McMillian, Judge.Sure, Inc. (“Sure”) appeals from the trial court’s grant of summary judgment on its claims against Premier Petroleum, Inc. (“Premier”) arising out of a petroleum supply contract and loan documents executed by the parties. For the reasons set forth below, we reverse the trial court’s grant of summary judgment on Sure’s claim for breach of contract, affirm the grant of summary judgment on Sure’s claim for wrongful foreclosure, and affirm in part and reverse in part the grant of summary judgment on Sure’s claim of fraud.It is well settled that [s]ummary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. In our de novo review of the grant of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.
(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010).So viewed, the evidence of record shows that at the pertinent time, Sure owned and operated a convenience store and gas station in Suwanee, Georgia (the “Station”). Natt Nwokolo is the president, secretary, and majority shareholder of Sure.[1] Premier is a Georgia petroleum supplier/distributor, and Aziz Dhanani is its president. Premier conducts its business by purchasing gasoline from a branded oil company at wholesale and then providing the gasoline to various retail gas stations and convenience stores. Supply Agreement In December 2009, Nwokolo decided to rebrand the Station from a CITGO to a Shell Oil station. In conjunction with that decision, Nwokolo spoke with representatives of Premier, and on December 11, 2009, Sure and Premier entered into a Contract Supply Agreement (the “Supply Agreement”), which provided that Premier would be the exclusive supplier of petroleum products to the Station and that Sure would purchase a minimum of 60,000 gallons of such products per month.Under the terms of the Supply Agreement, Premier agreed to assist Sure by processing its credit card payments, and Sure was required to pay for gasoline deliveries at the time of delivery. Additionally, Premier agreed to pay Sure a rebate of $.02 per gallon for a period of three years beginning after the Station was completely rebranded and accepted by Shell. Loan from Premier to SureCertain renovations were required as part of the re-branding of the Station, and Nwokolo also decided to update the Station’s gas pumps. Premier agreed to lend Sure money to help accomplish these changes (the “Loan”), and the parties executed loan documents, including a $56,000 promissory note (the “Note”) and a “Deed to Secure Debt, Assignment of Leases and Rents and Security Agreement” (the “Deed to Secure Debt”), both signed by Sure, as well as a personal guaranty signed by Nwokolo. The Deed to Secure Debt granted Premier a security interest in a one-acre lot owned by Sure adjacent to the Station (the “Adjacent Property”). At or around the time of the closing on the Loan, Premier issued a check dated January 28, 2010, in the amount of $6,000 to Sure. Then, on February 8, 2010, Premier issued a check on behalf of Sure in the amount of $14,000 to a third-party, B & B Petroleum System Services, Inc. (“B&B”), toward the replacement or refurbishment of the gasoline pumps. Although Premier produced written documentation showing Nwokolo’s authorization for Premier to pay $50,000 of the Loan proceeds to B & B (the “Authorization”), Nwokolo asserts that he never authorized that any of the Loan proceeds be paid to B&B, he never signed the Authorization, and the signature on that document is a forgery. Rather, he believed that all the Loan proceeds would be paid to Sure directly.Nwokolo wrote Premier a letter dated February 25, 2010, to inform the company that Sure had decided not to accept the $56,000 Loan, noting that Sure had only received $6,000 of the Loan proceeds as of that date. Nwokolo represented that he had asked B&B, and it had agreed, to refund the $14,000 payment back to Premier, and he stated that he intended to refund the $6,000 paid to Sure. However, the letter was not mailed until March 17, 2010. Premier responded by letter dated March 19, 2010, noting that the first payment under the Note, due on March 1, 2010, had not been paid. The March 19 letter gave Sure five days in which to pay the $20,000 in Loan proceeds that Premier had paid out. Premier again wrote Nwokolo and Sure on April 14, 2010, to give notice that Sure was in default under the terms of the Note and that the company could cure the default by paying the sum of $4,515.27, representing the outstanding Loan payments for March and April 2010, including interest. Premier next wrote Sure and Nwokolo on October 13, 2010, demanding payment of all amounts due and owing under the Note and informing them that, in the absence of such payment within the next ten days, Premier intended to pursue legal action, including foreclosure under the Deed to Secure Debt. Neither Sure nor Nwokolo has ever returned the $6,000 Sure received in January 2010 nor have they ever paid Premier any amounts under the terms of the Loan documents. Premier subsequently