IN THE SUPREME COURT OF MISSISSIPPI
NO. 2022-CA-00551-SCT
TOMMY BROOKS OIL COMPANY
v.
JERRY WILBURN AND WILBURN OIL COMPANY, INC.
DATE OF JUDGMENT: 04/29/2022 TRIAL JUDGE: HON. JOHN R. WHITE TRIAL COURT ATTORNEYS: ALBERT G. DELGADILLO KEVIN ALAN ROGERS MARTHA BOST STEGALL WALTER D. WILLSON MICHAEL D. GREER MICHAEL PAUL MILLS, JR. WILLIAM C. SPENCER, JR. WILLIAM C. SPENCER RANDY DEAN COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: WALTER D. WILLSON KEVIN ALAN ROGERS ATTORNEYS FOR APPELLEES: MICHAEL D. GREER WILLIAM C. SPENCER WILLIAM C. SPENCER, JR. NATURE OF THE CASE: CIVIL - CONTRACT DISPOSITION: ON DIRECT APPEAL: REVERSED AND REMANDED. ON CROSS-APPEAL: AFFIRMED - 03/21/2024 MOTION FOR REHEARING FILED:
BEFORE RANDOLPH, C.J., BEAM AND CHAMBERLIN, JJ.
BEAM, JUSTICE, FOR THE COURT:
¶1. Following a jury trial, the Lee County Circuit Court entered two separate judgments
in favor of defendants Wilburn Oil Company and Jerry Wilburn individually. Plaintiff Tommy Brooks Oil Company had sued Wilburn Oil seeking $984,078.02 under an open
account for the purchase and delivery of fuel products to Wilburn Oil. Brooks Oil had also
sued Jerry Wilburn individually for enforceability of two guaranty agreements amounting to
$250,000. Brooks Oil appeals from those judgments raising numerous assignments of error.
Wilburn Oil cross-appeals, claiming the trial court erred by denying its motion for costs and
attorneys’ fees under Mississippi Code Section 11-53-81 (Rev. 2019) (the open-account
statute).
¶2. We find that the jury’s verdict in favor of Wilburn Oil on the open-account suit was
without evidentiary basis; therefore, we reverse the judgment entered on that verdict and
remand for a new trial on damages as to Brooks Oil’s open-account claim. This also requires
a new jury to determine the enforceability of the two guaranty agreements. We affirm the
trial court’s denial of Wilburn Oil’s motion for costs and attorneys’ fees under Section 11-53-
81.
FACTS AND PROCEDURAL HISTORY
¶3. This case was previously before the Court on interlocutory appeal solely on the
guaranties suit. See Tommy Brooks Oil Co. v. Wilburn (Wilburn I), 243 So. 3d 166 (Miss.
2018) (staying the open-account suit per this Court’s November 30, 2016 order). This Court
reversed the trial court’s grant of summary judgment in favor of Jerry Wilburn and remanded
the case for further proceedings because Jerry “Wilburn did not meet his summary-judgment
burden . . . .” Id. at 167. Wilburn I provided the following background in the case:
Through the years, Brooks Oil supplied Wilburn Oil with fuel products at a number of Wilburn Oil’s gas stations. Since late 2012, though, Wilburn
2 Oil—according to Brooks Oil—had failed to pay all the fuel invoices sent by Brooks Oil. Brooks Oil claimed that Wilburn Oil owed it nearly $1 million in unpaid fuel bills by 2013. In order for Brooks Oil to resume selling Wilburn Oil fuel products, Wilburn signed two personal guaranties to Brooks Oil’s benefit. The first guaranty, executed on June 20, 2013, was for $100,000. The second guaranty, executed on August 29, 2013, was for $150,000. Aside from the amount guaranteed, the language of the guaranties was identical and provided that [Jerry] Wilburn guaranteed to Brooks Oil that he personally would be liable for Wilburn Oil’s debt “due or to become due . . . now existing or hereafter arising . . . .” Before resuming delivery, Brooks Oil had Wilburn Oil also agree to a two-cent-per-gallon increase in the purchase prices for fuel products. The increase was to be applied to Wilburn Oil’s outstanding invoices.
Wilburn, 243 So. 3d at 167-68 (alteration in original).
¶4. In 2014, Brooks Oil sued Jerry Wilburn individually, claiming that “Wilburn Oil was
not paying the outstanding invoices and sought to collect from [Jerry] Wilburn on the
personal guaranties.” Id. at 168 (referring to complaint as the “guaranties suit”). Brooks Oil
then sued “Wilburn Oil for the unpaid fuel invoices (the ‘open account suit’)[ ] . . . claim[ing]
there were $984,078.02 in unpaid invoices[, from September 2012 through January 2013.]”
Id. at 169. Wilburn Oil did not answer the complaint, and “Brooks Oil was awarded a
default judgment of $1,184,272.52.” Id. The trial court thereafter “set aside the default
judgment and consolidated the open-accounts suit with the guaranties suit.” Id.
¶5. After some discovery, Jerry Wilburn moved for summary judgment, claiming that
neither party had intended for the guaranties to apply to past debt and that there was either
a mutual mistake or a unilateral mistake. Id. at 168. Jerry Wilburn submitted testimony from
both his and Tommy Brooks’s depositions. Id.
