                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


 THOMAS J. SIBLEY, P.C.,                        §
                                                                No. 08-10-00033-CV
                   Appellant,                   §
                                                                  Appeal from the
 v.                                             §
                                                             58th Judicial District Court
                                                §
 BRENTWOOD INVESTMENT                                        of Jefferson County, Texas
 DEVELOPMENT COMPANY, L.P.,                     §
                                                                  (TC#A-181,447)
                   Appellee.                    §


                                          OPINION

       Thomas J. Sibley, P.C. (“Sibley, P.C.”) appeals from a take nothing summary judgment in

favor of Brentwood Investment Development Company, L.P. (“Brentwood”). In a single issue,

Sibley contends the judgment was entered in error because fact issues remain as to the existence

of an enforceable lease contract between the parties.

       Brentwood Investment Development Company owns an office complex known as

“Tuscany Park,” located at 3450 Dowlen Road in Beaumont, Texas. In August 2001, the law

firm of Sibley, P.C. negotiated a lease agreement with Brentwood for Suite “B” in Tuscany Park.

On or about August 31, 2001, Thomas J. Sibley signed a document titled “LEASE” on behalf of

Sibley, P.C. Although a signature blank for Brentwood representative Brent Coon appears on the

execution page, it remains blank.

       According to the lease document, Sibley, P.C. leased 4,072 square feet of office space for

a period of ten years. Each rental payment was due prior to the first of each month of the lease

term, and included a payment for “base rent” and “additional rent.” “Base rent” was defined as
$13.50 per square foot or $4,581 per month for the first sixty months of the lease, and $14.50 per

square foot per month or $5,904.40 per month for the second half of the term. “Additional rent”

representing Sibley, P.C.’s proportionate share of operating costs and taxes for Tuscany Park,

was due in monthly payments at the same time as the base rent payments. “Additional rent” was

to be calculated in twelve installments based on an annual estimate provided by Brentwood at

least once each calendar year. Brentwood estimated “additional rent” payments for the first year

of the lease would amount to $1,272 per month. Based on Brentwood’s estimate, the total rental

payment due from Sibley, P.C. to Brentwood during the first year of the lease was approximately

$5,853.50.

       Sibley, P.C. moved into Tuscany Park prior to October 1, 2001. Thereafter, Sibley, P.C.

failed to make full rent payments for thirty-eight months between October 2001 and November

2005. According to Brentwood records, Sibley, P.C. made partial base rent payments in July,

August, and September 2004.

       Brentwood filed suit against Sibley, P.C. for breach of contract on March 18, 2008.

Brentwood alleged that the lease document was executed by both parties on August 31, 2001,

and that Sibley, P.C. breached the lease by failing to make rental payments between October 1,

2001 and November 1, 2005. Based on the rental payment provisions and estimates provided in

the lease, Brentwood alleged that Sibley, P.C. owed $214,933 in unpaid base and additional rent.

The petition also included claims for attorney’s fees and pre- and post-judgment interest.

       Sibley, P.C. filed a general denial on April 25, 2008, and the case proceeded under a level

three discovery plan. On March 25, 2009, Brentwood filed a motion for final summary judgment

on its breach of contract cause of action. In support of its motion, Brentwood submitted several


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exhibits, including an affidavit by Mr. Sam Parigi, Jr., President of Parigi Investments, Inc.,

Tuscany Park’s property manager. Brentwood also submitted a copy of the August 31, 2001

lease agreement, copies of Requests for Admissions made to Sibley P.C. on November 14, 2008,

and Sibley, P.C.’s response to those requests dated January 9, 2009.

       After amending the discovery control plan by an agreed order, Sibley, P.C. filed an

amended original answer on August 4, 2009. In the amendment, Sibley, P.C. asserted several

affirmative defenses; contract illegality, laches, statutes of frauds, limitations, and waiver.1 The

following day, Sibley, P.C. filed a summary judgment response. Sibley, P.C.’s primary argument

is focused on Brentwood’s evidence that an enforceable contract existed between the parties.

