JEROME NAGELBUSH AND MIRIAM NAGELBUSH; JOHN V. CAPOZZI AND MARGARET A. CAPOZZI, APPELLANTS,
v.
UNITED POSTAL SAVINGS ASSOCIATION, APPELLEE
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Co-signers of a promissory note and mortgage appealed a summary judgment entered against them by a lender. The court reversed, finding genuine issues of material fact regarding alleged fraudulent inducement based on secret oral agreements that would have affected each party's liability.
The court held that genuine issues of material fact exist regarding the fraudulent inducement defenses, that parol evidence is admissible to establish fraudulent inducement to enter a contract despite the parol evidence rule, and therefore summary judgment was improper and must be reversed.
[1] Parol evidence is admissible to establish that a party has been fraudulently induced to enter into a contract.
[2] Genuine issues of material fact concerning affirmative defenses may preclude summary judgment.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The record, in our view, raises genuine issues of material fact concerning certain affirmative defenses pled by the Nagelbushes and Capozzis centering around an alleged oral understanding between United Postal and the Capozzis, which was allegedly kept secret from the Nagelbushes, that United Postal would look solely to the Nagelbushes for payment on the subject promissory note.”
Establishes the existence of material fact disputes regarding the fraudulent inducement defense
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Join FLexlaw to unlock all legal intelligenceJerome and Miriam Nagelbush and John and Margaret Capozzi co-signed a promissory note and mortgage held by United Postal Savings Association. The Capo…
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PER CURIAM.
This is a consolidated appeal taken by the co-signers of a promissory note and mortgage, Jerome and Miriam Nagelbush [hereinafter the “Nagelbushes”] and John and Margaret Capozzi [hereinafter the “Capoz-zis”], from an adverse final summary judgment entered in favor of the holder of the subject note and mortgage, United Postal Savings Association [hereinafter “United Postal”]. We reverse the summary judgment under review and remand for further proceedings based on the following briefly stated legal analysis.
The record, in our view, raises genuine issues of material fact concerning certain affirmative defenses pled by the Nagelbushes and Capozzis centering around an alleged oral understanding between United Postal and the Capozzis, which was allegedly kept secret from the Nagelbushes, that United Postal would look solely to the Nagelbushes for payment on the subject promissory note. This understanding, allegedly reached prior to the making of the promissory note, is said to have (a) fraudulently induced the Capoz-zis to sign the subject promissory note by assuring them that they would not be looked to for payment, and (b) fraudulently induced the Nagelbushes to sign the subject promissory note, as they allegedly would not have done so had they been aware that they, and they alone, were responsible on the said note. There is some evidence in the record which supports these defenses; moreover, we cannot agree that these defenses are not legally recognizable under the parol evidence rule, as, plainly, parol evidence is admissible to establish that a party has been fraudulently induced to enter into a contract. Hartsfield v. Williams, 145 Fla. 709, 200 So. 220 (1941); Tinker v. DeMaria Porsche Audi, Inc., 459 So. 2d 487 (Fla. 3d DCA 1984), pet. for review denied, 471 So. 2d 43 (Fla.1985); Cas-Kay Enters. v. Snapper Creek Trading Center, Inc., 453 So. 2d 1147 (Fla. 3d DCA 1984).
This being so, the final summary judgment under review cannot stand, see Nobles v. Citizens Mortgage Corp., 479 So. 2d 822 (Fla. 2d DCA 1985); Johnson & Kirby, Inc. v. Citizens Nat’l Bank of Fort Lauderdale, 338 So. 2d 905 (Fla. 3d DCA 1976); Pompano Paint Co. v. Pompano Beach Bank & Trust Co., 208 So. 2d 152 (Fla. 4th DCA 1968), and is hereby reversed and remanded to the trial court for further proceedings.
Reversed and remanded.
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Grossman v. Banco Indus. de Venezuela, 534 So. 2d 773 (Fla. 3d DCA 1988)…982); see General Motors Acceptance Corp. v. Marlar, 761 F. 2d 1517 (11th Cir.1985), vacated per stipulation, 774 F. 2d 1042 (11th Cir.1985); Chase Manhattan Bank v. Rood, 698 F. 2d 435 (11th Cir.1983). But cf. Nagelbush v. United Postal Sav. Ass’n, 504 So. 2d 782 (Fla.3d DCA 1987) (fraudulent promise to co-makers that other co-makers will pay joint obligation may be relied upon). Compare Payne v. Nicholson, 100 Fla. 1459, 131 So. 324 (1930) (collateral fraudulent promise may be relied upon). AFFIRMED.…
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Anderson v. Redden, 505 So. 2d 22 (Fla. 3d DCA 1987)…PER CURIAM. The summary judgment below is reversed because the plaintiff-movant did not conclusively obviate the affirmative defense of fraud. See Nagelbush v. United Postal Savings Ass’n, 504 So. 2d 782 (Fla. 3d DCA 1987); Holly Hill Acres, Ltd. v. Charter Bank, 314 So. 2d 209 (Fla. 2d DCA 1975); see also Aroll v. ITT Commercial Finance Corp., 496 So. 2d 1011 (Fla. 3d DCA 1986); O’Neal v. Brady, 476 So. 2d 294 (Fla. 3d DCA 1985); Proprietors Ins. v…
Authorities Cited
- Pompano Paint Co. v. Pompano Beach Bank & Tr. Co., 208 So. 2d 152 (Fla. 4th DCA 1968)
- Johnson & Kirby, Inc. v. Citizens Nat'l Bank OF Fort Lauderdale, 338 So. 2d 905 (Fla. 3d DCA 1976)
- Tinker v. De Maria Porsche Audi, Inc., 459 So. 2d 487 (Fla. 3d DCA 1984)
- Nobles v. Citizens Mortg. Corp., 479 So. 2d 822 (Fla. 2d DCA 1985)
- Hollis Rinehart, Jr. v. State ex rel. Wallace A. Bell, 145 Fla. 617 (Fla. 1941)
- Cas-Kay Enters., Inc. v. Snapper Creek Trading Ctr., Inc., 453 So. 2d 1147 (Fla. 3d DCA 1984)
- Hartsfield v. Williams, 145 Fla. 709 (Fla. 1941)