1Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The Court, with the

concurrence of all judges participating in the case, may affirm, reverse or

modify the actions of the trial court by memorandum opinion when a formal

opinion would have no precedential value. When a case is decided by

memorandum opinion it shall be designated "MEMORANDUM OPINION," shall

not be published, and shall not be cited or relied on for any reason in a

subsequent unrelated case. 

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 DAVIDSON

THE NASHVILLE SCENE, COUNTY CIRCUIT COURT

THE HONORABLE HAMILTON

Plaintiff-Appellee, GAYDEN, JUDGE

Davidson Circuit No. 94C-2085

Vs. C.A. No. 01A01-9504-CV-00157

DOUGLAS SARMENTO, AFFIRMED AND REMANDED

Defendant-Appellant, Opinion Filed:

Phillip B. Jones of Evans, Jones

& Reynolds of Nashville, For

Appellee

Steven L. Williams of Bunstine,

Watson & Williams of Knoxville,

For Appellant

_________________________________________________________________________

MEMORANDUM OPINION1

_________________________________________________________________________

CRAWFORD, J.

This appeal involves a suit on a guarantyagreement. Defendant, Douglas

Sarmento, appeals from the trial court's order granting plaintiff, Mid-State

Advertising, d/b/a "The Nashville Scene," summary judgment. The only issue on

appeal is whether the trial court erred in granting summary judgment. 

Plaintiff filed suit against defendant in general sessions court for sums due

under a guaranty agreement signed by defendant. After judgment was

entered for plaintiff in general sessions court, defendant appealed to circuit

court. Plaintiff filed a motion for summary judgment supported by the affidavit

of Ms. Lara Lee Williams, defendant'sanswers to interrogatories, and defendant's
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response to request for admissions. 

The supporting documents establish that defendant was employed by

Jack Webb Carpeting, Inc., (also known as Jack Webb Carpet) from August 31,

1988, to August 31, 1989, and that while employed in that capacity he made a

credit application with plaintiff on behalf of Jack Webb Carpet. Defendant

signed this credit application individually as a guarantor. The language above

the signature of defendant on the guaranty states:

This guarantee shall be enforceable as to all of

Advertiser's debts, liabilities and obligations incurred

despite Advertiser's discharge, bankruptcy or

adjustment to such debts, liabilities and obligations

pursuant to some other compromise with creditors.

This instrument shall be a continuing guarantee and

shall remain in full force and effect until written notice

is received by you from me that I desire to be released

from further or future liability hereunder.

Defendant signed the guaranty of his own free will and absent any duress.

The affidavit of Ms. Lara Lee, the accounts receivable supervisor for plaintiff.

stated that plaintiff's policy and practice require a personal guaranty for the

extension of credit for advertising except with certain exceptions. Defendant's

employer was not included as one of the exceptions.

Defendant's response to the summary judgment motion is supported by

defendant's affidavit which we quote:

1. At the time I signed exhibit 1 to this affidavit

(hereinafter referred to as the "Credit Application,") I

was an employee of Jack Webb Carpeting, Inc.; I

held no ownership interest in Jack Webb Carpeting,

Inc., nor was I a corporate officer of said corporation.

2. When I signed the Credit Application it was not my

understanding that I was signing a guaranty that

personally bound me to be responsible for all future

debts incurred by Jack Webb Carpeting, Inc. with the

plaintiff.

3. The language contained at the bottom of the

Credit Application below the heading "Statement of

Responsibility" was not pointed out to me by any

representative or agent of the plaintiff, nor were the
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terms 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 affidavit of Ms. Lara Lee attached

to plaintiff's motion for summary judgment were never

explained to me and I first became aware of these

procedures when my attorney provided me a copy of

her affidavit in September, 1994.

5. I first became aware that the plaintiff was seeking

to bind me to this "guaranty" contained in the Credit

Application when I was served with a Civil Warrant on

January 12, 1994 more than four years after the last

payment was reportedly made on the Jack Webb

Carpeting account with the plaintiff.

A trial court should grant a motion for summary judgment when the

movant demonstrates that there are no genuine issues of material fact and that

the moving party is entitled to a judgment as a matter of law. Tenn.R.Civ.P.

