                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-15-00393-CV


TOWNCREEK INDUSTRIAL, LLC;                                     APPELLANTS
H&H STEEL FABRICATORS, INC.;
ALLTEX STEEL, INC.; AND JAMES
TOBEY

                                     V.

WELLS FARGO BANK, NATIONAL                                        APPELLEE
ASSOCIATION

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         FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
                    TRIAL COURT NO. CV15-0501



                                  ----------

                       MEMORANDUM OPINION1

                                  ----------

     Appellants Towncreek Industrial, LLC; H&H Steel Fabricators, Inc.; Alltex

Steel, Inc.; and James Tobey appeal from the trial court’s summary judgment


     1
      See Tex. R. App. P. 47.4.
entered in favor of appellee Wells Fargo Bank, National Association. Because

the trial court neither erred nor abused its discretion by granting Wells Fargo

summary judgment, we affirm the trial court’s final summary judgment.

                               I. BACKGROUND

               A. NOTE 1, NOTE 2, AND CREDIT-CARD AGREEMENT

      On May 24, 2013, Towncreek executed a promissory note in favor of Wells

Fargo, showing that Wells Fargo had loaned Towncreek $1,150,000 at 5%

annual interest (Note 1). Towncreek’s first payment on Note 1 was due June 30,

2013, followed by fifty-nine monthly payments of $7,636.16 with a May 31, 2018

balloon   payment    of   $970,002.07.       To   secure   Note    1,   Towncreek

contemporaneously signed a deed of trust with power of sale in favor of Wells

Fargo on a 6.67-acre tract of real property located in Springtown, Texas. Wells

Fargo recorded the deed of trust in the Parker County real property records on

May 28, 2013. The deed of trust secured all obligations between Towncreek and

Wells Fargo “whether now existing or hereafter arising.”          Two affiliates of

Towncreek―H&H and Alltex―and Tobey―the principal of Towncreek, H&H, and

Alltex―each signed commercial, continuing guaranties under which they agreed

to be jointly and severally liable for Towncreek’s payment and performance

obligations under Note 1 and as to “all debts, liabilities and obligations of every

nature or form, now existing or hereafter arising or acquired” owed by Towncreek

to Wells Fargo. Appellants do not dispute the “validity or enforceability” of the

contractual documents related to Note 1.

                                         2
      On June 7, 2013, Wells Fargo issued Towncreek a credit-card account.

The credit card had a limit of $25,000 and was personally guaranteed by Tobey.

Appellants do not challenge the validity or enforceability of the credit-card

agreement.

      On November 18, 2013, H&H executed a promissory note in favor of Wells

Fargo, showing that Wells Fargo had loaned H&H $1,650,000 (Note 2). Under

the terms of Note 2, H&H was required to repay all principal and interest in one

lump-sum payment on November 20, 2014, with a variable interest rate. The

maturity date was later extended to February 18, 2015. To secure Note 2, H&H

signed a security agreement, granting Wells Fargo a security interest in H&H’s

personal property, which included H&H’s “Inventory, Chattel Paper, Accounts,

Equipment and General Intangibles.”          Additionally, Towncreek and Tobey

executed commercial, continuing guaranties under which they agreed to be

jointly and severally liable for H&H’s payment and performance obligations under

Note 2 and as to “all debts, liabilities and obligations of every nature or form, now

existing or hereafter arising or acquired” owed by H&H to Wells Fargo. On the

same day H&H’s promissory note was executed, Towncreek executed an

additional deed of trust with a power of sale regarding the Springtown real

property to secure all payment obligations owed to Wells Fargo by Towncreek or

H&H. As with Note 1 and the credit-card agreement, Appellants do not argue

that the contractual documents related to Note 2 are invalid or unenforceable.



