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Affirmed and Memorandum Opinion filed May 22, 2008.


In The


Fourteenth Court of Appeals



NO. 14-07-00086-CV










On Appeal from the County Court at Law No. 1

Harris County, Texas

Trial Court Cause No. 858757



M E M O R A N D U M   O P I N I O N

This is an appeal from the granting of a summary judgment in favor of appellee, JP Morgan Chase Bank (ABank@), the plaintiff in a suit seeking to collect on a guaranty executed by appellant, Thu Mong Nguyen.  We affirm.

Factual and Procedural Background

On or about December 23, 1999, Datacom Technology Services, Inc. (ADatacom@) executed a Business Revolving Credit Application and Agreement (the ACredit Application@) in the original principal amount of $50,000.00.  The Credit Application, once it was accepted by the Bank, created a revolving line of credit which allowed Datacom to borrow money up to the principal amount by writing checks provided by the Bank.  In addition, the Credit Application included language wherein appellant personally guaranteed repayment of all amounts borrowed by Datacom plus any accumulated interest.  The guaranty section of the Credit Application is entitled: APersonal Guaranties and Collateral Agreement.@  The guaranty provides:

If this application is approved, I/we individually and jointly, absolutely and unconditionally guarantee to Chase Bank of Texas, N.A. and its respective assigns the prompt payment of each and every obligation and liability of every nature and description of the Applicant to the Bank, whether now existing or arising in the future (AObligations@).  I agree that all Obligations will become immediately due without notice or demand from the Bank if the Applicant at any time breaches any term or condition of the note or Account Agreement(s) for which the Applicant has applied.  This Guarantee will continue even if the Bank is unable, for whatever reason, to obtain payment from the Applicant or other guarantor, or if any of the Obligations have been released or such Obligations are renewed or time for payment is extended.  I waive presentment, demand, protest, notice of non-payment or protest thereof, and furthermore waive all Rules of Suretyship law, rights of subrogation and any defenses which could be asserted by the Applicant, the undersigned or other guarantor.  This Guarantee shall continue in effect unless and until I give written notice to the Bank terminating my future liability under this Guarantee, in which event I recognize that this Guarantee shall continue in effect with respect to any and all Obligations incurred prior to the time the Bank receives such notice, including the amount of any undrawn revolving credit line or commitment to lend, whether or not conditional.

Subsequently, on or about January 9, 2004, at its request, Datacom=s line of credit under the Note was increased from $50,000.00 to $75,000.00.  However, the guaranty section of the credit agreement increasing Datacom=s line of credit to $75,000.00 was not completed or signed by appellant.

At a point in time not disclosed in the record, Datacom ceased doing business and failed to make payments as required by the terms of the note with the Bank.  Appellant also did not make the payments as required by the terms of the guaranty agreement.  The Bank eventually filed suit against  Datacom for breach of the promissory note and against appellant for breach of the guaranty agreement.  In response to the lawsuit, both Datacom and appellant filed answers asserting a general denial and a single affirmative defense: improper offset.

The Bank filed an amended motion for summary judgment on its claims against both Datacom and appellant.  Datacom and appellant filed their responses to the Bank=s motion.  In appellant=s response, appellant argued only that she had never signed a guaranty for the increase in the line of credit from $50,000.00 to $75,000.00 and was not personally liable for that amount.  The trial court granted the Bank=s motion and entered a final summary judgment holding Datacom and appellant jointly and severally liable for $79,379.71 in damages plus attorney=s fees of $3,000.00 for trial.

Following the trial court=s entry of its final summary judgment, appellant filed her motion for new trial.  In this motion, appellant raised the issues of unilateral mistake, mutual mistake, and material alteration for the first time.  At the same time, appellant filed her first amended answer where she asserted, for the first time, the affirmative defenses of unilateral mistake, mutual mistake, ambiguity, and material alteration.[1]  The trial court denied appellant=s motion for new trial and this appeal followed.


In four issues on appeal, appellant challenges the trial court=s final summary judgment.  In her first issue, appellant argues the trial court erred in granting the Bank=s motion because there were fact issues on the affirmative defense of unilateral mistake.  In her second issue, appellant contends the trial court erred because there were fact issues on the affirmative defense of mutual mistake.  In her third issue, appellant asserts the trial court erred in granting the summary judgment because the guaranty is ambiguous.  In a fourth, unnumbered issue, appellant contends the trial court erred in granting the Bank=s summary-judgment motion because there was a material alteration in the terms of the guarantee.[2]

A.      The Standard of Review

A plaintiff moving for summary judgment must conclusively prove all essential elements of its claim.  Cullins v. Foster, 171 S.W.3d 521, 530 (Tex. App.CHouston [14th Dist.] 2005, pet. denied).  In a traditional motion for summary judgment, if the movant=s motion and summary-judgment evidence conclusively establish its right to judgment as a matter of law, the burden shifts to the non-movant to raise a genuine issue of material fact sufficient to defeat summary judgment.  M. D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000).  The non-movant has no burden to respond to a summary judgment unless the movant conclusively establishes its right to summary judgment.  Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222B23 (Tex. 1999).  We review a summary judgment de novoValence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).  We take all evidence favorable to the non-movant as true and indulge every reasonable inference and resolve all doubts in the non-movant=s favor.  Id.

