Metroplex Glass Center, Inc. v. Vantage Properties, Inc.

• Decision Date: 03 January 1983
• Docket Number: No. 05-81-01228-CV,05-81-01228-CV
• Citation: 646 S.W.2d 263
• Parties: METROPLEX GLASS CENTER, INC. and Jess W. Lewellyn, Sr., Appellant, v. VANTAGE PROPERTIES, INC., Appellee.
• Court: Texas Court of Appeals

Page 263

646 S.W.2d 263

METROPLEX GLASS CENTER, INC. and Jess W. Lewellyn, Sr., Appellant, v. VANTAGE PROPERTIES, INC., Appellee.

No. 05-81-01228-CV.

Court of Appeals of Texas,

Dallas.

Jan. 3, 1983.

Rehearing Denied Feb. 14, 1983.

Michael A. Robertson, Grand Prairie, for appellant.

Robert Harms Bliss, Richard S. Golombeck, Dallas, for appellee.

Before GUITTARD, C.J., and AKIN and STEPHENS, JJ.

AKIN, Justice.

This is an appeal by Metroplex Glass Center, Inc., from a summary judgment in favor of its lessor, Vantage Properties, Inc., for unpaid rentals under a lease. The principal question presented is whether Metroplex's response to Vantage's motion for summary judgment raises fact issues with respect to the Lessee's affirmative defenses. Since the Lessee's response incorrectly asserted that the movant had the burden of proof to negate its affirmative defenses, and also failed to include the proper summary judgment proof to support the affirmative defenses, the response to the motion for summary judgment raised no issue of fact with respect to the entitlement of Vantage to summary judgment. Accordingly, we affirm.

Metroplex Glass Center, Inc., leased a building from Vantage West Property Company as agent for Six Flags Business Park, and occupied the premises until May 1980, when Metroplex vacated the premises. Metroplex failed to pay the monthly rentals due under the lease from June 1980 to August 1981. Vantage re-entered the premises in June 1980, prepared it for lease and listed the building with a commercial leasing agent. Vantage then sued to recover unpaid rentals and operating expenses resulting from Metroplex's abandonment of the premises and from Metroplex's failure to pay rentals due under the lease. Summary judgment was granted in favor of Vantage for the unpaid rentals. On appeal, Metroplex asserts that (1) the question of mitigation of damages was not established as a matter of law; (2) that Metroplex's affirmative defenses were not disproved as a matter of law; and (3) that the named plaintiff, Vantage Properties, Inc., is not the proper party to bring this suit.

With respect to the contention that mitigation of damages was not established as a matter of law, no duty exists to mitigate damages unless that duty is imposed by the lease. Holloway v. Zapara, 412 S.W.2d 943, 944 (Tex.Civ.App.--San Antonio 1967, no writ); Silbert v. Keton, 29 S.W.2d 824, 826 (Tex.Civ.App.--Waco 1930, writ ref'd). Since the lease between Vantage and Metroplex imposed no affirmative duty to relet the premises, Vantage was under no obligation to relet the abandoned premises. No summary judgment evidence was presented inconsistent with section 24 of the lease allowing Vantage to relet the premises without releasing Metroplex from its contractual obligations.

In its response to Vantage's motion, Metroplex incorrectly assumes that the burden of proof to negate its affirmative defenses was upon Vantage. Where a defendant asserts an affirmative defense to the plaintiff's action, he must adduce summary judgment evidence raising a fact issue on all elements necessary to establish his affirmative defenses. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972); Newsom v. Starkey, 541 S.W.2d 468, 471 (Tex.Civ.App.--Dallas 1976, writ ref'd n.r.e.). Although Metroplex's response erroneously attempted to place the burden of proof upon Vantage, we consider the attached affidavit as an "additional" response under Tex.R.Civ.P. 166-A. See City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979). However, even when we consider the affidavit presented by Metroplex as a "response," the affidavit fails to raise a fact issue in support of any of the alleged affirmative defenses.

The first affirmative defense alleged is constructive eviction. A complete and comprehensive definition of the elements of constructive eviction are delineated in Stillman v. Youmans, 266 S.W.2d 913 (Tex.Civ.App.--Galveston 1954, no writ). As reiterated in Michaux v. Koebig, 555 S.W.2d 171, 177 (Tex.Civ.App.--Austin 1977, no writ), the essential elements are:

(1) An intention on the part of the landlord that the tenant shall no longer enjoy the premises, which intention may be inferred from the circumstances; (2) A material act by the landlord or those acting for him or with his permission that substantially interferes with the use and enjoyment of the premises for the purpose for which they are let; (3) The act must permanently deprive the tenant of the use and enjoyment of the premises; (4) The tenant must abandon the premises within a reasonable time after the commission of the act.

Other courts have adopted these essential elements. Steinberg v. Medical Equipment Rental Services, Inc., 505 S.W.2d 692 (Tex.Civ.App.--Dallas 1974, no writ); Ravkind v. Jones Apothecary, Inc., 439 S.W.2d 470 (Tex.Civ.App.--Houston [1st Dist.] 1969, writ ref'd n.r.e.).

In this case, the summary judgment proof shows that the lock on a rear door of the leased premises did not work properly, that the water heater malfunctioned, that certain partitions were not made to specifications, and that the roof leaked water around a heater. Assuming these allegations are true, we hold that appellant has not raised a fact issue with respect to the affirmative defense of constructive eviction, as a matter of law, because Metroplex did not abandon the premises within a reasonable time after these deficiencies...