Eix, Inc. v. JP Morgan Chase Bank (Tex.App.- Houston [14th Dist.] Feb. 19, 2009)
(Boyce) (commercial
debt suit, personal guaranty, summary judgment evidence, affidavit by
interested witness)
AFFIRMED: Opinion by
Justice Boyce
Before Justices Frost, Brown and Boyce
14-08-00042-CV Eix, Inc., and Saeed Moradi v. JP Morgan Chase Bank, N.A.
Appeal from Co Civil Ct at Law No 3 of Harris County
Trial Court
Judge: Linda Storey  

M E M O R A N D U M   O P I N I O N

Appellants Eix, Inc., and Saeed Moradi appeal from a summary judgment in favor of
appellee, JP Morgan Chase Bank, N.A. (“Chase"), in connection with Chase's debt
collection lawsuit.  Eix and Moradi contend that the trial court erred by (1) considering
inaccurate and misleading summary judgment evidence; and (2) granting Chase's
summary judgment motion.  We affirm.

Background

Chase sued Eix and Moradi in Harris County Civil Court at Law No. 3 on February 3,
2006.  Chase alleged that Eix executed and delivered to Chase a revolving credit
agreement with Chase on or about October 20, 1998, and that Moradi personally
guaranteed repayment.  Chase further alleged that Eix and Moradi failed to make
payments under the revolving credit agreement and failed to pay off the debt when
Chase notified them of their default and demanded payment in full.  Eix and Moradi filed
an answer denying Chase's allegations on March 6, 2006.

Chase filed two conventional motions for summary judgment pursuant to Texas Rule of
Civil Procedure 166a(a) on March 21, 2006, and November 7, 2006.  The trial court
denied both motions.  

Chase filed a third summary judgment motion under Rule 166a(a) on September 17,
2007.  This motion was supported by an affidavit from Christine Betz, assistant vice-
president of Chase.  Betz's affidavit was accompanied by a sworn copy of a “Business
Unsecured Revolving Credit Application for up to $100,000" signed by Moradi on
October 16, 1998 on behalf of Eix in his capacity as president and secretary.  Moradi
also signed in his individual capacity and dated a portion of the application entitled
“Personal Guaranty."

Betz's affidavit identified her as an assistant vice-president of Chase authorized to make
an affidavit on Chase's behalf.  Betz stated in her affidavit that, on or about October 20,
1998, Eix executed and delivered to Chase a “Business Revolving Credit Application
and Agreement" in the original amount of $50,000, and that Moradi signed a personal
guaranty for sums borrowed under the agreement.  The affidavit stated that Eix and
Moradi had defaulted in payment of the amounts owed under the agreement; Chase was
the legal owner and holder of the debt; and Chase had sustained damages of
$44,817.54 through May 4, 2007, itemized as (1) $42,821.58 for the unpaid balance; (2)
$1,590.29 for the unpaid accrued interest; (3) $405.67 for fees and charges; and (4) per
diem interest of $10.40.  

Chase's third summary judgment motion was set for submission on October 12, 2007.  
Eix and Moradi filed a late response on October 10, 2007, in which they objected to
Betz's affidavit and the accompanying application.  Eix and Moradi simultaneously filed a
motion for leave to file a late response to Chase's third summary judgment motion.  The
record contains no order from the trial court addressing the motion for leave to file a late
response.

The trial court signed an order granting Chase's third summary judgment motion on
October 23, 2007.  Eix and Moradi appeal from this order.

Standard of Review

We review a trial court's grant of summary judgment de novo.  Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

The affidavit of an interested witness may support summary judgment if the evidence is
clear, positive, direct, otherwise credible and free from contradictions and
inconsistencies, and could have been readily controverted.  See Perez v. Cueto, 908 S.
W.2d 29, 31 (Tex. App.- Houston [14th Dist.] 1995, no writ).  “Could have been readily
controverted" means that if the testimony is of a nature which can be effectively
countered by opposing evidence - such as facts subject to observation -  then summary
judgment is proper in the absence of controverting proof.  See id. at 32; Casso v. Brand,
776 S.W.2d 551, 558 (Tex. 1989).  Issues such as an actor's intent or knowledge are the
types of matters that cannot be readily controverted.  See Perez, 908 S.W.2d at 32.

Once a movant has established a right to summary judgment, the non-movant has the
burden to respond and present to the trial court evidence that would preclude summary
judgment.  See Barbouti v. Hearst Corp., 927 S.W.2d 37, 64 (Tex. App.- Houston [1st
Dist.] 1996, writ denied).

Except with leave of the trial court, a non-movant must file any written response and
opposing affidavits no later than seven days before the day of submission.  See Tex. R.
Civ. P. 166a(c).  If a trial court grants leave to file a late response to a summary judgment
motion, it must affirmatively indicate in the record acceptance of the late filing.  INA of
Tex. v. Bryant, 686 S.W.2d 614, 615 (Tex. 1985).  If nothing in the record indicates that
leave was granted, we must presume that the trial court did not consider the late-filed
response and we cannot consider it.  Id.

Analysis

Eix and Moradi contend on appeal that the trial court (1) abused its discretion by allowing
Chase to present inaccurate and misleading summary judgment evidence; and (2) erred
in granting Chase's third summary judgment motion because Chase failed to establish
entitlement to summary judgment as a matter of law.

I.        Assertedly Defective Summary Judgment Evidence

Before we can address any asserted defects in Chase's evidence supporting its third
summary judgment motion, we first must decide whether Eix and Moradi waived their
objections to such defects.  

