BODIN CONCRETE CO., INC.,FROM A COUNTY COURT APPELLANT, v. CHUCK HOWLEY UNIFORM RENTAL, APPELLEE

    
COURT OF APPEALS
    
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-01201-CV
 
BODIN CONCRETE CO., INC.,FROM A COUNTY COURT
 
        APPELLANT,
 
v.
 
CHUCK HOWLEY UNIFORM RENTAL,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES McCLUNG, ROWE AND BURNETT
OPINION BY JUSTICE McCLUNG
AUGUST 8, 1989
        Bodin Concrete Company, Inc. (Bodin) appeals an adverse summary judgment. We affirm the judgment of the trial court in part, and remand to the trial court on the cross-points.
        In prior litigation, Chuck Howley Uniform Rental, Inc. (Howley) recovered a judgment against Bodin in the sum of $20,618.24 together with interest. Thereafter, Honett, attorney for Bodin, negotiated a settlement of that judgment with Howley wherein Honett would be the principal obligor on a promissory note which would be guaranteed by Bodin. The note is in the principal sum of $18,200, which is less than the amount of the judgment, with the express provision that if default on the note occurred, the obligors would owe the full amount of the judgment plus interest, less any sums paid under the terms of the note. Thereafter both the maker and the guarantors defaulted on the note. Howley then sued for $19,034.13, which was an amount equalling the original obligation on the note and all interest earned, less the single initial payment made pursuant to the settlement documents. Both sides moved for summary judgment. Summary judgment was granted in favor of Howley in the amount of $14,900, the original principal balance on the face of the note ($18,200) less all payments made ($3,300). Both parties appeal. We first address Bodin's arguments.
        Bodin's first point of error alleges that the trial court erred in not granting his motion for summary judgment because the note and guaranty were usurious as a matter of law. Bodin's second point of error complains, alternatively, that summary judgment in favor of Howley was improper because a question of fact existed as to whether the note and guaranty were usurious and therefore unenforceable.         For usury to apply there must be an overcharge by a lender for the use, forbearance or detention of the lender's money. Stedman v. Georgetown Savings & Loan, 595 S.W.2d 486, 489 (Tex. 1979). The essential elements of a usurious transaction are a loan of money, an absolute obligation that the principal be repaid, and the exaction of a greater compensation for the use of the money by the borrower than is permitted by law. Holley v. Watts, 629 S.W.2d 694, 696 (Tex. 1982). It is clear that the essential elements are not present in this case. Settlement agreements such as this do not constitute the requisite credit relationship to allow Bodin to claim protection under the statutes proscribing the charging of usurious interest rates. Wiley-Reiter Corp. v. Groce, 693 S.W.2d 701, 703 (Tex. App.--Houston [14th Dist.] 1985, no writ); TEX. REV. CIV. STAT. ANN. art. 5069 § 1.01 (Vernon 1987). Simply stated, Bodin did not borrow any money from Howley, nor did Howley charge Bodin for the use or detention of Howley's money. We hold that the agreement among the parties did not involve a debtor/creditor relationship as contemplated by article 5069. We overrule Bodin's first and second points of error.
        Bodin next complains that the trial court erred in granting Howley's motion for summary judgment because Howley's motion is not supported by competent summary judgment proof, alleging that (1) the attached documents are not properly authenticated because they are not sworn to be "true and correct" copies, (2) the Yates affidavit is conclusory and based on hearsay, and (3) that the Yates affidavit does not show how the affiant gained personal knowledge of the facts outlined in the affidavit.
        Bodin argues that the affidavit in support of Howley's motion for summary judgment is fatally defective because Yates, attorney of record for Howley, did not swear that the documents attached to the motion for summary judgment were "true and correct" copies. This point is without merit. It is undisputed that the documents were attached to the motion in this case. The Yates affidavit provides:
 
