American 10-Minute Oil Change, Inc., Bricar, Inc., Steven J. v. Metropolitan National Bank, Farmers Branch

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-01061-CV
AMERICAN 10-MINUTE OIL CHANGE, INC., FROM A DISTRICT COURT
BRICAR, INC., STEVEN J. SHIELDS,
E. M. DELOZIER, RALPH J. KAUFMANN,
DELF ANN DAWSON, MICHAEL A. HAMLIN,
CAREY MILLER AND BRIAN MILLER,
APPELLANTS,
V.
METROPOLITAN NATIONAL BANK-
FARMERS BRANCH,
APPELLEE. OF DALLAS COUNTY, TEXAS
BEFORE JUSTICES HOWELL, LAGARDE, AND WHITTINGTON
OPINION BY JUSTICE WHITTINGTON
AUGUST 15, 1989
Appellee Metropolitan National Bank - Farmers Branch
(Metropolitan) was granted summary judgment against
appellants, American 10-Minute Oil Change, Inc. (American),
as
maker, and Bricar, Inc., Steven J. Shields, E. M.
Delozier, Ralph J. Kaufmann, Delf Ann Dawson, Michael ,A.
Hamlin, Carey Miller and Brian Miller, as guarantors, for
deficiency on a promissory note. Appellants, in three points
of error, contend that the guaranties sued upon did not
guarantee any obligations of the primary obligor and that
Metropolitan's summary judgment evidence was insufficient as
a matter of law. We disagree and, with one modification,
affirm the summary judgment rendered against appellants.
Metropolitan, in a cross-point of error, asserts that the
trial court erred in awarding its attorney's fees in an
amount less than that supported by uncontroverted evidence.
We agree and render judgment in the amount requested by
Metropolitan.
Metropolitan brought suit against appellants on a
delinquent promissory note executed by American and guaranty
agreements executed by the other appellants guaranteeing the
indebtedness. Metropolitan filed its motion for summary
judgment supported by an affidavit from the assistant vice
president of the bank authenticating copies of the note and
guaranties and setting forth the balance owed after allowing
for all offsets, payments, and credits. Appellants responded
to Metropolitan's motion for summary judgment alleging that
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an incompleted portion of the guaranties, which described in
detail the debt of appellants Carey Miller and Brian Miller,
rendered them nonbinding. Appellants also alleged that there
were deficiencies in Metropolitan's summary judgment evidence
which rendered it insufficient as to all appellants. The
trial court granted Metropolitan's motion for summary
judgment and awarded Metropolitan judgment on the principal
amount of the debt, plus interest and a reduced amount of
attorney's fees.
A summary judgment will be affirmed only if the record
establishes that the movant has conclusively proved all
essential elements of its cause of action as a matter of law.
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671,
678 (Tex. 1979). In deciding whether there is a material
fact issue precluding summary judgment, every reasonable
inference from the evidence must be indulged in favor of the
nonmovant and any doubts resolved in his favor. Nixon v. Mr.
Property Management Co., 690 S.W.2d 546, 549 (Tex. 1985).
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Appellants, in their first point of error, complain that
the trial court erred in granting summary judgment against
appellants Carey Miller and Brian Miller1 because the
guaranties sued upon do not guarantee any obligation.
Appellants contend that, because the first paragraph of the
guaranty was not completed, operative words of guaranty were
absent, thus rendering the agreement nonbinding.
The paragraph of the guaranty cited by appellants reads
in pertinent part as follows:
A. If this [box] is checked, the undersigned
guarantee(s) . . . the payment ... of each
and every debt . . . which borrower may now or
at any time owe to Bank ....
B. If this [box] is checked, the undersigned
guarantee(s) . . . the payment and performance
of the debt ... to Bank . . . arising out of
the following:
On the documents in question, neither the box in paragraph A.
nor B. was checked,
1 The first two points of error relate only to
appellants Carey and Brian Miller. The third point relates
to all appellants.
In interpreting a written contract, including those of
guaranty, the primary concern of the court is to ascertain
the true intentions of the parties as expressed in the
instrument. Coker v. Coker. 650 S.W.2d 391, 393 (Tex. 1983).
