rce Manageme

nt, Inc.) and "client" (Nashville Pro Hockey, LLC). The contractcontains no specified meaning of the terms "my hand" and "I" as same appear in paragraph VII(d).-4- Indeed, the well settled precedent in Tennessee suggests that a corporate officer's signature preceed e d by a corpor ation' s name and follow ed by a designation

of the signer's corporate capacity is ev idence th at the signer was acting as an agent of the corporation rath er than individua lly. See Bill Walker & Assoc., Inc. v

. Parrish , 770 S.W.2d 764, 770 (Ten n. A pp. 1988); Anderson v. Davis , 34 Tenn. App. 116, 120, 234 S. W.2d 368, 369-70 (1950). This rule, however, must yield w

here the language of

the contract com

pels a different conclusion. Bill Walker & Assoc. v. Parrish , 770 S.W.2d 764 (Tenn. Ct. App. 1989). The language of the contr act involved in the ca

se at bar distinguishe s this ca se from the gener

al rule. This ca

se concerns a contr

act which c ontain s personal guarantee language in the bo dy of the contract. The wo rds "I personally guarantee any and all payments pay able as r epre sented and outlined in this agr eement . . .

" as same appe

ar in paragraph VII(d) of the co ntract reflect i ndisputably a guar

antee by som

eone. Soskin insists that he signed only as a represe ntativ e of the limited liabil ity compan y. CRM in sist s that his s igna ture i mposes perso nal li abili ty upo n him. This court has held that the very nature of

a guarantee is the o

bligation of aguarantor in addit ion to the obliga tion to be secured. Villin es v. Parh amLindsey Groc. C

o. , 6 Tenn. App. 254 (1927). "A guaranty obl

igating on ly the corporat ion would not in any

way add security to the obligation of the c

orporation, because the corporation was al ready fully obligated as principal." Cone Oil Co., Inc. v. Green , 669 S.W.2d 662 , 664 (Tenn. Ct. App. 1983). The Cone court concludes that " . . . a guaranty of one' s own obligation is an exercise in futility." 669 S.W.2d 662, 664 (Tenn. Ct. App. 1983). Cone finds strong support in ot her jurisdictions.

In Kordick v. Merchants National Bank & Trust Co. o

f Indianapolis , 496 N.E.2d 119, the Indiana Court-5-

of Appeals was called upon to determ ine whetheror not the signature of Nicholas Kordick as "presid ent" bound

him personally

as guarantor of the

debt of his corporation "Fortun

e". The corpora

tion defaulted and ba

nkrupted and the bank brought suit against Kordick

individually on

the guarantee. R

elying on Roy v. Davidson Equipment , 423 So.2d 496 (Fl.App. 1982), the Kordick court held: In the case at hand, i

t would likewise be meaningless for Fortune to guarantee its own debt because it would add nothing to the e xisting oblig ation to Merchants. Mor eover, the guaran

ty obligation wa s not affected by the release of the indebtedness of the borrower -- Fortune -- an obvious paradox if

Fortune were the guarantor. T hus, we must conclude the

language of

the guaranty specifically negates the signature as having been made in a r epresentative capacity, and Kordick was perso

nally obligated on

the guaranty ag

reement. 496 N.E.2d 119, 124 (Ind. App. 1986). Other cases apply ing t he same rule are Beradi v. Hardware W holesalers, Inc. , 625 N.E.2d 1259

(Ind. Ct. App.1993); Roy v. Davidson Equipment, Inc. , 423 So.2d 496 (Fla. D

ist. Ct. App. 1982

); Ricker v. B-W Acceptance Corp. , 349 F.2d 892 (10th Cir. 1965) a

nd Dann v. Team Bank , 788 S.W.2d 182 (T ex. App. 1990). In each of the foregoing cases the guaranty agreemen t was considerably more detailed

than the guaranty

agreement in

this case but the star

k fact is that the words "I personally guarantee" are meaningless if applied to Nashville Pro Hockey, LLC and not to Barry Soskin individually . We would sim ply have another Cone "exercise in futility". Mr. Soskin attempts to argue that the pla cement of the guarantee langu

age is somehow decep

tive in that it appears in the body of the contra

ct as opposed to the end of the agreement ne

ar the parties' si

gnatures. In the case at bar we do not findthe location of the personal guaranty language inappropriate. The guaranty language of paragraph

VII(d) is not inconspicuous and hidden but rather in th

e same format as all

of the other provis ions of the contract . One Stop Supply, Inc. v. Ransdell , 1996 WL 187576 (T enn. Ct. App. 1996). Parties who sign co ntracts are presumed to

know the contents o f the documents they sign. See Beasley v. Metropolitan Life Ins. Co., 190 Tenn. 227, 232, 229 S.W.2d 146,

14 8 ( 1950);-6-

DeFord v. National

Life & Acciden

t Ins. Co., 182 Tenn. 255, 166, 185 S.W.2d 617, 621-22 (1945). "Thelaw imputes to c

ontractingparties an intention corresponding to the reasonable

meaning of their w ords and acts. Sutton v. First Natio nal Bank of Crossville , 620 S.W.2d 526, 530 (Tenn. C t. App. 1981)." Bill Walker & Assoc. v. Parrish , 770 S.W.2d 764, 770 (Tenn. Ct. App. 1989). In addition, courts must consider the entire contract when determi

ning the meaning of its terms. See Cocke County Bd. of Highway Comm'rs v. Ne wport Utils. Bd., 690 S.W.2d 231, 237 (Tenn. 1985). We may not i gnore a ny contractual provisions, giving contra ctua l terms their natural and ordinary m eaning, construing provisions ha rmoniously in

order to give effe

ct to a l l provisions and avoiding the crea tion of internal conflicts . See Wilson v. Moore , 929 S.W.2d 367, 373 (Tenn . App. 1996). Sin ce the words "I person ally guarantee " cannot refer to N ashville Pr o Hockey, LLC and

retain any m

eaning at all in the context of this agreement, they must of necessi

ty reflect the

personal guarantee

of Barry Soski

n. The judgment of

the trial court is reversed and summary judgm ent granted to Creative Resour

ce Managemen

t, Inc., against D

efendant Barry

Soskin. The case is remanded to the trialcourt for further proceedings with co sts assessed to the appellant.

______________________ _____ ____ _ WILLIA M B. CAIN, JUDGE CONCUR:

__________________________________ WILLIA M C. KOCH, JR., JUDGE

__________________________________ HENRY F. TODD, JUDGE