Opinion
Case No. 03-2573-GTV.
October 26, 2004
MEMORANDUM AND ORDER
Plaintiff CHS Inc. brings this action on a Guaranty of Credit that obligates Defendant John E. Brown to pay for all of the debt owed to Plaintiff by Badwey Oil. Defendant Brown does not dispute that he owes Plaintiff; he only contests the amount he owes. Plaintiff has filed the instant motion for summary judgment (Doc. 51). The court denies the motion because the record is not complete enough for the court to determine the amount Defendant Brown owes Plaintiff.
Defendant Brown formerly had a substantial ownership in Badwey Oil, along with Defendants Nicholas M. Badwey, Jr. and Cynthia Badwey. On March 4, 2003, Defendant Brown executed a Guaranty of Credit, in which he agreed to pay Plaintiff, "when due, or upon demand thereafter, with interest, and without deduction for any claim or set-off, or counterclaim of [Badwey Oil], or loss of contribution from any co-guarantor, the full amount of all obligations or indebtedness due [Plaintiff] from [Badwey Oil]. . . ." The Guaranty was "revocable only as to transactions entered into by [Plaintiff], subsequent to the receipt by the Credit Manager . . . of a notice of termination."
On June 25, 2003, Defendant Brown sent a notice of termination in accordance with the requirements of the Guaranty. Defendant Brown claims that Plaintiff now seeks to recover for product sales made after June 25 totaling $28,828.45, and for financial incentive reimbursements in the amount of $270,131.15, which accrued no earlier than September 19, 2003.
Plaintiff argues that the $28,828.45 was not billed until after June 25, 2003, but was for products delivered before June 25, 2003. Plaintiff also argues that paragraph 2(f) of the "Incentive Addendum" shows that Badwey Oil was required to reimburse Plaintiff for all of the financial incentives if the relationship was terminated within the first four years of its effective date.
The record presently before the court does not support Plaintiff's argument. While the "Schedule of Unpaid Accounts Receivable" indicates that the invoices are for deliveries prior to June 25, 2003, Plaintiff has not authenticated the Schedule. The court also has scoured the record, and has been unable to locate the "Incentive Addendum." In the absence of this properly authenticated evidence, the court is unable to grant Plaintiff's motion.
IT IS, THEREFORE, BY THE COURT ORDERED that Plaintiff's motion for summary judgment (Doc. 51) is denied.
Copies or notice of this order shall be transmitted to counsel of record.