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
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 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 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,
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(e);
see Rockwall Commons Associates, Ltd. v. MRC Mortg. Grantor Trust I,
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,
The standards for determining the admissibility of evidence is the same in a summary judgment proceeding as at trial.
See Rockwall Commons Associates, Ltd.,
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,
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 balance is due and owing on the note.”
Rockwall Commons Associates, Ltd.,
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
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,
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.,
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 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.
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,
We have reviewed Vincent’s affidavit and conclude it was sufficient to support the Bank’s claim for attorney’s fees.
See Haden,
CONCLUSION
The trial court’s judgment is affirmed.
Notes
. 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.
. The record on appeal does not include a Reporter's Record.