West Davisville Realty Co., LLC v. Alpha Nutrition, Inc.

Excerpt

David Paolo appeals from a grant of a motion for summary judgment in favor of the plaintiff, West Davisville Realty Co., LLC, holding Paolo liable on a personal guaranty of a termination of lease agreement between the plaintiff and Alpha Nutrition, Inc. On appeal, Paolo argued that there was a genuine issue of material fact as to whether the plaintiff fraudulently induced him to personally guarantee the agreement. Paolo also averred that there was an issue of material fact as to whether the plaintiff provided consideration to Paolo to effectuate a valid contract. The Supreme Court held that Paolo's failure to plead fraud in the inducement against the plaintiff in his answer amounted to a waiver of the affirmative defense, and, therefore, his allegations against the plaintiff raised for the first time in opposition to summary judgment were inadequate to oppose summary judgment. Additionally, the Court concluded that there was sufficient consideration for the underlying contract with the corporation such that the personal guaranty was valid. Thus, the Supreme Court affirmed the judgment of the Superior Court.