                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                        March 11, 2015 Session


                          VFS LEASING CO. v. WARREN MILLS

                        Appeal from the Circuit Court for Shelby County
                           No. CT-001839-13 Jerry Stokes, Judge




                     No. W2014-01085-COA-R3-CV – Filed April 30, 2015




       This appeal arises from the grant of summary judgment in favor of Appellee on a
breach of lease and guaranty agreements case. The trial court entered a judgment against
Appellant for the deficiency owed under the lease agreement. Appellant argues that the
guaranties executed to secure the lease were not signed by him in front of a notary public
and, therefore, are invalid. Discerning no error, we affirm and remand.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed
                                     and Remanded.

KENNY ARMSTRONG, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,
P.J., W.S., and BRANDON O. GIBSON, J., joined.

Scottie O. Wilkes, Memphis, Tennessee, for the appellant, Warren Mills.

J. Bennett Fox, Jr., Memphis, Tennessee, for the appellee, VFS Leasing Co.


                                    MEMORANDUM OPINION1
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    Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

                  This Court, with the concurrence of all judges participating in the case, may affirm,
                  reverse or modify the actions of the trial court by memorandum opinion when a
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                               I. Factual and Procedural History

       This is a breach of lease and guaranty agreement case. On October 2, 2006, Choctaw
II, LLC (Choctaw II), entered into a master lease agreement with Appellee VFS Leasing
Company (VFS). Pursuant to the lease agreement, VFS agreed to lease to Choctaw II certain
vehicles described in the schedules attached to the master lease. In consideration, Choctaw II
agreed to make regular monthly lease payments to VFS pursuant to the applicable schedules
attached to the master lease.

       The master lease expressly states that the terms of the lease may not be terminated by
Choctaw II for any reason whatsoever. The agreement further provides that Choctaw II’s
obligation to make all lease payments when due “shall be absolute and unconditional and
shall not be subject to any abatement, reduction, set off, defense, counterclaim, interruption,
deferment, recoupment or termination, under any circumstances or for any reason
whatsoever, and shall not require prior notice or demand.” To guarantee the “full, prompt,
and complete payment and performance of all obligations of all sums, moneys, notes, loans,
indebtedness, leases, or lease payments that shall at any time be due and payable to [VFS] . . .
from Choctaw II,” the Appellant Warren Mills signed two continuing guaranty agreements.

       Choctaw II defaulted on its obligation to VFS by failing to make timely payments
pursuant to the master lease and the accompanying schedules. VFS alleges in its complaint
that Mr. Mills then defaulted on his obligations pursuant to the continuing guaranty
agreements by failing to make any payments following Choctaw II’s default. Following the
defaults of Choctaw II and Mr. Mills, all of the vehicles involved were voluntarily
surrendered to VFS and sold. After applying the proceeds from the sale, a deficiency balance
of $130,244.92 remained. The amount of the deficiency has not been challenged by
Appellant.

        On April 26, 2013, VFS filed suit against Mr. Mills for breach of the continuing
guaranty agreements. An amended complaint was filed on May 1, 2013 to include a
certificate of service that was omitted from the original complaint. On July 11, 2013, Mr.
Mills filed his answer, in which he alleged that the guaranties were fraudulently executed and
that he never executed the guaranty agreements that are the subject of this lawsuit. On
October 23, 2013, VFS filed a motion for summary judgment and a statement of undisputed

              formal opinion would have no precedential value. When a case is decided by
              memorandum opinion it shall be designated “MEMORANDUM OPINION”, shall
              not be published, and shall not be cited or relied on for any reason in any unrelated
              case.

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material facts.

        Mr. Mills subsequently filed a motion to inspect the original documents relating to the
complaint. In his motion, Mr. Mills stated that he had retained a handwriting expert to
examine the documents that purportedly contain his signature. On April 10, 2014, Mr. Mills
filed his answer to VFS’s statement of undisputed facts. At the time he filed his answer, Mr.
Mills denied that “he signed the [continuing guaranties] and/or that he was aware that he was
signing as a personal guaranty.” Mr. Mills also filed a statement of disputed facts in which
he stated that he “never executed the continuing guarant[ies]” in front of a notary, and that
the continuing guaranties do “not have the correct social security number of Warren Mills.”
He also alleged that the acknowledgement by the notary does not contain the date on which
the guaranties were signed. Although the record is unclear as to when Mr. Mills finally
conceded he signed the guaranties, the trial court specifically found that the signatures on the
guaranty documents belonged to Mr. Mills. On May 2, 2014, the trial court entered an order
granting the motion for summary judgment in favor of VFS and awarding judgment in the
amount of $130,244.92. Mr. Mills timely filed a notice of appeal.

                                         II.    Issues

       There is one issue presented for review, which we restate as follows:

       Whether the trial court properly granted summary judgment in favor of Appellee
       based on Appellant’s liability for a debt under two guaranty agreements where it is
       undisputed that the signature on the guaranty agreements is Appellant’s signature.

