## In the Court of Appeals Secon d Appellate District o f T exas at Fort Worth

___________________________ No. 02

- 20

- 00189

- CV

___________________________

On Appeal from the 342n d District Court Tarrant County, Te xas Trial Court No. 34 2

- 3 12627

- 19
Before Birdwell, Bassel, and Womack, JJ. Memorandum Opinion by Justice Birdwell 

### T HE 

### C USTOMER 

### C ENTER OF 

### DFW I NC



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### / B 

### / A 

### S PRINT 

### S TORE B Y 

### T HE



### C USTOMER 

### C ENTER AND 

### T HE 

### C USTOMER 

### C ENTE R 

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### . , Appellants

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### . RPAI N ORTH 

### R IC HLAND 

### H ILLS 

### D AVIS 

### L IMI TED 

### P ARTNER SHIP 

### , Appellee2 MEMORANDUM OPINION
A landlo rd sued its ten ant for b reach of a commercial lease , and the te n ant raise d af fi rmative defense s . The trial cour t grante d summary judg ment in fav or of the
landlord. We conclude that the tenant ’s evidence create d a fact issue on its defense of failure to mitigate , which is enough to defeat summary judgment

. We therefore

revers e an d remand

. I. B ACKGROUND In 2015, ap pellant The Customer C enter of DF W Inc. (“Tenant”) signed a five

year lease for a commercial space at a shopping center owned b y appelle e RPAI
North Richland Hill s Davis L imited P artners hip

. The other appe llant, The Custom er C enter Inc. , signed a guaranty of t he lease.
In early 2017 , Tenant notified RPAI that it was losing money and asked RPAI about finding a new tenant. I n March 2017, RPAI and Tenant executed a re

- leasing agreement in which RPAI promised to try to find a new tenant, and Te nant promised to keep making paym ents in the meantime. But Tenant offered testimony that , over the years that followed, RPAI’s effort s to find a new tenant were neg ligible and that
RPA I even took steps to under cut Tenant ’ s attempt to fac ili tate the process

. In J une 2017, Tenant informed RP AI that it would be closing its doors.
In January 2018, RPAI informed Tenant that it had f ound a replacement

tenant , but RPAI req uested a $110,000 fee in exchange for termin ating the lease,3 which Tenant ref used. In April 2018, Tena nt offered two potential tenants who were willing to take over the lease, but RPAI rejected them witho ut explanation. In an attempt to salv age the venture, Tenant reopened it s store on Sept ember 1 1, 2 018, but it lo st money and closed again in March 2019. RPAI sued Appellants for breach of the lease and the guaranty in October 2019, alleging that they had failed t o pay rent since Dec ember 2018. RPAI moved for
traditional su mmary j udgm ent on its claims, relying on a declaration by RPAI’s
property manager that Tenant had stopped paying rent.
A ppellants then amended their answer to raise defenses c oncerning RPAI’s
alle gedly poor effort to relet the prem ises: t hat RPAI fail ed to mitigate its dam ages and that it materiall y breached t he lease by failing to relet the premises, thus rel iev ing Appellants of an y obligation to pay rent under the lease. Appellants sou ght to avoid summary judgment by ra ising a fact issue on th ose defenses, re lying on an affidavit by Appellants’ C EO and presi dent Luigi V. Ambrosio

. Ambrosio swore to most of the
fact s we have recited above.
The tr ial co urt granted fin al summary jud gment to RPAI awardin g damages of $74,096.1 3 , attorney’s fees of $3,500, and cos ts. Appellants appealed.
II. S UMMARY J UDGMENT B URD EN
In their first issue on appeal, Appellants assert that the trial court appli ed the

w rong standard at summary judg ment. Appellants s ubmit that “ [w] hen a p laintiff moves for traditional summary judgment o n a defendant’s affirmative defenses, the4 burden is on the plaintiff to come forth with sufficient evidence to conclusively
negat e an elemen t of the d efendant’s affirmativ e defenses .” A ccording to Ap pellant s , it was RPAI’s burden to conclusively negate a t least one element of Appellants ’
def enses of fai lure to mitigate and prior material breach

. We take no issue with Appellants ’ g eneral s tatement o f t he law concernin g situations where a plaintiff mov es for traditional summary judgment on a defendant’s
affirmativ e defenses

. “In the context o f a plainti f f’s traditional motion for partial summary judgment to dispose of a defendant’s affirmat ive defens e, a plaintiff may prevail by conclusi vely negating a t least one element of the defense.” Berry Contracting,
L.P. v . Mann , 549 S.W.3d 314, 322 (T ex. App.

