Opinion filed February 27, 2014

In The

Eleventh Court of Appeals __________

No. 11-11-00284-CV

__________

RABBI LEVERTOV, AS D/B/A OF CHABAD 

HOUSE-LUBAVITCH, Appellant

V.

HOLD PROPERTIES, LTD. AND SOCIETY OF CERTIFIED 

INSURANCE COUNSELORS, INC., Appellees

On Appeal from the County Court at Law No. 1

Travis County, Texas

Trial Court Cause No. C-1-CV-09-007813

M E M O R A N D U M O P I N I O N

Rabbi Levertov, as d/b/a of Chabad House-Lubavitch (Levertov), appeals 

from the trial court’s final judgment in favor of Hold Properties, Ltd. and Society 

of Certified Insurance Counselors, Inc. (Appellees). In four issues, Levertov 
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challenges the trial court’s grant of Appellees’ motions for summary judgment and 

the measure of damages awarded. We affirm.

I. Background

This is a commercial lease dispute. Appellees are landlords and owners of a 

piece of commercial property in Austin. Levertov, a Rabbi of the Jewish faith, 

entered into a commercial lease agreement with Appellees with the intent to use 

the premises to operate a Jewish day school. The lease term was for a five-year 

period to commence on August 1, 2005. The lease provided for monthly rental 

payments that increased yearly. In December 2008, Levertov fell behind on the 

minimum monthly rental payments.

On July 21, 2009, Appellees sued Levertov for breach of the commercial 

lease agreement, seeking past-due rent from December 2008 through July 2009 of

$32,244. Appellees also sought an additional $46,297, plus interest, for leasehold 

improvements. In light of the suit, Levertov vacated the premises in July 2009. 

Appellees later filed a combined traditional and no-evidence motion for summary

judgment. Along with past-due rent and leasehold improvements, Appellees 

sought damages for lost rent from August 2009 through December 2009 in the 

amount of $39,370. Appellees sought no rent beyond December 2009 because 

they successfully re-leased the property to a new tenant whose lease began on 

January 1, 2010.

 Levertov answered with a general denial and asserted affirmative defenses. 

As to Appellees’ claim for leasehold improvements, Levertov asserted fraudulent 

misrepresentation and estoppel. Levertov also claimed he was entitled to offsets 

against any claims for unpaid rent because Appellees failed to provide a suitable, 

habitable, and usable lease space. Levertov also asserted the affirmative defense of 

Appellees’ breach of their duty to mitigate damages in re-leasing the premises. 

The trial court granted summary judgment as to Appellees’ claim for rent owed 
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prior to Levertov vacating the premises in July 2009 and for attorneys’ fees, but 

denied summary judgment as to all other requested relief.

After the trial court’s grant of partial summary judgment, each party filed 

additional motions for summary judgment. Levertov filed a traditional motion for 

summary judgment, and in it, he relied on his affirmative defenses to Appellees’ 

claims for leasehold improvements and post-eviction rent. Appellees’ filed a 

combined traditional and no-evidence motion for summary judgment in which it 

also addressed the issues of leasehold improvements and post-eviction rent. 

Appellees claimed that, as a matter of law, they should be awarded at least two 

months’ lost rent and at least $20,000 for the cost of leasehold improvements.

After conducting a hearing on the competing motions, the trial court granted,

in part, summary judgment and awarded Appellees five months’ lost rent in the 

amount of $39,370, but denied summary judgment as to Appellees’ claims for the 

cost of leasehold improvements. The trial court also denied Levertov’s motion for 

summary judgment on his affirmative defenses. Appellees then nonsuited their 

claim for leasehold improvements, and the trial court entered final judgment in 

favor of Appellees. Levertov now appeals.

II. Issues Presented

Levertov presents four issues for review. First, Levertov contends that the 

trial court erred when it granted Appellees’ no-evidence motion for summary 

judgment with respect to Levertov’s affirmative defense because Levertov

presented more than a scintilla of evidence that he claims raised a genuine issue of 

material fact as to Appellees’ breach of the warranty of suitability. Second, 

Levertov contends that the trial court erred when it granted Appellees’ traditional

motion for summary judgment on their claim for post-eviction rent because 

Levertov raised a genuine issue of material fact as to the affirmative defense of 

failure to mitigate. Third, Levertov contends that the trial court improperly 
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awarded post-eviction rent for a five-month period because that award contravened 

Appellees’ request for rent covering only a two-month period. Fourth, Levertov 

contends that the trial court used an improper method of calculation for its award 

of post-eviction rent.