                                 III.   Standard of Review

       The granting or denying of a motion for summary judgment is a matter of law, and our
standard of review is de novo with no presumption of correctness. Blair v. W. Town Mall,
130 S.W.3d 761, 763 (Tenn. 2004). Summary judgment “shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” Tenn. R. Civ. P. 56.04. “This Court
must make a fresh determination that the requirements of Tennessee Rule of Civil Procedure
56 have been satisfied.” Todd v. Shelby Cnty., 407 S.W.3d 212, 218 (Tenn. Ct. App. 2012).

                                        IV.    Analysis

       We begin our analysis by noting that Mr. Mills acknowledges he signed the two
continuing guaranties. In the order granting summary judgment, the trial court also found
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that it was “undisputed that the signature on the guaranty documents is [Mr. Mills’s]
signature.” During oral arguments before this Court, the attorney for Mr. Mills admitted that
the handwriting expert they hired found that the signatures on the guaranty documents
belonged to Mr. Mills. Counsel for VFS also stated during oral arguments that the trial court
was aware of this concession at the time of summary judgment hearing. This statement was
not challenged by Mr. Mills’ attorney, leaving no material facts in dispute. Furthermore, in
his brief, Mr. Mills admits that:

               In order to guarantee the full, prompt, and complete payment
               and performance of all obligations of all sums, moneys, notes,
               loans, indebtedness, leases, or lease payments that shall at any
               time be due and payable to the [Appellee] . . . from Choctaw II
               pursuant to the Master Lease Agreement and Schedules 001 and
               002, [Appellant] Warren Mills executed [the] continuing
               guaranties.2

Guaranties are contracts and are governed by the general principles of contract law. The
Statute of Frauds requires that a contract to pay the debts of another must be signed by the
guarantor. See 84 Lumber Co. v. Smith, 356 S.W. 3d 380, 383 (Tenn. 2011) and Tennessee
Code Annotated Section 29-2-101(a)(2).

       In his brief, Mr. Mills cites four cases in support of his argument regarding the
“questionable notary”: D.T. McCall & Sons v. Seagraves, 796 S.W. 2d 457 (Tenn. Ct. App.
1990); Underwood v. Tennessee Dept. Correction, 2005 WL 123501 (Tenn. Ct. App. 2005);
Limor v. Fleet Mortgage Group, 12 S.W. 3d 449, (Tenn. 2000); and Figurers v. Fly, 193
S.W. 117, (Tenn. 1916). Not only does the Underwood case fail to support Mr. Mills’

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  We note, however, that Mr. Mills’ appellate brief also states that: “[Mr. Mills] continues to deny
that he signed the continuing guaranty.” Accordingly, while much of the record indicates that Mr.
Mills abandoned his claim that he did not sign the guaranty, he does not appear to fully concede this
point. A review of Mr. Mills’ statement of the issues on appeal, however, again suggests that Mr.
Mills abandoned this argument. Indeed, Mr. Mills’ statement of the issue presented for review only
questions whether the trial court erred in granting summary judgment due to a “questionable notary.”
This Court has previously determined a party’s failure to designate an argument as an issue in the
statement of issues section of the party’s appellate brief results in a waiver on appeal. E.g., Forbess
v. Forbess, 370 S.W.3d 347, 356 (Tenn. Ct. App. 2011); see also Tenn. R. App. P. 13(b) (“Review
generally will only extend to those issues presented for review.”). Because Mr. Mills did not raise the
issue of whether he actually signed the guaranty as an issue in his appellate brief, any question
regarding this issue is waived on appeal.


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position, but we note that the Underwood case specifically states “NOT FOR CITATION” in
bold print across the top of the opinion. Furthermore, the other three opinions cited do not
support Mr. Mills’ argument that the guaranties should be unenforceable based on the alleged
shortcomings of the notarization contained therein. Additionally, Mr. Mills did not cite any
authority in support of his position that that the guaranties failed because they contained the
wrong social security number. As noted by the trial court, Mr. Mills:

              has not disputed the existence of the lease agreements or their
              terms or the subsequent breach of the agreements. [Mr. Mills]
              has also not disputed the amount due and owing to [VFS]
              resulting from the breach. . . . After the original lease and
              guaranty documents were produced and reviewed, [Mr. Mills]
              challenged the validity of the notarization of these documents,
              however, it is undisputed that the signature on the guaranty
              documents is [Mr. Mills’s] signature.


        It is a fundamental principal of contract law that an individual who signs a contract is
presumed to have read the contract and is bound by its contents. 84 Lumber Co., 356 S.W.
3d at 383. An individual's signature, “without limiting or descriptive words before or after it,
is the universal method of signing a contract to assume a personal obligation.” Lazarov v.
Klyce, 255 S.W.2d 11, 13 (Tenn. 1953). Under the facts here, where Appellant concedes he
signed the guaranties and the default of the lease is undisputed, the guaranties are valid and
enforceable against Appellant, as found by the trial court.

                                   V.     CONCLUSION

       For the foregoing reasons, we affirm the order of the trial court. This case is
remanded to the trial court for such further proceedings as may be necessary and are
consistent with this opinion. Costs of the appeal are assessed against the Appellant, Warren
Mills and his surety, for all of which execution may issue if necessary.


                                            _________________________________
                                            KENNY ARMSTRONG, JUDGE




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