Written contracts will be construed according to the
intention of the parties, notwithstanding errors and
omissions. Ussery Inv. v. Cannon & Carpenter, Inc., 663
S.W.2d 591, 593 (Tex. App.—Houston [1st Dist.] 1983, writ
dism'd). To achieve this objective, courts should examine
and consider the entire writing in an effort to give effect
to all the provisions of the contract so that none will be
rendered meaningless. Coker, 650 S.W.2d at 393. No single
provision taken alone will be given controlling effect;
rather, all the provisions must be considered with reference
to the whole instrument. Id.
In reviewing the guaranties in their entirety, we hold
that the clear intent of both Carey Miller and Brian Miller
was to be bound as guarantors of American's debt. The
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validity or effect of the guaranties was not changed simply
because some descriptive, detailed information might have
been filled out but was not. Despite the missing
clarifications, the guaranties contained substantial evidence
that the undersigned intended to obligate himself to
American's debts. Such evidence found in the guaranties
includes: (1) the guaranty was in writing and stated that it
was made to induce Metropolitan to make a loan on behalf of
American; (2) the document contained a boldface heading
stating that it was a "GUARANTY"; (3) the guaranty designated
that the undersigned was signing as guarantor, thereby
guaranteeing the indebtedness of American; (4) the guaranty
contained clear language stating that the undersigned
absolutely and unconditionally guaranteed full and prompt
payment when due; and (5) the guaranty was signed and
executed by each guarantor. The above-stated elements
evidence the obvious intent of Carey Miller and Brian Miller
to guarantee the obligations of American. The issue then is
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whether there is conclusive evidence as to the amount
guaranteed. Although one paragraph, which could have given
detailed information about the amount of debt, was
incomplete, another paragraph did indicate that the Millers
guaranteed the entire debt. That paragraph states in
pertinent part as follows:
[T]he liability of the undersigned hereunder shall
be limited to a principal amount of $ (if
unlimited or if no amount is stated, the
undersigned shall be liable for all indebtedness,
without any limitation as to amount).
We hold that the summary judgment evidence conclusively
established that the Millers entered into a binding
obligation with Metropolitan to guarantee the debt of
American. Appellants' first point of error is overruled.
In points of error two and three, appellants complain
that the trial court erred in granting summary judgment
against Carey Miller, Brian Miller, and all appellants
because the summary judgment evidence was insufficient as a
matter of law. Appellants contend that Metropolitan failed
to produce any summary judgment evidence that monies were
advanced to American pursuant to the promissory note.
As summary judgment evidence of monies advanced to
American, Metropolitan presented to the court the affidavit
of the assistant vice president of the bank. The affidavit
set forth the principal and accrued but unpaid interest due
pursuant to the promissory note, after allowing for all
offsets, payments, and credits. In response to the
affidavit, appellants contend that the evidence was "wholly
conclusionary and devoid of any facts supporting the advance
A review of the affidavit indicates the following: (1)
the affidavit was made on the bank officer's personal
knowledge; (2) the notes and guaranty agreement were
identified; and (3) the principal balance along with the
interest was designated in detail. Moreover, appellants have
presented no controverting affidavits that could raise a fact
issue as to whether the monies were advanced. In a case
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similar to the one at hand, this Court held that it was the
nonmovant' s burden to controvert the movant's summary
judgment evidence with his own evidence so that a fact issue
is raised. Sharpe v. Lomas & Nettleton Fin. Corp., 601
S.W.2d 55, 56 (Tex. Civ. App.—Dallas 1980, writ ref'd
n.r.e.). The Sharpe court further held that in the absence
of controverting evidence, such an affidavit would be held to
be competent summary judgment evidence. Id. In addition,
the Houston Court of Appeals in 8920 Corp. v. Alief Alamo
Bank, 722 S.W.2d 718 (Tex. App.—Houston [14th Dist.] 1987,
writ ref'd n.r.e.), held that an affidavit, made on personal
knowledge of a bank officer and which identified the notes
and guaranty and recited the principal and interest due, was
not conclusory and was sufficient evidence to support a
summary judgment motion. 8920 Corp., 722 S.W.2d at 720.