III. Standard of Review

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 

315 S.W.3d 860, 862 (Tex. 2010). The party that files a no-evidence motion for 

summary judgment alleges that there is no evidence of one or more essential 

elements of a claim or defense on which the adverse party would have the burden 

of proof at trial; the adverse party then must respond with evidence to raise a 

genuine issue of material fact on each of the challenged elements in the claim or 

defense. See TEX. R. CIV. P. 166a(i).

A no-evidence summary judgment is essentially a pretrial directed verdict, 

and we apply the same legal sufficiency standard in reviewing a no-evidence 

summary judgment as we apply in reviewing a directed verdict. King Ranch, 

Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003). With a no-evidence 

motion, we review the evidence in the light most favorable to the nonmovant, 

disregarding all contrary evidence and inferences. Id. (citing Merrell Dow Pharm., 

Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). “A no evidence point will be 

sustained when (a) there is a complete absence of evidence of a vital fact, (b) the 

court is barred by rules of law or of evidence from giving weight to the only 

evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact 

is no more than a mere scintilla, or (d) the evidence conclusively establishes the 

opposite of the vital fact.” Id. at 751 (quoting Merrell Dow, 953 S.W.2d at 711).

A no-evidence summary judgment is improperly granted if the respondent 

brings forth more than a scintilla of probative evidence to raise a genuine issue of 

material fact. Id. at 750–51 (citing TEX. R. CIV. P. 166a(i) and Wal-Mart Stores, 
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Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002)). Less than a scintilla of 

evidence exists when the evidence is “so weak as to do no more than create a mere 

surmise or suspicion” of a fact. Id. at 751 (quoting Kindred v. Con/Chem, Inc., 650 

S.W.2d 61, 63 (Tex. 1983)). More than a scintilla of evidence exists when the 

evidence “rises to a level that would enable reasonable and fair-minded people to 

differ in their conclusions.” Id. (quoting Merrell Dow Pharm., 953 S.W.2d at 

711).

The movant for traditional summary judgment must show that there is no 

genuine issue of material fact and that it is entitled to judgment as a matter of law. 

See TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. 

Fielding, 289 S.W.3d 844, 848 (Tex. 2009). A defendant who moves for

traditional summary judgment must either negate at least one essential element of 

the nonmovant’s cause of action or prove all essential elements of an affirmative 

defense. See Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 

1995). 

When competing summary judgment motions have been filed and one 

motion is granted and the other is denied, we consider all of the summary judgment 

evidence and determine all the questions presented. Comm’rs Court of Titus 

Cnty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997). If the trial court’s order on 

summary judgment does not specify the grounds on which it is based, the appellant 

must negate all grounds on appeal. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 

471, 473 (Tex. 1995).

IV. Analysis

The trial court granted a traditional summary judgment in favor of Appellees 

on their breach-of-lease claim. To prevail in an action for breach of lease, the 

landlord must prove (1) that a valid contract existed between the landlord and 

tenant; (2) that the landlord had a right under the contract to receive rental 
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payments from the tenant; (3) that the tenant breached the contract; and (4) that,

because of that breach, the landlord suffered damages. See Curtis v. AGF Spring 

Creek/Coit II, Ltd., 410 S.W.3d 511, 518 (Tex. App.—Dallas 2013, no pet.). 

Because Appellees’ summary judgment proof facially established their right to 

judgment as a matter of law, it became Levertov’s burden to present summary 

judgment evidence that raised a genuine issue of material fact as to either an 

element of the breach-of-lease claim or as to each element of an affirmative 

defense. See Lunsford Consulting Grp., Inc. v. Crescent Real Estate Funding VIII, 

L.P., 77 S.W.3d 473, 476–77 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

A. Warranty of Suitability

Levertov contends in his first issue that Appellees breached the implied 

warranty of suitability and that the lease failed due to failure of consideration. 