¶6. “Brooks Oil disputed [Jerry] Wilburn’s claims, pointing to the guaranties’ language
3 covering existing debts” and argued there were genuine issues of material fact as to the
parties’ intent. Id. at 169. Brooks Oil sought to clarify Tommy Brooks’s deposition
testimony by submitting two affidavits, one from Tommy Brooks and one from Brooks Oil’s
secretary and treasurer, Lee Brooks Murphree. Id. Jerry Wilburn moved to strike both
affidavits, claiming they were both self-serving and unsupported by relevant material facts.
Id.
¶7. Following a hearing, the trial court granted Jerry Wilburn’s motion to strike the
affidavits. Id. Thereafter, the trial court granted Jerry Wilburn’s motion for summary
judgment and dismissed Brooks Oil’s suit against Jerry Wilburn in the guaranties suit. Id.
Brooks Oil filed an interlocutory appeal, which this Court granted. Id. This Court also
stayed the open-account suit pending resolution of the interlocutory appeal. Id.
¶8. On appeal, this Court found that genuine issues of material fact existed on what debt
the parties intended the guaranties to cover and whether there was a mutual mistake as
asserted by Jerry Wilburn. Id. at 171. This Court found there was no evidence to support
Jerry Wilburn’s alternative argument that both guaranties contained unilateral mistakes. Id.
Further, “[b]eyond entering into the guaranties, Wilburn Oil and Brooks Oil agreed to a two-
cent-per-gallon increase to fuel prices to pay down the existing Wilburn Oil
debt—evidencing the fact that Wilburn Oil’s past debt concerned Brooks Oil.” Id.
¶9. After remand, Brooks Oil filed separate motions for summary judgment against
Wilburn Oil for $984,078.02 in open-account debt and Jerry Wilburn individually for
enforceability of the guaranty agreements up to $250,000 of all debt owed by Wilburn Oil.
4 Wilburn Oil also filed a motion for summary judgment asserting that he “is entitled to
judgment as a matter of law [on] all claims asserted against it.” The trial court denied each
motion. Brooks Oil filed a petition for interlocutory appeal, which this Court denied.
¶10. Trial began in June 2021 but resulted in a mistrial after opening statements when
Brooks Oil referenced two unrelated law suits filed by Maples Gas Company against Wilburn
Oil and Jerry Wilburn for failure to pay for fuel. Trial began again in February 2022.
¶11. According to the evidence presented at trial, Tommy Brooks and Jerry Wilburn were
lifelong friends. Tommy started Brooks Oil, which primarily distributes fuel to convenience
stores in North Mississippi and Alabama, in 1966.
¶12. Jerry Wilburn approached Tommy Brooks in February 2011, needing Brooks Oil to
supply his stores with fuel because Wilburn Oil’s previous supplier had stopped supplying
fuel to Wilburn Oil due to a dispute. Based on a handshake between the two friends, Brooks
Oil agreed to sell fuel to Wilburn Oil, and Wilburn Oil agreed to pay Brooks Oil’s cost for
the fuel, plus one cent per gallon.
¶13. Wilburn Oil thereafter placed hundreds of orders totaling millions of dollars but,
according to Brooks Oil, fell significantly behind on its payments. In March 2013, according
to Brooks Oil, Murphree and Wilburn Oil’s employee Renee Webb conducted a joint review
of the account. The records showed that Wilburn Oil owed Brooks Oil approximately $1.3
million in debt.
¶14. Wilburn Oil then paid $200,000 toward the debt and began paying an additional two
cents per gallon on future orders to go toward past debt. As mentioned, to continue selling
5 fuel to Wilburn Oil, Brooks Oil required Jerry Wilburn to guaranty a portion of the debt.
Jerry Wilburn executed two personal guaranties: the June 2013 guaranty for $100,000 and
the August 2013 guaranty for an additional $150,000.
¶15. Subsequently, Wilburn Oil’s orders for fuel declined. In April 2014, Brooks Oil
required Jerry Wilburn to execute an unlimited guaranty of the entire debt to continue to
selling fuel to Wilburn Oil. Jerry Wilburn refused to do so, and the parties ceased doing
business effective April 2014.
¶16. As of May 2014, Brooks Oil’s records showed that Wilburn Oil owed $984,078.02
for 104 specific invoices dating from September 27, 2012 to June 25, 2013. The majority of
these invoices were for the month of January 2013.
¶17. Brooks Oil presented evidence at trial through testimony1 and numerous exhibits.
Kim Cheney, who worked for Brooks Oil from 1995 to July 2014, handled the Wilburn Oil
account during the entirety of the relationship—February 2011 to April 2014. Cheney
testified how Wilburn Oil placed its order and was billed for fuel: (1) Wilburn Oil would
place an order with Brooks Oil by telephone or email; (2) Brooks Oil would send one of its
tanker trucks to a loading rack, where fuel is delivered either by pipeline or river barges, or
Brooks Oil would hire an outside carrier to fulfill the order; (3) the tanker truck then
delivered the fuel to a specified Wilburn Oil location (nine total); (4) Brooks Oil received the
bill of lading showing the delivery of fuel to Wilburn Oil and a commercial invoice from
Brooks Oil’s supplier showing what Brooks Oil was charged; (5) Brooks Oil added one cent
1 Tommy Brooks died prior to trial.
6 per gallon2 to its cost for the fuel and generated an invoice for Wilburn Oil by putting the
information into Brooks Oil’s computer system; (6) Brooks Oil, as a “routine practice,”
would send an invoice to Wilburn Oil within three days by fax upon receiving an invoice
from its supplier.
