Melissa Baxley v. PS Group, LLC ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-217-CV
MELISSA BAXLEY APPELLANT
V.
PS GROUP, LLC APPELLEE
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FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Appellant Melissa Baxley appeals the summary judgment granted in favor
of Appellee PS Group, LLC. In a single issue, Baxley argues that the trial court
erred by granting summary judgment for PS Group because her pleadings raised
fact issues that precluded summary judgment. We will affirm.
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 See Tex. R. App. P. 47.4.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
Baxley entered into a commercial lease on November 30, 2006, with PS
Group to lease space in a shopping center in Arlington. The term of the lease
was for sixty months, commencing on February 1, 2007, and expiring on
January 31, 2012. Baxley paid rent and utilities under the lease for eighteen
months and then expressed a desire to terminate the lease and to vacate the
premises. Baxley and PS Group thereafter entered into a written Lease
Termination Agreement (the Agreement). Under the terms of the Agreement,
the lease terminated on August 20, 2008; Baxley executed a promissory note
payable to PS Group in the principal amount of $65,000, which required
monthly installment payments; Baxley paid prorated rent for August 1 through
August 20, 2008; and PS Group retained Baxley’s security deposit.
Baxley defaulted on the payment of the note by failing to make any
monthly installment payments. PS Group gave Baxley written notice of the
default, as required by the terms of the note, but Baxley’s default continued for
more than ten days from the date of the notice. PS Group declared the unpaid
principal balance on the note immediately due.
PS Group thereafter filed suit for breach of contract, and Baxley answered
with a general denial. PS Group filed a motion for summary judgment, and
Baxley filed a response and an amended answer. The only possibly relevant
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document attached as summary judgment evidence to Baxley’s response was
Baxley’s own affidavit; that affidavit contains one sentence swearing that
Baxley has “read the foregoing [sumary judgment response] . . . [and that] [t]he
facts set out therein are true and correct.” 2 The trial court ultimately granted
PS Group’s motion for summary judgment, and this appeal followed.
III. S UMMARY J UDGMENT P ROPERLY G RANTED FOR PS G ROUP
In her sole issue, Baxley argues that the trial court erred by granting
summary judgment for PS Group because her pleadings and summary judgment
response raised fact issues that precluded summary judgment. Baxley
presented no controverting summary judgment evidence; she simply swore in
her affidavit that the facts stated in her summary judgment response were true
and correct. Baxley’s summary judgment response was simply a verified
pleading, and pleadings, though verified, are generally not competent summary
judgment evidence. See Watson v. Tipton, 274 S.W.3d 791, 798 (Tex.
App.—Fort Worth 2008, pet. denied) (citing Laidlaw Waste Sys. (Dallas), Inc.
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 Baxley also attached some of PS Group’s discovery responses to her
summary judgment response, and she complained in her summary judgment
response that PS Group had not properly responded to some discovery
requests. But the record before us does not show that Baxley filed a motion to
compel, and she does not raise PS Group’s alleged failure to respond to
discovery as an issue in this appeal. We cannot consider the lack of discovery
responses (lack of evidence) alleged by Baxley to be summary judgment
evidence.
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v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995)); see also Tex. R. Civ. P.
166a(e) (setting forth requisites of summary judgment affidavits). Nontheless,
Baxley argues that she raised factual issues—whether the contract had legal
consideration, whether PS Group suffered damages, and whether PS Group
fraudulently induced her into the contract—to defeat the granting of summary
judgment.
We review a summary judgment de novo. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We consider the
evidence presented in the light most favorable to the nonmovant, crediting
evidence favorable to the nonmovant if reasonable jurors could and disregarding
evidence contrary to the nonmovant unless reasonable jurors could not. Id. We
indulge every reasonable inference and resolve any doubts in the nonmovant’s
favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A plaintiff
is entitled to summary judgment on a cause of action if it conclusively proves
all essential elements of the claim. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd.
v. Jones, 710 S.W.2d 59, 60 (Tex. 1986).
Here, two of the three “factual issues” that Baxley raises—lack of
consideration and fraudulent inducement—are affirmative defenses on which
she had the burden of proof. See 1464-Eight, Ltd. v. Joppich, 154 S.W.3d
101, 103 (Tex. 2004) (noting that lack of consideration and failure of
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consideration are affirmative defenses); Bassett v. Am. Nat’l Bank, 145 S.W.3d
692, 696 (Tex. App.—Fort Worth 2004, no pet.) (stating that defendant relying
on an affirmative defense—such as failure of consideration, conditional delivery,
fraudulent inducement, and usury—in opposing a summary judgment must
come forward with summary judgment evidence sufficient to raise an issue of
material fact on each element of the defense). A party who opposes a
summary judgment by asserting an affirmative defense must offer competent
summary judgment proof to support her allegations. See Keenan v. Gibraltar
Sav. Ass’n, 754 S.W.2d 392, 393 (Tex. App.—Houston [14th Dist.] 1988, no
writ). Competent summary judgment proof must consist of more than a
conclusory allegation of lack of consideration or of fraud. Because Baxley’s
summary judgment response contained only a conclusory, one-sentence
allegation stating that she had asserted lack of consideration and fraud and
because that allegation is unsupported by summary judgment evidence or even
sworn factual recitations of how the elements of these defenses apply to her
particular situation, she therefore presented at most only legal conclusions,
which do not constitute competent summary judgment proof. 3 See LMB, Ltd.
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 We also note that the summary judgment evidence attached to PS
Group’s motion clearly refutes Baxley’s affirmative defenses. The Agreement
that she signed states that PS Group’s ability to re-lease the property “is
necessarily uncertain and speculative” and acknowledges that the consideration
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v. Moreno, 201 S.W.3d 686, 689 (Tex. 2006) (applying settled law that legal
conclusions, stated without supporting facts in affidavit, do not constitute
competent summary judgment evidence).
The remaining “factual issue” (i.e., lack of damages) that Baxley claims
she raised to preclude summary judgment is likewise not supported by any
competent summary judgment evidence. The “affidavit” that Baxley attached
to her response to PS Group’s motion for summary judgment was not an
affidavit for purposes of Texas Rule of Civil Procedure 166a(e) but was instead
a mere verification of her summary judgment response. See, e.g., Tex. R. Civ.
P. 166a(e). And Baxley’s summary judgment response did not constitute
competent summary judgment evidence. See LMB, Ltd., 201 S.W.3d at 689.
PS Group conclusively established its right to summary judgment on the
note. PS Group’s summary judgment evidence included the lease, the
Agreement, the note, Baxley’s responses to PS Group’s requests for admissions
in which Baxley admitted that she had not made payments on the note, and
affidavits from PS Group’s attorney and PS Group’s president stating that
Baxley had not made any payments on the note. Baxley failed to come forward
with summary judgment evidence raising a genuine issue of material fact on any
given by both parties is “fair, reasonable, and fully sufficient to effectuate the
intentions and wishes of the Parties.”
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element of PS Group’s breach of contract claim or raising a genuine issue of
material fact on every element of one of her affirmative defenses. Accordingly,
the trial court did not err by granting summary judgment to PS Group. See
Keenan, 754 S.W.2d at 394 (holding that guarantors failed to raise fact issues
by failing to put on competent summary judgment proof). We overrule Baxley’s
sole issue.
IV. C ONCLUSION
Having overruled Baxley’s sole issue, we affirm the trial court’s judgment.
PER CURIAM
PANEL: WALKER, DAUPHINOT, and MEIER, JJ.
DELIVERED: March 25, 2010
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