                                         3
                                    B. DEFAULT

      Towncreek failed to make the payments on Note 1 that were due January

31 and February 28, 2015, triggering a default of Note 1. H&H also did not make

the February 18, 2015 payment on Note 2.          On March 4, 2015, Towncreek

missed making its credit-card payment. On March 24, 2015, Wells Fargo sent a

default notice to Towncreek, H&H, Alltex, and Tobey, notifying them that Note 1

was in default, that ad valorem property taxes had not been paid on the

Springtown property, that they had seven days to cure the default, and that the

maturity of Note 1 would be accelerated if the default was not cured. That same

day, Wells Fargo sent a default notice to H&H, Towncreek, and Tobey regarding

their default of their payment obligation under Note 2 and gave them seven days

to cure the default.

      Appellants failed to cure the payment default under Note 1 or pay the

matured Note 2 balance during the cure period. Wells Fargo, therefore, sent a

formal notice to Towncreek, H&H, Alltex, and Tobey on April 1, 2015, reflecting

that Wells Fargo was accelerating the balance owed on Note 1 and demanding

full payment of the accelerated balance.         Wells Fargo warned that if the

accelerated balance was not paid, it would “proceed with the exercise of its

contractual and legal default remedies, including . . . foreclosure of the Collateral

pursuant to the Loan Agreements.” Appellants made no further payments under

Note 1 or Note 2. As of June 12, 2015, the credit-card account had an unpaid

balance of $24,878.24.

                                         4
                       C. FORECLOSURE SALE AND LITIGATION

       On April 21, 2015, Wells Fargo filed suit against Appellants. Wells Fargo

alleged breach-of-contract claims against Towncreek based on its nonpayment of

Note 1 and the credit-card account and against H&H based on its nonpayment of

Note 2. Wells Fargo also raised claims for breach of the guaranties against

H&H, Alltex, and Tobey based on their continuing guaranties of Note 1, which

also assumed liability for Towncreek’s previous payment obligations under the

credit-card account.    Finally, Wells Fargo alleged that Towncreek and Tobey

breached their continuing guaranties of Note 2.         Appellants answered Wells

Fargo’s petition through a general denial.

       Shortly after filing its petition, Wells Fargo initiated foreclosure proceedings

on the Springtown property based on Note 2 and the additional deed of trust. At

the June 2, 2015 foreclosure sale, Wells Fargo bought the property for

$987,254.99. Wells Fargo applied the sale proceeds against the accelerated

debt of Note 1―owed by Towncreek and guaranteed by H&H, Alltex, and

Tobey―leaving a deficiency as of June 12, 2015 of $129,442.98 plus daily

interest.   As of June 12, 2015, the balance of Note 2―owed by H&H and

guaranteed by Towncreek and Tobey―was $1,679,569.91 plus daily interest,

and the balance of the credit-card account―owed by Towncreek and guaranteed

by Tobey―was $24,878.24 plus daily interest.

       On June 19, 2015, Wells Fargo moved for a traditional motion for summary

judgment on its claims for breach of contract and breach of the guaranties,

                                           5
arguing that it had established its right to recover under Note 1, Note 2, the

credit-card account, and the attendant guaranties as a matter of law.        Wells

Fargo attached the affidavit of an assistant vice president, Justin McKinney,

proving up the contractual documents, Appellants’ payment history, and the facts

leading to Appellants’ defaults on Note 1, Note 2, and the credit-card account. A

hearing on the motion was set for July 20, 2015.

      On June 26, 2015, Appellants amended their answer to allege the

affirmative defenses of failure to mitigate damages, offset, and payment. That

same day, H&H, Towncreek, and Tobey filed a verified motion to continue the

summary-judgment hearing “to allow Defendants adequate time to present a

defense.”2 The trial court heard the motion to continue on July 7, 2015, and

signed a docket entry noting that counsel were present and that “Rule 11

Agreement forthcoming.” On August 13, 2015, the summary-judgment hearing

was rescheduled for September 17, 2015.

