
NO. 07-07-0182-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

AUGUST 8, 2007
______________________________

JANE KIBLER, 

								Appellant

v.

ROY GATES, 

								Appellee
_________________________________

FROM COUNTY COURT at LAW NO. 2 of TRAVIS COUNTY;

NO. C-1-CV-06-005345; HON. ROSE SPECTOR, PRESIDING
_______________________________

Memorandum Opinion
_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

	Appellant Jane Kibler (Kibler), appearing pro se, appeals from a take-nothing
judgment granted in favor of appellee Roy Gates (Gates) in her lawsuit to collect upon a
promissory note.  Through four issues, she contends that the trial court erred in entering
such a judgment because Gates 1) failed to file a verified denial of the authenticity of his
signature on the note, 2) failed to file any affirmative defenses in avoidance of her claims,
3) failed to file an accounting pleading his payment on the note, and 4) committed perjury
in his testimony which "perpetrate[d] a fraud on the Court . . . and upon Kibler."  We
reverse the judgment.  
 Background
	Kibler purchased a 1999 Chevrolet Tahoe in 2001 and leased it to Gates. (1) 
Thereafter, she offered to sell the vehicle to him for $3000.  To consummate the
transaction, a $3000 promissory note was signed, and the truck was identified in the note
as collateral securing payment.  When the note came due in February of 2006, Gates
failed to pay it.  This instigated appellant's suit in the justice court for breach of contract
and fraud.
	The justice court held in favor of Kibler.  However, upon Gates' appeal to a Travis
County court at law, recovery was denied her.  According to the county court, she allegedly
failed to prove up the terms of the note or present sufficient evidence establishing the
amount of money due.  This was allegedly so despite Kibler tendering the written note into
evidence, Gates admitting to the trial judge that he did not pay any of the $3000 upon
maturity of the instrument, and Gates failing to file any pleadings (verified or otherwise)
disputing the authenticity of his signature on the note or of the note itself or asserting any
defenses to the instrument.   
 Issues One, Two, and Three
 As previously mentioned, Kibler and Gates represented themselves pro se at trial. 
On appeal, Kibler acts pro se while Gates filed no responsive brief pro se or otherwise. 
Furthermore, through her first three issues she effectively questions why the trial court
failed to award her judgment given what she believed to be the evidence of Gates' liability
and his failure to present any pleadings asserting defenses to it.  We too find fault in the
trial court's decision.
	Though not a negotiable promissory note, the written document nonetheless states
that it is "payable to Jane Kibler in the original principal amount of $3000.00," payable in
one payment with a "due date [of] February 1, 2006" and interest to accrue at an "annual
percentage rate [of] 10%."  Furthermore, the "borrower: Roy Gates" granted the "Lender
[Jane Kibler] a security interest in" the truck for which the note was given, according to the
face of the instrument.  Finally, both Gates and Kibler signed the document on January 4,
2006.  Despite the trial court's finding that there was "insufficient evidence of the terms of
the alleged agreement," we hold that to be incorrect.  As can be seen, the written note
specifies the terms of the contract between Gates and Kibler.  The former agreed to pay
the latter $3000 plus interest at 10% per year on February 1, 2006.  What terms went
missing are unmentioned by the trial court, and we find none missing in this simple
instrument.  
	As to the finding that there was "insufficient evidence that [Gates] owes the amount
sought," Gates admitted to the trial court that he paid none of the $3000 when the note
came due.  This admission was in direct response to a question posed by the trial judge. 
Moreover, Gates filed no answer 1) setting forth any affirmative defense, 2) claiming 
payment, or 3) denying the authenticity of either his signature or the instrument.  This is of
import for one claiming that he did not execute a written document must so assert via a
verified responsive pleading.  Tex. R. Civ. P. 93(7) (requiring a party who denies the
execution of any written instrument upon which any pleading is founded to do so by oath
in a responsive pleading).  Should he not, then the instrument is received into evidence as
fully proved.  Wheeler v. Security State Bank, N.A., 159 S.W.3d 754, 756-57 (Tex. App.-
Texarkana 2005, no pet.); Boyd v. Diversified Fin. Systems, 1 S.W.3d 888, 891 (Tex.
App.-Dallas 1999, no pet.).  Similarly, a claim of payment is an affirmative defense that
must be plead.  Tex. R. Civ. P. 94.  Should the defense not be so plead, the defendant
waives it.  In re S.A.P., 156 S.W.3d 574, 576 (Tex. 2005).  So, because Gates filed no
responsive pleading asserting any defense or claim, he could not question his execution
of the instrument.  And, given his admission of non-payment and the clarity of the written
terms contained in the instrument itself, we hold that Kibler proved, as a matter of law,
Gates' liability to her for $3000 plus 10% interest per annum.  In deciding otherwise, the
trial court harmfully erred.  	
	Issue 4 - Perjured Testimony
 In her last issue, Kibler contends that Gates perjured himself in the courtroom and,
thereby, committed a fraud upon her and the court.  We overrule the issue.
	Inconsistencies in the testimony of Gates was for the trial court, as fact finder, to
resolve, and the weight of his testimony was to be determined by the trial court.  Rice Food
Markets, Inc. v. Ramirez, 59 S.W.3d 726, 736 (Tex. App.-Amarillo 2001, no pet.).   To the
extent that Kibler points out inconsistencies in his testimony in the justice court and the
county court at law as proof of Gates' perjury, the same is not supported by the record
because we have no transcript of the justice court trial before us.  The same is also true
of Kibler's complaint regarding statements made by Gates off the record.  Though she
attempted to establish them by attaching extrinsic matter to her brief, an appellate court
may not consider matter omitted from the appellate record.  Burke v. Insurance Auto
Auctions Corp., 169 S.W.3d 771, 775 (Tex. App.-Dallas 2005, pet. denied).  And,
attaching such matter to the briefs or in an appendix does not make them part of the
appellate record.  Bencon Management & General Contracting, Inc. v. Boyer, Inc., 178
S.W.3d 198, 210-11 (Tex. App.-Houston [14th Dist.] 2005, no pet.).
	Accordingly, the judgment of the trial court is reversed and remanded to the trial
court for further proceedings consistent with this opinion.   

							Per Curiam


1. Kibler and Gates had resided together for a number of years, but were no longer doing so at the
time of trial.  