Defects in the form of affidavits or attachments offered as summary judgment evidence -
rather than defects in substance -  are not grounds for reversal unless the complaining
party obtains a ruling from the trial court on its objection.  See Rogers v. Continental
Airlines, Inc., 41 S.W.3d 196, 200 (Tex. App.- Houston [14th Dist.] 2001, no pet.); Hicks
v. Humble Oil & Ref. Co., 970 S.W.2d 90, 93 (Tex. App.- Houston [14th Dist.] 1998, pet.
denied); see also Tex. R. Civ. P. 166a(f).

Eix and Moradi asserted objections to Chase's summary judgment evidence but did not
obtain a ruling from the trial court.  Therefore, Eix and Moradi waived all objections to the
form of the summary judgment evidence.  See Rogers, 41 S.W.3d at 200; Hicks, 970 S.
W.2d at 93.

We therefore examine the objections that Eix and Moradi assert on appeal to determine
whether they are objections to form or substance.  Under their first issue, Eix and Moradi
assert that the trial court erred in overruling their objection to the document attached to
Betz's affidavit on the grounds that Betz inaccurately states that the attached document
was in the original amount of $50,000 while the document does not state an original
amount of $50,000.  In addition, Eix and Moradi assert that Betz's affidavit is unreliable
because she incorrectly states that the title of the attached document is “Business
Revolving Credit Application and Agreement."  Eix and Moradi further complain that
Betz's testimony as an interested witness could not have been readily controverted.  See
Tex. R. Civ. P. 166a(c).  All of these objections are objections to form rather than
substance, and thus Eix and Moradi waived these objections by failing to obtain a ruling
on them from the trial court.[1]  See Blancett v. Lagniappe Ventures, Inc., 177 S.W.3d
584, 589 (Tex. App.- Houston [1st Dist.] 2005, no pet.); Rogers, 41 S.W.3d at 200;
Hicks, 970 S.W.2d at 93.

We overrule Eix's and Moradi's issue regarding asserted defects in Chase's summary
judgment evidence.

II.       Propriety of Granting Summary Judgment

In their second issue, Eix and Moradi assert that the trial court erred in granting Chase's
third summary judgment motion because Chase failed to establish entitlement to
summary judgment as a matter of law.  Eix and Moradi contend that Chase's summary
judgment evidence failed to establish (1) that a contract existed between Chase and Eix
and Moradi; (2) the existence and amount of a debt owed by Eix and Moradi to Chase;
and (3) that Moradi had any personal liability as guarantor.  

A plaintiff may establish status as legal holder and owner of a debt obligation by attesting
to such status in a sworn affidavit.  See Blankenship v. Robins, 899 S.W.2d 236, 238
(Tex. App.- Houston [14th Dist.] 1994, no writ).  A plaintiff may establish that a certain
balance is due and owing on a debt obligation by stating this fact in a sworn affidavit.  Id.
at 238-39.

Betz stated in her affidavit that (1) Eix executed and delivered a “Business Revolving
Credit Application and Agreement" in the original amount of $50,000 on or about
October 20, 1998; (2) the agreement included language whereby Moradi personally
guaranteed repayment; (3) the agreement provided for Eix and Moradi to make
payments of all principal and interest; (4) the complete terms of the agreement are
described in the document attached to Betz's affidavit; (5) Eix and Moradi failed to abide
by the terms of the agreement by failing and refusing to make payments as required
under the terms of the agreement after receiving a demand from Chase; (6) Eix and
Moradi were notified by Chase of such default and payment was demanded, but Eix and
Moradi failed to cure their default; (7) Chase is the legal owner and holder of the
agreement and guaranty; (8) the unpaid principal under the agreement as of May 4, 2007
was $42,821.58; (9) the total amount owed as of May 4, 2007 including pre-judgment
interest was $44,817.54; and (10) each day after May 4, 2007, $10.40 more in additional
interest will accrue.  The trial court granted summary judgment to Chase for the amount
specified in Betz's affidavit, as well as for attorneys' fees found in the attorneys' fees
affidavit submitted by Chase.

Eix and Moradi filed an untimely response to Chase's motion.  See Tex. R. Civ. P. 166a
(c).  They did not obtain leave to file a late response.  See Bryant, 686 S.W.2d at 615.  
However, even if they had obtained leave, their response did not contain any summary
judgment evidence to preclude summary judgment if Chase established entitlement to
summary judgment as a matter of law.  See Barbouti, 927 S.W.2d at 64.

After reviewing Chase's summary judgment evidence under the applicable de novo
standard, we conclude this evidence establishes as a matter of law that (1) a contract
existed between Chase and Eix and Moradi; (2) Eix and Moradi owe a debt to Chase in
the amounts stated in Betz's affidavit; and (3) Moradi had personal liability for this debt
based on his personal guaranty.  See Perez, 908 S.W.2d at 31-32; Blankenship, 899 S.
W.2d at 238-39; Casso, 776 S.W.2d at 558.

We overrule Eix's and Moradi's issue regarding the propriety of the trial court's grant of
Chase's third summary judgment motion.

Conclusion

The trial court's grant of summary judgment is affirmed.

/s/      William J. Boyce

Justice

Panel consists of Justices Frost, Brown, and Boyce.

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1           Under their first issue, Eix and Moradi make passing reference to the asserted
insufficiency of Chase's summary judgment evidence to support the trial court's granting of
Chase's motion.  These statements do not relate to evidentiary objections.  The sufficiency of
Chase's summary judgment evidence is addressed in Part II of this opinion.