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 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).

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 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 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 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 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 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 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. 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