According to Levertov, the summary judgment evidence raised a genuine issue of 

material fact as to whether Appellees’ failure to repair and maintain the air 

conditioning system for the leased premises constituted a breach of the warranty of 

suitability. Appellees answer that the warranty of suitability was waived by 

Levertov’s acceptance of the “as-is” provision in the lease. We agree with 

Appellees.

A tenant’s obligation to pay rent and a landlord’s implied warranty of 

suitability are mutually dependent in a commercial lease. Davidow v. Inwood N. 

Prof’l Grp.—Phase I, 747 S.W.2d 373, 377 (Tex. 1988). A claim of breach of the 

implied warranty of suitability is a complete defense to nonpayment of rent. 

McGraw v. Brown Realty Co., 195 S.W.3d 271, 275–76 (Tex. App.—Dallas 2006, 

no pet.). The implied warranty of suitability covers latent defects for a physical or 

structural defect that the landlord has a duty to repair. Id. The evidence must 

indicate that (1) latent defects existed in the leased premises at the inception of the 

lease and (2) such defects were vital to the premises for their intended commercial 
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purpose. See id. Whether there has been an actionable breach of the implied 

warranty of suitability is determined on a case-by-case basis. Davidow, 747 

S.W.2d at 377.

The implied warranty of suitability may be contractually waived. Italian 

Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 340 (Tex. 

2011); Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 912 (Tex. 2007). A 

tenant waives latent defects if he takes the premises “as is” or expressly assumes 

the obligation to repair. See Gym-N-I Playgrounds, 220 S.W.3d at 909; 7979 

Airport Garage, L.L.C. v. Dollar Rent A Car Sys., Inc., 245 S.W.3d 488, 501 (Tex. 

App.—Houston [14th Dist.] 2007, pet. denied).

The commercial lease in this case contains the following provision: 

13. MOVE-IN CONDITION: Tenant has inspected the leased 

premises and accepts it in its present (as-is) condition unless 

expressly noted otherwise in the lease. Landlord and any agent 

have made no express or implied warranties as to the condition 

or permitted use of the leased premises or Property.

Because Levertov contractually agreed to accept the premises “as-is” upon his 

move-in and because the lease expressly waived any implied warranties as to the 

condition of the leased premises, we conclude that Levertov waived the implied 

warranty of suitability as a defense to the nonpayment of rent. We hold that the 

trial court did not err when it granted Appellees’ no-evidence motion with respect 

to Levertov’s defense. Levertov’s first issue is overruled.

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B. Duty to Mitigate Damages

Levertov contends in his second issue that the trial court improperly 

concluded that Levertov had not raised a fact issue on the affirmative defense of 

mitigation and, thus, that the trial court erred when it granted Appellees’ traditional

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Levertov did not appeal the denial of his motion for summary judgment on his 

affirmative defenses.
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motion for summary judgment for rent that accrued after Levertov vacated the 

premises. The Property Code imposes a duty on a landlord to mitigate damages if 

a tenant abandons the leased premises in violation of the lease. See TEX. PROP.

CODE ANN. § 91.006(a) (West 2007). This duty requires the landlord to use 

objectively reasonable efforts to re-lease the premises when the tenant vacates in 

breach of the lease. See Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc., 

948 S.W.2d 293, 299 (Tex. 1997); White v. Harrison, 390 S.W.3d 666, 675 (Tex. 

App.—Dallas 2012, no pet.). The reasonableness of the landlord’s efforts to avoid 

damages is an issue for the factfinder. See White, 390 S.W.3d at 675. If a landlord 

fails to use reasonable efforts to mitigate damages, his recovery from the tenant is 

barred if damages reasonably could have been avoided. Austin Hill Country 

Realty, 948 S.W.2d at 300.

Although the landlord holds the duty to mitigate damages, the tenant must 

prove that the landlord has mitigated or failed to mitigate damages and the amount 

by which the landlord reduced or could have reduced its damages. See id. at 299; 

Neel v. Tenet Health Sys. Hosps. Dallas, Inc., 378 S.W.3d 597, 607 (Tex. App.—

Dallas 2012, pet. denied). A defendant is not entitled to any reduction for damages 

if he does not prove the damages that could have been avoided. Austin Hill 

Country Realty, 948 S.W.2d at 299; Hoppenstein Props., Inc. v. Schober, 329 

S.W.3d 846, 849 (Tex. App.—Fort Worth 2010, no pet.). 