56.03. The party moving for summary judgment bears the burden of

demonstrating that no genuine issue of material fact exists. Byrd v. Hall, 847

S.W.2d 208, 210 (Tenn. 1993). When a motion for summary judgment is made,

the Court must consider the motion in the same manner as a motion for directed

verdict made at the close of plaintiff's proof; that is, "the court must take the

strongest legitimate view of the evidence in favor of the nonmoving party, allow

all reasonable inferences in favor of that party and discard all countervailing

evidence." Byrd, 847 S.W.2d at 210-11. The phrase "genuine issue" as stated in

Tenn.R.Civ.P. 56.03 refers to genuine, factual issues and does not include issues

involving legal conclusions to be drawn 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 moving party that there is no

genuine issue of material fact, the nonmoving party

must then demonstrate by affidavits or discovery

materials, that there is a genuine, material fact dispute

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 the
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nonmoving party cannot simply rely upon his pleading

but must set forth specific facts showing that there is a

genuine issue of material fact for trial. "If he does not

so respond, summary judgment . . . shall be entered

against him." Rule 56.05.

Byrd, 847 S.W.2d at 211 (Emphasis in original).

Tenn.R.Civ.P. 56.05 provides in pertinent part:

56.05. Form of Affidavits; Further Testimony; Defense

Required Supporting and opposing affidavits shall be

made on personal knowledge, shall set forth such

facts as would be admissible in evidence, and shall

show affirmatively that the affiant is competent to

testify to the matters stated therein. (Emphasis

supplied).

Defendant argues that he did not intend to be personally liable when he

signed the credit application, and therefore, he should not be bound to the

terms of the agreement. As a general rule, a "guarantor in a commercial

transaction is to be held to the full extent of his engagements, and the rule in

construing such an instrument is that the words of the guaranty are to be taken

as strongly against the guarantor as the sense will admit." Wilson v. Kellwood

Co., 817 S.W.2d 313, 318 (Tenn. App. 1991) (citing Farmers-Peoples Bank v.

Clemer, 519 S.W.2d 801 (Tenn. 1975)).

The real question in this case is whether there is any admissible evidence

in defendant's affidavit which creates a genuine issue of material fact. The

agreement signed by defendant is clear and unambiguous. Parol evidence is

not admissible to vary the plain meaning of a contract's terms where there is no

ambiguity in the contract. Jones v. Brooks, 696 S.W.2d 885, 886 (Tenn. 1985). The

parol evidence rule is not merely a rule of evidence but one of substantive law.

Maddox v. Webb Constr. Co., 562 S.W.2d 198, 201 (Tenn. 1978).

The general rule is that a person's obligation in a written contract cannot

be avoided on the ground that he did not read the instrument and did not know

the terms thereof. DeFord v. Nat'l Life & Accident Ins. Co., 182 Tenn. 255, 266, 185

S.W.2d 617, 621 (1945). A succinct statement of the controlling law is found in
5

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

"To permit a party, when sued on a written contract, to

admit that he signed it but to deny that it expresses

the agreement he made or to allow him to admit that

he signed it but did not read it or know its stipulations

would absolutely destroy the value of all contracts."

12 Am.Jur., 629. "In this connection it has been said

that one is under a duty to learn the contents of a

written contract before he signs it, and that if, without

being the victim of fraud, he fails to read the contract

or otherwise to learn its contents, he signs the same at

his peril, and is estopped to deny his obligation, will be

conclusively presumed to know the contents of the

contract, and must suffer the consequences of his

own negligence." 17 C.J.S., Contracts, § 137, pages

489, 490.

"It will not do, for a man to enter into a contract, and,

when called upon to respond to its obligations, to say

that he did not read it when he signed it, or did not

know what it contained. If this were permitted,

contracts would not be worth the paper on which

they are written. But such is not the law." Upton v.

Tribilcock, 91 U.S. 45, 23 L.Ed. 203; Berry v. Planters

Bank, 3 Tenn. Ch., 69; Lockhart 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 statements in defendant's affidavit are not admissible in

evidence, there are no disputed material issues of fact; therefore, plaintiff is

entitled to a judgment as a matter of law. Accordingly, the trial court did not

err in granting summary judgment.

The order of the trial court granting summary judgment is affirmed, and

this case is remanded for such further proceedings as may be necessary. Costs

of the appeal are assessed against the appellant.

____________________________________

W. FRANK CRAWFORD, JUDGE

CONCUR:

_________________________________

HEWITT P. TOMLIN, JR., 

PRESIDING JUDGE, W.S.
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_________________________________

ALAN E. HIGHERS, JUDGE