Specifically, Sibley, P.C. alleged that Brentwood’s failure to sign the lease document raised at

lease a genuine issue of fact regarding the existence of an enforceable agreement. In addition,

Sibley, P.C. argued that Mr. Parigi’s affidavit was defective, and therefore unable to support a

summary judgment, because the affidavit failed to establish that Mr. Parigi had personal

knowledge of the facts contained in the affidavit. In the alternative, the lessee argued that the

affidavit itself created a fact issue by naming a non-party “Brentwood Investment Development

Co., Inc.” as the lessor. The response also referenced Sibley, P.C.’s statutes of frauds and

limitations defenses.2 Subsequently, Brentwood filed an amendment to Mr. Parigi’s affidavit, in



       1
          Sibley filed a hybrid motion for summary judgment on the statute of frauds and
limitations defenses. The motion does not include supporting evidence. There is no record that
the trial court considered or ruled on the motion prior to the final summary judgment.
       2
          Simultaneously with its summary judgment response, Sibley, P.C. also filed a motion to
set aside the deemed admissions which resulted from its failure to timely answer Brentwood’s
November 14, 2008 requests for admissions. The trial court granted Sibley, P.C.’s motion by
written order on October 29, 2009. The order has not been challenged as part of this appeal.

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which Mr. Parigi specifically refers to “Brentwood Investment Development Co., L.P.” as

Tuscany Park’s owner. The trial court granted Sibley, P.C.’s motion to set aside any deemed

admissions by written order on October 29, 2009. On November 24, 2009, the court rendered

final summary judgment in favor of Brentwood awarding $214,933, plus pre and post-judgment

interest, and $5,500 for attorney’s fees. Sibley, P.C. appeal’s raising a single issue in which it

contends the trial court entered the final summary judgment in error.

       An appellate court reviews summary judgment de novo. Provident Life & Accident Ins.

Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The standard of review for a traditional

summary judgment is well established. See TEX .R.CIV .P. 166a(c); Nixon v. Mr. Prop. Mgmt.

Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985). The question presented is whether the movant

has carried its burden to establish that there is no genuine issue of material fact, so that judgment

should be granted as a matter of law. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842,

846 (Tex. 2005). When reviewing a traditional summary judgment motion, the appellate court

will take as true all competent evidence favorable to the non-movant, indulge every reasonable

inference, and resolve any doubts in the non-movant’s favor. See Southwestern Elec. Power Co.

v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). A traditional motion for summary judgment must

stand on its own merits, there is no right to a traditional summary judgment by default. See City

of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

       In the case before us, Brentwood moved for summary judgment on its own breach of

contract cause of action. The elements of a claim for breach of contract are: (1) the existence of

a valid contract; (2) performance, or tendered performance by the claimant; (3) breach of the

contract by the defendant; and (4) damages to the plaintiff resulting from that breach. Abraxas


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Petroleum Corp. v. Hornburg, 20 S.W.3d 741, 758 (Tex.App.--El Paso 2000, no pet.). In

response, Sibley, P.C.’s arguments are limited to the existence of a valid and enforceable

contract. With Sibley, P.C.’s alleged deemed admissions set aside, Brentwood offered the

August 31, 2001 lease document, signed by Thomas J. Sibley, and the amended affidavit

executed by Mr. Parigi to establish that an enforceable written agreement existed as a matter of

law. Sibley, P.C. argues a fact issue remains as to the existence of an enforceable agreement on

two grounds. First, Sibley, P.C. contends a fact issue remains due to Brentwood’s

representative’s failure to affix a signature to the agreement. Second, Sibley, P.C. contends that

Mr. Parigi’s affidavit is defective, or raises a fact issue, as it refers to a third entity, Brentwood

Development Co., Inc. as Tuscany Park’s owner. With regard to Mr. Parigi’s affidavit, we note

that the amended version specifies that “Brentwood Development Co., L.P.” is the owner of

Tuscany Park. There is no record of an objection to the amended affidavit, and the document

also includes testimony that Sibley took possession of the office space in Tuscany Park, as

identified by the lease document, and occupied the space through August 2009. As Brentwood

corrected the alleged defect in Mr. Parigi’s affidavit, and as Sibley, P.C. has not raised any

objection to the amended evidence, we disagree that the affidavit creates a fact issue as to the

existence of an enforceable agreement.

