BANK OF AMERICA APPELLANT v. LINDA LILLY APPELLEE (2012)

ON MOTION FOR REHEARING

Pending before the Court is the motion for rehearing filed by Bank of America, N.A. Through it, the bank asserts that we erred in affirming the trial court's summary judgment in Linda Lilly's favor.   The bank argues the affidavit of Loan T. Pham, attached to its brief filed in June 2011, “recited verbatim the terms of the Guaranty executed by Linda Lilly” and contained the legible form of the guaranty sufficient to establish the terms of the guaranty agreement at issue.

The bank is correct that we neither mentioned the Pham affidavit in our opinion nor considered it in our disposition of the appeal.   That is because the Pham affidavit, though attached as an exhibit to the bank's brief, was not contained in the clerk's record on appeal.   In fact, the affidavit is dated in June 2011, over a month after the trial court's final judgment in Lilly's favor.   The law precludes our consideration of the Pham affidavit on appeal of the no-evidence summary judgment the court granted Lilly.  Canton–Carter v. Baylor College of Medicine, 271 S.W.3d 928, 932 n.2 (Tex.App.—Houston [14th Dist.] 2008, no pet.) (in appeal of summary judgment, appellate court could not consider documents attached to appellate brief that were not part of appellate record);  Dashtgoli v. Eye Care of Austin, P.A., No. 03–06–00744–CV, 2008 Tex.App. LEXIS 5552, at *10 (Tex.App.—Austin July 23, 2008, no pet.) (mem.op.) (in appeal of summary judgment, court cannot consider documents that were attached to briefs but were not before the trial court and not part of the record);  see Guajardo v. Conwell, 46 S.W.3d 862, 864 (Tex.2001) (not considering document attached to petition but not contained in clerk's record).

Bank of America, N.A.'s motion for rehearing is overruled.

James T. Campbell Justice