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The Cupboard LLC v. Sunshine Travel Ctr.

Since the parties' commercial lease did not incorporate a guaranty executed two months prior by the second defendant for all current and future debts owed by first defendant or otherwise reference it, the lease's language regarding a personal guaranty executed in conjunction with the lease could not be construed to modify that prior guaranty.

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Russell Wallace and The Cupboard, LLC “Cupboard” appeal from the trial court’s order granting partial summary judgment in favor of Sunshine Travel Center “Sunshine Travel”. The only issue on appeal is Wallace’s liability as a guarantor of Cupboard’s obligations under a lease with Sunshine Travel. For the reasons set forth below, we affirm the trial court’s grant of partial summary judgment in part, and reverse in part. On appeal, this Court reviews the trial court’s grant of summary judgment de novo to determine whether the evidence of record, viewed in a light most favorable to the nonmoving party, demonstrates any genuine issue of material fact. Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Citation and punctuation omitted. Columbus Clinic v. Liss , 252 Ga. App. 559, 562 556 SE2d 215 2001. Viewed in this light, the record shows that on June 23, 2003, Wallace signed an open-ended written guaranty for all current and future debts owed by Cupboard to Sunshine Travel. The written guaranty provided:

This is a continuing guaranty. Notice of acceptance is waived by Guarantor. It shall remain in full force until Guarantor delivers to the Creditor written notice revoking it as to indebtedness incurred subsequent to such delivery. Such revocation shall not affect the Guarantor’s obligations hereunder with respect to the guarantee of payment of all indebtedness that is incurred prior to the date of receipt of said notice by Creditor. One month later, Sunshine Travel assigned its interest as purchaser in a fuel requirements supply agreement with Citgo to Cupboard. The previously executed guaranty listed a “fuel supply or fuel marketing agreement” as an example of a future obligation that Wallace would guarantee on behalf of Cupboard.

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