                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


 JAMES F. ROTH,                                  §
                                                                 No. 08-12-00132-CV
                              Appellant,         §
                                                                    Appeal from the
 v.                                              §
                                                                  17th District Court
 JPMORGAN CHASE BANK, N.A.,                      §
                                                               of Tarrant County, Texas
                              Appellee.          §
                                                                 (TC# 017-253241-11)
                                                 §


                                           OPINION

       In two issues, James F. Roth, Appellant, appeals the trial court’s summary judgment in

favor of JPMorgan Chase Bank, N.A. (the Bank), Appellee. We affirm.

                                          BACKGROUND

       The Bank brought suit against Roth for breach of contract alleging Roth had failed to make

payments on two promissory notes, the first a business installment loan and the second a business

line of credit, after the Bank demanded payment thereon. In its petition, the Bank asserted that all

conditions precedent to the institution of suit and the Bank’s recovery had been performed,

satisfied, or had occurred.

       Roth filed a verified answer in which he asserted a general denial, a sworn denial, and
seven affirmative defenses.1 In his sworn denial, Roth specifically denied “each and every item

regarding offsets, credits and payments,” and alleged the Bank’s petition was not properly verified

if a sworn account.

         The Bank filed its motion for summary judgment in which it set out its burden of showing

the existence of a debt from the maker of the notes, a subsequent default in payment of the notes,

and an amount fully due and owing after all credits have been given. The Bank asserted that it

was entitled to summary judgment as a matter of law as no genuine issue of material fact exists

regarding those elements. In support of its motion, the Bank included an affidavit from Joseph

Lounds, its Managed Assets Officer, who stated therein that the Bank is the owner and holder of

the notes, which are signed by Roth and made payable to the Bank, the notes are in default, the

Bank has made demand for payment, and Roth has failed to honor the terms of the notes.

Attached to Lounds’ affidavit are photocopies of the signed notes bearing Roth’s name and the

principal balance, interest, principal, fee, and payment histories for each note. The bank also

supported its summary judgment request for attorney’s fees with the affidavit of its counsel, K.

Mark Vincent.

         In his response, Roth asserted that the Bank’s affidavits which form the basis of its

summary judgment motion are insufficient as a matter of law because Lounds’ affidavit: (1) fails

to show privity with the Bank and, thus, the Bank lacks standing; (2) fails to state how Lounds

acquired personal knowledge of the facts alleged, other than his role as the Bank’s Managed

Assets Officer who has access to the Bank’s business records and made the affidavit based upon

1
  In his affirmative defenses, Roth denied that all conditions precedent to the Bank’s claims for recovery had occurred
or had been met, and asserted that the Bank’s claims were barred in whole or part by: (1) the doctrines of “waiver
and/or estoppel;” (2) the intervening acts of third parties over whom Roth had no authority or control; (3) the statute of
frauds and parol evidence rule; (4) the Bank’s failure to mitigate damages; (5) the economic-loss doctrine; and (6) the
doctrine of election of remedies.
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his review of those records; (3) is replete with legal conclusions and hearsay, and short on

admissible facts; (4) is that of an interested witness; (5) and is supported by documents which

constitute inadmissible hearsay unless a proper exception to the hearsay rule is adequately

pleaded.

       Roth also objected to the affidavit of K. Mark Vincent. In support of his summary

judgment response, Roth affixed his controverting affidavit in which he states, “I made my

payments when due, even though I should not have paid the total amount on [the line of credit]

note, only on the amount drawn[,]” and “I continued to make my payments and continued to

contest the amount charged on the [line of credit] note.” Roth additionally asserted, “The notes

have been reduced by my continued payments until 2011 when this suit was file[d].” Roth

discusses the amounts of the notes but does not specifically address any payments made or

balances owed.

       Finding no genuine issues of material fact, the trial court granted summary judgment in

favor of the Bank.

                                        DISCUSSION

       In Issue One, Roth asserts the trial court erred in granting summary judgment in favor of

the Bank because there was “no evidence or insufficient evidence to support the finding.” Roth

specifically complains that the affidavit of Joseph Lounds fails to establish privity between

Appellant and the bank, fails to show how Lounds acquired personal knowledge of the facts

alleged, “other than his statement that [he is the] Managed Assets Officer and has access to [the

Bank’s] business records,” is replete with legal conclusions and hearsay, is “short on admissible

facts,” and is made by an interested witness. He also complains that the copies of notes and


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payment records attached to Lounds’ affidavit are hearsay absent a properly pleaded exception

thereto.

                                        Standard of Review

       We review a summary judgment de novo. Valence Operating Company v. Dorsett, 164

S.W.3d 656, 661 (Tex. 2005). To prevail on a summary judgment motion, the movant must

demonstrate that there are no genuine issues of material fact and that it is entitled to judgment as a

matter of law. TEX. R. CIV. P. 166a(c); Provident Life and Acc. Ins. Co. v. Knott, 128 S.W.3d 211,

215–16 (Tex. 2003); Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548

(Tex. 1985).

