Unpublished Dispositionfoot-joy, Inc., Plaintiff-appellee, v. U.S. Golf Supply, Inc., D/b/a Golf Supply North, Inc.;robert Butler; N. Gerald Dicuccio, Defendants-appellants, 871 F.2d 1087 (6th Cir. 1989)

Plaintiff, Foot-Joy, Inc. (Foot-Joy), manufactures and sells athletic footwear and other athletic supplies. Defendant, U.S. Golf Supply, Inc. (USGS), is a wholesale distributor of golfing supplies and was a Foot-Joy customer. Defendants Robert A. Butler and N. Gerald DiCuccio were shareholders in USGS, along with James L. Burk, III and Patricia Burk. U.S. Golf Supply North, Inc. (USGS North) is also a wholesale distributor of golfing supplies, and defendants assert that USGS North was incorporated in Ohio on May 13, 1985, and after this lawsuit, ceased its operation. Butler and DiCuccio, attorneys, were the sole shareholders of USGS North.

On approximately May 3, 1984, USGS submitted to Foot-Joy an application for open account. This application listed both USGS' and USGS North's addresses even though USGS North had purportedly not been formed at the time of application. On the basis of its application, USGS agreed to pay in full for any orders; Butler and DiCuccio, who were officers and shareholders of USGS, personally guaranteed its indebtedness. Foot-Joy approved USGS's application, supported by the personal guaranties, and opened account No. 869250 in the name of USGS.

Between June 1984 and February 17, 1987, many orders were filled and charged to account No. 869250. Throughout the course of dealings, statements of account No. 869250 were sent to USGS. The record reflects no indication by Butler and/or DiCuccio that USGS was not the proper party billed or that the account, for which they were guarantors, was improperly charged. Only small payments were made on the account between August 1986 and February 1987. USGS failed to pay its account, and at the time Foot-Joy filed this lawsuit, $685,769.58, plus interest, was due on account No. 869250. The guaranty signed by Butler and DiCuccio does not require Foot-Joy to request payment from USGS, or to exhaust its remedies first against USGS.

Butler and DiCuccio contend that under the guaranty they were not liable for orders purportedly made by USGS North. They claim that USGS North is a separate company and that they are not liable on its account. Foot-Joy claims that as far as it is concerned, USGS and USGS North are one and the same and shared the same address for most of the pertinent period.

Foot-Joy filed a motion for summary judgment which the district court granted. We find nothing in the record to persuade us that the judgment for Foot-Joy was erroneous. Essentially, for the reasons stated by district Judge George C. Smith, we AFFIRM the judgment for plaintiff-appellee.