In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-20-00189-CV

___________________________

On Appeal from the 342nd District Court

Tarrant County, Texas

Trial Court No. 342-312627-19

Before Birdwell, Bassel, and Womack, JJ.

Memorandum Opinion by Justice Birdwell

THE CUSTOMER CENTER OF DFW INC. D/B/A SPRINT STORE BY THE 

CUSTOMER CENTER AND THE CUSTOMER CENTER INC., Appellants

V.

RPAI NORTH RICHLAND HILLS DAVIS LIMITED PARTNERSHIP, Appellee
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MEMORANDUM OPINION

A landlord sued its tenant for breach of a commercial lease, and the tenant 

raised affirmative defenses. The trial court granted summary judgment in favor of the

landlord. We conclude that the tenant’s evidence created a fact issue on its defense of 

failure to mitigate, which is enough to defeat summary judgment. We therefore 

reverse and remand.

I. BACKGROUND

In 2015, appellant The Customer Center of DFW Inc. (“Tenant”) signed a fiveyear lease for a commercial space at a shopping center owned by appellee RPAI

North Richland Hills Davis Limited Partnership. The other appellant, The Customer 

Center Inc., signed a guaranty of the lease.

In early 2017, Tenant notified RPAI that it was losing money and asked RPAI 

about finding a new tenant. In March 2017, RPAI and Tenant executed a re-leasing 

agreement in which RPAI promised to try to find a new tenant, and Tenant promised 

to keep making payments in the meantime. But Tenant offered testimony that, over 

the years that followed, RPAI’s efforts to find a new tenant were negligible and that 

RPAI even took steps to undercut Tenant’s attempt to facilitate the process. In June 

2017, Tenant informed RPAI that it would be closing its doors.

In January 2018, RPAI informed Tenant that it had found a replacement 

tenant, but RPAI requested a $110,000 fee in exchange for terminating the lease, 
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which Tenant refused. In April 2018, Tenant offered two potential tenants who were 

willing to take over the lease, but RPAI rejected them without explanation.

In an attempt to salvage the venture, Tenant reopened its store on 

September 11, 2018, but it lost 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 to pay rent since December 2018. RPAI moved for

traditional summary judgment on its claims, relying on a declaration by RPAI’s 

property manager that Tenant had stopped paying rent.

Appellants then amended their answer to raise defenses concerning RPAI’s 

allegedly poor effort to relet the premises: that RPAI failed to mitigate its damages 

and that it materially breached the lease by failing to relet the premises, thus relieving 

Appellants of any obligation to pay rent under the lease. Appellants sought to avoid 

summary judgment by raising a fact issue on those defenses, relying on an affidavit by 

Appellants’ CEO and president Luigi V. Ambrosio. Ambrosio swore to most of the 

facts we have recited above.

The trial court granted final summary judgment to RPAI awarding damages of 

$74,096.13, attorney’s fees of $3,500, and costs. Appellants appealed.

II. SUMMARY JUDGMENT BURDEN

In their first issue on appeal, Appellants assert that the trial court applied the 

wrong standard at summary judgment. Appellants submit that “[w]hen a plaintiff 

moves for traditional summary judgment on a defendant’s affirmative defenses, the
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burden is on the plaintiff to come forth with sufficient evidence to conclusively 

negate an element of the defendant’s affirmative defenses.” According to Appellants, 

it was RPAI’s burden to conclusively negate at least one element of Appellants’

defenses of failure to mitigate and prior material breach.

We take no issue with Appellants’ general statement of the law concerning 

situations where a plaintiff moves for traditional summary judgment on a defendant’s 

affirmative defenses. “In the context of a plaintiff’s traditional motion for partial 

summary judgment to dispose of a defendant’s affirmative defense, a plaintiff may 

prevail by conclusively negating at least one element of the defense.” Berry Contracting, 

L.P. v. Mann, 549 S.W.3d 314, 322 (Tex. App.—Corpus Christi–Edinburg 2018, pet. 

denied).

However, that law does not apply here. RPAI was not using the summary 

judgment process to attack Appellants’ affirmative defenses. Rather, RPAI was

moving for summary judgment on its own claims in an attempt to dispose of the case 

fully and finally. That being the situation, it was RPAI’s initial burden to conclusively 

prove all essential elements of its own contract claim, not to conclusively negate 

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 Prop. Owners Ass’n, Inc., 583 S.W.3d 

644, 648 (Tex. App.—Fort Worth 2018, pet. denied). A plaintiff satisfies its initial

summary judgment burden if it conclusively proves all essential elements of its cause 

of action. Charles Glen Hyde, 583 S.W.3d at 648. Further, we consider the evidence 
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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. Mann Frankfort Stein & Lipp 

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). Appellants do not dispute 

that RPAI carried its initial burden.

