New Dairy Kentucky, LLC v. Mike Tamarit

Syllabus

This is an action by a dairy on a sworn account against the former owner of a dairy distributor who signed a personal guaranty that obligated him to pay any past-due debts accrued by the distributorship to the plaintiff dairy. When the former owner signed the personal guaranty, he was the sole member/owner of the distributorship however, he sold his membership interest in the distributorship in May 2015. At the time of the sale, the distributor owed $60,484.95 to the plaintiff dairy. One month later, when the plaintiff dairy learned of the sale, it created a new account for the distributor and sent both the distributor and the guarantor a demand for payment of the old account balance, the amount owing when the guarantor sold his membership interest in the distributor. Neither the distributor nor the guarantor paid the old account balance, and the dairy sued them both. The dairy later voluntarily nonsuited the distributor, with whom the dairy was continuing to do business under the new account number, leaving the guarantor as the sole defendant. Thereafter, the trial court granted the dairy's Motion for Summary Judgment as to the guarantor's liability and held an evidentiary hearing on damages. After the hearing, the court entered a judgment against the guarantor for $130,102.12, including the principal debt, prejudgment interest, and attorney's fees. On appeal, the guarantor argues that the creditor breached its duty of good faith and fair dealing by not seeking payment from the distribution company. We disagree. The personal guaranty obligated the guarantor to pay all amounts not paid by the distributor, whether or not the dairy sought payment from the distributor. Thus, we affirm the trial court's judgment.