      On August 24, 2015, Wells Fargo filed a no-evidence motion for summary

judgment directed to Appellants’ affirmative defenses. On September 9, 2015,

Appellants responded to the traditional motion and asserted that Wells Fargo

failed to establish its claims as a matter of law because (1) Wells Fargo failed to


      2
       The motion included in the clerk’s record is missing the third page. It is
unclear whether the motion as filed was incomplete or whether the clerk
inadvertently failed to include this page in the clerk’s record. In any event, the
missing page is not necessary to resolve this appeal. See Tex. R. App. P.
34.5(c)(1).

                                        6
mitigate its damages “as it relates to the foreclosure of the equipment and

personal property collateral” on the Springtown property and (2) the summary-

judgment evidence, i.e., Wells Fargo’s “H&H Transaction History,”3 supported

“only $1,437,894.77, which is $395,996.36 less than the total amount sought” by

Wells Fargo. In short, Appellants did not contest liability, only damages. They

also objected to McKinney’s affidavit, arguing that it was conclusory and

impermissibly relied on hearsay documents.           The next day, Appellants

responded to Wells Fargo’s no-evidence motion, arguing that the fact issue

regarding the amount of Wells Fargo’s damages, raised by the “H&H Transaction

History,” precluded summary judgment on their affirmative defenses.

      On September 17, 2015, the day of the summary-judgment hearing, H&H,

Towncreek, and Tobey filed a motion to compel production of an “appraisal of the

[Springtown real property] or personal property located on [the Springtown real

property] from 2012 or 2013.” Appellants could not locate the appraisal in their

own records, but Tobey recalled that “the fair market value of the [Springtown

property] was determined to be significantly higher than the purchase price of the

[Springtown property] by [Wells Fargo] at the foreclosure sale.”            H&H,

Towncreek, and Tobey also filed a second verified motion to continue the

      3
        This document was produced by Wells Fargo during discovery and is a
listing of dates individual payments were made, the amount of each payment,
and whether the payments were applied to principal or to interest. It does not
identify to which indebtedness the payments were applied―Note 1, Note 2, or
the credit-card account―but simply states that the document applied to H&H’s
“Transaction History.”

                                        7
summary-judgment hearing “to allow [H&H, Towncreek, and Tobey] adequate

time to compel production of the relevant documents associated with the

appraisals of the [Springtown property] conducted in 2012 and/or 2013, which is

critical to [their] mitigation . . . defense.”

       The trial court held the summary-judgment hearing on September 17,

2015, as previously scheduled, and considered “the Motion for Summary

Judgment” filed by Wells Fargo, “any timely response filed by [Appellants],” the

pleadings, and “the argument and authority of counsel” for Appellants and Wells

Fargo. No record was made of this hearing, but the trial court signed a docket

notation that it took the motion “[u]nder advisement-ruling forthcoming.”      On

September 21, 2015, the trial court granted Wells Fargo’s “Motion for Summary

Judgment . . . because there is no genuine issue of material fact and Wells Fargo

is entitled to judgment as a matter of law.”         The trial court “OVERRULED”

Appellants’ affirmative defenses and entered judgment against Appellants for

$1,462,773.01 in actual damages.4

       Appellants filed a motion for new trial and argued that the summary

judgment was granted in error because McKinney’s affidavit was incompetent as

summary-judgment evidence, Wells Fargo failed to properly mitigate its damages

“as it relates to the foreclosure of the equipment and personal property collateral

       4
       The actual-damages award was broken into two parts: (1) $1,437,894.77
against H&H, “and the other Defendants, jointly and severally,” and
(2) $24,878.24 against Towncreek, “along with the other Defendants, jointly and
severally.”

                                                 8
located on the [Springtown property],” and a fact issue existed regarding the

amount of Wells Fargo’s damages. The motion was overruled by operation of

law. See Tex. R. Civ. P. 329b(c).

