1 Rule 10 (Court of Appeals). Memor andum O pinion . -- (b)The Court, with the concurren ce of all judges partici pating in the case, may affi rm, revers e or modifythe actions of the trial court by m emor and um o pinion when a formal opinion would have no precedentialvalue. W hen a case is decided by memorandum opinion it shall be desig na te d "M EMO RAN DU M OP INION ," sha ll not be publ ished, and shall not be cited or relie d on for any reason in a subseque nt unrelated c ase. 

# FILED October 4, 1995 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE

_______________________________________________ MID-STATE ADVERTISING d/b/a FROM THE D AVIDSON THE NASHVILLE SCENE, COUNTYCIRCUIT COURT THE HONO RABLE HAMILTON Plaintiff-Appellee, GAYDEN, JUDGE Davidson Circuit No. 94C-2085 Vs. C.A. No. 01A0 1-9504-CV-0

0157 DOUGLAS SARMENTO, AFFIRMED AND REMANDED Defe nda nt-Ap pel la nt, Opinion Filed: Phillip B. Jones of Evans, Jones & Reynol ds of Nashvil le, For Appellee Steven L. William s of Bunstine, Wat son & Williams of Knoxvill e, For Appellant

_________________________________________________________________________ MEMORANDUM OPINION 1

_________________________________________________________________________ CRAWFORD, J.

This appeal involves a suit on a guar anty agr eement. Defendant

, Douglas Sarmento, appeals from the trial court's or der granting plain tif f, M id- State Advertising, d/b/a "The Nashvil le Sc ene," sum mary judgm ent. The only issue on appeal i s whether the trial court erred in gra nting summ ary judgme nt. Plaintiff filed suit against defendant in gen era l sess

ion s co urt

for sums due under a guaranty ag ree me nt signed by defendant . After judgment

was entered for plaint

iff in g eneral sessio ns c ourt, defendant appealed to circuit

cou rt. Plaintiff fil ed a motion for summary judgment supported by t he affidavit of Ms. Lara Lee Wil liam s, d efendant 's answers

to i nterr ogat ories, and defenda nt's2

response to reque st for admissions. The supporting d ocu me nts establish tha t defendant was employed by Jack Webb Carpet

ing, In c., (al so kn own as Ja ck Web b Carpet) from August 31, 1988, to August 31, 19 89, and that

while empl oyed in that capacity he made a credi t applicat

ion wit h plaintiff on b ehalf of J ack Webb Car pet. Defenda n t signed this credit app lication individually as a guarantor. The language above the signat

ure of de fendant

on t he guara nty stat

es: This gu ar an te e sh all b e enf

orceabl e as to all of Advert iser's debts, liabilities and obligations incurred despite Advertiser's discharge , bankruptcy o r adjustment

to such debts, liabilities and obligations pursuant

to so me othe r compromise with cr edito rs. This instrument shall be a continuing guarantee and sha ll remain in full force and ef fect until writ

ten no tice is received by you from me that I desire to be released from further or fut

ure liability hereunder. Defendant

sig ned the gu aran tyof his o wn f

ree willand absen t any duress. The affidavit of

Ms. Lara Lee, the a ccounts receivable s upervis or for plaintiff. stated that

plaintiff's policy and practice re qu ire a personal guaranty fo r the extension of credit for a dvertising except with cer

tainexcept

ions. D efendant

's employer was no t included as one of the e xcept

ions. Defendant's response t o the summary judgment motion is suppo rted by defendant's affidavit

which we quote: 1. At t he time I signed exhibit 1 to t his affidavit (hereinaft

er referre d to a s the "C red it Applic ation,") I was an employee of Jack Webb Carp eting, Inc .; I hel d no ownership interest in Jack Webb Ca rpeting , Inc ., nor was

I a corporate officer of said corporation. 2. When I signe d the Credit Appl ication it was n ot my understanding tha t I was signing a guaranty t hat pe rso na llybound me to be responsible for all fu tur e deb ts incurred byJack Webb Carp eting, Inc. with t he plaintiff. 3

. Th e language contained at t he bott om of the Credit Appl ica ti on b elowthe heading "Statemen t of Resp onsibil ity"

was not point

ed out to me by any rep resentative or agent o f the plaintiff, nor were the3 te rms contained therein discussed with me, nor were the terms physically conspicuous to me. 4. The credit policy and procedures contained in paragraph 6 of the a ffidavit of Ms. Lara Lee att ached to plaintiff's motion for summary judgment were never explained to me a nd I first b ecame aware o f the se procedures

when m y attorney provided me a c opy of her affidavit in Sept

ember, 1994. 5. I first became aware that the plaintiff was seeking to bind me to t

his "guaranty" cont

ained in the Credit Applic ation when I was served w ith a Civil Warrant on January 12, 199

4 more t

han fou r years afte r the last payment

was reportedly mad e o n the Jack Webb Carpeting account

with the plaintif

f. A trial court should grant a motion for summary judgment when the movant demonstrates t

hat t here are no genuine issues of material fact and t

hat the moving party is ent itled to a judgment as a m atter o f law. Tenn.R.Civ.P. 56.03. The par

ty mov ing for

summa ry j udgm e nt be ars the burden of demonstrating that

no genuine is

s ue of material fact exists. Byrd v. Hall , 847 S.W.2d 208, 210 (

Tenn. 1993). When a mot ion for summary judgment is made, the Court must consider t he motion in the same manner as a motion fo r directed verdict made at t

he close of plaintiff's proof; t hat is, "t he court must t

ake the stro ngest

legitimate view

of the evidence in favor of the nonmovin g party, all ow allreas onab le infe ren ces