¶18. Cheney said that it would take a couple of days for Brooks Oil to receive an invoice
from its supplier, so Wilburn Oil would pay an estimated amount after the fuel was delivered.
Initially, Wilburn Oil would put money into Brooks Oil’s bank account. Then Brooks Oil
started drafting Wilburn Oil’s bank account, which is what Brooks Oil’s supplier did with
Brooks Oil’s account for the fuel Brooks Oil had purchased for delivery to Wilburn Oil.
Cheney said Brooks Oil was on a ten-day payment term with its supplier.
¶19. Cheney said there were several instances in which the electronic fund transfers (EFT)
from Wilburn Oil were returned due to insufficient funds. She also testified that she had to
send the same invoice to Wilburn Oil on multiple occasions and that Wilburn Oil fell behind
on payments. When payments were received by Brooks Oil, they would be logged into
Brooks Oil’s computer system within two days.
¶20. Murphree testified that Brooks Oil recognized in early 2013 that Wilburn Oil was
significantly behind on the account. Murphree conducted a joint review of the account with
Webb to determine the exact amount owed by Wilburn Oil. She said that at the conclusion
of the joint review, the records showed that as of March 5, 2013, Wilburn Oil owed Brooks
Oil approximately $1.3 million. This amount was disclosed to Wilburn Oil in a meeting in
2 According to the record, a typical tanker holds anywhere from 8,300 to 8,400 gallons of fuel.
7 early March 2013 involving Murphree, Tommy Brooks, Jerry Wilburn, and Webb.
¶21. Thereafter, according to Brooks Oil, Wilburn paid $200,000 toward the existing debt
on March 6, 2013, and Wilburn Oil agreed to pay an additional two cents per gallon for all
future purchases to credit toward the existing debt. Afterward, Wilburn Oil began paying the
exact amount of each future invoice instead of an estimated amount as was done previously.
¶22. Wilburn Oil presented two witnesses at trial, Jerry Wilburn and his son-in-law Chuck
Wood. Both testified as adverse witnesses during Brooks Oil’s case-in-chief, and both
testified during the defense’s case-in-chief. Webb, who conducted the joint review of the
account with Murphree, did not testify.
¶23. Jerry Wilburn testified that the agreement between him and Tommy Brooks was that
Wilburn Oil had four days to pay an invoice submitted by Brooks Oil, or he would be cut off.
Jerry Wilburn claimed that they paid what they were told to pay every time. He said that if
there was not enough money in the bank to pay what Brooks Oil said to pay, he would make
an arrangement with his bank to take care of it, or he would borrow money from somebody
else to make sure the bill was paid.
¶24. Wood testified that he was vice president of Wilburn Oil since 2011; he left the
company in September 2013. Wood ran Wilburn Oil’s Tupelo office, and with regard to
Wilburn Oil’s relationship with Brooks Oil, Wood said his primary role was to order fuel and
make sure the payments were made in full.
¶25. Wood said he would either call or email Cheney when ordering fuel. Wood did not
keep records of the orders he made through Cheney, rather Wilburn Oil relied on the bills of
8 lading and invoices from the loads of fuel received from Brooks Oil as its records. He said
others in the office were responsible for keeping the books, the accounts receivable, and the
accounts payable. Wood also said he did not personally keep up with the invoices faxed
from Brooks Oil.
¶26. While testifying as an adverse witness, Wood corroborated Cheney’s and Murphree’s
testimonies regarding the pay arrangement between Brooks Oil and Wilburn Oil. He said
that at the beginning of the business relationship, they initially tried to pay the exact amount
“on the day that the load was pulled.” But they were unable to do so “due to the timing and
just the nature of the beast[.]” Wood said that because “bill of ladings could not be sent to
Brooks by those entities in which those things were being created, . . . we could not ever get
a full total exact amount given.”
¶27. Wood testified that although he had left Wilburn Oil by the time Brooks Oil filed its
lawsuits against the company, he personally pulled the documents requested by Jerry
Wilburn’s counsel. Wood said he reviewed the list of invoices that Brooks Oil said had not
been paid and said that “there are payments that we were not given credit for that we made
for that.” Wood also said, “I know there was documents that we did not have, invoice
documents, bill of lading documents that we did not have prior to the claim being filed
against Wilburn Oil.” Of the 104 invoices Brooks Oil claimed were unpaid, Wood was asked
if he knew which ones Wilburn Oil had or had not received. Wood said he did not know.
¶28. Wood said he was not privy to the meetings with Brooks Oil in March 2013
concerning the alleged debt. He said that Jerry Wilburn and Webb both worked with Brooks
9 Oil “to figure out where the discrepancy was and there never was a conclusion to that
discrepancy until - - well, there’s still not - - never a conclusion reached that I’m aware of
and then a suit was filed.”
¶29. When asked by Brooks Oil if it is “your contention that Wilburn Oil doesn’t owe any
money to Brooks Oil,” Wood stated:
You know, the whole thing boils down to, you know, I paid the invoices that were asked to be paid in full every time they were asked to be paid. I’ve yet to - - I never received a full or never saw that we received all the invoices that [they] said we owed, so until - - until our accounts receivable people and Mr. Wilburn told me that there was a definite answer whether it was a plus or minus, I didn’t - - I never have and never will make an assumption that we owed any money.