 
            I have overseen the payment of the Promissory Note which forms the basis of this case, and am fully aware and cognizant of all of the facts set for the hereinbelow and am able to swear, as I hereby do swear, that all of said facts and statements made hereinbelow are true and correct of my own personal knowledge.
The affidavit went on to describe in detail the guarantee and the promissory note which are the subject of this suit. These documents were attached to the motion for summary judgment and there has been no contention that these are not accurate reproductions of the originals.
        Bodin alleges that Howley's summary judgment proof fails because they did not separately swear that the documents attached are true and correct copies. We note, however, that Yates swore that all facts and statements contained in the affidavit were true and correct. This Court is not constrained to search merely for "magic words," we may consider the affidavit in its entirety. Southwest Park Outpatient Surgery, Ltd v. Chandler Leasing Division, 572 S.W.2d 51, 52 (Tex. Civ. App.--Houston [1st Dist.] 1978 no writ); Gutierrez v. Hacbar's Department Store, 484 S.W.2d 433, 435 (Tex. App.--San Antonio 1972, writ ref'd n.r.e.).
        This exact point appears to be an issue of first impression in Texas. It has been held that it is not necessary to separately swear to each attached document. Eg. Republic Bank Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex. 1986); Loomis v. Republic National Bank of Dallas, 653 S.W.2d 75, 79 (Tex. App.--Dallas 1983,writ ref'd n.r.e.). In these cases, however, the affidavits themselves contained the assertion that true and correct copies of the documents were attached. While it is true that the affidavit does not state in specific terms that the attached exhibits are true and correct copies, considering the affidavit from all four corners, this appears to be the effect thereof. Yates did swear that all statements made in the affidavit were true and correct and among those statements were assertions that the note and guarantee were attached. The accuracy of these documents has not been questioned. We do not regard the affidavit to be fatally defective.
        Bodin further argues that the Yates affidavit is insufficient because it is alleged to be conclusory and based on hearsay. This argument is a logical extension of his earlier contention that the documents attached to the affidavit were not properly authenticated. As we have already held that these documents were valid summary judgment proof, Bodin's argument on this point fails. The Yates affidavit is not conclusory or based on hearsay; it is proven up by the documents attached thereto. Woods v. Appelmack Enterprises, Inc., 729 S.W.2d 328, 329 (Tex. App.--Houston [14th Dist.] 1987,no writ).
        Finally, Bodin alleges that the Yates affidavit is defective because it does not affirmatively show how Yates became personally familiar with the facts of the case so as to be able to testify as a witness. The affidavit states that Yates is an attorney of record in this cause. It is sufficient that there be something in the affidavit to show affirmatively how the affiant is competent to testify on the matters stated therein. Land Liquidators of Texas v. Houston Post Co., 630 S.W.2d 713, 714 (Tex. App.--Houston [14th Dist.] 1982, no writ). The unchallenged averment that he was an attorney of record in this cause is sufficient to show affirmatively how he gained knowledge of the facts which to be testified. See J. T. Fulgham Co. v. Stewart Title Guar. Co., 649 S.W.2d 128, 130 (Tex. App.--Dallas 1983, writ ref'd n.r.e.) (Holding that in a suit on a note the affiant's unchallenged averment that he was the vice-president and agent of Stewart Title Guarantee Co. affirmatively showed how he gained the knowledge of the facts to which he testified).
We overrule Bodin's third point of error.
        In its fourth point of error Bodin alleges that the trial court erred in granting summary judgment because a question of fact exists as to whether Bodin Concrete received any consideration for the execution of the guaranty. We disagree.
        We note that Bodin has not cited any authority in support of its position on this point. For its part, however, Howley has not cited to this Court any authority on point either. Howley cites cases in which the trier of fact heard evidence on the issue of consideration. The standard of review is different in summary judgment cases. In a summary judgment case, the question on appeal is not whether the summary judgment proof raises a fact issue with reference to the essential elements of a cause of action, but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the cause of action or defense. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). The function of a summary judgment is not to deprive a litigant of his right to a full hearing on the merits of any real issue of fact, but to eliminate patently unmeritorious claims and untenable defenses. Gulbenkian v. Penn. 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952)
        In this case Howley successfully shifted the burden to Bodin. The production of the instrument entitled Howley to recover on the note and guaranty unless a defense was established. Gotcher v. Lamas State Bank, 714 S.W.2d 365, 370 (Tex. App.--Beaumont 1986 writ ref'd n.r.e.). The existence of a written instrument presumes consideration for this execution. Hargis v. Radio Corp. of American Electronic Components, 539 S.W.2d 230, 232 (Tex. Civ. App.--Austin 1976, no writ). When responding to Howley's motion for summary judgment by asserting the affirmative defense of lack of consideration, unless each element of the affirmative defense is raised by evidence which would be admissible upon the trial of the case, the affirmative defense will not prevent the granting of a summary judgment. The party raising the affirmative defense must make a fact issue on this defense. Kehor v. Lambert, 633 S.W.2d 576, 578 (Tex. App.--Houston [14th Dist.] 1982, writ ref'd n.r.e.). The mere pleading of an affirmative defense, without proof, will not defeat an otherwise valid motion for summary judgment. Id.
        In response to Howley's motion for summary judgment Bodin presented the affidavit of Perry Bodin, which stated:
 
 
        Neither myself nor Bodin Concrete received any consideration from the Note and/or Guaranty the subject of this suit because the [Bodin Concrete] Judgment became final only through the negligence of Honett.
Affidavits consisting only of conclusions are insufficient to raise an issue of fact. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). Since Bodin failed to raise an issue of fact with regard to its defense of lack of consideration, summary judgment was proper.        We overrule Howley's fourth point of error.
        Appellee raises three cross-points alleging that: the trial court erred in (1) refusing to grant appellee a judgment for the full amount of principal provided for in the note and guaranty; (2) refusing to grant recovery of prejudgment interest; and (3) refusing to award appellee a recovery of its reasonable attorney's fees. We agree.
        Howley is entitled to enforcement of the note on its terms, the terms of which must be examined to ascertain the guarantor's obligations under his unconditional guaranty, for by that guaranty he agrees to pay the instrument according to its terms if it is not paid when due. Hopkins v. First Nat'l Bank at Brownsville, 551 S.W.2d 343, 345 (Tex. 1977). The guarantor's contract thus includes all of the note's terms when the guaranty is absolute and unconditional. Id. A guarantor's liability on a debt is measured by the principal's liability unless a more extensive or limited liability is expressly set forth in the guaranty agreement. Simpson v. MBank Dallas N.A., 724 S.W.2d 102, 110 (Tex. App.--Dallas 1987, writ ref'd n.r.e.). The guaranty agreement in this case specifically pledges to guaranty payment of the promissory note according to its terms, which provides for pre-judgment interest and reasonable attorney's fees. We hold that Howley is entitled to judgment on this note according to its terms, in the full amount minus applicable credits, therefore remand to the trial court to determine the amount of the judgment consistant with this opinion. We further reverse and remand for determination of reasonable attorney's fees and applicable pre-judgment and post-judgment interest recoverable, if any.
 
 
PAT McCLUNG
JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
88-01201.F
 
 
File Date[01-02-89]
File Name[881201F]