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 Corporati on (RMC) appeal a grant of summary

judgment in favor of the Federal Deposit Insurance Corporati on (FDIC). Finding no error, we affirm.

I.

Wallace, president of RMC, executed a promissory note (the Note), guaranteed by RMC, in

favor of Continental

Illino is 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 mo nt hs ending June 1, 1988. In exchange, Wallace and RMC1 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. 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 liabilit y and release in

the Forbearance Agreement. 1 Wallace 2 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 h i mself, 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 t hat Brooks's prom i se

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.The FDIC moved to strike the affidavits, arguing that because the Forbearance Agreement's

terms are clear and unambiguous, the Texas parol evidence rule b ars the introducti on of pri or or

contemporaneous oral discussions and negotiations that alter its terms. A magistrate considered and

rejected the FDIC's motion to strike, finding the affi davit s admissible as exceptions to the parol

evidence rule on t he basis of T own 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 liabilit

y 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. S amaad

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

p arty is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). S ee also Celote x 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 counterclai ms. With the parol evidence, Wallace may provide sufficient

evidence to raise a genuine issue of material fact, namely whether his participation in the Forbearance3 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). Agreement was fraudulently induced so that his admission of liabilit y 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 rul e

precludes the enforcement of inconsistent prior or contemporaneous agreements." H ubacek v. Ennis

State Bank, 159 Tex. 166, 317 S.W.2d 30, 32 (1958). S ee also Brannon v . Gulf States Energy

Corp., 562 S.W.2d 219, 222 (Tex.1977); H unt v. Bankers T

r ust Co., 689 F.Supp. 666, 674

(N.D.Tex.1987).

Texas grants an exception to this bar when a party seek s to offer parol evi dence 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." H unt, 689 F.Supp. at 674. In B roaddus, 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 B roaddus, 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 the4 Simpson v. MBank Dallas, N.A., 724 S.W.2d 102 (Tex.App.—Dallas 1987, writ ref'd n.r.e.).

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 R osas 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 r

esulting in uncertainty and confusion in the law of contracts in general and

negotiable instruments in particular.

Id. (emphasis added) (f

ootnote omitted). In addition, alt hough Rosas involved the making of a

promissory note, we cited a guarantee agreement case 4 as suppo rt 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 promisso ry 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 R osas, 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 promissory5 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. Gulfw ay 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. 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 promiss o ry no t e. 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 collect ing on the Note, thereby

extending the repayment period six months.

Wallace claims fraudulent s t at ement s by an agent of the FDIC induced him to accept this

modification of the Note. In B roaddus, 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, t he 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 mak e the requi red

showing of trickery. Wallace cont ends t hat the court impermissibly resolved a disputed issue of6 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. 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

obli gat ion, 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 t he 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. S ee Rosas, 964 F.2d at 356. As Wallace

has come fo rward with no evidence that the FDIC employed any trickery, artifice, or device i n

addition to Brooks's representation that the FDIC would not hold him liable when the N ote cam e

due, the summary judgment is AFFIRMED.