foreclosed on the Adjacent Property, and as the highest bidder at the foreclosure sale, Premier acquired that property (the “Foreclosure”).Despite this Loan dispute, Premier and Sure continued to operate under the terms of the Supply Contract, with Premier continuing to supply Sure with Shell gasoline. At some point, Premier adopted the practice of withholding the credit card payments it was servicing for Sure and netting them against the cost of Sure’s gasoline purchases, maintaining a running credit balance on Sure’s behalf. Bankruptcy ProceedingsOn June 3, 2011, after the Foreclosure, Sure filed for bankruptcy in federal court to stop Premier from proceeding against its business as well. That bankruptcy action was dismissed on September 21, 2012, and Sure was not discharged in that proceeding. Sure filed a second bankruptcy action on November 5, 2012 (the “Second Bankruptcy Action”). During the course of that proceeding, Sure filed a “Notice of Rejection and Motion to Approve Rejection of the Executory Contract Between Sure, Inc. and Premier Petroleum, Inc.” (“Motion to Reject”), seeking to relieve itself of its future obligations under the Supply Agreement, and the bankruptcy court granted that motion, approving Sure’s rejection of that agreement on April 29, 2013. Sure subsequently filed a motion in the bankruptcy court to compel Premier to turn over credit card receipts it claimed Premier was wrongfully withholding under the Supply Agreement. The bankruptcy court denied the motion, instead determining that Sure should seek relief in the form of an adversary proceeding. On June 17, 2013, the trustee in the Second Bankruptcy Action filed a motion to dismiss or convert the action on the grounds that Sure had failed to file monthly operating reports as required and had also failed to pay administrative fees that were due and owing. The bankruptcy court granted the trustee’s motion and dismissed the Second Bankruptcy Action on October 2, 2013, without granting Sure a discharge.[2] Current LawsuitOn February 2, 2015, Sure filed the complaint in this action and seeks recovery against Premier for breach of contract, fraud, and wrongful foreclosure. Sure claims it is entitled to recover credit card proceeds that Premier has wrongfully withheld; to recover a $.02 per gallon rebate on the gasoline it purchased from Premier; and to have the foreclosure on the Adjacent Property declared null and void. Premier answered denying liability and moved for summary judgment on Sure’s claims. The trial court granted Premier’s motion finding that Sure (1) could not sue Premier for breach of contract because Sure rejected the Supply Agreement in the Second Bankruptcy Action; (2) is judicially estopped from claiming the $.02 per gallon rebate because it never listed this claim as an asset of its bankruptcy estate; (3) is collaterally estopped from re-litigating the issue of any credit card monies because the issue was already decided adversely to Sure in the Second Bankruptcy Action; (4) is not entitled to a claim for wrongful foreclosure because it never paid the monies due and owing under the Note and because it never tendered the amount due; and (5) is not entitled to relief on its fraud claims because it failed to plead fraud with particularity, failed to provide evidence of any false representations by Premier, signed documents containing merger clauses, and failed to provide evidence of reasonable reliance. This appeal followed.1. Breach of Contract — Sure first asserts that the trial court erred in finding that its breach of contract claim is barred by the proceedings in the Second Bankruptcy Action. We agree.(a) Sure filed its Motion to Reject pursuant to 11 U.S.C. § 365, and the bankruptcy court approved Sure’s rejection of the Supply Contract, as an executory contract. Premier argued below, and the trial court found, that Sure’s rejection amounted to a rescission or dissolution of the Supply Contract in its entirety, leaving Sure without standing to sue for breach of contract.It is well settled that “[r]ejection of an executory contract under § 365 of the Bankruptcy Code constitutes a breach and the injured party is entitled to assert a claim based thereon.” Puett v. McCannon, 183 Ga. App. 152, 154 (1) (358 SE2d 300) (1987). However, rejection does not embody the contractvaporizing properties so commonly ascribed to it. Rejection merely frees the [bankruptcy] estate from the obligation to perform; it does not make the contract disappear. More specifically, rejection has absolutely no effect upon the contract’s continued existence; the contract is not cancelled, repudiated, rescinded, or in any other fashion terminated. (Citations and punctuation omitted.) Thompkins v. Lil’ Joe Records, Inc., 476 F3d 1294, 1306 (1) (11th Cir. 2007). Therefore, while rejection under § 365 affects the parties’ future performance under an executory contract, it does not affect the provisions of the agreement that have been fully executed. See id. at 