[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-11354 ELEVENTH CIRCUIT
DECEMBER 19, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 9:10-cv-80188-DTKH
REGIONS BANK,
an Alabama banking corporation,
successor by merger to AmSouth Bank,
Plaintiff-Appellee,
versus
OLD JUPITER, LLC,
a Florida limited liability company,
DILIP BAROT,
an Individual,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 19, 2011)
Before BARKETT, MARCUS, and BLACK, Circuit Judges.
PER CURIAM:
Appellants, Old Jupiter, LLC and Dilip Barot, allege the district court erred
when it granted summary judgment in favor of Regions Bank. Specifically,
Appellants assert the district court erred by (1) excluding oral representations
when interpreting the Loan Documents, (2) concluding Appellants’ affirmative
defense of equitable estoppel was precluded by the terms of the Note, (3)
improperly applying the law governing oral modifications, and (4) not vacating its
judgment and allowing Appellants to amend their pleadings based on new
evidence. After review, we affirm.1
I.
Appellants argue the court erred by not considering oral representations
made by Regions Bank that (1) the Note would mature in three years, and (2) the
Note would mature in one year, but at maturation, the bank would renew it or term
it out. Appellants also assert the agreement is incomplete because the Note does
not contain an integration clause and contend parol evidence should be admitted.
Under the fraudulent inducement exception to the parol evidence rule, courts
allow admission of oral misrepresentations which allegedly induced the execution
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The grant or denial of summary judgment is reviewed de novo. LaChance v.
Duffy’s Draft House, Inc., 146 F.3d 832, 834 (11th Cir. 1998). The denial of a motion for
reconsideration is reviewed for abuse of discretion. Big Top Koolers, Inc. v. Circus-Man
Snacks, Inc., 528 F.3d 839, 842 (11th Cir. 2008).
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of a written contract, even if the statements change the agreement. Johnson
Enterprises of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290, 1309-10
(11th Cir. 1998). The exception does not apply where oral representations directly
contradict the express terms of the agreement. Ungerledier v. Gordon, 214 F.3d
1279, 1284 (11th Cir. 2000).
The Note unambiguously provides the maturity date on which the full amount
owed was due. Even in an agreement without an integration clause, parol evidence
is only admissible to prove fraudulent inducement when it does not directly contradict
the terms of the agreement. See Ungerledier, 215 F.3d at 1285. Appellants sought
to introduce parol evidence which directly contradicts the maturation provision.
Thus, the district court did not err by not considering the parol evidence.
II.
Second, Appellants assert Regions Bank is estopped from enforcing the maturity
date of the Note because Regions Bank promised Barot if he signed the Loan
Documents, Regions Bank would allow Old Jupiter additional time to pay back
the Note. However, where statements are inconsistent with the definite terms of
the parties’ written agreement, a party cannot prove justifiable reliance. Advanced
Marketing Systems Corp. v. ZK Yacht Sales, 830 So. 2d 924, 928 (Fla. 4th DCA
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2002). As noted above, the statements on which Appellants rely are inconsistent
with the express terms of the Loan Documents. Therefore, the district court did
not err by rejecting Appellants’ equitable estoppel defense.
III.
Appellants next argue the district court improperly concluded the
Appellants offered no consideration sufficient to enter into a new contract or to
modify the existing one. We decline to consider this argument because Appellants
did not properly raise the issue of oral modification in their Complaint. See
Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).
Even if Appellants had properly raised this defense, it would fail because
Appellants have not provided sufficient evidence of valid new consideration. See
Schneir v. State, 43 So. 3d 135, 137-38 (Fla. 3d DCA 2010).
IV.
Lastly, Appellants assert new evidence from the post-hearing deposition of
an employee of Regions Bank, Douglas Gintzler, requires the district court to
reconsider its judgment. To prevail on a motion for reconsideration, the moving
party must present new facts or law of a strongly convincing nature. Slomcenski v.
Citibank, N.A., 432 F.3d 1271, 1276, n.2 (11th Cir. 2005). Courts properly deny
motions for reconsideration which “raise arguments which could, and should, have
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been made before the judgment is issued.” Lussier v. Dugger, 904 F.2d 661, 667
(11th Cir. 1990)(citation omitted).
In the present case, Appellants provided the court with an affidavit from
Gintzler at the summary judgment hearing, evidence that Appellants knew the
value of his testimony. Further, Appellants had sufficient opportunity to take
Gintlzer’s deposition prior to the hearing. The district court did not abuse its
discretion when denying Appellants’ motion for reconsideration.
AFFIRMED.
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