¶30. When asked about his prior testimony that he believed Wilburn Oil had overpaid
Brooks Oil, Wood stated:
From the records that we have that were collected there’s – from what I have calculated myself and I’m no CPA but I do have notes where I looked and taken information that was given, I have found discrepancies where we weren’t given credit. So there’s no way – if you asked me personally, and I’ll say this in front of a jury or I’ll tell you on a street corner, if you ask me personally I don’t see how we could have owed any money because we paid in full – every time we were asked to pay an invoice we paid in full. Now there were a few times we might have fell short and the bank account was short but we always the next day made sure that went through whether it was contacting our banker and making things happen we made sure that payment was made. So I have a hard time seeing where we could owe that amount of money. If we got behind on one payment, it got returned, we got cut off. So if we got cut off for one payment being missed how in the world did – it’s unfathomable how we owe nine hundred thousand dollars.
¶31. During Wilburn Oil’s case-in-chief, both Jerry Wilburn and Wood maintained that
Wilburn Oil always paid (or eventually paid) what Brooks Oil told them to pay. Both also
testified that Wilburn Oil had continuous problems getting invoices from Brooks Oil in a
10 timely manner despite Cheney’s testimony that it was Brooks Oil’s “routine practice” to send
a particular invoice within a three-day period. They said that Brooks Oil sometimes did not
provide them an invoice until two, three, and even six weeks after the three-day period.
¶32. During Wood’s testimony, he pointed to four of the 104 invoices and testified that the
dates indicated on the invoices show that Wilburn Oil did not receive that particular invoice
within a three-day period. For example, the date for Invoice 137001 was “10/09/2012.” The
print date for this invoice was “Tuesday, November 13, 2012.” And the fax date for this
invoice was “11/21/2012 WED.” Wood said that these dates denoted on Invoice 137001
showed that Wilburn Oil did not receive this invoice until almost six weeks after it was
generated.
¶33. Wood also testified that these same four invoices showed that Brooks Oil had not
properly credited each payment from Wilburn Oil. Wood compared a spreadsheet prepared
by Murphree showing Brooks Oil’s records of deposits from Wilburn Oil to the dates of these
four invoices. Wood noted for example that Invoice 137001 showed the amount of
$7,563.40. Wood then pointed to page 13 of Exhibit D-9, which listed deposits by Wilburn
Oil on October 10, 2012, of $50,000, October 11, 2012, of $50,000, and October 13, 2012,
of $40,000.
¶34. The following exchange then occurred between counsel for Wilburn Oil and Wood:
Q. And so within the terms of the agreement, the payment within three days that’s $140,000 during those three days that was paid; is that correct?
A. Yes, sir, that’s correct.
11 Q. What’s the amount on this invoice?
A. The amount on the invoice is $7,563.40?
Q. So what does that tell you?
A. It tells me that within the time frame that we would be paying those invoices that we had made sufficient amount of payment to cover the $7,563.40.
Q. And this is an invoice that’s listed on P-3 saying it’s unpaid, correct?
A. That’s correct.
¶35. On cross-examination, Wood was asked, “if Brooks Oil’s record show that the
deposits on October 10th, 11th, and 12th were credited to other invoices that were owed by
Wilburn Oil, then your testimony that [the] invoice in D-3 should have been paid would be
incorrect?”
¶36. Wood replied, “Well, my testimony wouldn’t be incorrect. I’m telling you what I
believed should have happened by the payment methods that were given. If there were past-
due invoices that were out there that we were not aware of that they were posting payments
to that was beyond my knowledge and I can’t attest to that.”
¶37. On rebuttal, in response to Wood’s testimony, Murphree pointed to the “Customer
Payments Report” (Exhibit P-34) for the main fuel account. On page 43, she identified the
October 11, 12, and 13 deposits, and she identified the invoices that had been credited with
the deposits, which did not include Invoice 137001. Murphree testified that on “October
10th, there was a deposit made for $50,000.” It was applied to five invoices. “Four of them
were dated September the 10th and one of them is dated September the 11th of 2012.”
12 According to Exhibit P-34, the invoice numbers that were credited were 135437, 135438,
135439, 135441, and 135449. Murphree said she could demonstrate this for each of the
deposits listed in Exhibit D-9 and show how each was credited to specific invoices by Brooks
Oil.
¶38. After a four day trial, the jury returned a verdict after forty-five minutes of
deliberation, handwritten as follows:
* Wilburn Oil Company, Inc.
We the Jury find[] for Defendant Jerry Wilburn.
* Jerry Wilburn
¶39. The trial court entered two separate judgments in favor of Wilburn and Wilburn Oil,
respectively. The trial court denied Brooks Oil’s post-trial motion seeking a JNOV, or, in
the alternative, a motion for a new trial pursuant to Rules 50(b) and 59(a) of the Mississippi
Rules of Civil Procedure. The trial court also denied Wilburn Oil’s motion for costs and
attorneys’ fees.
¶40. As will be explained, Brooks Oil demonstrated a prima facie case of open-account
debt owed to it by Wilburn Oil. And Wilburn Oil failed to meet its rebuttal burden by
showing it owed no debt to Brooks Oil on the open account. Accordingly, Brooks Oil was
entitled to a JNOV on its open-account claim. Because the jury did not reach the issue of
damages, we reverse and remand for a new trial on damages.
¶41. Further, the jury’s verdict on the open-account claim nullified Brooks Oil’s claim
13 regarding the two guaranty agreements. Therefore, a new jury will have to determine the
enforceability of those agreements.