— Co r pus Christi

– Edinburg 2018, pet. denied). However, that law does not apply here. RPAI was not us ing the su mmar y judgment proc ess to attack Appel lants ’ affirmat ive def enses. Rather, RPAI was moving for summary judgment on its own claims in an a ttempt to di spose of the case fully and finally

. That being the situation , it was RPAI’s in itial bu rden to conclusi vely
p rove al l essential elements of its own co ntract claim , n ot to conclusively ne gate Appellants ’ defenses

. See MMP, Ltd. v. Jones , 710 S .W.2d 59, 60 (Tex. 1986) ; Charles Glen Hyde, Nw. Reg ’ l Airport, Inc. v. Nw. Reg ’ l Airport Pr op. Owne rs Ass ’ n, Inc. , 583 S. W.3d
64 4, 648 (Tex. App.

— Fort Wort h 2018, pet. denied)

. A plaintiff satisfies its initial summary judgment burde n if it conclusively proves all e ssential elements of its cause of action

. Charles Glen Hyde , 583 S.W.3d at 648

. Furthe r , w e consider the evi dence5 p resented in the light most favorab le to the nonmo vant, crediting evidence favorable to the nonmovant if reasonable jurors could , and disreg arding evidence contrary to
the nonmovant unless reason able jurors could not. M ann Fran kfort Stein & Lipp
Adv isors, Inc. v. Fielding , 289 S.W.3 d 844, 848 (Tex. 2009)

. Appellants do not dispute

t hat RPAI carried its initial burden

. If the mova nt carries i ts initial burden, “ the burden shifts t o the nonmovant to raise a genuine issue of mater ial fact precluding su mmary j udgm ent. ” Lujan v.
Navista r, Inc. , 555 S.W.3d 79 , 84 (Tex. 2018)

. Where the nonmovant relies on an
affirmative defense such a s mitigation to defeat summary judgment, the nonmov ant has the burden in its summary judgme nt respon se to present evidence suffic ient to raise a fact issue on each element of the affirmative defense. See Am . Petrofina, Inc. v.
Allen , 887 S.W.2d 829, 830 ( Tex. 1994); H & H Steel Fabricators, Inc. v. Wells Fargo Equip. Fin., Inc. , No. 02

- 15

- 00391

- CV, 2016 WL 6277371, at *5 (Te x. App.

— For t Worth Oct. 27, 2016, no pet. ) (mem. op.).
The onus with respect to Appellants ’ defenses therefore fell on Tenant , not RPA I. Appellan ts ’ issue arguing to the contrary is overruled.
III. T ENANT ’ S D EFENSES
We ne xt ta ke u p Appellants ’ third is sue, in wh ich they argue that ther e was a fact issue on their affirmati ve defense of failure t o mitig ate. Appellants argue that
their u ndisputed ev idence concerning RPAI ’s poor attempt to relet the premis es should have precl uded s ummary judgment.6 A landlo rd h as a duty to make rea sonable e ffor ts to mitigate dam ages when the
tenant breaches the lease and abandons the property. Tex. Prop. C ode Ann. § 9 1.006(a) ; Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc. , 948 S.W. 2d 293 , 299 (Tex. 1997) (op. on reh ’ g) ; Hoppen stei n Prop s . , Inc. v. Schobe r , 329 S.W .3d 846, 84 9 (Tex. App.

— Fort Worth 2010, no pet.)

. “ A landlo rd should not be allow ed to collec t rent from an abandoning tenant when the landlord can, by reasonable efforts , relet the premises and avoid incurring some dama ges. ” Austin Hill Country , 94 8 S. W.2d at 299

.

“ The landlord ’ s failure to use reasonable effor ts to mitigate da mages bars the
la ndlord ’ s recovery against the breaching tenant only to the extent that damage s reasonably c ould ha ve been avoided. ” Hoppen stei n , 329 S.W.3d at 84 9

. However , th e landlord is not required to simply fill the premises with an y willing tenant; the replacement tenant must be suitable under the circumstances. Id.