We hold that the trial court did not err when it found that there was no 

genuine issue of material fact on Appellees’ failure to mitigate damages because 

Levertov provided no evidence of the damages that could have been avoided if 

Appellees had properly mitigated. See Cole Chem. & Distrib., Inc. v. Gowing, 228 

S.W.3d 684, 688–89 (Tex. App.—Houston [14th Dist.] 2005, no pet.); see also 

CBS Outdoor, Inc. v. Potter, No. 01-11-00650-CV, 2013 WL 269091, at *11 (Tex. 

App.—Houston [1st Dist.] Jan. 24, 2013, pet. denied). Levertov’s mitigation 
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defense complained of Appellees’ inconsistent discovery responses regarding their 

efforts in locating a replacement tenant. But the summary judgment evidence does 

not show what efforts should have been made or how such efforts would have 

altered the damages awarded. Levertov provided no evidence of the availability of 

a different tenant or how much a new tenant would have paid for rent. Levertov 

has not provided any summary judgment evidence with any dollar amount or 

method of calculation by which his damages should be reduced for Appellees’ 

alleged failure to mitigate. We overrule Levertov’s second issue.

C. Damages

Levertov’s third and fourth issues challenge the measure of post-eviction

damages awarded to Appellees by summary judgment. In his third issue, Levertov 

complains of the trial court’s decision to award damages for the payment of five 

months’ rent that accrued after Levertov vacated the premises. In his fourth issue, 

Levertov complains of the trial court’s method of calculating damages. We 

address each in turn.

Levertov argues in his third issue against the trial court’s award of five 

months’ rent because the trial court previously denied summary judgment as to 

post-eviction rent. A trial court may reconsider and reverse its prior ruling on a 

partial summary judgment, and a trial court can properly grant a summary 

judgment after having previously denied the same motion. See Elder Const., 

Inc. v. City of Colleyville, 839 S.W.2d 91, 92 (Tex. 1992); Jabri v. Qaddura, 108 

S.W.3d 404, 412 (Tex. App.—Fort Worth 2003, no pet.). Levertov’s threshold 

argument is without merit.

Levertov further contends that the trial court erroneously awarded damages 

beyond those requested by Appellees. Appellees’ Motion for Summary Judgment 

On Remaining Issues provided that Appellees “lost additional rents between 

August and December 31, 2009, in the amount of $39,370.00 due to [Levertov’s] 
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breach.” Appellees’ motion further provided that Levertov was evicted from the 

leasehold at the end of July 2009 and that efforts to clean and renovate the property 

for the new tenant took five months. Appellees then requested that “at lease [sic]

two (2) additional months of Leasehold rentals be awarded to [Appellees]. As a 

matter of law, two months is a reasonable time to perform the work required due to 

[Levertov’s] breach.” In their prayer for relief, Appellees requested “Judgment 

against [Levertov] for all sums lawfully due and owing [Appellees] on the subject 

Lease.” Levertov argues on appeal that the trial court’s award of damages for the 

payment of five months’ rent that accrued after Levertov vacated the premises was 

an abuse of discretion because Appellees merely requested two months’ lost rent 

rather than five months’ lost rent.

Summary judgments may only be granted upon grounds expressly asserted 

in the summary judgment motion. G & H Towing Co. v. Magee, 347 S.W.3d 293, 

297 (Tex. 2011) (per curiam). A trial court cannot grant more relief than was 

requested by a motion for summary judgment, and a judgment that grants more 

relief than requested is subject to reversal. Lehmann v. Har-Con Corp., 39 S.W.3d 

191, 202 (Tex. 2001). 