DISCUSSION
¶42. Review of a trial court’s denial of a JNOV is de novo, and the evidence is reviewed
in the light most favorable to the nonmoving party. Mine Safety Appliance Co. v. Holmes,
171 So. 3d 442, 449 (Miss. 2015). This Court “will reverse [only] if the evidence, as applied
to the elements of a party’s case, is either so indisputable, or so deficient, that the necessity
of a trier of fact has been obviated.” Id. (alteration in original) (internal quotation mark
omitted) (quoting Sherwin-Williams v. Gaines ex rel. Pollard, 75 So. 3d 41, 43 (Miss.
2011)).
¶43. There is no dispute that the parties were operating under an open-account agreement.
“An open account is a type of credit extended through an advance agreement by a seller to
a buyer which permits the buyer to make purchases without a note of security and is based
on an evaluation of the buyer’s credit.” Cox v. Howard, Weil, Labouisse, Friedrichs, Inc.,
619 So. 2d 908, 914 (Miss. 1993) (citing Open Account, Black’s Law Dictionary (5th ed.
1979)). Generally, it is “an account based on continuing transactions between the parties
which have not been closed or settled but are kept open in anticipation of further
transactions.” Westinghouse Credit Corp. v. Moore & McCalib Inc., 361 So. 2d 990, 992
(Miss. 1978).
¶44. A prima facie case is made on an open-account case based upon proof offered by the
creditor. Natchez Elec. & Supply Co. v. Johnson, 968 So. 2d 358, 360 (Miss. 2007). Once
14 the creditor offers a prima facie case, the burden shifts to the debtor to prove that the claim
is incorrect. Id.
¶45. At trial, Brooks Oil introduced 104 invoices it claimed that Wilburn Oil had not paid.
The 104 unpaid invoices pertained to five of the nine accounts with Wilburn Oil.3 Brooks
Oil also produced a listing of each invoice ever issued to Wilburn Oil for all nine of Wilburn
Oil’s accounts with Brooks Oil. Like the listing of the 104 unpaid invoices, these records
identified the invoice date, invoice number, amount, payments credited, balance, and running
total owed.
¶46. Brooks Oil also produced a listing of each payment ever received from Wilburn Oil
through an accounting record for each of the nine accounts. The total of all the invoices
issued to Wilburn Oil came to $33,545,745.85. The total for all the payments received from
Wilburn Oil came to $32,561,676.83, leaving a balance of $984,078.02, the total amount
Brooks Oil claimed was owed for the 104 invoices attached to its open-account complaint.
Murphree testified that the amount sought was for reimbursement of fuel charges already
paid by Brooks Oil to its supplier ($872,094.44) and taxes already paid by Brooks Oil
($119,989.49) in 2012 and 2013.
¶47. Brooks Oil submitted its business records for each of the 104 invoice transactions.
These records included copies of the bills of lading, supplier invoices, supplier bills of
3 These five accounts are designated as follows: Wilburn Oil Main, Coussons, Oakland, Waterloo, and County. According to Wood, some of these accounts were consignment operations under which somebody else owned the property and/or store, and Wilburn Oil owned the fuel tanks, the pumps, and the canopies. Wood said the Wilburn Oil Main account concerned Mississippi locations, and the four others were Alabama locations.
15 lading, and the delivery records for each of the orders identified in the 104 invoices.
¶48. Through the testimonies of Cheney and Murphree, Brooks Oil attested as to how these
account records were created and their accuracy.
¶49. For its part, Wilburn Oil did not dispute having received any of the fuel that Brooks
Oil claimed it had supplied to Wilburn Oil. Nor did Wilburn Oil submit any of its own
accounting or business records at trial. Wilburn Oil had sought to submit its bank records,
but the trial court excluded these records from trial because Wilburn Oil did not timely
provide them to Brooks Oil during discovery.
¶50. Instead, Wilburn Oil proceeded at trial with two assertions that it maintained against
Brooks Oil throughout the trial. One, because there was evidence that Wilburn Oil did not
always receive invoices from Brooks Oil in a timely manner, Brooks Oil failed to comply
with the requirements set forth in Natchez Electric. Two, Wilburn Oil could not possibly
owe any debt to Brooks Oil because it always paid, or eventually paid, what Brooks Oil told
it to pay “each and every time it received fuel from” Brooks Oil.
¶51. Neither the record evidence nor the law supports either assertion, which we will
discuss separately.
Assertion One
¶52. According to Wilburn Oil, based on Natchez Electric, in order to state a case under
an open account, a plaintiff must (1) show “actual ledger cards or entries showing each debit
and credit” on the defendant’s account; (2) show, through testimony of its manager or
representative, “the simultaneous business machine posting and invoice billing” to the
16 customer; (3) show the correctness and accuracy of the entries, and (4) show that “all
materials represented by the entries had been delivered to defendant[.]” Natchez Elec., 968
So. 2d at 360-61 (quoting Prestype, Inc. v. Carr, 248 N.W.2d 111, 119 (Iowa 1976) (quoting
Gardner & Beedon Co. of Springfield v. Cooke, 513 P.2d 758 (Or. 1973))).
¶53. Wilburn Oil claimed at trial that Brooks Oil failed to comply with the second
requirement provided by Natchez Electric, which says that the plaintiff must show “the
simultaneous business machine posting and invoice billing of the customer[.]” Id. (quoting
Carr, 248 N.W.2d at 119). According to Wilburn Oil, because Brooks Oil did not provide
an invoice to Wilburn Oil at the time the order for fuel was made or when it was delivered
and because there was evidence showing a large number of days between the date of the
invoice and when it was sent to Wilburn Oil, Brooks Oil failed to meet the standard set forth
in Natchez Electric. Therefore, Brooks Oil failed to establish a prima facie case for its open-
account claim.
