First Citizens Bank of Cleveland vs. Carol Cross

This is the second time that this case has been before us on appeal. The case originated as a suit on two promissory notes executed by the defendant in favor of the plaintiff and secured by deeds of trust on real property owned by the defendant. The defendant filed a pleading incorporating a counterclaim, and a third-party complaint against one of the plaintiff's employees, which pleading alleges that the plaintiff, through its employee, breached its undertaking to arrange for additional insurance coverage on the mortgaged property. On the first appeal, this Court held that the trial court erred in denying the defendant's request for a jury trial. On remand, the plaintiff and the third-party defendant moved for summary judgment on the ground that the parol evidence rule bars consideration of the defendant's claim that the plaintiff, through its employee, agreed to contact the agent for the insurance company and arrange for additional insurance on the mortgaged property. The trial court granted the movants summary judgment and, upon confirmation of a Master's report as to the amounts due under the notes, entered a judgment against the defendant. The defendant appeals. We affirm the trial court's grant of summary judgment to the plaintiff on the promissory notes; however, we vacate the grant of summary judgment as to the defendant's counterclaim and third-party complaint.