IMC, INC., Appellant v. JAMES CHARLES GAMBULOS, Appellee

REVERSE and REMAND; Opinion Filed August 21, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00470-CV
............................
IMC, INC., Appellant
V.
JAMES CHARLES GAMBULOS, Appellee
.............................................................
On Appeal from the County Court at Law No. 5
Dallas County, Texas
Trial Court Cause No. CC-06-11543-E
.............................................................
MEMORANDUM OPINION
Before Justices Whittington, Bridges, and Francis
Opinion By Justice Francis
        IMC, Inc. sued James Charles Gambulos to recover on a personal guaranty. The trial court awarded summary judgment to Gambulos. In a single issue, IMC contends the trial court erred in granting summary judgment. We agree.
        Gambulos is the president of Ceramic & Granite Trading Company, LLC, (CGTC). On March 31, 1997, Gambulos filled out, on CGTC's behalf, a credit application that contained the following representation at the bottom of the second page:
 
PERSONAL GUARANTEE
 
 
 
The undersigned (whether one or more) represents and warrants that the information herein is true and correct. In consideration of the sale by IMC, Inc., (“IMC”), on its usual credit terms, of goods to the business applying for credit above, the undersigned jointly, severally, irrevocable [sic] and unconditionally guarantee(s) the full and prompt payment at Dallas County, Texas, when due of the purchase price whether now due or to become due on all such goods and services, and on any and all sums of any nature owing by applicant to IMC. This is a continuing Guaranty. The undersigned further guarantees the payment of all interest, attorney fees, court costs, and any other collection costs which may be incurred by IMC to enforce this Agreement. All past due amounts are subject to a 1.5% per month finance charge (18%) per annum. Venue for purposes of any and all lawsuits shall be Dallas County, Texas.
 
 
 
/s/ James C. Gambulos 3/31/97
Signature by Owner or Officer only
 
 
 
Date
 
 
 
 
Ceramic & Granite Trading Company, LLC. President
Printed name and Title
 
        After CGTC filed for bankruptcy, IMC sued Gambulos for breach of contract, alleging Gambulos was liable for unpaid invoices and attorney's fees under his personal guaranty.   See Footnote 1  Gambulos filed a verified denial and moved for traditional summary judgment, which the trial court granted. This appeal ensued.
        In summary judgment proceedings, the movant has the burden to show that there is no genuine issue of material fact and he is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgm't Co., 690 S.W.2d 546, 548 (Tex. 1985). In reviewing the trial court's determination, we take as true evidence favorable to the nonmovant and resolve every inference in its favor. Id. at 548-49. If the movant establishes his right to summary judgment, the nonmovant has the burden to respond to the motion and present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979).
        In the motion for summary judgment, Gambulos asserted the evidence conclusively showed that the guaranty was executed by him in his capacity as a company officer, not in his individual capacity. He asserted that “[t]he offer as made was accepted by CGTC, and only CGTC.” He further asserted that because CGTC is a limited liability company, his guaranty on behalf of the company does not obligate him personally.
        To support his motion, Gambulos's evidence included a copy of the second page of the credit agreement (but not the first page) and an affidavit stating he signed the guaranty in his capacity as president of CGTC and not individually and that he did not intend to be personally bound.
        The fact that a corporate title follows an individual's signature does not transform a personal guaranty into a corporate guaranty. Dann v. Team Bank, 788 S.W.2d 182 (Tex. App.-Dallas 1990, no writ). Corporate designations appearing after signatures on personal guarantees are considered to be only descriptio personae. American Petrofina Co. v. Bryan, 519 S.W.2d 484, 487 (Tex. App.-El Paso 1975, no writ). Descriptio personae is the use of a word or phrase to identify the person intended and not as proof that a person is acting in any particular capacity. See Neeley v. Intercity Management Corp., 623 S.W.2d 942, 948 (Tex. App.-Houston [1st Dist.] 1981, no writ).
         As stated previously, Gambulos did not attach the first page of the credit application, only the second page, as evidence, although it was his burden to establish his right to summary judgment. Having reviewed the second page and the applicable law, we cannot say that the language following Gambulos's signature on the guaranty establishes as a matter of law that he signed the document only in his capacity as president. To the extent he argues that his affidavit establishes that he did not intend to be personally bound, we disagree.
        While summary judgment may be based on the uncontroverted testimonial evidence of an interested witness, the evidence must be “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); Trico Tech. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex.1997). “Could have been readily controverted” does not mean the evidence could have been easily and conveniently rebutted, but indicates that it could have been effectively countered by opposing evidence. Casso v. Brand, 776 S.W.2d 551, 558 (Tex.1989). Statements of interested parties, testifying as to what they knew or intended, are self-serving, do not meet standards of summary judgment proof, and will not support a motion for summary judgment. Grainger v. W. Cas. Life Ins. Co., 930 S.W.2d 609, 615 (Tex. App.-Houston [1st Dist.] 1996, writ denied ). Issues of intent are not susceptible to being readily controverted and are inappropriate for summary judgment. Id. We conclude Gambulos's affidavit regarding his intent when signing the “Personal Guarantee” does not meet the standard for summary judgment proof. We sustain the sole issue.
        Because we conclude Gambulos did not show that he was entitled to summary judgment as a matter of law, we reverse the trial court's take-nothing summary judgment in Gambulos's favor and remand the case for further proceedings.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
070470F.P05
 
Footnote 1 IMC also sought recovery in quantuum meruit, but it does not challenge the trial court's summary judgment on that claim and we do not address it.