If the movant carries its initial burden, “the burden shifts to the nonmovant to 

raise a genuine issue of material fact precluding summary judgment.” Lujan v. 

Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). Where the nonmovant relies on an 

affirmative defense such as mitigation to defeat summary judgment, the nonmovant 

has the burden in its summary judgment response to present evidence sufficient 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 (Tex. App.—Fort 

Worth Oct. 27, 2016, no pet.) (mem. op.).

The onus with respect to Appellants’ defenses therefore fell on Tenant, not 

RPAI. Appellants’ issue arguing to the contrary is overruled.

III. TENANT’S DEFENSES

We next take up Appellants’ third issue, in which they argue that there was a 

fact issue on their affirmative defense of failure to mitigate. Appellants argue that 

their undisputed evidence concerning RPAI’s poor attempt to relet the premises 

should have precluded summary judgment.
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A landlord has a duty to make reasonable efforts to mitigate damages when the 

tenant breaches the lease and abandons the property. Tex. Prop. Code Ann. 

§ 91.006(a); Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc., 948 S.W.2d 293, 299 

(Tex. 1997) (op. on reh’g); Hoppenstein Props., Inc. v. Schober, 329 S.W.3d 846, 849 (Tex.

App.—Fort Worth 2010, no pet.). “A landlord should not be allowed to collect rent 

from an abandoning tenant when the landlord can, by reasonable efforts, relet the 

premises and avoid incurring some damages.” Austin Hill Country, 948 S.W.2d at 299. 

“The landlord’s failure to use reasonable efforts to mitigate damages bars the 

landlord’s recovery against the breaching tenant only to the extent that damages 

reasonably could have been avoided.” Hoppenstein, 329 S.W.3d at 849. However, the 

landlord is not required to simply fill the premises with any 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 affirmative 

defense.” Id. Thus, the tenant bears the burden to demonstrate that the landlord has 

failed to mitigate damages and the amount by which the landlord could have reduced 

its damages. Austin Hill Country, 948 S.W.2d at 299. The duty to mitigate is designed 

“to discourage the waste that results when a party sits still and lets damages pile up 

when reasonable steps would prevent further loss,” Mellema v. Cargill, Inc., No. 05-92-

00375-CV, 1993 WL 58518, at *6 (Tex. App.—Dallas Feb. 26, 1993, no writ) (not 

designated for publication), rather than to “penalize the mitigating party for not doing 

enough.” Hoppenstein, 329 S.W.3d at 850.
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Appellants offered some evidence of RPAI’s failure to make reasonable efforts 

to mitigate damages, as well as the amount of damages that could potentially have 

been avoided through mitigation. Viewed in the light most favorable to Appellants, 

the record establishes the following:

• In the 2015 lease, RPAI pledged to make “good faith,” “commercially 

reasonable efforts” to find a replacement tenant in the event of a default by 

Tenant;

• In March 2017, RPAI renewed that promise in the “Re-Leasing Agreement” 

after Tenant notified RPAI that it was closing its store with 42 months left on 

the lease;

• RPAI failed to locate a new tenant over the next three-and-a-half years;

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

a replacement tenant, such as by declining to show on its website that the 

premises were available, despite multiple requests from Tenant;

• RPAI also barred Tenant from displaying a “for rent” sign to assist in the 

reletting process;

• In January 2018, RPAI notified Tenant that it had located a replacement tenant, 

but in exchange for terminating the lease, it demanded a $110,000 fee from 

Tenant that was not contemplated by the parties’ agreements;
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• Based on the timetable of events and the terms of the lease, it is evident that if

RPAI had reasonably accepted the new tenant in January 2018 instead of trying

to extract an additional payment from Tenant, RPAI could have potentially 

mitigated roughly $90,000 in damages, which represents the remaining twentyone monthly payments on the lease after Tenant stopped paying rent in 

December 2018;

• In April 2018, Tenant brought to RPAI’s attention two more suitable 

replacement tenants who were willing to take over the existing lease, but RPAI

rejected both without explanation; and

• Had RPAI reasonably accepted either one of the proposed tenants in April 

2018, it would have mitigated roughly $90,000 in damages.