in fa vor o f that pa rty an d di sca rd a ll cou nte r vailing evidence ." Byrd , 847 S.W. 2d at 210-1 1. The phrase "genuine issue" as stated in Tenn.R.Civ.P. 56.03 refers t o genuine, factual issues and does not include issues involving legal concl usions to be draw n from the facts. Id. at 211 ( citing Price

v. Mercury Supply Co. , 682 S.W.2d 924, 929 ( Tenn. App. 1984)) . In Byrd, the Court stated: Once it

is shown by

the mov ing part

y th at t here is n o genuine iss

ue of mate rial fact, th e n onm ovin g par ty must then de m onstrat

e by affidavit

s or discovery materia ls, that

there is a genuine, mat erialfact d isp ute to warrant

a trial. Fowler v. Happy Goodman Family, 575 S.W.2d 496, 498 (Tenn. 1978); Merritt v. Wilson City Bd. of Zoning Appeals, 656 S.W.2d 846, 859 (Tenn. App. 1983). In this regard, Rule 56.05 provides that t he4 nonmoving party cannot simpl y rely upon his pleading but must set fort

h specific facts

showing that

ther e is a genuine issue of

material fact for

trial. "I f he does not so respond, summary judgment . . . sha l l be entered against him." Rule 56.05. Byrd , 847 S.W.2d at 211 (Emphasis in origi nal). Tenn .R.C iv.P . 56.05 pro vid es i n per tinen t part: 56.05. Form of Affidavits; Furt her Testimony; Defense Required Supporting and oppo sin g aff ida vits shall be made on personal knowl edge, shall set forth such facts as would be admissible in ev idenc e , a nd s ha ll show af firm ative lythat the a ffia nt is c omp etent to testify to the m atters

state d therein. (Emphasis suppl ied). Defendant

argues that

he did not intend t

o be pe rso na lly liab le when he signed the credit ap plication, and theref ore, he should not be bound to t he te rms of the agree ment. As a general rule, a "guarantor in a commercial transaction is to be held to t he full extent of his engagements, a nd the rule in construing suc h an i nstr um ent is that the w ord s of th e gu aran tyare to be taken

as stro n gly agains

t t he guara ntor

as th e sense will admit. " Wilson v. Kellwood Co., 817 S.W. 2d 313, 318 ( Tenn. App. 1991 ) (cit ing Farmers-Peo ples Bank v. Clemer , 519 S.W.2d 801 (Tenn. 1975)). The real question in this case is whe th er th ere is an y a dmissi ble evidence in defendant's affidavit which creates a genuin e iss ue of material fact. T he agreement

signed by defendant is clear and unam biguous. Parol evidence is not admissib le t

o va ry t he p lain mean ing of a co nt rac t's t erms where there is

no amb igu ityin the contract. Jones v. Brooks, 696 S.W.2d 885, 886 (Tenn. 19

85). The parol evidence r

ule is not

merely a rule of e vidence but one of subst ant ive law. Maddox v. Webb Constr. Co. , 562 S.W.2d 198, 201 (Tenn. 1978). The general rule i s that a person's obl igation in a written contract cannot be avoided on the ground t hat he did not

read the instr

ument and did not know the terms thereof. DeFord v. Nat'l Life & Accident Ins. Co. , 182 Tenn. 255, 266, 1 85 S.W.2d 617, 621 (1 945). A su ccinct stat ement of the co ntrolling law is found in5

Beasley v. Metropolitan Life Ins. Co. , 190 Tenn. 227, 229 S.W.2d 146 (1950):

"To perm it a pa rty, w hen sue d on a written c ontra ct, to admit that he sig ned it but to d eny th at i t exp resses the agreemen t he made or to allowhim to admit t hat he signed it but did not read it or knowits

stipulations wou ld absolu tely destroy the val ue of allcontracts." 12 Am.Jur., 629. "In this connect ion it has bee n sai d that one is under a duty t o learn the co ntents o f a written contract

before he signs

it, and th at if

, with out being the vict

im of fraud, he fa ils

to r ead th e cont

ract or other wis e to learn its content

s, he signs the same at his pe ril, and is estopped t o deny his obligation, will be co nclu sively

presumed to know the cont ent s o f the con tract, and mu s

t suffer t

he consequences of his own neglig ence." 17 C.J.S., Contracts, § 137, p age s 489, 490. "It wil l not do, for a man to enter into a contr act, and, when called upon to respo nd to it s obligations, t

o say that he did not read it

when he signed it, or did no t know what it cont

ained. If this were pe r mitt ed, con tracts

wou ld not be wor

th th e paper on which th eyare writt

en. But such is no t t

he law." Upton v. Tribilcock , 91 U. S. 45, 23 L.Ed

. 203; Berry v. Planters Bank , 3 Tenn. Ch., 69; Lockhar t v. Moore , 25 Tenn. App., 456, 466, 159 S.W.2d 438; Federal Land Bank of Louisville v. Robertson , 20 Tenn. App. 58, 63, 95

S.W.2d 317. 190 Tenn. at

232, 229 S. W.2d at

148. Since the st

a tements in defendant 's affidavit are no t admissible in evidence, ther

e are no disput

ed mater

ial iss ues of fac t; t

herefore, plaintiff is entitled to a judgment as a mat

ter o f law. Acco rdi ngly, the trial court did not

err in gr antin g su mm ary j udg me nt. The order of the trial court grant ing summary judgment is affirmed, and this case is remanded for such further proceedings as may be ne ces

sar y. Cos ts of the appe al are a sse sse d ag ain st the a ppel la nt.

____________________________________ W. FRANK CRAWFORD, JUDGE CONCUR:

_________________________________ HEWITT P. TOMLIN, JR., PRESIDING JUDGE, W.S.6

_________________________________ ALAN E. HIGHERS, JUDGE