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Tulsa, Inc. v. Jt's Market, Inc.

Superior Court of Maine, Aroostook

May 4, 2015

TULSA, INC., Plaintiff,
JT'S MARKET, INC. and JOHN L. THYNG Defendants.


          William R. Stokes Judge

         This matter is before the court on Defendant John L. Thyng's Motion for Summary Judgment on Count II of Plaintiff's Complaint.


         Buck's Market was a convenience store and gas station located in Presque Isle, Maine. In late 2016, Defendant John Thyng ("Defendant" or "Thyng") engaged in negotiations to purchase the assets of Buck's Market from its corporate owner, Buck's Market, Inc. (Defendant's Statement of Material Facts ("DSMF") ¶ 2.) Thyng had planned to assume the name "Buck's Market Inc.," but that was not possible, so Thyng created a new corporation, JT's Market, Inc., which purchased the assets and operation of Buck's Market. (DSMF ¶ 3.)[1] In late September 2016, Steven Perrault and Keith Perrault, both members of Tulsa, Inc., met with Thyng at his request to discuss buying gas from Tulsa for resale.[2] (Plaintiff's Additional SMF "PASMF" ¶ 1.) There is a dispute about whether Thyng told Steven and Keith that he would be operating the business under the corporate name of JT's Market. (DSMF ¶ 6, PASMF ¶ 4.) At this meeting they discussed delivery and payment terms for gas. (DSMF ¶ 6.) Tulsa alleges that Thyng said he was buying Buck's Market and told Steven and Keith that "[y]ou won't have to worry about getting paid. I'll be able to rotate deliveries. I'll be paid and you'll get paid." (PASMF ¶ 4.) Thyng denies making this statement. An agreement was struck, apparently, as Tulsa continued to deliver fuel to Buck's Market. So far as the court can tell, there was never any contract or agreement reduced to writing. JT's Market, Inc. operated Buck's Market under its corporate name from February 2017 forward but Tulsa denies knowing that JT's Market was operating Buck's, as opposed to Thyng personally operating it. (DSMF ¶ 7, Plaintiff's Reply SMF ("PRSMF") ¶ 7.)

         In February 2017, Kim Lajoie, another member of Tulsa, noticed that Buck's Market's gas account was being paid by a check from JT's Market. (PASMF ¶ 5). When she asked Thyng if he wanted the bills to go to JT's Market, Inc. instead, he told her to continue as they were doing. (PASMF ¶ 5). Thyng denies this is a personal guaranty. Tulsa continued to deliver fuel to Buck's Market after the initial meeting with Tulsa and Thyng, but JT's Market fell behind in payments in July 2017. (DSMF ¶ 8.) After the delinquency, Tulsa alleges that Steven Perrault met with Thyng, who made an oral personal guaranty[3] to Steven that he would pay out of his personal account anything that JT's Market did not pay. (DSMF ¶ 9.) Thyng denies this statement.

         In October 2017/ Kim spoke with Thyng/ who said that he was trying to get a loan to pay the account with Tulsa up to date. (PASMF ¶ 8.) Thyng admits the statement/ but denies it meant he would get a loan in his personal capacity. JT's Market remained in default with Tulsa and the business closed in March 2018/ owing Tulsa $113/904.49. (DSMF ¶¶ 10-11.)

         Tulsa filed a two-Count Complaint on March 16, 2018. Count I sought Judgment in the amount of $113/904 against JT's Market/ Inc. for goods sold and delivered/ but not paid for. Count II alleged that Thyng personally guaranteed that he would pay the debts of JT's Market, Inc. to Tulsa, and requested Judgment against Thyng individually in the same amount. On April 4, 2018, JT's Market and Thyng answered the Complaint and counter claimed for unjust enrichment and quantum meruit in the amount of $10, 000. Steven Perrault of Tulsa, to whom Thyng allegedly made the personal guaranty, died on April 13, 2018. (DSMF ¶ 13.) Tulsa never amended its Complaint.

         On December 14, 2018, the parties stipulated to, and the court ordered, Judgment in the amount of $113, 904 plus interest and costs for Tulsa on Count I of its Complaint against JT's Market. JT's Market and Thyng's counterclaims against Tulsa were dismissed with prejudice. Only Count II against Thyng individually regarding his alleged personal guaranty to Tulsa remains. Thyng moved for summary judgment on January 16, 2019, Tulsa responded and the court heard oral argument by video hearing on April 24, 2019.


         Summary judgment is appropriate if, reviewing the evidence in the statements of fact and record references in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(a), (c); Platz Assocs. v. Finley, 2009 ME 55, ¶ 10, 973 A.2d 743 (internal citations omitted). A fact is material if "it has the potential to affect the outcome of the suit." Id. "A genuine issue of material fact exists when the fact finder must choose between competing versions of the truth." Id. To withstand a motion for summary judgment, the non-moving party must present sufficient admissible evidence to establish a prima facie case for each element of the claim or defense. Watt v. UniFirst Corp., 2009 ME. 47, ¶ 21, 969 A.2d 897. This evidence must be admissible at trial. M.R. Civ. P. 56(e).

         A guaranty is "[a] promise to answer for the payment of some debt, or the performance of some duty, in case of the failure of another who is liable in the first instance." Guaranty, Black's Law Dictionary, (10th ed. 2014), The Statute of Frauds requires some promises to be in writing in order to be enforceable. See 33 M.R.S. § 51. Specifically, no action shall be brought on a promise to pay for the debt of another unless the promise or agreement "is in writing and signed by the party to be charged ...."§ 51(2). Despite the Statute of Frauds, caselaw recognizes exceptions for certain types of oral promises that take them outside the Statute of Frauds so that they no longer have to be in writing to be enforceable.

         This court has no doubt that, as a matter of law, Thyng's alleged statement to Steven Perrault that "I have money in my personal account. If Buck's Market won't pay you, I'll pay you out of my personal account," establishes a prima facie claim of a personal guaranty. In that statement, Thyng allegedly promised to personally pay for the debt of another, Buck's Market. Although this alleged statement is an out-of-court statement offered for the truth of the matter, it would have been admissible as non-hearsay under M.R. Evid. 801(d)(2)(A) as an admission offered by a party opponent, if Steven were alive and able to testify at trial. At oral argument, the parties agreed that since Steven's passing in April 2018, the alleged statement is now hearsay and is not admissible under any exception.

         In his Motion for Summary Judgment, Thyng argues his alleged personal guaranty is barred by the Statute of Frauds as a promise to pay for the debt of another, or alternatively, as an agreement not to be performed within one year. He further argues that no exception to the Statute of Frauds applies. He maintains that Steven's statement is inadmissible hearsay and, therefore, cannot be relied upon at trial or for purposes of his Motion for Summary Judgment.

         In its Objection to Summary Judgment, Tulsa asserts that Thyng's alleged statements to Keith and Steven, [4] and to Kim, [5] are the bases for Count II of its Complaint. Tulsa maintains that although Count II is based upon Thyng's representation to Steven, the Count is "broad enough to encompass representations of Thyng to [Keith and Kim.]" Tulsa argues that the "main purpose" exception to the Statute of Frauds applies so no writing is necessary to maintain the ...

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