¶54. Wilburn Oil misconstrues Natchez Electric, a case that actually supports Brooks Oil’s
case against Wilburn Oil. At the outset, Natchez Electric cited the two Iowa and Oregon
cases merely by way of example as to the type of proof needed to demonstrate a prima facie
case for an open account. What the Iowa and Oregon courts actually related in their
respective opinions were the types of evidence provided by the creditor in those particular
cases to demonstrate a prima case for an open-account action. The following from the
Oregon Supreme Court illustrates:
It is our conclusion that plaintiff’s actual ledger cards showing each entry of debit and credit, the testimony of plaintiff’s manager showing the simultaneous
17 business machine posting and invoice billing of the customer, his testimony concerning the correctness of the entries, and his testimony that all materials represented by the entries had been delivered to defendant constitute sufficient evidence to make a Prima facie case.
Gardner, 513 P.2d at 759 (emphasis added).
¶55. Natchez Electric did not establish an absolute requirement or standard as to what is
required to prove an open-account claim. What is required in any open-account case is
sufficient proof of the alleged debt. The evidence necessary for such proof may vary
depending on the type of business engaged in and the course of conduct between the parties.
See, e.g., Natchez Elec., 968 So. 2d at 362-63 (“When Johnson began paying on the account
for items purchased on delivery tickets that were not signed by himself or his employees, he
ratified this course of conduct in the performance of the contract.”).
¶56. While “simultaneous . . . invoice billing of the customer” may be an ideal accounting
method or business practice, it is not a realistic or practical one for numerous types of
businesses. Natchez Elec., 968 So. 2d at 361 (quoting Carr, 248 N.W.2d at 119). Indeed,
one of Mississippi’s federal district courts applied Natchez Electric to an open-account case
before it and rejected this specific language. In an unpublished opinion, the district court
provided as follows:
[T]he Mississippi Supreme Court has employed an open account framework in which, in order to make a prima facie showing, a plaintiff must present detailed account ledgers and offer testimony as to the accuracy of the ledger entries, the temporal relationship between the ledger entries and the actual events they represent, and the delivery of the materials represented by the entries.
Cardinal Health 110, Inc. v. Smithville Pharmacy, Inc., No. 1:08CV67, 2009 WL 1298218,
18 at *3 (N.D. Miss. May 8, 2009) (emphasis added) (not reported).
¶57. Here, Brooks Oil provided a detailed record of its financial transactions with Wilburn
Oil, identifying each payment received from Wilburn Oil and how each payment was applied
to specific invoices for fuel. Brooks Oil demonstrated how these invoices were generated
in its computer system, how they were married to the bills of lading (which show proof of
delivery of the product purchased by Wilburn Oil), and that these invoices were delivered to
Wilburn Oil.
¶58. Brooks Oil introduced each bill of lading that corresponded with each of the 104
alleged by unpaid invoices. Brooks Oil provided testimony as to how a bill of lading is
created and what it contains. The bill of lading is created at the loading rack where the fuel
truck is loaded. It contains the type of fuel and the amount of fuel loaded onto the truck, and
it provides the fuel’s destination. Each bill of lading contains the driver’s name, when the
fuel was delivered, and a signature by someone who received it at its destination.4
¶59. If one of Brooks Oil’s drivers delivered the fuel, Cheney would receive the bill of
lading from that driver, enter it into Brooks Oil’s computer system, which in turn generated
the invoice for that fuel delivery. If Brooks Oil hired another carrier to deliver the fuel,
Cheney would obtain the bill of lading from that carrier, enter it into the system, and generate
the invoice. Brooks Oil would then send the invoice (via fax) to Wilburn Oil, typically
within three days.
4 According to Murphree, not every bill of lading is signed because the store might be closed when a driver makes a delivery. She said this is standard practice because there is documentation that the fuel was picked up.
19 ¶60. Brooks Oil introduced the commercial invoices it received from its supplier. These
show the amount of fuel the driver picked up at the loading rack and how much the supplier
charged Brooks Oil for the fuel. These too contain a bill-of-lading number that corresponds
with the bill of lading received by Brooks Oil.
¶61. Brooks Oil submitted a record of every payment received by Wilburn Oil throughout
its relationship with Brooks Oil, called a “Customer Payments Report.” Murphree testified
that the report shows the payments by Wilburn Oil and what invoices it paid. She said that
when a payment is entered into Brooks Oil’s computer, you go to the customer’s account,
which shows what is outstanding, and it allows you to apply that payment to the outstanding
invoice. Murphree explained by example that if a $100,000 deposit is made, $80,000 may
go to one of Wilburn Oil’s accounts, and $20,000 may go to another of Wilburn Oil’s
accounts. Murphree testified that the payments by Wilburn Oil were credited to the oldest
invoice and that you have to look at all the accounts to make a balance.
¶62. Significantly, there was no simultaneous invoice billing in this instance due to the pay
arrangement agreed to by the parties from May 2011 to March 2013. During this period,
Wilburn Oil paid Brooks Oil estimated even amounts for shipments of fuel prior to receiving
an itemized invoice or bill for the fuel.
¶63. Without question, this pay arrangement would lead to much trouble for these parties.
But it is what they agreed to in the performance of their unwritten contract for supplying fuel
to Wilburn Oil’s stores. See Natchez Elec., 968 So. 2d at 362-63 (explaining how parties can
establish an unwritten contract for the sale of goods by conduct and course of dealing).