                               II. CONTINUANCE

      In their fourth issue, Appellants argue that the trial court abused its

discretion by denying H&H, Towncreek, and Tobey’s second motion to continue

the hearing on Wells Fargo’s traditional motion for summary judgment and by

refusing to consider their motion to compel needed discovery before granting

Wells Fargo summary judgment.5 See Tex. R. Civ. P. 166a(g). We review a trial

court’s decision on a motion to continue a summary-judgment hearing for an

abuse of discretion. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150,

161 (Tex. 2004); D.R. Horton–Tex., Ltd. v. Savannah Props. Assocs., L.P.,

416 S.W.3d 217, 222 (Tex. App.―Fort Worth 2013, no pet.).

      We first note that Appellants failed to ensure that the court reporter

recorded the hearing at which Appellants’ continuance motion would have been

addressed. Thus, it is difficult to assay whether the trial court’s decision to hold

the summary-judgment hearing―even though Appellants had filed a continuance

motion and a motion to compel further discovery that same day―was outside the

      5
       Although the record does not reflect that the trial court expressly denied
the second continuance motion, we will assume for the purposes of this appeal
that the trial court implicitly denied the motion by holding the hearing as
scheduled and granting Wells Fargo judgment as a matter of law. See Tex. R.
App. P. 33.1(a)(2)(A); Williams v. Bank One, Tex., N.A., 15 S.W.3d 110, 114
(Tex. App.―Waco 1999, no pet.).

                                         9
zone of reasonable disagreement. See McKinney Ave. Props. No. 2, Ltd. v.

Branch Bank & Trust Co., No. 05-14-00206-CV, 2015 WL 3549877, at *6 (Tex.

App.―Dallas June 15, 2015, no pet.) (mem. op.); Barnes v. Athens, No. 02-12-

00173-CV, 2012 WL 4936624, at *2 (Tex. App.―Fort Worth Oct. 18, 2012, no

pet.) (mem. op.); Bench Co. v. Nations Rent of Tex., L.P., 133 S.W.3d 907, 909

(Tex. App.―Dallas 2004, no pet.). See generally Judge David Hittner & Lynne

Liberato, Summary Judgments in Texas: State and Federal Practice, 52 Hous. L.

Rev. 773, 809–12, 814 (2015) (discussing factors trial courts are to consider in

determining motions for continuance based on the need for additional discovery

and noting a record of the hearing should be requested “if the court makes

rulings on evidence or proceedings during the hearing”). And we similarly cannot

determine if the trial court “refused” to consider the motion to compel as a

circumstance justifying a continuance under rule 166a(g), as argued by

Appellants, or if Appellants simply failed to bring the motion to the trial court’s

attention. See McKinney Ave., 2015 WL 3549877, at *5; Bench Co., 133 S.W.3d

at 909. In any event, Appellants do not dispute that they received twenty-one

days’ notice of the hearing, that Wells Fargo’s petition had been pending for five

months at the time summary judgment was granted, or that they waited until the

day of the second scheduled hearing to move for a second continuance and seek

further discovery. See Tex. R. Civ. P. 166a(g), 252. Further, Appellants do not

cogently argue how an appraisal that had been prepared at their request at least

two years before the foreclosure sale would be relevant to the fair market value

                                        10
of the property at the time of the sale.      See Moore v. Bank Midwest, N.A.,

39 S.W.3d 395, 402 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (op. on

reh’g).   Under these circumstances, we cannot conclude that the trial court

abused its discretion by failing to continue the hearing even though this case was

decided in an inexplicably expedited manner. See Joe, 145 S.W.3d at 161–62;

Dewayne Rogers Logging, Inc. v. Propac Indus., Ltd., 299 S.W.3d 374, 392 (Tex.

App.―Tyler 2009, pet. denied); City of San Antonio v. En Seguido, Ltd.,

227 S.W.3d 237, 240–41 (Tex. App.―San Antonio 2007, no pet.). We overrule

issue four.

