Stewart v. U.S. Leasing Corp., 01-85-527-CV

• Decision Date: 12 December 1985
• Docket Number: No. 01-85-527-CV,01-85-527-CV
• Parties: Samuel STEWART Individually & DBA Stewart's Appraisal Service, Appellant, v. UNITED STATES LEASING CORPORATION, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 288

702 S.W.2d 288

Samuel STEWART Individually & DBA Stewart's Appraisal Service, Appellant, v. UNITED STATES LEASING CORPORATION, Appellee.

No. 01-85-527-CV.

Court of Appeals of Texas Houston (1st Dist.).

Dec. 12, 1985.

Orvis Davis, Houston, for appellant.

Mark P. Blenden, Lapen, Totz & Mayer, Glenn Nordt, Lapen, Totz & Mayer, Houston, for appellee.

Before JACK SMITH, HOYT and DUGGAN, JJ.

OPINION

HOYT, Justice.

This is an appeal of a summary judgment based on breach of an equipment lease agreement. The trial court granted plaintiff/lessor's motion for summary judgment, requesting $12,598.99 with prejudgment interest for rent due plus $4,199.66 in attorney's fees and postjudgment interest. We affirm.

Appellant, Samuel Stewart d/b/a Stewart's Appraisal Service (Stewart), arranged for appellee, United States Leasing (United), to purchase a copier from Salt and Pepper Copiers and then lease it to him. The term of the lease was 48 months payable in equal monthly installments of $242. Stewart made the initial payment of $242, but made no subsequent payments.

When Stewart failed to pay the installments due, United declared the balance of the lease due and filed suit against Stewart. Following the issuance of admissions and interrogatories and the taking of Stewart's deposition, United filed its motion for summary judgment arguing that Stewart's execution of the Acceptance Certificate was prima facie proof that no fact question existed and that United was entitled to judgment as a matter of law. Stewart filed a response to United's motion for summary judgment, contending that because he did not actually receive the copy machine, the consideration forming the basis of the lease agreement between him and United failed.

Stewart urges six points of error, five of which challenge the sufficiency of United's summary judgment proof and assert that fact questions were present on the issue of failure of consideration. The sixth point of error challenges the summary judgment proof based on defects in the manner of its offer.

Stewart asserts that the copy machine was never delivered to him, although he admits signing a Certificate of Acceptance. He further contends that his signature was obtained by the vendor's fraudulent assertions, and that United breached the lease agreement because it did not deliver the copy machine as contemplated in the agreement.

The movant has the burden of establishing his entitlement to summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of his case as a matter of law. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979). Opposition, other than an assertion that the movant's motion for summary judgment is insufficient as a matter of law, must be specified in a written response setting out any grounds of avoidance to which he may be entitled and any factual defenses that would defeat summary judgment. Id. at 678-79. The defense of failure of consideration defeats summary judgment if the nonmovant alleges facts and presents evidence that the consideration in the agreement was not received. O'Shea v. Coronado Transmission Co., 656 S.W.2d 557, 563 (Tex.App.--Corpus Christi 1983, writ ref'd n.r.e.); see Lanier v. Faust, 81 Tex. 186, 189 16 S.W. 994, 995 (1891). Generally, failure of consideration occurs when, because of some supervening cause after an agreement is reached, the promised performance fails. O'Shea, 656 S.W.2d at 563.

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