IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTI ON AT JACKS ON

UNITED AM

ERICAN BA NK ) OF MEMPHI S, ) ) Plaintiff/Appellee, ) Shelby Law No. 64144 ) vs. ) ) Appeal No. 02A01-9605-CV-00094 MYLAN FINANCIAL SERVICES, INC., ) ) Defendant, ) ) and STANLEY R. WAXMAN, ) ) Defend ant/Appe

llant. ) STANLEY R. WAXMAN, ) ) Plaintiff /Appella nt, ) Shelby Equity No. 107276-2

) (Consolidated with Shelby Law No. 64144 vs. ) on appea l) ) UNITED AM

ERICAN BA NK ) OF MEMPHI S, ) Appeal No. 02A01-9608-CH-00184 ) (C onsolidated with No. 02A01-9605-CV-0009 4 Defendant/Appellee. ) on appea l) APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY

AT MEMPHIS, TENNESSEE

THE HONORABLE JANICE HOLDER, JUDGE

For the Defendant/Appellee : For the Plaintiff/Appellant : Richard J . Myers Stanley R. Waxman, Pro Se Memphis, Tennessee Memphis, Tennessee

AFFIRMED

HOLLY KI

RBY LILLA

RD, J.

CONCUR:

W. FRANK CR

AWFORD, P. J., W.S.

ALAN E. HIGHERS, J.OPINION

This case involves an action to recover on a loan guar antee. The trial court entered a judgment in

favor of the plain tiff bank against th

e individu al guara

ntor. We affirm. Plaintiff/Appellee United American Bank of Memphis (“ UAB”) loaned Defendant Mylan Financial Service s, Inc. ( “Mylan” ) $50,300 , which wa s to be re paid, with

in terest , in ninety

days. Mylan’s president and board chairman, Defenda nt/Appellant Stanley R. Waxman (“Waxman”), signed a personal guaranty to secure the loan. The guar anty state s, in pertinent part, that Waxman:

. . . jointly and se verally guarantee[s] the full and prompt payment to said Bank [UAB] . . ., howso ever ev idenced , whethe

r now exi sting or he

reafte r crea te d or arising, whether . . . through discount, overdraft, purchase, direct loan or a s collate

ral, or otherwise; and [Waxman] further agr ee[s] to pay all expenses, legal and/or otherwise. . . . * * * This guarant

y shall be a

continuin g, absolut

e and unco nditional g

uaranty , and sha

ll remain in full for

ce and e ffect . . . until any and all said indebtedness . . . shall be fully paid. Waxman then assigned 100,000 shares of Members Service Corporation stock to UAB as collateral for the loan. The guar

antee st ated exp ressl y that it was unaffected by UAB’s action, or inaction, with resp ect to an

y collate ral: The liability hereunde

r shall in no wise be affected or impaired by . . . any acceptance by said Bank of any security . . . or by any failure, neglector omission on the part of said Bank to realize upon or protect any. . . collatera l or security. [T]hereshall be no obligation on the part of the said Bank at any time to first . . . exhaust its remedies against. . . any collateral, security, property, liens or other rights whatsoever. During the ninet

y days leading up to the due date on the loan, Waxman made some interest payments

. During thi s period t he value of th e st ock, originally $2. 625 per sh are, fe ll to near ly nothing. When the debt became due, UAB extended the du e date by four days, and Waxman alleged ly paid $10, 000 towar

ds the pri nciple

of the loan. When final payment w as demanded, both Mylan and Waxman refused to pay. UAB then filed suit against both. In Waxman’s answer, he admitted the debt and his obligation as guarant or. His primary defense was that UAB had a duty to liquidate the stock when the value started dropping, when such liquidation would hav e paid of f th e debt, and that UAB failed to do so. Waxman argues UAB should therefore be barred from see king recovery against him as guarantor. UAB filed a motion for summary judgment. The trial court denied UAB’s motion in order to allow Waxman to c onduct disco very. UA B eventua lly rene wed its mot