B.      Waiver

In its response brief, the Bank asserts appellant has waived each of the arguments raised in her appeal because each issue addresses an affirmative defense which she did not plead in her original answer.  We agree.

An affirmative defense is defined as Aa denial of the plaintiff=s right to judgment even if the plaintiff establishes every allegation in its pleadings.@  Hassell Constr. Co. v. Stature Comm. Co., 162 S.W.3d 664, 667 (Tex. App.CHouston [14th Dist.] 2005, no pet.) (quoting Bracton Corp. v. Evans Constr. Co., 784 S.W.2d 708, 710 (Tex. App.CHouston [14th Dist.] 1990, no writ).  An affirmative defense allows the defendant to introduce evidence to establish an independent reason why a plaintiff should not prevail; it does not rebut the factual proposition of the plaintiff=s pleading.  Id.  All affirmative defenses are waived when the defendant files only a general denial, and, absent trial by consent, failure to plead a matter of affirmative defense will preclude a defendant from asserting it.  Id.

Here, unilateral mistake, mutual mistake, ambiguity, and material alteration are all affirmative defenses.  See Kendziorski v. Saunders, 191 S.W.3d 395, 406 (Tex. App.CAustin 2006, no pet.) (unilateral mistake is an affirmative defense); Frost Nat=l Bank v. Burge, 29 S.W.3d 580, 588 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (material alteration is an affirmative defense); Marsh v. Marsh, 949 S.W.2d 734, 745 (Tex. App.CHouston [14th Dist.] 1997, no writ) (mutual mistake is an affirmative defense); Gonzales v. Norris of Houston, Inc., 575 S.W.2d 110, 113 (Tex. App.CHouston [14th Dist.] 1978, writ ref=d n.r.e.) (ambiguity is an affirmative defense).  The only affirmative defense appellant pled in her original answer was offset.  Therefore, because she did not plead mutual mistake, unilateral mistake, ambiguity, or material alteration in her original answer, appellant has waived consideration of those affirmative defenses on appeal.  Hassell Constr. Co., 162 S.W.3d at 667.

The fact appellant apparently tried to remedy the deficiency in her pleadings after the trial court had signed the final summary judgment by filing an amended answer does not change the result.  Rule 166a(c) provides that a motion for summary judgment is proper if the pleadings Aon file at the time of the hearing, or filed thereafter and before judgment with permission of the court, show that . . . there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion.@  Tex. R. Civ. P. 166a(c).  Here, appellant did not file her amended answer until after the trial court signed the final summary judgment, therefore, we cannot consider appellant=s amended answer even though it appears in the appellate record.  Id.; see also Taylor v. Sunbelt Management, Inc., 905 S.W.2d 743, 745 (Tex. App.CHouston [14th Dist.] 1995, no writ) (holding appellate court could not consider amended pleadings filed after summary-judgment hearing but before trial court signed the summary judgment where the appellate record was silent as to the trial court granting permission to file late amended pleadings).  Because appellant has waived consideration of the affirmative defenses of unilateral mistake, mutual mistake, ambiguity, and material alteration, and her issues on appeal addressed only those affirmative defenses, we overrule her issues on appeal.





Having overruled all of appellant=s issues on appeal, we affirm the trial court=s final summary judgment.






/s/      John S. Anderson






Judgment rendered and Memorandum Opinion filed May 22, 2008.

Panel consists of Justices Yates, Anderson, and Brown.



[1]  The Bank attached to its brief two documents purporting to be appellant=s motion for leave to file a trial amendment to her pleadings and the trial court=s order denying same.  However, neither document is found in the appellate record.  We may not consider exhibits or appendices attached to briefs that are not part of the appellate record.  Ramex Construction Co. v. Tamcon Services, Inc., 29 S.W.3d 135, 138 (Tex. App.CHouston [14th Dist.] 2000,  no pet.).  Therefore, we may not consider these documents in our review of the trial court=s final summary judgment.

[2]  In her brief, appellant only challenges the trial court=s granting of the Bank=s motion for summary judgment.  However, in her reply brief, appellant attempts to raise a new issue for review arguing the trial court erred when it denied her motion for new trial.  Because a party cannot raise a new issue for the first time in a reply brief, we do not address this issue.  Tex. R. App. P. 38.3; Dallas Co. v. Gonzales, 183 S.W.3d 94, 104 (Tex. App.CDallas 2006, pet. denied).