“ A tenant ’ s assertion that a landlord failed to mitigate damages is an af firmative
defense

. ” Id. Thu s, t he tenant bears th e burden to de monstrate that the landlord ha s failed to mitigate damages and the amount by which the landlord could have reduced its damages

. Austin Hill Country , 948 S.W.2d a t 299

. The duty to miti gate is designed

“ to discourage th e wa ste that results w hen a party sits still and lets damages pile up when reasonable s teps would p revent further loss , ” Mellema v. Cargill, Inc. , No. 05

- 92

- 00375

- CV, 1993 WL 5 8518, at *6 (Tex. App.

— Dallas Feb. 26, 1993, n o wri t) ( not designated for public atio n ), rather t h a n to “ penalize the mitigating party for not doin g enough

. ” Hoppenste in , 329 S .W. 3d at 850.7 Appellants offered some evidence of RPAI ’ s f ail ure to make rea sona ble efforts to mitigate damages , as well as th e amount of damages that could pot ential ly have
been avo ided through mi tig ation

. View ed in the light most favorable t o A ppellants,

t he record establishes the following:

• In the 201 5 lease, RPAI pledged to make “ good faith , ” “ commercially

rea sonable efforts ” to find a replacem ent tenant in the event of a default by
Tenant ;

• I n March 2017, RPAI renewed that prom ise in the “ Re

- L eas ing Agree ment ”
after Tenant notified RPAI that it was closing i ts store with 4 2 m ont h s left on the lease ;

• RPAI failed to l oc ate a new te nant over the n e xt thr ee

- and

- a

- half ye ar s ;

• That failure was attributable to RPAI ’ s refusal to ta ke minimum efforts to find

a repl ac ement tenant , such as by declin ing t o show on its webs ite th at the premises were a vailable , despite multiple req uest s from Te n ant ;

• R PAI also barr ed Tenant from display ing a “ for rent ” sign to assist in the reletting process ;

• In January 2018, RPAI notifie d Tenant that it had located a replacement tenant , but i n exchange for terminating the lea se , it de m anded a $110 ,00 0 fee from
Tenant that was not contemplated by the parties’ agreement s ;8 • Based on the timetable of events and the term s of the lease, it is e v iden t that if
RPAI ha d reasonably accepted th e new ten ant in Janua ry 2018 inst e ad of tr ying

to extract a n additional pa yment from Tenant , RPAI could have potentially
mi tig ated roughly $ 90 ,000 in damages , which represent s the remaini ng twenty

one month ly pa yments on the lease after T enant stopped paying rent in
December 2018 ;

• I n A p ril 201 8 , Tenan t brought to RPAI ’ s atte ntion t wo more sui t abl e replace ment tenants w ho wer e willing t o ta ke over the existing lease , but RPA I rejected b oth without explan ation; and

• H a d RPAI reasonably accepted either one of the proposed tenants in A p ril
2018 , it would have mi tig ated rou ghly $ 90 , 00 0 in damages

. 1

1 Lu ig i Ambr osio ’ s a ffid avit was the so urce o f most of th is e vidence, but RPAI maintains that his a ffidavit is conclusory and therefore no good as summary judgment evidence

. See Atmos Energy Corp. v. Pa ul , 598 S.W.3d 431, 467 (Tex. A pp.

— Fort Worth 2020, no pet. )

. We disagree. “A c onclusor y s tateme nt is one that does not provide the underlying facts to support the conclusion.” Gaber v. U.S. Bank Nat ’ l Ass ’ n as Tr. for Truman 2016 Title Tr. , No. 02

- 19

- 00243

- CV, 2020 WL 524 2419, at *4 (Tex. App.

— Fort Worth Sept. 3, 2020, pet. denied) (mem. o p.) (quot ing Residential Dynamics, LLC v. Loveless , 186 S.W.3d 192, 198 (Tex. App.

— Fort Worth 2006, no pet.) )

. A mbrosio ’ s affidavit is composed of hard fa ctual matter , not vague de clarat ions parrot ing the elements

. H e pro vid ed specific f acts t o s ubstanti ate th e e lements, with a detailed timeline of the ways in which RPAI refused to reasonably p ursue mitigation. RPAI also attack s the affidavit in a nother wa y : i t contends that Amb rosio fai led to demo nstrate th e basis of his pe rsonal knowledge. Se e Kerlin v. Arias , 2 74 S.W.3d 666, 668 (Tex. 2008) (per curiam )

. Again , we d iffer in our estimation of the affidavit

. “ [A] person ’ s position or job responsibiliti es can peculiarly qua lify [him] t o9 We b el ieve that despite App ellants ’ inability to p inpo int the exact amount of damage s that could have been avoided, th e abo ve e vidence non e theless gives rise to a
fact issue on failure to mitiga te , as is shown by Hygeia Dai ry Co. v. Gonzalez , 994
S.W .2d 220 (T ex. App.

