                             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
                                        2
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).

                                            3
       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

                                                  5
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

                                             6
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
                                            8
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

                                          10
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

                                              11
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
                                       12
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.

                                                13
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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