United States Court of Appeals,
Fifth Circuit.
No. 91–2524.
FEDERAL DEPOSIT INSURANCE CORPORATION, Plaintiff–Appellee,
Counterclaim–Defendant,
v.
Edward G. WALLACE, Jr.,
and
Republic Mineral Corporation, Defendants–Appellants, Counterclaim–Plaintiffs.
Oct. 20, 1992.
Appeals from the United States District Court for the Southern District of Texas.
Before KING, WILLIAMS, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Edward G. Wallace, Jr., and Republic Mineral Corporation (RMC) appeal a grant of summary
judgment in favor of the Federal Deposit Insurance Corporation (FDIC). Finding no error, we affirm.
I.
Wallace, president of RMC, executed a promissory note (the Note), guaranteed by RMC, in
favor of Continental Illinois Nat ional Bank (CINB) for $4 million on August 30, 1984. CINB
extended the Note three times, and under the third extension agreement, the Note became payable
on April 1, 1987. On April 14, 1987, CINB conveyed the Note to the FDIC but continued to act as
administrator of the Note for the FDIC. When Wallace failed to pay the Note when it became due,
the FDIC filed this suit on October 30, 1987.
The parties tried to settle the lawsuit by way of a forbearance agreement and other related
agreements (together, the "Forbearance Agreement"), executed on November 30, 1987, in which the
FDIC agreed to refrain from foreclosing on the collateral securing the Note and to stay the litigation
against Wallace for a period of six months ending June 1, 1988. In exchange, Wallace and RMC
admitted the validity of the Note, reaffirmed their respective obligations thereunder, and released all
existing claims against the FDIC. Wallace also deeded property into escrow as security for payment
of the Note. If the Note were paid or renewed by June 1, 1988, the FDIC would return the deeds
to Wallace; otherwise, the FDIC would record the deeds and pursue any deficiency on the Note.
Wallace did not pay the amount due by June 1, so the FDIC recorded the deeds and reinstated
this litigation. On June 3, the FDIC filed a motion for partial summary judgment against Wallace on
the Note and against RMC as guarantor, relying upon Wallace's admission of liability and release in
the Forbearance Agreement.1 Wallace2 counterclaimed, asserting that the FDIC had procured his
participation in the Forbearance Agreement by fraud when an FDIC vice-president, Robert Brooks,
orally assured Wallace that if Wallace were unable to secure additional financing, the FDIC would
renew the Note when it came due on June 1.
In support of his counterclaim, Wallace submitted affidavits from himself, Brooks, and D.
Chris Barden, a vice-president of RMC. Wallace swore that he had met with Brooks, in Brooks's
capacity as a representative of the FDIC, to discuss the Forbearance Agreement, that Brooks orally
assured Wallace that the FDIC would extend the June 1 maturity date, and that Brooks's promise
induced Wallace to execute the Forbearance Agreement. Barden swore that he was present when
Brooks, on behalf of the FDIC, promised further extensions of the Note before Wallace executed the
Forbearance Agreement. Brooks swore that he had led Wallace to believe that the FDIC would
renew the Note if Wallace could not pay it off by June 1.
1
The FDIC sought judgment on all issues except the amount of the deficiency on the Note and
the amount of attorneys' fees for which Wallace and RMC are liable. After the entry of partial
summary judgment on November 14, 1989, the FDIC sought final summary judgment on the
remaining two issues. On May 29, 1990, the court granted summary judgment to the FDIC as to
the amount of the deficiency. In its final judgment order of July 31, 1990, the court decreed that
the FDIC could recover stipulated attorneys' fees. In this opinion, we refer to these judgments
together as the summary judgment.
2
"Wallace" is used throughout this opinion to include Wallace and RMC, except where
Wallace is obviously acting in an individual capacity, such as swearing out an affidavit.
The FDIC moved to strike the affidavits, arguing that because the Forbearance Agreement's
terms are clear and unambiguous, the Texas parol evidence rule bars the introducti on of prior or
contemporaneous oral discussions and negotiations that alter its terms. A magistrate considered and
rejected the FDIC's motion to strike, finding the affidavits admissible as exceptions to the parol
evidence rule on t he basis of Town N. Nat'l Bank v. Broaddus, 569 S.W.2d 489, 493 (Tex.1978),
which allows the admission of parol evidence to show fraud in the inducement of a promissory note
if the fraud involves trickery. Concluding that these affidavits establish disputed issues of material
fact, the magistrate recommended that partial summary judgment be denied.