ion for su mmary judg ment.2

In its motion for summary judgm ent, UAB n oted that Waxman’s answer admitted the following: 1. Mylan and Waxman entered into the Note and Guar anty; 2. The Note requires the defaul t ing party to pay all costs of collection, including attorne y’s fee s; 3. The Guaranty obligates Waxman to pay the loan evidenc ed by the Note p lu s interest and expe nses; 4. The loa

n evidenc ed by the Note is in de fault; 5. The amount due on the Note as of August 19, 1994 is $41,388.06 in principal and interest with interest accruing at a rate of $9.73 ther eafter. Waxman deniedonly the late charges due on the account, stating that they wer e “not in a ccord w ith Note.” UAB maintained that the only evidence upon which Waxman relied washis own testimony that he was told by a U AB officer that if the price of the stock pledged a s collateral fell below a certain level, he

“would ha

ve to sell t

he secur ities.” U

AB asserted that this evidence was inadmissible parol evidence which directly contradicted the plain ter ms of the guaranty. In a brief order, the trial court granted summary judgment in favor of UA B. The trial court subseque ntly held a hearing on damages, and entered jud gment for UAB in the amount of $56,450.98 in principal, interest, late fees and attorney’s fee s. Waxman then filed seve r al post judgmentmotions, which were denied. Waxman now appeals the grant of sum mary judg ment in favor of UAB and the trial c ourt’s de nial of W axman’s post-tria l motions. This Court must d

etermine whether summary ju dgment wa s p roperl y granted in this case. Summary judgme nt is appropriate where there is no genuine issue of mate rial fact relevant to the claim or defense contained in the motion, and the moving party is entitled to a judgment as a matter of law. Carvell v

. Bottoms , 900 S.W.2d 23, 26 (Tenn . 1995); Byrd v. Ha ll , 847 S.W.2d 208, 210 (Ten n. 1993). In our consideration of whether the motion for summary judgment was pro perl y grantedin this case, we must view the evidence in the light

most favo

rable to the nonmov

ing party and draw all reasonable inferenc es in the nonmoving party’s favor. Byrd , 847 S.W.2d at 210-11. Waxman argues that the trial court erred in granting UAB’s motion for summary judgment. UAB contends that summary judgment was appropriate because W axman admitted the debt i n his

answer and bec ause Wa

xman had n o evidenc e to suppor t his affi r ma tive def ense exc ept inadm

issible parol evidence. UAB also maintains that the guaranty Waxman signed stated that Waxman was responsi ble for the loan eve

n if UAB fa

iled “to realize upon or protect” any “collate ral or security.”3

I n Marriott Empl

oyees’ Federal Cr

edit Union v

. Harris , 897 S.W.2d 723 (Tenn. App

. 1994), the borrower claimed that the financial institution had a duty to monitor the market value of the stock pledged as collateral for the loan. This Court found that Tennessee’s Uniform Commercial Code (“U.C.C. ”) esta

blishes a duty on the part of a secured party to preser ve pledged collateral. Id. at 727. This d

uty require s the sec ured par ty to “use reasonable care in the custody and pre servation of collateral in his possession.” Id. (quoting Tenn. Code Ann. § 47-9-207(1) (1992)). However, the duty was defined to refer to the physical protection of the collateral, not the diminution in value of pledged stock: “The pledgee is not liable for a decline in value o f pledge d instrume nts, even if timely action could hav e preve

nted such declin e.” Id. (quot ing Restatem ent of Sec urity § 18 cmt. a. Theref ore, in the absence of an express agreement to monitor the value of the stock, UAB did not owe Waxman a duty to monitor its value. The guarant

y signed by Waxman states expressly that it is unaffected by any fa ilure by UAB to “realize upon or

protect” the stock, and that U AB had no o

bligation t

o first “e xhaust its r

emedies ”

as to the stoc

k. Waxma

n sought to

introduc e his testimony that a UAB offic er promis ed to sell the stock if its value fell below a certain level, an alleged or al agreement in direct contradiction to the plain terms of the guaranty. “Where [an agreeme nt] is an unconditional promise on its face, parol evidence is inadmissible to show an oral condition.” Farmers & Merchan ts Bank v. Pe tty , 664 S.W.2d 77, 81 (Tenn. App. 1983) (citing Seaton v. Dye , 37 Tenn. App. 323, 263 S.W .2d 5 44 (1954)); see also H

arry J. Whelchel Co., Inc. v. Ripley Tractor Co. , 900 S.W.2d 691, 693-94 (Tenn. App. 1995). Be cause W axman’s only evide nce of a duty by UA