20 ¶64. As Wood testified, at the beginning of the business relationship, they initially tried to
pay the exact amount “on the day that the load was pulled.” But they were unable to do so
“due to the timing and just the nature of the beast[.]” Wood said that because “bill of ladings
could not be sent to Brooks by those entities in which those things were being created, . . .
we could not ever get a full total exact amount given.”
¶65. Although Wood and Jerry Wilburn admitted at trial that neither of them ever dealt
with the faxed invoices sent from Brooks Oil, both claimed that Wilburn Oil often had
trouble receiving invoices in a timely manner. Brooks Oil, however, provided testimony that
it had to send the same invoice to Wilburn Oil numerous times, which created new print dates
and fax dates.
¶66. This factual dispute between the parties was of no consequence in the case. Even if
Wilburn Oil did not, in fact, receive a particular invoice in a timely manner, this alone did
not mean that the invoice was incorrect. Nor did it excuse Wilburn Oil from owing on the
fuel it admittedly had received as identified by the invoice and the bill-of-lading number.
¶67. Based on our review of the record, Brooks Oil presented sufficient evidence to make
a prima facie case for its open-account debt claim against Wilburn Oil. Brooks Oil
demonstrated the “relationship” between its record entries and the “events they
represent[ed].” E.g., Cardinal Health, 2009 WL 1298218, at *3. Brooks Oil’s evidence
described the standard practice of doing business with Wilburn Oil. And Brooks Oil
submitted testimony attesting to the accuracy of the invoices sent to Wilburn Oil for payment.
Accordingly, the burden shifted to Wilburn Oil to demonstrate that the debt amount was
21 incorrect.
¶68. Wilburn Oil’s assertion at trial that Brooks Oil failed to comply with the requirements
set forth in Natchez Electric and therefore failed to make a prima facie case for open-account
debt owed by Wilburn Oil was without basis in fact and law.
Assertion Two
¶69. Wilburn Oil contended at trial, and maintains on appeal,5 that even if Brooks Oil
demonstrated a prima facie case, Wilburn Oil overcame it by showing that Brooks Oil’s
claim was incorrect. Wilburn Oil submits that the proof at trial was uncontroverted that
Wilburn Oil paid in full the amount it was informed to pay by Brooks Oil “each and every
time it received fuel from [Brooks Oil].”
¶70. Again, the record belies this assertion. As mentioned, Wilburn Oil did not submit any
of its own accounting or business records at trial. Instead, Wilburn Oil relied on the
testimony of Jerry Wilburn and Wood for the claim that Brooks Oil’s records were incorrect
because Wilburn Oil always paid or eventually paid what Brooks Oil told it to pay.
¶71. This, according to Wilburn Oil, was shown by Cheney’s and Murphree’s own
testimonies. For example, Cheney was asked on cross-examination, “Now, you would tell
[them] what to pay and they would pay?” Cheney responded, “Uh-huh (indicating yes).”
Murphree was asked by defense counsel: “in 2013, the Wilburns were continuing to pay what
they were asked to pay in January of 2013, weren’t they?” She replied: “Whatever Kim told
5 Wilburn Oil and Jerry Wilburn filed a motion to correct a minor, inadvertent omission in their brief to this Court. Because the change does not prejudice Brooks Oil, this Court grants the motion.
22 them to pay they would pay, that’s correct.”
¶72. Wilburn Oil also maintained throughout trial that the agreement between Jerry
Wilburn and Tommy Brooks was that Wilburn Oil had three to four days to pay what Brooks
Oil told them to pay or they would be cut off. Wilburn Oil pointed to testimony from Cheney
in which she said that when a payment or bank transfer was returned, she would inform
Wilburn Oil that it had to get it paid before Brooks Oil would deliver any more fuel. Wilburn
Oil contended that because Brooks Oil continued supplying fuel to Wilburn Oil, “it would
be impossible for Wilburn Oil to ever have a debt.”
¶73. But what the record illustrates is that the payments made by Wilburn Oil were not
earmarked for specific invoices. Rather, as shown by the Customer Payments Reports
submitted by Brooks Oil and testimony from Murphree, the payments made were often
applied to preexisting invoices and sometimes to invoices in one of Wilburn Oil’s other nine
accounts. This resulted in partial payments being applied to certain invoices.
¶74. For example, the report shows that Wilburn Oil made a payment of $55,000 on
November 8, 2012. It was applied to five different invoices dated October 22, 23, and 24,
2012. One of the invoices was 137109, which totaled $16,592.07. Brooks Oil applied
$5,599.86 of the $55,000 November 8 payment to invoice 137109 on October 22. This left
a remaining balance of $10,992.21 for that invoice. On November 30, 2012, Wilburn Oil
made a payment of $28,000.6 Brooks Oil applied $10,992.21 of that $28,000 payment to the
6 The Customer Payments Report shows that Wilburn Oil made thirteen other payments between November 8 and November 30, 2012: November 9, $30,000; November 13, $95,000; November 14, $25,000; November 15, $50,000; November 15, $55,000; November 19, $55,000; November 20, $45,000; November 21, $28,000; November 23,
23 remaining balance for invoice 137109, thereby closing it out. Murphree testified that this
was the only way to run the account based on Tommy Brooks’s and Jerry Wilburn’s
agreement that Wilburn Oil would pay estimated even amounts for shipments of fuel.