       A movant for summary judgment must conclusively prove all elements of its cause of

action as a matter of law. TEX. R. CIV. P. 166a(c); see Rockwall Commons Associates, Ltd. v.

MRC Mortg. Grantor Trust I, 331 S.W.3d 500, 505-06 (Tex. App. –El Paso 2010, no pet.). If

ordinary minds could not differ as to the conclusion to be drawn from the evidence, a matter is

conclusively proven. Id. at 505.       If the movant conclusively proves its right to summary

judgment as a matter of law, the burden then shifts to the non-movant to present evidence that

raises a genuine issue of material fact, precluding the summary judgment. Id.

       When determining whether a disputed issue of material fact exists that would preclude

summary judgment, we regard all evidence in the summary judgment record in the light most

favorable to the non-movant, and indulge every reasonable inference and resolve any doubts in

favor of the non-movant. Walters v. Cleveland Regional Medical Center, 307 S.W.3d 292, 296

(Tex. 2010); Provident, 128 S.W.3d at 215–16. When a trial court’s summary judgment order

does not state the specific grounds for its ruling, we must affirm the judgment if any of the theories


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advanced by Appellee’s motion are meritorious. Western Investments, Inc. v. Urena, 162 S.W.3d

547, 550 (Tex. 2005).

         The standards for determining the admissibility of evidence is the same in a summary

judgment proceeding as at trial. See Rockwall Commons Associates, Ltd., 331 S.W.3d at 505-06.

The admission or exclusion of evidence rests in the sound discretion of the trial court. See

Interstate Northborough Partnership v. State, 66 S.W.3d 213, 220 (Tex. 2001), citing City of

Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). Evidence presented in support of a

summary judgment must be in a form that would render the evidence admissible in a conventional

trial. TEX. R. CIV. P. 166a(f); see United Blood Services v. Longoria, 938 S.W.2d 29, 30 (Tex.

1997).

         We apply an abuse of discretion standard when reviewing a trial court’s decision to admit

or exclude summary judgment evidence. Harris v. Showcase Chevrolet, 231 S.W.3d 559, 561

(Tex. App. –Dallas 2007, no pet.). The test for determining if the trial court abused its discretion

is whether the trial court acted without reference to any guiding rules or principles. Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). If the trial court acts in an

arbitrary or unreasonable manner, it abuses its discretion. Id. at 242. That a trial court may

decide a matter within its discretionary authority in a different manner than the appellate court

does not demonstrate an abuse of discretion.     Id.

                                               Analysis

         “A plaintiff who sues for recovery on a promissory note does not have to prove all essential

elements for a breach of contract but rather need only establish the note in question, that the

defendant signed it, that the plaintiff was the legal owner and holder thereof, and that a certain


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balance is due and owing on the note.” Rockwall Commons Associates, Ltd., 331 S.W.3d at 505.

In response to Issue One, the Bank counters that Roth failed to dispute his execution of the notes or

that proper payment was given for all payments on the notes. We agree.

       In his answer, Roth did not file a verified denial of his execution of any written instrument

on which the Bank’s pleadings were founded, or a verified denial of the genuineness of the

endorsement of the notes. TEX. R. CIV. P. 93(7), (8). In the absence of such sworn pleas, the

instruments are received in evidence as fully proved.         Id.     By these failures, Roth has

conclusively admitted the validity of the notes and that he signed the agreements, and has waived

any evidentiary objections thereto. See Bluebonnet Financial Assets v. Miller, 324 S.W.3d 603,

609 (Tex. App. –El Paso 2010, no pet.)(debtor who failed to file verified denials under TEX. R.

CIV. P. 93(4), (7), and (8) conclusively admitted proper parties were before trial court, validity of

credit card agreement which was the foundation of suit, and that he had signed agreement, and

waived evidentiary objections to the documents), citing Boyd v. Diversified Fin. Sys., 1 S.W.3d

888, 891 (Tex. App. –Dallas 1999, no pet.); Hanks v. NCNB Tex. Nat. Bank, 815 S.W.2d 763,

765 (Tex. App.—Eastland 1991, no writ)(a guarantor must, by sworn answer, deny the execution

of the underlying note or contract by the principal obligor, or the execution thereof is presumed);

Loveless v. Tex. First Mort. Reit, 531 S.W.2d 870, 873 (Tex. Civ. App.—Houston [1st Dist.]

1975, writ dism’d).

       Payment is an affirmative defense under the Texas Rules of Civil Procedure. TEX. R. CIV.

P. 94; F-Star Socorro, L.P. v. City of El Paso, 281 S.W.3d 103, 108 (Tex. App.—El Paso 2008, no

pet.). The right to an offset of payment is also an affirmative defense. TEX. R. CIV. P. 94; F-Star

Socorro, L.P., 281 S.W.3d at 108. An affirmative defense must be pleaded in a responsive


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pleading, or the defense will be waived. F-Star Socorro, L.P., 281 S.W.3d at 108. Rule 95 also

requires a defendant who wishes to allege payment as an affirmative defense to “file with his plea

an account stating distinctly the nature of such payment, and the several items thereof; failing to do

so, he shall not be allowed to prove the same[.]” TEX. R. CIV. P. 95; F-Star Socorro, L.P., 281

S.W.3d at 108. In his answer, Roth failed to plead the affirmative defense of payment, and failed

to file with his plea the requisite account stating distinctly the nature of the payment.

