                                  NO. 07-08-00411-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                     APRIL 29, 2010


                DARREL ZOUZALIK AND KEN DRAKE, APPELLANTS

                                            v.

                   WELLS FARGO BANK, N.A. AND WELLS FARGO
                     EQUIPMENT FINANCE, INC., APPELLEES


            FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2007-540,218; HONORABLE SAM ABEL MEDINA, JUDGE


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                               MEMORANDUM OPINION


       Darrel Zouzalik and Ken Drake appeal a summary judgment granted appellees

Wells Fargo Bank, N.A. and Wells Fargo Equipment Finance, Inc., (collectively Wells

Fargo), on a promissory note. Zouzalik and Drake argue the note was made under

duress. Finding the summary judgment evidence does not raise an issue of fact on

each element of this affirmative defense, we will affirm.
                                     Background


      Zouzalik and Drake are officers of World Wide Fibers, Inc. World Wide leased

warehouse space for its cotton from Triangle Textiles, Ltd. for a monthly base rent of

$62,000. WestCal Corporation contracted to buy the warehouse property from Triangle.

In an amended and restated lease agreement executed in May 2007, World Wide

agreed that in the event the Triangle-WestCal sale closed, its lease would terminate on

July 15, 2007. According to Zouzalik and Drake, Kevin Yang, as agent for WestCal,

threatened to lock World Wide from the building containing its cotton unless World Wide

paid rent of $31,000 for the July 1-15 period. On June 25, Zouzalik and Drake, as

officers of World Wide and its guarantors, made a promissory note to WestCal for

$31,000 as payment of the July rent.     The note required full payment by July 15.

Payment was not made.


      In December, WestCal assigned the note to Wells Fargo which sued World Wide,

Zouzalik, and Drake on the note and guarantees.       Wells Fargo obtained summary

judgment against World Wide and the action was severed from the claims against

Zouzalik and Drake. Wells Fargo then moved for summary judgment against Zouzalik

and Drake as guarantors of the World Wide indebtedness. By amended answer and

summary judgment response, Zouzalik and Drake asserted they executed the note

under duress exerted by Yang as agent for WestCal. The trial court granted summary

judgment in favor of Wells Fargo for the full amount of the note and attorney=s fees.

This appeal followed.




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                                       Discussion


      Through one issue, Zouzalik and Drake contend the grant of summary judgment

was error. This is because, they argue, their evidence raised an issue of fact on the

affirmative defense of duress.


      We review a summary judgment de novo. Valence Operating Co. v. Dorsett, 164

S.W.3d 656, 661 (Tex. 2005).      When conducting a de novo review of a traditional

summary judgment we apply the following rules:


      (1) The movant has the burden of showing that there is no genuine issue
      of material fact and that it is entitled to judgment as a matter of law; (2) in
      deciding whether there is a disputed material fact issue precluding
      summary judgment, evidence favorable to the nonmovant will be taken as
      true; and (3) every reasonable inference must be indulged in favor of the
      nonmovant and any doubts must be resolved in favor of the nonmovant.



Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997) (citing Nixon v. Mr.

Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985)). A non-movant resisting a

motion for summary judgment on an affirmative defense must present sufficient

evidence to raise a genuine issue of material fact on each element of the defense.

Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984).


      Duress is a defense to enforcement of a contract. King v. Bishop, 879 S.W.2d

222, 224 (Tex.App.BHouston [14th Dist.] 1994, no writ). Duress sufficient to invalidate a

contract requires proof of: (1) a threat to do something a party has no legal right to do,

(2) an illegal exaction or some fraud or deception, and (3) an imminent restraint that

destroys the free agency of the victim who lacks a present means of protection. Wright
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v. Sydow, 173 S.W.3d 534, 544 (Tex.App.BHouston [14th Dist.] 2004, pet. denied)

(citing Dale v. Simon, 267 S.W. 467, 470 (Tex. 1924)); Simpson v. MBank Dallas, N.A.,

724 S.W.2d 102, 109 (Tex.App.BDallas 1987, writ ref=d n.r.e.).


      Zouzalik and Drake present their evidence of duress through their summary

judgment affidavits. They aver that Yang as agent for WestCal threatened to lock the

building if Zouzalik and Drake did not pay rent of $31,000 for July 1 through 15. On

June 25, they signed a note for $31,000 to pay the rent because, A[t]o the best of [their]

knowledge@ they knew of no other means to prevent the lock-out. Access to the cotton

was required, they add, as revenue from its delivery was necessary for World Wide’s

continued business operation.


      According to the lease agreement, a Adefault@ would occur if World Wide failed to

pay a rental installment on the due date and the obligation remained unpaid for five

days thereafter. If a default occurred, the lease agreement gave the landlord an option.

It could terminate the lease by written notice to World Wide. In that event, the lease

automatically terminated on the date specified by the notice.      Or it could terminate

World Wide=s right of possession of the leasehold without terminating the lease, reenter,

take possession of the property, operate it, and collect Athe rents, issues, and profits

therefrom all for the account of [World Wide].@


      Zouzalik and Drake do not contend WestCal lacked authority to enforce the lease

agreement=s covenant to pay rent by exercising one of the options granted by the

agreement. Further, whether relying on automatic termination of the lease or a right of

reentry, there is no evidence that WestCal could not on default have lawfully locked the
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property, including the building containing the cotton of World Wide. The summary

judgment evidence thus does not present an issue of fact that Yang threatened an act

for which no legal right existed.


       Review of applicable statutory provisions does not suggest a different conclusion.

The Property Code allows a commercial landlord to change the door locks of a tenant

“who is delinquent in paying at least part of the rent.” Tex. Prop. Code Ann. ' 93.002(c)

(Vernon 2007). Therefore, if World Wide became delinquent for some or all of the July

rent, WestCal had the legal right to exclude World Wide from the premises by changing

the door locks in conformity with the statute.1 And it is the threat to lock World Wide out

for non-payment of rent that Zouzalik and Drake urge as the basis for their duress

defense.     Since exclusion of a tenant from a leasehold by changing door locks,

according to the requirements of statute, is the legal right of a commercial landlord,

Yang=s threat of a lock-out was not on its face unlawful.


       Because WestCal possessed a legal right by the lease agreement or statute to

lock World Wide out, and the summary judgment record creates no fact issue of the

converse, summary judgment for Wells Fargo was proper.

       1
           The Property Code further provides:

       If a landlord or a landlord=s agent changes the door lock of a tenant who is
       delinquent in paying rent, the landlord or agent must place a written notice
       on the tenant=s front door stating the name and the address or telephone
       number of the individual or company from which the new key may be
       obtained. The new key is required to be provided only during the tenant=s
       regular business hours and only if the tenant pays the delinquent rent.

Tex. Prop. Code Ann. ' 93.002(f) (Vernon 2007).

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                                    Conclusion


        Finding the summary judgment evidence does not create an issue of fact on

each element of duress, we overrule appellants= issue and affirm the judgment of the

trial court.




                                                   James T. Campbell
                                                        Justice




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