                  III. PROPRIETY OF SUMMARY JUDGMENT

                          A. ADMISSIBILITY OF AFFIDAVIT

      In their third issue, Appellants argue that the trial court erred by

considering McKinney’s affidavit on summary judgment because it was

conclusory and based on inadmissible hearsay.6 A trial court may not consider

inadmissible evidence over a party’s objection in ruling on a motion for summary

judgment.     Dolcefino v. Randolph, 19 S.W.3d 906, 927 (Tex. App.―Houston

[14th Dist.] 2000, pet. denied) (op. on reh’g). An affidavit that is conclusory or is

based on hearsay is incompetent as summary-judgment proof. See Tex. R. Civ.

P. 166a(f); Querner Truck Lines, Inc. v. Alta Verde Indus., 747 S.W.2d 464, 468

      6
        Although Appellants’ statement of this issue also contends that the
affidavit included “inconsistent statements,” they do not point out what
statements were inconsistent or otherwise brief this assertion. We will likewise
not address it.

                                         11
(Tex. App.―San Antonio 1988, no writ). We review a trial court’s evidentiary

rulings for an abuse of discretion. See Roth v. JPMorgan Chase Bank, N.A.,

439 S.W.3d 508, 512 (Tex. App.―El Paso 2014, no pet.); Owens v. Comerica

Bank, 229 S.W.3d 544, 548 (Tex. App.―Dallas 2007, no pet.).

      As a preliminary matter, it is important to point out that Appellants failed to

get a ruling on their evidentiary objections to McKinney’s affidavit.       There is

nothing in the record indicating that the trial court ruled on or even considered

their objections, and the summary-judgment order does not expressly address

Appellants’ objections. As such, they arguably failed to preserve any error for

our review. See Schuetz v. Source One Mortg. Servs. Corp., No. 03-15-00522-

CV, 2016 WL 4628048, at *5 (Tex. App.―Austin Sept. 1, 2016, no pet. h.) (mem.

op.); Haase v. Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, L.L.P., No.

14-14-00572-CV, 2016 WL 3902735, at *4 (Tex. App.―Houston [14th Dist.] July

14, 2016, no pet. h.); Roth, 439 S.W.3d at 513. However, to the extent it could

be argued that the trial court implicitly overruled Appellant’s objections because it

granted Wells Fargo judgment as a matter of law, because the order stated that

“[a]ll other relief . . . is denied,” and because Appellants re-urged their objections

in their motion for new trial, we will address their evidentiary complaints. See

Lissiak v. SW Loan OO, L.P., No. 12-14-00344-CV, 2016 WL 3568066, at *2

(Tex. App.―Tyler June 30, 2016, no pet.); see also Duncan-Hubert v. Mitchell,

310 S.W.3d 92, 100–01 (Tex. App.―Dallas 2010, pet. denied) (recognizing

Mother-Hubbard language in summary-judgment order will not imply a ruling on

                                         12
evidentiary objections); Residential Dynamics, LLC v. Loveless, 186 S.W.3d 192,

195 (Tex. App.―Fort Worth 2006, no pet.) (concluding evidentiary objections

preserved where majority of response to no-evidence motion for summary

judgment addressed incompetence of sole affidavit submitted in support of

motion).

      Appellants first argue that McKinney’s statements of the amounts due on

Note 1, Note 2, and the credit-card account were conclusory because the

statements were not supported by “an underlying payment history.”               But

McKinney’s affidavit, which was made on his personal knowledge, recited the

terms of the notes and the account, including payment due dates and the accrual

of interest, and detailed the payments Appellants paid and failed to pay. To his

affidavit, McKinney attached Note 1, Note 2, the credit-card account, the

continuing guaranties, the deeds of trust, the security agreement, the February

2015 default letter, and the March 2015 acceleration notice.         We conclude

McKinney’s affidavit was not impermissibly conclusory; thus, the trial court did

not abuse its discretion by implicitly overruling this objection. See, e.g., Duarte-

Viera v. Mae, No. 07-14-00271-CV, 2016 WL 737698, at *5–6 (Tex.