Consequently, Roth has waived any payment or offset defenses. TEX. R. CIV. P. 94, 95; F-Star

Socorro, L.P., 281 S.W.3d at 108. Because there is no genuine issue of material fact as to the

elements of liability, the trial court did not abuse its discretion when it granted summary judgment

in favor of the Bank. Rockwall Commons Associates, Ltd., 331 S.W.3d at 505-06 (elements).

           Moreover, defects in the form of affidavits or attachments will not be grounds for reversal

unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to

amend. TEX. R. CIV. P. 166a(f).             A party objecting to the competency of summary judgment

proof must obtain a ruling on its objection or obtain a written order signed by the trial judge and

entered of record, or the objection is waived and the proof remains a part of the summary judgment

record. Velasquez v. Waste Connections, Inc., 169 S.W.3d 432, 436 (Tex. App. –El Paso 2005,

no pet.). Because there is nothing in the record showing Roth obtained a ruling or written order

signed by the trial court and entered of record regarding his objections to the Bank’s summary

judgment evidence, Roth has waived his complaint regarding the admissibility of the Bank’s

summary judgment evidence.2 Issue One is overruled.

           In Issue Two, Roth complains that the trial court erred in granting the Bank attorney fees in

its summary judgment order because K. Mark Vincent’s affidavit contains “nothing more than
2
    The record on appeal does not include a Reporter’s Record.
                                                          7
opinions and legal conclusions of an interested witness” and lacks an evidentiary foundation for

the amount of attorney fees sought.

       A prevailing party in a suit on written contract is entitled to attorney’s fees. TEX. CIV.

PRAC. & REM. CODE ANN. § 38.001(8)(West 2008). An award of attorney’s fees must be

supported by evidence that the fees are reasonable and necessary. See Stewart Title Guar. Co. v.

Sterling, 822 S.W.2d 1, 10 (Tex. 1991). A trial court determines the reasonableness of an

attorney’s fees award by considering the factors enumerated in Arthur Andersen & Co. v. Perry

Equipment Corp. 945 S.W.2d 812, 818 (Tex. 1997)(evidence of contingency fee agreement alone

does not support award of reasonable and necessary attorney’s fees and trial court must still

consider other factors). The reasonableness of attorney’s fees is generally a fact issue. Haden v.

David J. Sacks, P.C., 332 S.W.3d 503, 512 (Tex. App.-Houston [1st Dist.] 2009, pet. denied). We

will not disturb a trial court’s award of attorney’s fees absent an abuse of discretion. Karam v.

Brown, 407 S.W.3d 464, 474-75 (Tex. App. –El Paso 2013, no pet.).

       Summary judgment may be based on the uncontroverted testimonial evidence of an

interested witness, or of an expert witness as to subject matter concerning which the trier of fact

must be guided solely by the opinion testimony of experts, if the evidence is clear, positive and

direct, otherwise credible and free from contradictions and inconsistencies, and could have been

readily controverted. See TEX. R. CIV. P. 166a(c). An attorney’s affidavit constitutes expert

testimony that will support an award of attorney’s fees in a summary judgment proceeding. See

Haden, 332 S.W.3d at 513. Civil Practice and Remedies Code section 38.003 provides that

“usual and customary attorney’s fees” are presumed to be reasonable. TEX. CIV. PRAC. & REM.

CODE ANN. § 38.003 (West 2008). Although the statutory presumption that usual and customary


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fees are reasonable is rebuttable, once triggered by an attorney’s supporting affidavit, the

presumption of reasonableness remains in effect when there is no evidence submitted to challenge

the affidavit proof of the summary judgment movant. See TEX. CIV. PRAC. & REM. CODE ANN. §

38.003 (West 2008); Haden, 332 S.W.3d at 513.

       We have reviewed Vincent’s affidavit and conclude it was sufficient to support the Bank’s

claim for attorney’s fees. See Haden, 332 S.W.3d at 514. Roth did not file a controverting

affidavit or any other evidence disputing Vincent’s evidence and cannot overcome the presumed

reasonableness of Vincent’s affidavit in support of an award of attorney’s fees. See id. at 514–16

(where nonmovant failed to controvert attorney’s affidavit or otherwise dispute law firm’s

evidence, law firm was entitled to statutory presumption that the requested amount was both

reasonable and necessary). Because the trial court did not abuse its discretion in awarding

attorney’s fees, Issue Two is overruled.

                                           CONCLUSION

       The trial court’s judgment is affirmed.



                                             GUADALUPE RIVERA, Justice
July 23, 2014

Before McClure, C.J., Rivera, and Rodriguez, JJ.




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