Accordingly, we overrule appellants' second and third points
of error.
Metropolitan, in its first cross-point, complains that
the trial court erred in failing to strike appellants' first
amended original answer and appellants' response to
Metropolitan's motion for summary judgment from the record
because they were not timely filed. In its second cross-
point, Metropolitan contends that the trial court should not
have considered appellants' first amended answer, original
answer, or response to Metropolitan's motion for summary
judgment. Because we affirm Metropolitan's summary judgment
award, we need not address the above cross-points.
Metropolitan, in its third cross-point, complains that
the trial court erred in reducing the attorney's fees awarded
to Metropolitan because the attorney's fees were supported by
uncontroverted summary judgment evidence. Metropolitan asked
the trial court to award attorney's fees of $10,000 through
the trial court level, $5,000 at the Court of Appeals level
and $5,000 if review is sought before the Texas Supreme
Court. The trial court granted Metropolitan attorney's fees
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of $5,000 for each level of review but reduced the amount to
be awarded through the trial court level to $2,500.
Metropolitan contends that because appellants failed to
controvert or offer summary judgment evidence, there was no
issue before the trial court regarding reasonable attorney's
fees and, therefore, the trial court had no basis to reduce
the attorney's fees as established by Metropolitan's summary
judgment evidence.
Our review of the record indicates that Metropolitan,
through the affidavit of its counsel, offered the only
summary judgment evidence as to reasonable attorney's fees.
The affidavit of Metropolitan's counsel set forth in detail
the factors upon which reasonable attorney's fees should be
awarded. The affidavit indicated that the counsel relied on
the guidelines of the State Bar of Texas and the Texas Code
of Professional Responsibility. Counsel's affidavit
designated $10,000 as reasonable attorney's fees through the
trial level. Appellants presented no summary judgment
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evidence controverting the fees as set forth in
Metropolitan's affidavit.
An attorney's affidavit can sufficiently establish
reasonable attorney's fees on motion for summary judgment.
Querner Truck Lines v. Alta Verde Indus., 747 S.W.2d 464, 468
(Tex. App.—San Antonio 1988, no writ); Bado Equipment Co. v.
Ryder Truck Lines, 612 S.W.2d 81, 83 (Tex. Civ. App.—Houston
[14th Dist.] 1981, writ ref'd n.r.e.). The attorney for the
nonmovant may file an affidavit contesting the reasonableness
of the movant's attorney's affidavit in support of attorney's
fees, thus creating a fact issue. General Specialties, Inc.
v. Charter Nat'1 Bank-Houston, 687 S.W.2d 772, 774 (Tex.
App.—Houston [14th Dist.] 1985, no writ). Appellant in the
instant case, however, failed to contest Metropolitan's
evidence. Thus, the only evidence that was before the court
supported an award of $10,000. The trial judge could have
rendered an award for $10,000, or he could have refused to
award any attorney's fees had he determined that attorney's
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fees were not recoverable as a' matter of law. However, to
determine that attorney's fees are recoverable, but only in
an amount less than that set forth in an uncontroverted
affidavit, has the same effect as concluding that movant's
summary judgment proof did not establish the claim as a
matter of law.2
We have already set forth the nature of Metropolitan's
summary judgment evidence. The evidence was uncontroverted,
and it was "clear, positive and direct, otherwise credible
and free from contradictions and inconsistencies." TEX. R.
CIV. P. 166a (c). We conclude that the trial court erred in
finding a subsisting fact issue. Thus, we sustain
Metropolitan's third cross-point.
Judgment is rendered that Metropolitan be awarded
$10,000 in attorney's fees for work performed at the trial
2 Thus, the trial court, pursuant to its finding, should
have then ordered trial on the merits on attorney's fee issue.
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court level. TEX. R. APP. P. 81(c). In all other respects,
the judgment of the trial court is affirmed.
JOHN WHITTINGTON
JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
88-01061.F
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