### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE December 6, 2000 Session CUSTOM PACKAGING, INC. v. PATTI HOLLIDAY, ET AL 

### . Direct Appeal from the Chancery Court for Knox County No. 133995-2 Daryl Fansler, Chancellor FILED JANUARY 19, 2001 No. E2000-01744-COA-R3-CV

Custom Packaging, Inc.,

appeals a summar

y judgment granted

against it in its suit seeking recovery on a sworn accou

nt for merchandi

se sold according to the complaint to “Patti Holliday, Ind. & d/b/a Repeat Fibre.” The Trial Court sustain ed Ms. Holliday’s mo

tion for summary jud

gment, finding there are no mat

erial disputed fa

cts. We vacate the judgment below and remand the case for further procee

dings. Tenn.R.App.P. 3 Appeal as of Right; Judgmen

t of the Chancery

Court Vacated; Cause Remanded H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS and C HARLES D. S USANO , J R ., JJ., joined. John E. Buffaloe, Jr., Nashville, Tennessee, for the Appellant, Custom Packaging, Inc. John P. Newton, Jr., Knoxville, Tennessee, for the Appellee, Patti Holliday OPINION Custom Packaging, Inc., appeals a summar y judgment granted

against it in its

suit seeking recovery on a sworn accou

nt for merchandi

se sold according to the complaint to “Patti Holliday, Ind. & d/b/a Repeat Fibre.” The Trial Court was of the opinion that the sal e was to Repeat, Inc., d/b/a Repeat Fibre, and as a result granted a summary judgment in favor of Ms. Holliday The standard of review of summary ju dgment has recen

tly been restate

d by our Supreme Court in Staples v. CBL & Associates, Inc. , 15 S.W.3d 83, at pa ge 89, as follows: The standards governing the assessment of evidenc e in the summary judgmentcontext are also well established. Courts must view the e vidence in

the-2-

light most favorable to the n onm oving party and mus t also draw all re

asonable inferences in the nonm oving party’s favor. See Robinson v. Omer , 952 S.W.2d at 426; Byrd v. Hall

, 847 S.W.2d at 210 -11. Courts should grant a summary judgmentonly when both the facts and the inferences

to be drawn from th

e facts permit a reasonable person to reach only one conclusion. See McCall v. Wilder , 913 S.W.2d 150, 153 (Te nn.1995); Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn.1995). Ms. Holliday filed the

following affida

vit in support of her

motion for summary j

udgment: AFFIDAVIT OF PATTI J. HOLLIDAY Comes now the Defendant, Patti Holliday, and swear s under o ath to the following: 1. I, Patti Holliday, am an individual who resides at 376 9 Summer Rose Drive, Chamblee, Georgia, 30341. 2. Repeat, Inc., is t

he name of the co

rporation I incor

porate d. It was chartered by the State of Tennessee on March 4, 1994. 3. I was the President of Repeat, Inc., at a ll times while the corporation was in existence. 4. The charter

of incorporation was duly recorded in the Register of Deeds in Knox County on March 21, 1995. 5. The corporation existed from the date of inception until August 15, 1997 when the corporation was administratively dissolved. 6. The corporation used the tradename Repeat Fibre. 7. Over several months in 1995 and 1996, Repeat, Inc., ordered products from the Custom Pack

aging, Inc., as a

part of doing ordin

ary business. 8. Many documents sent to Custom Packaging, Inc., carried the Repeat name and address inclu ding at least thirty

-one (31) chec

ks iss ue d on the Nationsbank

account for

Repeat, Inc., and paid to the order of Custom Packaging for accounts payable. Letterhead, fax cover l etters an d envelopes, all with the Repeat, Inc., name and address were also sent to Custom Packaging, Inc. 9. When I, on behalf of Re

peat, Inc., ente

red business tran

sactions with Custom Packaging, Inc., it was for the purp ose of pu rchasing products for-3-

ordinary busi ness use by the corporation. At no time did I represent to Custom Pack aging, Inc., that the purchases were being made on behalf of myself as an individual. 10. At no time

did I sign a personal guarantee for the debts being incurred on behalf of Repeat, Inc., nor was I ever asked to sign a personal guarantee by agents for Custom Packaging, Inc. 11. On August 15, 1997, the State of Tennessee notified me, as the registered agent for Repea

t, Inc., that the c

orporati on had been administr atively dissolved when the State sent me a Certificate of Administrative Dissolution. 12. On November 20, 1998, Repeat, Inc., sought ba nk ruptcy protection by filing a Chapter 7 bankruptcy petition, Case No. 98-35149 in the United States Bankruptcy Court for the Eastern District of Tennessee, Northern Division. Responding thereto, Custom Packaging filed the affidavit of Gary West, "one of the owners of Custom Packaging

," which reads as

follows: AFFIDAVIT OF GARY W EST STATE OF TENNESSEE ) ) COUNTY OF WILSON ) Gary West, first

being duly sworn, d

eposes and states

as follows: 1. I am one of the owners of Custom Packaging , Inc. and am per

sonally engaged in the ope

ration and manage

ment of the busines s. 2. I know the defend

ant, Patti Holliday,

having dealt with h

er personally in the course of business dealings between our company and her 3. Our company

always dealt

with Patti Holliday as an individual and we extended credit to her individually. 4. We never extended credit to a corporation known as Repeat, Inc. 5. Attached

hereto are copies of outstanding invoices for this account and all of them are in the name of Repeat Fibre, not Repeat, Inc. 6. Attached to most of

the invoices are

delivery recei

p ts show ing the product was sold to Repeat Fibre and Patti Holliday.-4- 7. We always believed that Patti Holliday and Repeat Fibre were one and the same and that Repeat Fibre was simply the name under whichPatti Holliday was doing business.

She is the person to w

hom we extended c

redit. 8. We will accept anyone’s check, including cashier’s checks and money orders for payment on an outstanding accou n t, but that does not mean that we intended to grant credit to an entity just because we re ceived t heir check as payment on someone

else’s account. Further, the depo

nent saith not. Documentary

evidence was attached to both affidavits supporting the assertions contained therein. Upon reviewing the re cord in accordance with the dictates of Staples , which requires us to accept as true Mr.West’ s affidavit as to di spute d facts and

indulging all reas

onable inferenc

es in favor of Custom Packaging, we conclude that it is reasonable to infer that the materials in question were sold to Ms. Holliday. We say this because in addition to Mr. West’s affidavit, a number of the shipments had on the

delivery recei

pt the following:

______________

____________________

______________________________ SOLD TO

Repeat Fibre Patti Holliday For the foregoing reasons the judgment of the Trial Court is vacated and the cause remanded for pr ocee dings not inconsiste nt with this opinion. Co sts of appeal are adjudged against

Patti Holliday.

_________________________________________ HOUSTON M. GODDARD, PRESIDING JUDGE