The district court disagreed, finding that the three affidavits Wallace introduced pertained
solely to the Forbearance Agreement and thus presented no summary judgment evidence on Wallace's
underlying liability on the Note. With respect to the Forbearance Agreement, the court decided that
under the Broaddus exception to the parol evidence rule, the affidavits should be stricken, as Brooks's
statement did not involve trickery. Therefore, the court struck the affidavits and entered summary
judgment on the Note in favor of the FDIC. This appeal ensued.
II.
In reviewing a summary judgment, we apply the same test as did the district court. Samaad
v. City of Dallas, 940 F.2d 925, 937 (5th Cir.1991). We will affirm a summary judgment when the
record evidence shows that there exists "no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Celotex Corp. v.
Catrett, 477 U.S. 317, 322–24, 106 S.Ct. 2548, 2552–53, 91 L.Ed.2d 265 (1986).
Without the parol evidence contained in the affidavits, Wallace is bound by the terms of the
Forbearance Agreement and has no issue of law or fact with which to contest summary judgment on
either the Note or the counterclaims. With the parol evidence, Wallace may provide sufficient
evidence to raise a genuine issue of material fact, namely whether his participation in the Forbearance
Agreement was fraudulently induced so that his admission of liability and release of all claims against
the FDIC on the Note was ineffective. The application of the Texas parol evidence rule and its
exceptions in the promissory note context is crucial to resolving this case.3
III.
The Supreme Court of Texas has defined the parol evidence rule as follows: "When parties
have concluded a valid integrated agreement with respect to a particular subject matter, the rule
precludes the enforcement of inconsistent prior or contemporaneous agreements." Hubacek v. Ennis
State Bank, 159 Tex. 166, 317 S.W.2d 30, 32 (1958). See also Brannon v. Gulf States Energy
Corp., 562 S.W.2d 219, 222 (Tex.1977); Hunt v. Bankers Trust Co., 689 F.Supp. 666, 674
(N.D.Tex.1987).
Texas grants an exception to this bar when a party seeks to offer parol evidence to show
fraud in the inducement to enter into a contract. We note, however, that "the exception is narrower
when the contract is a promissory note." Hunt, 689 F.Supp. at 674. In Broaddus, 569 S.W.2d at
494, the Texas Supreme Court held that in order to present evidence contradicting the express terms
of a promissory note, the maker must make a preliminary showing that the payee used "some type
of trickery, artifice, or device ... in addition to the showing that the payee represented to the maker
he would not be liable on such note." (Emphasis added.)
Broaddus is applicable to the instant case. In Broaddus, three men were co-makers on a
promissory note to a bank. After making one partial payment on the note, and receiving an extension
on the due date, they made no further payments. The bank filed suit on the note and moved for
summary judgment. The makers responded that the bank initially had promised to look to only one
of them for payment. The court, holding that the parol evidence rule barred the claim of fraud in the
3
The parol evidence rule is a rule of substantive law governing this case. Texas law is
applicable under ¶ 12 of the Forbearance Agreement. We therefore apply Texas law. See
Centronic Fin. Corp. v. El Conquistador, 573 F.2d 779, 782 (2d Cir.1978).
inducement because the makers had made no showing of trickery, affirmed summary judgment in the
bank's favor.
Importantly, the Broaddus court supported its decision to require a preliminary showing of
trickery in the promissory note context by noting that to do otherwise would lead to "uncertainty and
confusion in the law of promissory notes." We reiterated this policy in Rosas v. United States Small
Business Admin., 964 F.2d 351, 356 (5th Cir.1992) (per curiam), holding that absent a showing of
"trickery, artifice, or device" by the bank, the makers of the note could not introduce parol evidence
that they claimed extended the duration of the payout period on the note. We added the following:
If fraud could be predicated on a party's allegation of any oral promise to vary the
express terms of the note, then any collateral parol agreement might be asserted to contradict,
vary or even abrogate any written contract. The result would destroy the parol evidence rule
altogether resulting in uncertainty and confusion in the law of contracts in general and
negotiable instruments in particular.
Id. (emphasis added) (footnote omitted). In addition, although Rosas involved the making of a
promissory note, we cited a guarantee agreement case4 as support for our decision to apply the
Broaddus rule, thus further showing that we believed the principles implicated in Broaddus were not
limited narrowly to the making of a promissory note.
Taken together, Broaddus and Rosas establish the applicability of the "trickery" requirement
to the whole negotiable instrument context, not merely the making of a promissory note. An
important concern of the Broaddus court was the desire to avoid confusion not only in the making
of promissory notes, but more importantly, to encourage certainty in the overall law of promissory
notes. This desire encompasses the situation at issue here, essentially a modification of a promissory
note. Additionally, in Rosas, we emphasized our concern about eviscerating the parol evidence rule
in the "negotiable instruments" context; we did not constrain our fears to the making of a promissory
4
Simpson v. MBank Dallas, N.A., 724 S.W.2d 102 (Tex.App.—Dallas 1987, writ ref'd n.r.e.).
note. Rather, our analysis took us further afield, into the context of guaranty agreements.5
The case at hand is really about the modification of a promissory note—an act closely related
to the making of a promissory note. The disputed Forbearance Agreement required Wallace to
relinquish his defenses challenging the validity of the obligation on the Note and pledged additional
security on the Note. In exchange, the FDIC agreed to forbear in collecting on the Note, thereby
extending the repayment period six months.