1307 (1) (where transfer of artist’s copyrights completed at time sales contract executed, such rights did not revert to artist upon purchaser’s rejection of the parties’ agreement); Lawrence v. Commonwealth of Kentucky Trans. Cabinet (In re Shelbyville Road Shoppes, LLC), 775 F3d 789, 797 (6th Cir. 2015) (“Section 365, including its provision for rejection, addresses only future performance obligations of the parties.”) (citation and punctuation omitted); Murphy v. C & W Ltd. Corp. (In re Murphy), 694 F2d 172, 174 (8th Cir.1982). (“[R]ejection of an executory contract . . . is not the equivalent of rescission.”); In re Exec. Technical Data Systems, 79 BR 276, 282 (Bankr. E.D. Mich. 1987) (A rejection in bankruptcy does not require “the reversal or undoing of already executed provisions” because § 365 “does not have any impact upon the executed portions of a contract.”).Sure asserts two breach of contract claims: (1) for non-payment of the $.02 per gallon rebate and (2) for return of the credit card proceeds it asserts Premier has wrongfully withheld. These claims do not address issues of future performance. Rather, Sure is taking the position that it completely rebranded the station and the rebranding was accepted by Shell and that Premier breached the contract by failing to pay the $.02 rebate during the ensuing three years. We find that the rejection of the Supply Agreement in bankruptcy does not bar such a claim. Likewise, Sure’s claim that Premier has wrongfully withheld credit card proceeds, over and above any amounts Sure owed Premier, also relates to an executed portion of the contract. It appears that Premier has processed the credit card sales, and Sure has paid for its gasoline purchases. Sure simply seeks to recover any overages retained by Premier. The rejection in bankruptcy does not bar such a claim. The case of Speir v. Nicholson, 202 Ga. App. 405 (414 SE2d 533) (1992), upon which the trial court relied in holding otherwise, is readily distinguishable. In that case, the parties closed on the sale of a business, which filed for bankruptcy shortly thereafter, before the terms of the sale were completed by either party. The business’s assets were never transferred to the purchaser, and the purchaser never completed payment. A third-party beneficiary under the contract sued to compel the purchaser to complete payment for the business assets. However, the bankruptcy trustee had already sold those assets to another buyer, and the Speir court found that this action was a repudiation of the contract (equivalent to a formal rejection under § 365) “to the extent that it was executory, thereby discharging the purchasers from further performance” under its terms. 202 Ga. App. at 406-07 (1). Therefore, the Speir court’s ruling supports our finding that a rejection in bankruptcy affects only future performance. The Court further held, under the facts of that case, that because neither party had completed performance under the contract, there was a failure of its underlying consideration, which barred the third-party beneficiary’s claim. Id. at 408 (2). Here, in contrast, Sure contends that it fully performed by completing the rebranding of the station and making payment for gasoline deliveries; therefore, no failure of consideration occurred, and the non-executory provisions of the Supply Agreement remain enforceable. Accordingly, the trial court erred in finding that the rejection in bankruptcy deprived Sure of its claims for breach of contract. (b) Sure also asserts that the trial court erred in finding that its claim for the rebate is judicially estopped by its failure to list the claim in its petition in the Second Bankruptcy. Once again, we agree. ”The federal doctrine of judicial estoppel precludes a party from asserting a position in one judicial proceeding after having successfully asserted a contrary position in a prior proceeding.” Period Homes v. Wallick, 275 Ga. 486, 488 (2) (569 SE2d 502) (2002). “It is most commonly invoked to prevent bankruptcy debtors from concealing a possible cause of action, asserting the claim following the discharge of the bankruptcy and excluding resources from the bankruptcy estate that might have otherwise satisfied creditors.” Id. See also American Nat. Bank of Jacksonville v. Fed. Deposit Ins. Corp., 710 F2d 1528, 1536 (11th Cir.1983) (“The doctrine is designed to prevent parties from making a mockery of justice by inconsistent pleadings.”) (citation omitted).Georgia courts consider three factors to determine whether the doctrine bars a claim: (1) the party’s later position must be “clearly inconsistent” with its earlier position; (2) the party must have succeeded in persuading a court to accept the party’s earlier position; . . . absent success in a prior proceeding, a party’s later inconsistent position introduces no risk of inconsistent court determinations, and thus poses little threat to judicial integrity; and (3) whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.
