Southwest Park Outpatient Surgery, Ltd. v. Chandler Leasing Division

Decision Date07 September 1978
Docket NumberNo. 17163,17163
Citation572 S.W.2d 53
CourtTexas Court of Appeals
PartiesSOUTHWEST PARK OUTPATIENT SURGERY, Ltd., et al., Appellants, v. CHANDLER LEASING DIVISION, Pepsico Leasing Corporation, Appellee. (1st Dist.)

Wood, Lucksinger & Epstein, Bill R. Bludworth, Houston, for appellants.

Fulbright & Jaworski, Jeffrey R. Parsons, Houston, for appellee.

EVANS, Justice.

This is an appeal from a summary judgment awarding a lessor damages for breach of a lease equipment.

The lease in question is dated September 16, 1974, and was executed by Chandler Leasing Division as lessor and by Southwest Park Outpatient Surgery, Ltd., as lessee. R. W. Dwyer, Nadine Kay Dwyer, Thomas C. Rooney, and Genevieve Rooney each executed agreements personally guaranteeing the lessee's obligation under the lease.

Chandler Leasing Division subsequently brought this action against the lessee and the four guarantors, alleging default in payments of monthly rentals and seeking damages, repossession of the leased equipment and attorney's fees. The defendants answered and also filed a cross-action against the supplier of the equipment alleging that the equipment was defective and not fit for the purposes intended.

The trial court granted a partial summary judgment awarding the plaintiff possession of the leased equipment and severed that claim from the main cause. A final judgment was then entered in the severed cause, and an appeal was taken from that judgment to this court. In a separate opinion this date filed, this court has affirmed the trial court's summary judgment awarding possession of the leased equipment to the plaintiff.

The trial court also entered a partial summary judgment awarding the plaintiff the sum of $393,346.33 as "the entire amount of liquidated lease payments presently due and remaining to be paid over the balance of the lease term", and ordered that claim severed from the main cause. A final judgment was then entered in the severed action awarding said sum to the plaintiff, the judgment reciting that it was without prejudice to the claims remaining in the principal case. No objection has been made to the manner in which the claims were severed in the trial court and that is not an issue on this appeal.

In the case at bar the defendants contend that the trial court's judgment should be reversed because the affidavit filed in support of the plaintiff's motion for judgment is fatally defective. This contention will be overruled for reasons discussed in this court's opinion of even date on the appeal from the summary judgment awarding the plaintiff possession of the leased equipment.

The defendants also contend that the summary judgment proof established genuine issues of material fact with respect to their affirmative defenses of failure of consideration, usury and penalty. The plaintiff contends that these issues were not raised by the pleading or established by the proof.

In their answers the defendants alleged that the consideration had failed because the equipment was defective when delivered and was not fit for the purposes intended. The defendants also asserted this defense in their response to the plaintiff's motion for summary judgment. The supporting affidavit of the guarantor Dwyer alleges that the lessee did not receive all of the equipment listed in the lease rental schedule and that the equipment never functioned as required and was not fit for the purposes intended. The affirmative defense of failure of consideration was sufficiently alleged for the purposes of the summary judgment proceeding. Womack v. Allstate Ins. Co., 156 Tex. 467, 296 S.W.2d 233 (1957); DeBord v. Muller, 446 S.W.2d 299 (Tex.1969). The summary judgment proof does not, however, raise a fact issue on this affirmative defense in view of the parties' contractual agreement. The lease contract contains an itemized list of the leased equipment and the lessee signed a certificate of inspection and acceptance acknowledging receipt of the equipment in good working order, repair, and condition. The lease also contains a lessor's express disclaimer of any warranty or representation as to title, condition, design, quality or capacity, or as to the workmanship or fitness of the equipment for any particular purpose. The lease further provides that in no event should any defect or any unfitness of the equipment relieve the lessee of its obligation to pay rental as required by the lease. Thus, on the basis of the record before the court at the time of the summary judgment proceeding, no genuine issue of material fact was raised with respect to the alleged defense of failure of consideration.

The affirmative defense of usury also was alleged sufficiently by the defendants' responses to the plaintiff's motion for summary judgment and by the sworn allegations contained in the supporting affidavit of the guarantor Dwyer. In his affidavit, Dwyer alleged that the lease agreement was a lease in form only and that the substance of the parties' transaction was that the plaintiff would make a loan to the defendants at a higher rate of interest than allowed by law.

In determining whether the summary judgment proof established the affirmative defense of usury, it is first necessary to determine whether the lease agreement is a lease or a conditional sales contract. Although the lease grants an option to the lessee to purchase the leased property at the end of the lease term, it does not obligate the lessee...

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  • Stuart v. Spademan
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • October 7, 1985, even in the absence of other contacts, to validate an express choice of the domicile's law. See Southwest Park Outpatient Surgery, Ltd. v. Chandler Leasing Division, 572 S.W.2d 53 (Tex.Civ.App.--Houston [1st Dist.] 1978, no writ) (only apparent connection between contract and Massachus......
  • BANK ONE, TX, NA v. Prudential Ins. Co. of Amer.
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    • March 16, 1995 mitigate his damages. Thus a simple acceleration of future rents may not be a proper measure. See Southwest Park Outpatient Surgery Ltd. v. Chandler Leasing Div., 572 S.W.2d 53, 56-57 (Tex.Civ.App.1978, no writ) (simple acceleration of rents without crediting lessee for resale or re-lett......
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    ...602 S.W.2d 278; Commerce Union Bank v. John Deere Indus. Equip. Co. (Ala.1980), 387 So.2d 787; Southwest Park Outpatient Surgery, Ltd. v. Chander Leasing Div. (Tex.Civ.App.1978), 572 S.W.2d 53. A purchase option may be included because resale or deinstallation of the property is attendant w......
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    ...v. Vantage Properties, Inc., 597 S.W.2d 447, 448-49 (Tex.Civ.App.--Dallas 1980, writ ref'd n.r.e.); Southwest Park Outpatient Surgery, Ltd. v. Chandler Leasing Division, 572 S.W.2d 53, 55 (Tex.Civ.App.--Houston [1 st Dist.] 1978, no writ); Maloney v. Andrews, 483 S.W.2d 703 (Tex.Civ.App.--E......
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