¶75. “As a general rule, a debtor paying money to his creditor has the primary and
paramount right to direct the application of this money to such items or demands as he
chooses.” Williams v. Stockstill, 82 So. 2d 450, 451 (Miss. 1955) (internal quotation marks
omitted) (quoting 70 C.J.S. Payment § 52). But “if a debtor directs no specific application
of a payment, the creditor may apply the payment to any one of the two or more debts the
debtor owes him or her in any manner necessary and appropriate to protect the creditor’s
interests . . . .” 70 C.J.S. Payment § 42 (footnotes omitted), Westlaw (database updated Mar.
2024).
¶76. No evidence was presented at trial that Wilburn Oil ever directed or requested that its
payments to Brooks Oil be applied to specific invoices throughout the May 2011-to-March
2013 period. And given the payment structure agreed to by the parties, Brooks Oil had every
right to apply the payments from Wilburn Oil in the manner it did.
¶77. This, again, resulted in partial payments being made to numerous invoices. And this
fact alone contradicts Wilburn Oil’s assertion that it could not possibly owe any debt to
Brooks Oil because it always paid what Brooks Oil told it to pay. As the record illustrates,
even if Wilburn Oil technically paid what Brooks Oil told it to pay, that does not mean
Wilburn Oil had paid everything that was actually owed.
$75,000; November 26, $50,000; November 27, $35,000; November 28, $25,000; November 29, $50,000.
24 ¶78. Also, as to Wilburn’s Oil’s contention that Cheney’s and Murphree’s testimonies
corroborated Wood’s and Jerry Wilburn’s testimonies that Wilburn Oil always paid what
Brooks Oil told them to pay, review of Cheney’s and Murphree’s entire testimonies show that
they do not support what Wilburn Oil submits. Neither Cheney or Murphree said or
indicated that by paying what Brooks Oil told it to pay, Wilburn Oil had paid everything that
was owed.
¶79. Cheney said in her testimony that when an EFT payment by Wilburn Oil was returned
for insufficient funds, Wilburn Oil “would pay what Mr. Brooks would ask them to pay in
order to continue [doing] business with them.” She also stated that “[t]here were times when
we would stop sending fuel and Mr. Brooks and Mr. Jerry would decide and he may pay a
certain amount and whatever.”
¶80. Murphree simply testified that Wilburn Oil would pay what Cheney told it to pay. She
maintained, however, that Wilburn Oil’s payments resulted in partial payments. And both
Murphree and Cheney testified that Wilburn Oil had fallen significantly behind with its
payments in early 2013.
¶81. Lastly, while Wilburn Oil did not explicitly admit at trial that it owed Brooks Oil for
any of the alleged 104 unpaid invoices, the record shows that Wilburn Oil did acknowledge
that there was past debt. Immediately following the joint review by Murphree and Webb,
Jerry Wilburn paid Brooks Oil $200,000 to go toward past debt. And he agreed to a two-
cent-per-gallon increase on all future purchases to go toward past debt.
¶82. Also, Wood testified that he did not know if Wilburn Oil owed money or did not owe
25 money to Brooks Oil. He simply claimed that “[w]e didn’t have the information we needed
to paint the picture.”
¶83. The picture showing that Wilburn Oil still owes Brooks Oil money for fuel it had
received from Brooks Oil was painted at trial by Brooks Oil’s records. And nothing that
Wilburn Oil submitted at trial changed it.
¶84. In other words, Brooks Oil’s evidence at trial made out a prima facie case of open-
account debt owed to it by Wilburn Oil. The burden then shifted to Wilburn Oil to prove that
it did not owe any debt to Brooks Oil. As the record demonstrates, Wilburn Oil failed to do
so. Accordingly, Brooks Oil was entitled to a JNOV in its favor for its claim that Wilburn
Oil remains liable to Brooks Oil for open-account debt owed.
¶85. Similar to what this Court found to be the case in Natchez Electric, the actual amount
owed to Brooks Oil remains in question. The jury here did not determine any damages for
Brooks Oil. And based on the evidence before us, we find “that reasonable jurors could
disagree as to the amount owed.” Natchez Elec., 968 So. 2d at 363.
¶86. Further, because the jury’s verdict on the open-account claim nullified Brooks Oil’s
claim regarding the two guaranty agreements, a new jury will have to determine the
¶87. Accordingly, we reverse the trial court’s judgment denying Brooks Oil’s motion for
a JNOV, and we remand this case to the trial court for a new trial on the amount of damages
and the enforceability of the two guaranty agreements. Id. “The new trial shall allow
whatever evidence is necessary, under the rules, to be presented so that the parties may fairly
26 present and defend their claims accordingly.” Baker & McKenzie, LLP v. Evans, 123 So.
3d 387, 417 (Miss. 2013).
CONCLUSION
¶88. The verdict in favor Wilburn Oil on Brooks Oil’s open-account suit is not supported
by substantial evidence. Having proved by substantial evidence that Wilburn Oil remains
indebted to Brooks Oil for fuel purchased and delivered to it by Brooks Oil, Brooks Oil was
entitled to a judgment in its favor as a matter of law for Wilburn Oil’s open-account debt.
¶89. We therefore reverse the trial court’s judgment on both suits, and we remand the case
for a new trial on damages and enforceability of the guaranty agreements.
¶90. ON DIRECT APPEAL: REVERSED AND REMANDED. ON CROSS-APPEAL: AFFIRMED.
RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR. MAXWELL, J., NOT PARTICIPATING.