— San Antonio 19 99, no pet.) (en banc op. on reh ’ g )

. Th ere, a dairy sold fifty

- one head of c attl e to a rancher , but unb eknownst to the rancher , the
cattle were diseased

. Id. at 222. T he rancher ’s stoc k began to die off in 199 3 , f or cing
him to liqui date his entire he rd in late 1994 , and he sued the dair y . Id. The dairy plea ded the defense of f ailure to mi tigate ; it argued and p r offered evidence that when
the rancher started to lose cattle, he should h ave test ed the dead and dying a nimals to
determine ex actly what was causing the deaths

. Id . at 22 4. Nonetheles s, t he trial court
refused to subm it the mit igation i ssue to the jury. Id. O n appea l , the court agreed the
trial court should have submitted t he miti gation issue to the ju ry , even though the
dair y ’s trial eviden ce did not “ prove th e exact a mount of damag es a ttributable to ” the

ran cher ’s neglect. I d. at 22 5. “ We believe the law does not require such a showing, especially when the damages themse lves are unliquidat ed. ” Id. R ather, the cou rt
have pers onal knowledge of facts and establish how [ he] le arned of th e fact s. ” Goins v. Discover Bank , No. 02

- 20

- 00128

- CV, 2021 WL 1136077, at *2 (Tex. App.

— Fort Worth Mar. 25, 2021, no pet. h.) (mem. op. on reh ’ g) (citi ng Boswell v. Farm & Home Sav. As s ’

n , 894 S. W.2d 761, 768 (Tex. App.

— Fo rt Worth 1994, writ de nied) )

. Am brosio ex plained tha t he was pres ident and CE O of Tenant , and m uch of his
a ffidavit ’ s factual content was framed in the first person ; it was largely a s worn account of things that he sa id and did with respect to RPAI, as we ll as things that RPAI ’ s manag ers said and did in return. Ambrosio ’ s position and his role in oversee ing t hese events on Appellants ’ behalf establish the basis of his per sonal knowle dge

.10 concl ud ed , “ Mitigation of damages is ordi narily a question of fa ct f or the jury , ” 2 and

to create a fact issu e for the j ury , the defendant need only produce some evidence

“ from which the jury can make a reason ed calculation abou t losses f ro m failure to mitigate

. ” Id. at 224, 226. The court held that this standard was sati sfied by the general evidence concerning the cost of the replacement cattle and the value of the
rancher ’s h erd

. Id. at 226.
Lik e wise, in this case , Appellant s made an im pr ecis e record concern ing the

exac t amount that RPAI could have mitigated th rou gh rea sonable effo rts . Still , as wi th Hygeia , we hold that the evidence is s ufficient to give rise t o a fact issue on t he
defense of failure to mitigate

. There was evidence of RPAI ’ s delinqu en t eff orts to

re let the premises . T he re w as also proof concernin g th e valu e an d term of the lease, along wit h the evi dence that if RPAI had acted reaso nably with respect to any of t he
p otential ten ants in early 2018 , this could have saved nearly t wo years ’ wort h of payments on th e lease , to th e tune of over $ 9 0,000

. T hi s is enough to su rviv e summary j udgment

. See id.
B ecause Appellants have of fered evidence sufficient to raise a fact issue on
each element of its fail ure

- to

- mi ti ga te defense , summ ary judgment wa s improper.
See Am. Petrofina , 887 S.W .2d at 830 . We sust ain Appellants ’ third issue, which ren ders
i t unneces sary to consider Appellants ’ second issue.

2 See also White v. Harrison , 390 S.W.3 d 666, 675 (Tex. App.

— Dallas 2012, no pet.) ( “ The re asonable n ess of t he landlor d ’ s efforts to avoid damages is an issue for the fa ct finder

. ”)

.11 I V
. C ONCLU SION
We reverse the trial court ’s judgment and remand for further pro ceedin gs consiste nt w ith this opin ion. /s/ Wade Birdwell
Wade Birdwell Justice
Deli vered: May 2 7 , 2 021