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1

Luigi Ambrosio’s affidavit was the source of most of this evidence, but RPAI 

maintains that his affidavit is conclusory and therefore no good as summary judgment 

evidence. See Atmos Energy Corp. v. Paul, 598 S.W.3d 431, 467 (Tex. App.—Fort 

Worth 2020, no pet.). We disagree. “A conclusory statement 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 5242419, at *4

(Tex. App.—Fort Worth Sept. 3, 2020, pet. denied) (mem. op.) (quoting Residential 

Dynamics, LLC v. Loveless, 186 S.W.3d 192, 198 (Tex. App.—Fort Worth 2006, no 

pet.)). Ambrosio’s affidavit is composed of hard factual matter, not vague

declarations parroting the elements. He provided specific facts to substantiate the 

elements, with a detailed timeline of the ways in which RPAI refused to reasonably 

pursue mitigation.

RPAI also attacks the affidavit in another way: it contends that Ambrosio 

failed to demonstrate the basis of his personal knowledge. See Kerlin v. Arias, 274 

S.W.3d 666, 668 (Tex. 2008) (per curiam). Again, we differ in our estimation of the

affidavit. “[A] person’s position or job responsibilities can peculiarly qualify [him] to 
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We believe that despite Appellants’ inability to pinpoint the exact amount of 

damages that could have been avoided, the above evidence nonetheless gives rise to a 

fact issue on failure to mitigate, as is shown by Hygeia Dairy Co. v. Gonzalez, 994 

S.W.2d 220 (Tex. App.—San Antonio 1999, no pet.) (en banc op. on reh’g). There, a 

dairy sold fifty-one head of cattle to a rancher, but unbeknownst to the rancher, the 

cattle were diseased. Id. at 222. The rancher’s stock began to die off in 1993, forcing 

him to liquidate his entire herd in late 1994, and he sued the dairy. Id. The dairy 

pleaded the defense of failure to mitigate; it argued and proffered evidence that when 

the rancher started to lose cattle, he should have tested the dead and dying animals to 

determine exactly what was causing the deaths. Id. at 224. Nonetheless, the trial court 

refused to submit the mitigation issue to the jury. Id. On appeal, the court agreed the 

trial court should have submitted the mitigation issue to the jury, even though the 

dairy’s trial evidence did not “prove the exact amount of damages attributable to” the 

rancher’s neglect. Id. at 225. “We believe the law does not require such a showing, 

especially when the damages themselves are unliquidated.” Id. Rather, the court 

have personal knowledge of facts and establish how [he] learned of the facts.” 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) (citing Boswell v. Farm & Home 

Sav. Ass’n, 894 S.W.2d 761, 768 (Tex. App.—Fort Worth 1994, writ denied)).

Ambrosio explained that he was president and CEO of Tenant, and much of his 

affidavit’s factual content was framed in the first person; it was largely a sworn 

account of things that he said and did with respect to RPAI, as well as things that 

RPAI’s managers said and did in return. Ambrosio’s position and his role in 

overseeing these events on Appellants’ behalf establish the basis of his personal 

knowledge.
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concluded, “Mitigation of damages is ordinarily a question of fact for the jury,”2 and 

to create a fact issue for the jury, the defendant need only produce some evidence 

“from which the jury can make a reasoned calculation about losses from failure to 

mitigate.” Id. at 224, 226. The court held that this standard was satisfied by the 

general evidence concerning the cost of the replacement cattle and the value of the 

rancher’s herd. Id. at 226.

Likewise, in this case, Appellants made an imprecise record concerning the

exact amount that RPAI could have mitigated through reasonable efforts. Still, as 

with Hygeia, we hold that the evidence is sufficient to give rise to a fact issue on the 

defense of failure to mitigate. There was evidence of RPAI’s delinquent efforts to 

relet the premises. There was also proof concerning the value and term of the lease,

along with the evidence that if RPAI had acted reasonably with respect to any of the 

potential tenants in early 2018, this could have saved nearly two years’ worth of 

payments on the lease, to the tune of over $90,000. This is enough to survive

summary judgment. See id.

Because Appellants have offered evidence sufficient to raise a fact issue on 

each element of its failure-to-mitigate defense, summary judgment was improper. 

See Am. Petrofina, 887 S.W.2d at 830. We sustain Appellants’ third issue, which renders 

it unnecessary to consider Appellants’ second issue.

2

See also 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 fact finder.”).
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IV. CONCLUSION

We reverse the trial court’s judgment and remand for further proceedings 

consistent with this opinion.

/s/ Wade Birdwell

Wade Birdwell

Justice

Delivered: May 27, 2021