App.―Amarillo Feb. 23, 2016, no pet.); Cha v. Branch Banking & Trust Co.,

No. 05-14-00926-CV, 2015 WL 5013700, at *3 (Tex. App.―Dallas Aug. 25,

2015, pet. denied) (mem. op.); Myers v. Sw. Bank, No. 02-14-00122-CV, 2014

WL 7009956, at *2–3 (Tex. App.―Fort Worth Dec. 11, 2014, pet. denied) (mem.

op.); see also Valenzuela v. State & Cty. Mut. Fire Ins. Co., 317 S.W.3d 550, 553

                                        13
(Tex. App.―Houston [14th Dist.] 2010, no pet.) (discussing form of affidavits

sufficient to establish personal knowledge).

      Appellants next contend that McKinney’s affidavit statements that

Appellants did not cure the default were not accompanied by production of the

underlying payment history, rendering the affidavit inadmissible as hearsay

evidence and not readily controvertible.       To establish the amount owed,

McKinney’s affidavit needed to state only the total amount due on the note based

on his personal knowledge as a bank officer; detailed proof of the balance of the

note was not required. See Diversified Fin. Sys., Inc. v. Hill, Heard, O’Neal,

Gilstrap & Goetz, P.C., 99 S.W.3d 349, 356 (Tex. App.―Fort Worth 2003, no

pet.); Bohanon v. Franklin Nat’l Bank of Long Island, 387 S.W.2d 699, 701–02

(Tex. Civ. App.―Dallas 1965, no writ). McKinney’s assertions did not constitute

inadmissible hearsay and were readily controvertible, and the trial court did not

abuse its discretion by implicitly considering them as competent summary-

judgment proof. See Duarte-Viera, 2016 WL 737698, at *4; Stucki v. Noble,

963 S.W.2d 776, 780–81 (Tex. App.―San Antonio 1998, pet. denied); Atchley v.

NCNB Tex. Nat’l Bank, 795 S.W.2d 336, 337 (Tex. App.―Beaumont 1990, writ

denied). We overrule issue three.

              B. CONCLUSIVE PROOF OF WELLS FARGO’S DAMAGES

      In their first issue, Appellants argue that the trial court erred by granting

summary judgment and awarding a lesser amount than that requested by Wells

Fargo because the damages evidence was “conflicting and inconsistent.” In their

                                        14
second issue, Appellants contend that the trial court erred by “dismissing” their

mitigation defense. Appellants do not attack any other element of Wells Fargo’s

claims for breaches of the contracts and guaranties and concede in their briefing

that Note 1, Note 2, the credit-card account, and the attendant securing

documents were valid and enforceable against them.         Therefore, we will not

address the propriety of the summary judgment as to liability.

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence 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). We indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor.

20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A plaintiff is entitled to

summary judgment on a cause of action if it conclusively proves all essential

elements of the claim. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones,

710 S.W.2d 59, 60 (Tex. 1986). If the plaintiff does so, the burden then shifts to

the defendant as the nonmovant to raise a genuine issue of material fact

precluding summary judgment. See Amedisys, Inc. v. Kingwood Home Health

Care, LLC, 437 S.W.3d 507, 517 (Tex. 2014). 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

                                        15
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);

Levitin v. Michael Group, L.L.C., 277 S.W.3d 121, 124 (Tex. App.―Dallas 2009,

no pet.); Fid. & Deposit Co. of Md. v. Stool, 607 S.W.2d 17, 25 (Tex. Civ.

