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Builder Marts of Am. Inc. v. Gilbert

A 1998 agreement which modified the terms of the parties original agreement released the guarantor from liability because the guarantor did not expressly consent to renewal or modification of the original agreement.

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Builder Marts of America, Inc. BMA appeals from the trial court’s denial of its motion for summary judgment and the sua sponte grant of summary judgment to Alvin Gilbert, relieving Gilbert of his obligations as an alleged guarantor. On appeal BMA contends that the trial court erred in 1 concluding that the terms of a 1998 agreement between BMA and McLain’s Building Materials, Inc. McClain’s relieved Gilbert of his obligations as a guarantor, 2 granting summary judgment to Gilbert, sua sponte, without first giving BMA an opportunity to be heard, and 3 granting summary judgment to Gilbert following Gilbert’s in judicio admissions that there were disputed issues of fact. We discern no error and affirm.

On appeal this Court reviews the grant or denial of a motion for summary judgment de novo, construing the evidence and all reasonable inferences in favor of the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 1 486 SE2d 684 1997. Construed in this light, the record reveals that in 1987 McLain’s entered into an agreement for the purchase of products from BMA. McLain’s was also the listed dealer in a “Guaranty of Payment,” wherein Gilbert was one of the guarantors. At the time of the agreement, Gilbert was an officer and stockholder in McLain’s. The contract including the following language:

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