Wallace claims fraudulent statements by an agent of the FDIC induced him to accept this
modification of the Note. In Broaddus, the makers of the note also claimed that fraudulent
statements by an agent of the holder induced them to accept the note. The court in Broaddus held
that, absent a showing of trickery, the parol evidence rule precluded the introduction of the prior,
allegedly fraudulent statements. We agree, concluding that the parol evidence rule bars the
introduction of Wallace's three affidavits unless there is some showing of trickery.
IV.
We now turn to the district court's determination that Wallace failed to make the required
showing of trickery. Wallace contends t hat the court impermissibly resolved a disputed issue of
5
We note that a split exists among the Texas courts of appeals as to whether the trickery
requirement applies to all contract cases or is limited to those in which the contract is a
promissory note. Some courts have extended the trickery requirement to an assortment of written
contracts. See David v. Bache Halsey Stuart Shields, Inc., 630 S.W.2d 754, 759
(Tex.App.—Houston 1982, no writ) (employment contract); Simpson v. MBank Dallas, N.A.,
724 S.W.2d 102, 108 (Tex.App.—Dallas 1987, writ ref'd n.r.e.) (guaranty agreement). Other
courts have restricted the requirement to cases involving an allegation of fraud in the inducement
of a promissory note. See Wagner v. Morris, 658 S.W.2d 230, 232 (Tex.App.—Houston 1983,
no writ) (suggesting trickery requirement limited to inducement to sign promissory note);
Lindeburg v. Gulfway Nat'l Bank, 624 S.W.2d 278, 281 (Tex.App.—Corpus Christi 1981, writ
ref'd n.r.e.) (trickery requirement applicable to allegation of fraud in the inducement to sign
promissory note). The split may be traced to Wagner, 658 S.W.2d at 232, where the court held
that the trickery requirement applied only to inducement to sign a promissory note. In a
concurring opinion, Chief Justice Evans stressed that the requirement applied to all written
contracts. Id. at 234.
material fact by finding that he made no such showing.6 We disagree.
The Broaddus court treated the preliminary showing of trickery as a question of law, not one
of fact. Although the issue of whether trickery actually occurred is a question of fact, determining
whether the maker of a note has made the requisite preliminary showing of trickery in order to
present his fraud evidence to the factfinder is a question of law.7 In Broaddus, 569 S.W.2d at 494,
the makers of the note offered an affidavit claiming that a bank officer had told them that only one
of them would be held liable on the note. The court held that this showing on its own did not suffice
to meet the trickery standard and, as the makers had presented no other proof to show the existence
of a genuine issue of material fact, summary judgment was appropriate. Id.
Likewise, in the instant case, the maker of the Note, Wallace, offered only affidavits tending
to show that the FDIC had made oral representations to him that he would not be held liable on the
obligation, even though the express terms of the Forbearance Agreement hold him liable. The
applicable test requires more: Wallace must have presented evidence that shows that the FDIC
employed "some type of trickery, artifice or device ... in addition to showing that [the FDIC]
represented to him that he would not be liable" on the Note. See Rosas, 964 F.2d at 356. As Wallace
has come forward with no evidence that the FDIC employed any trickery, artifice, or device in
addition to Brooks's representation that the FDIC would not hold him liable when the Note came
due, the summary judgment is AFFIRMED.
6
Wallace relies primarily upon Hunt v. Bankers Trust Co., 689 F.Supp. 666, 674
(N.D.Tex.1987), in which the court noted that "the issue of whether [the payee] engaged in
"trickery' is necessarily one of fact." The Hunt court did not mean for this statement to apply to
district courts' examinations of whether the maker of a note has made the requisite preliminary
showing of trickery necessary to present extrinsic evidence of fraud to the finder of fact. Instead,
the statement was made in the context of discovery. Following the above-quoted statement, the
court held as follows: "Accordingly, summary judgment may not be granted on the [disputed
note and guaranty] before Plaintiffs have had an adequate opportunity to discover any evidence
relevant to that issue [trickery]." Id.
7
If this were not the case, a court rarely would be able to award summary judgment in a
Broaddus -type case. To suggest otherwise would require a preliminary jury trial on the sole
issue of trickery before resolving the merits of a summary judgment motion.