App.―Tyler 1980, no writ).       Merely pleading an affirmative defense will not,

without more, defeat a motion for summary judgment.           See Am. Petrofina,

887 S.W.2d at 830.

         To establish its right to damages based on the breach of the terms of the

contractual documents, Wells Fargo had to show through competent summary-

judgment evidence that a balance was due and owing. See Comm’l Serv. of

Perry Inc. v. Wooldridge, 968 S.W.2d 560, 564 (Tex. App.―Fort Worth 1998, no

pet.).    McKinney’s affidavit competently established a total balance due of

$1,833,891.13. In response to this evidence, Appellants stated that a fact issue

was raised on the amount of damages because “the resulting deficiency between

advances and payments [as shown in the H&H Transaction History] is only

$1,437,894.77, which is $395,996.36 less than the total amount sought by [Wells

Fargo] in its [traditional motion for summary judgment] against [Appellants].” For

actual damages, the trial court awarded the lesser amount regarding Note 1 and

Note 2 conceded by Appellants―$1,437,894.77―plus $24,878.24 on the credit-

card account as actual damages. Now, Appellants argue that the lower amount

awarded on Note 1 and Note 2 was “an involuntary remittitur.”             Frankly,

Appellants’ argument is confusing at best, and they fail to cite any authority for

                                         16
the proposition that an award of damages against a party in an amount judicially

admitted by that party constitutes an involuntary remittitur raising a fact issue

precluding summary judgment. See Underhill v. Jefferson Cty. Appraisal Dist.,

725 S.W.2d 301, 302–03 (Tex. App.―Beaumont 1986, no writ) (granting

summary judgment based on Appellant’s judicial admissions in his pleadings

because “Appellant proved that part of the case for [Appellee]”); see also Hous.

First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983) (“Assertions of fact,

not pled in the alternative, in the live pleadings of a party are regarded as formal

judicial admissions. Any fact admitted is conclusively established . . . .”). It is

enough to say that the summary-judgment evidence supported the trial court’s

award of damages and no fact issue was raised by Appellants’ judicial admission

that they owed the lower amount actually awarded. We overrule issue one.

      In their second issue, Appellants argue that the trial court erred by

overruling their affirmative defense of mitigation. Specifically, Appellants argue

that Wells Fargo failed to properly mitigate its damages “as it relates to the

foreclosure of the real property” because it offered no evidence of the property’s

fair market value. Wells Fargo’s failure to provide proof of appropriate mitigation

of their damages, Appellants assert, results in a fact issue regarding damages,

precluding summary judgment.

      Appellants recognize on appeal that mitigation is an affirmative defense

and specifically pleaded the defense in their amended answer. But Appellants

did not recognize in their motion for new trial or on appeal that they bore the

                                        17
burden to raise a fact issue on this affirmative defense in an attempt to avoid

summary judgment. See Lunsford Consulting Grp., Inc. v. Crescent Real Estate

Funding VIII, L.P., 77 S.W.3d 473, 476–77 (Tex. App.―Houston [1st Dist.] 2002,

no pet.). Appellants did not carry this burden. See id.; Stucki, 963 S.W.2d at

781. Appellants offered no evidence raising a fact issue on any element of their

affirmative defense and improperly placed the burden to produce such evidence

on Wells Fargo. Because Appellants failed to raise a genuine issue of material

fact on any element of Wells Fargo’s claims, which Wells Fargo conclusively

established through competent summary-judgment evidence, or on their

affirmative defense of mitigation, the trial court did not err by granting Wells

Fargo summary judgment on its claims for breaches of the contracts and the

guaranties and overruling Appellants’ affirmative defense of mitigation.     See

Levertov v. Hold Props., Ltd., No. 11-11-00284-CV, 2014 WL 887225, at *7 (Tex.

App.―Eastland Feb. 27, 2014, no pet.) (mem. op.); Lunsford, 77 S.W.3d at 476–

77. We overrule issue two.

                               IV. CONCLUSION

      We conclude that the trial court did not err or abuse its discretion in

granting Wells Fargo judgment as a matter of law on its claims against

Appellants. We affirm the trial court’s judgment. See Tex. R. App. P. 43.2(a).




                                       18
                                           /s/ Lee Gabriel

                                           LEE GABRIEL
                                           JUSTICE

PANEL: MEIER, GABRIEL, and SUDDERTH, JJ.

DELIVERED: October 27, 2106




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