In instances when an appellate court has reversed summary judgment

because a party was granted more relief than it requested in its motion for 

summary judgment, the motion for summary judgment wholly failed to address a 

claim of relief or theory of liability. See, e.g., Science Spectrum, Inc. v. Martinez, 

941 S.W.2d 910, 911–12 (Tex. 1997); Bever Props., L.L.C. v. Jerry Huffman 

Custom Builder, L.L.C., 355 S.W.3d 878, 886–87 (Tex. App.—Dallas 2011, no 

pet.); Rust v. Tex. Farmers Ins. Co., 341 S.W.3d 541, 552 (Tex. App.—El Paso 

2011, pet. denied); Muston v. Nueces Cnty. Sheriff’s Dep’t, 122 S.W.3d 469, 473 

(Tex. App.—Corpus Christi 2003, no pet.). Levertov has not cited, and we cannot 

find, any cases in which there was a reversal due to a discrepancy between the 
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award of damages and the damages requested in the motion for summary 

judgment. Appellate courts have found error when the trial court entered judgment 

on issues that were never presented to it. That is not the case here. Rather, 

Appellees’ motion for summary judgment properly raised the issue of damages for 

the payment of rent that accrued after Levertov vacated the premises.

Although Appellees requested at least two months of lost rent, they did not 

cap their request at two months’ rent. Appellees’ motion for summary judgment, 

viewed as a whole, requested relief for the full five-month period of post-eviction

rent, while indicating Appellees would accept damages for a lesser amount within 

the trial court’s discretion. Therefore, the trial court did not award more relief than 

Appellees requested when it granted summary judgment on the payment of lost 

rent for the five-month period after Levertov vacated the premises. Having 

dismissed each of Levertov’s arguments, we overrule his third issue on appeal.

In his fourth issue, Levertov argues that the trial court erred when it awarded 

damages for post-eviction rent based on the minimum monthly rent rather than the 

present value of future rentals. When a tenant breaches a lease by abandoning the 

property and terminating rental payments, the landlord has four remedies available. 

See Austin Hill Country Realty, 948 S.W.2d at 300. Because this suit involved an

anticipatory breach, only two of the four remedies were available to Appellees. 

See id.; Hoppenstein Props., Inc. v. McLennan Cnty. Appraisal Dist., 341 S.W.3d 

16, 20–21 (Tex. App.—Waco 2010, pet. denied).

First, a landlord in Appellees’ situation can treat the tenant’s conduct as an 

anticipatory breach of the lease and repossess the property. See Austin Hill 

Country Realty, 948 S.W.2d at 300. Under this remedy, the landlord can recover 

the present value of the future rentals under the lease, reduced by the reasonable 

cash market value of the premises for the unexpired term. Id. The second option

permits a landlord to treat the tenant’s conduct as an anticipatory breach of the 
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lease, repossess the property, and lease it to a new tenant. Id. Under the second

remedy, the landlord can recover the contractual rent reduced by the amount the 

landlord receives from the new tenant. Id.

Appellees argue that they chose the second remedy, i.e., to treat Levertov’s 

conduct as an anticipatory breach of the lease, repossess the property, and lease it 

to a new tenant. Because renovations took five months to complete, the rent 

received from the new tenant was zero for a five-month period after Levertov 

vacated the premises. Thus, according to Appellees, the damages award followed 

their chosen remedy.

Appellees provided proof of the contract and the amount due under the 

contract. They also provided proof that Levertov failed to pay any rent after he 

breached the lease and vacated the premises. During the five-month period for 

which damages for post-eviction rent were awarded, Appellees received no rent for 

the premises. In response to Appellees’ motion for summary judgment, Levertov, 

as the tenant, had the burden to raise a genuine issue of material fact as to his 

affirmative defense of mitigation. As we noted above, a tenant has the burden to 

prove not only that the landlord has mitigated or failed to mitigate damages but 

also the amount by which the landlord reduced or could have reduced its damages. 

See id. at 299; Neel, 378 S.W.3d at 607. A tenant is not entitled to any reduction 

for damages if he does not prove the damages that could have been avoided. 

Austin Hill Country Realty, 948 S.W.2d at 299; Schober, 329 S.W.3d at 849. 

Levertov failed to raise a genuine issue of material fact as to the amount of rent 

that Appellees received from the new tenant. Thus, the trial court did not err in 

awarding Appellees the contractual rent for the five-month period covered by 

Levertov’s lease for which Appellees received no rent from any tenant. The fourth 

issue is overruled. 
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V. Conclusion

Having overruled each of Levertov’s issues on appeal, we affirm the 

judgment of the trial court.

MIKE WILLSON

JUSTICE

February 27, 2014

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.