B to sell the stock before its value fell was inadmissible parol evidence that directly contradicted the express terms of

the guaranty, the trial court’s implicit ruling in UAB’s favor on this issue is affirmed. Waxman also argues that the trial court erred in denying his second motion to compel. He maintains that UAB gave inc omple te answers to his interrogatories and request for produc tion of document s. UAB claims it provided all appropriate discovery, that any failure of the court to compel d iscovery was caused by Waxman’s never se tting a court date to hear his first motion, and that Waxman had no evidence that UAB had not fully complied with discovery requests ot he r than references to docume

nts in his po ssession th at UAB ha d allege dly not gi ven him. Trial court decisions regarding pretrial discovery rest within the “sound discre tion” of the trial court. Benton

v. Snyder , 825 S.W.2d 409, 416 (Tenn. 1992). Suc h decisio ns shall no t be reve rsed on a ppeal unl ess4

that discretion was abused. Id. After reviewing the record, we find no abuse of discretion, and affirm the trial court on this issue. Waxman appeals the trial court’s denial of his post-judgment motion regarding the amount of damages awarded to U AB. In his m o tion, Waxman requested that the trial court set aside the judgmentagainst him because UAB relied upon perjured testimony and fal s ified doc uments in pursuing its claim on summary judgment. Waxman alleged that UAB official s m isstated the per diem amount owed on the account, and pointed out other alleged bookkeeping errors that he believes resulted in the trial court awarding damagesgreatly in exces s of what was truly owed. In support of his asser tion, Wax

man attac hed copie s of ban k records pertaining to his account, with the bookkeeping mistakes highlighted for the court’s convenience. In thi s motion, Waxman also alleged that Allison Vinberg, the manager o f Waxman’ s commercial loan portfolio who identified the records during the hearing on damages, perjured herse lf by attesting to the ver acity of these document s. The record does not show that Waxman raised this issue during the damages hearing, but rather after

summary judgment had been granted to UAB. There is no indication in the recor d that this info rmati on was not available prior to the entry of judgment. The decision to deny Waxman’ s motion for

relief w as within

the trial court’s discretionand will not be reversed absent

a finding of abuse. See Banks v. De ment Const. Co ., 817 S.W.2d 16, 18 (Tenn. 1991). The record does not indicate that the trial court abused its discretion. Consequently, the trial court is affirmed on this issue. Waxman next argues that the trial court erred in failing to grant a number of his remaining post-judgmentmotions, fi led afte r summary

judgment w as enter

ed again st him. In these

motions, Waxm an assert ed improper service of process, and moved to a mend his answer to include affirmative defenses of breach of fiduciar y duty, breach of contract, fraud, misrepr esentation, and breach of the covenant of good faith and f air dealing. With a few specified exceptions, under Rule 12 of the Tenness ee Rules o f CivilProcedure, defenses must

be raised in the pleading or motion filed in response to the complaint. If not, they are deemed waived. See Barker v. Heekin Can Co. , 804 S.W.2d 442, 444 (Tenn. 1991). Inthis case, Waxman first raised these defenses in motions filed after summary judgment was entered in favor of UAB. Consequently, they are wai ved. The trial court denied Waxman’s motions for lack of jurisdiction; however, this Court can affirm the result on different grounds. See Continental Ca s.5

Co. v. Smith , 720 S.W.2d 48, 50 (Tenn. 1986). Therefore, the trial court ’s d enial of Waxman’s remaining post-judgment motions is affirmed. The decision of the trial court is affirmed. Costs are taxed against theAppellant, for which execution may issue if necessary.

HOLLY KIRBY LILLARD, J. CONCUR:

W. FRAN K CRAWF ORD, P.J., W.S.

ALAN E. HIGHERS, J.