        Next, we turn to Sibley, P.C.’s argument that the August 31, 2001 lease document is not

enforceable because it was never signed by a Brentwood representative. Without the signature,

Sibley, P.C. concludes there is a fact issue regarding the existence of an enforceable written

agreement. A valid contract is created by: (1) an offer; (2) an acceptance; (3) a meeting of the

minds; (4) mutual consent to the terms by both parties; and (5) execution and delivery of the


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contract with the intent that it be mutual and binding. Prime Prod., Inc. v. S.S.I. Plastics, Inc., 97

S.W.3d 631, 636 (Tex.App.--Houston [1st Dist.] 2002, pet. denied). Generally, parties can

indicate their intent to create a mutually binding contract by signing the contract documents. See

Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007). However, the absence of a

party’s signature does not necessarily destroy an otherwise valid contract. ABB Kraftwerke

Aktiengesellschaft v. Brownsville Barge & Crane, Inc., 115 S.W.3d 287, 292 (Tex.App.--Corpus

Christi 2003, pet. denied). A party may accept a contract, and indicate its intent to be bound to

the terms by acts and conduct in accordance with the terms. Augusta Dev. Co. v. Fish Oil Well

Serv. Co., Inc., 761 S.W.2d 538, 544 (Tex.App--Corpus Christi 1988, no writ).

       In this instance, although Brentwood did not sign the agreement, the uncontested

evidence indicates that the parties proceeded with the lease as though the lease had been fully

executed. There is no dispute that Sibley occupied the space defined in the lease, and operated a

law firm from the premises, and made several partial payments of base rent. Likewise, there is

no dispute that Brentwood, continually operated and maintained Tuscany Park, including

Sibley’s offices in accordance with the lease terms. As such, the failure by Brentwood to sign the

lease document does not create a fact issue as to the parties’ mutual assent to the agreement, or

the instrument’s enforceablity against Sibley, P.C. See Sonnichsen, 221 S.W.3d at 635. Sibley’s

argument that a fact issue due to Brentwood’s failure to sign the lease is overruled.

       We now turn briefly to Sibley, P.C.’s limitations and statute of frauds defenses. When, as

in this case, the claimant moves for traditional summary judgment on its own cause of action, the

claimant is entitled to judgment by establishing all the elements of its claim as a matter of law.

Fry v. Comm’n for Lawyer Discipline, 979 S.W.2d 331, 334 (Tex.App.--Houston [14th Dist.]


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1998, pet. denied). If the claimant is able to meet its burden and establish the essential elements

of its cause of action as a matter of law, the defendant cannot defeat the motion by blanket

assertion of its affirmative defenses. See Brown v. Aztec Rig Equipment, Inc., 921 S.W.2d 835,

845 (Tex.App.--Houston [14th Dist.] 1996, writ denied). At a minimum, the defendant must

come forth with evidence raising a fact issue on each element of the defense to avoid summary

judgment. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). In order for Sibley,

P.C.’s defenses to provide a basis for the trial court to deny Brentwood’s motion, Sibley was

required to assert the defenses, support them with evidence, and obtain rulings. See

TEX .R.CIV .P. 166a(c); Brownlee, 665 S.W.2d at 112. Sibley asserted its affirmative defenses

only in relation to the essential elements of Brentwood’s cause of action, and specifically in

support of its argument that there was no contract to support Brentwood’s claim. Without more,

Sibley, P.C.’s defensive arguments were not sufficient to defeat the motion. See Brown, 921

S.W.2d at 845.

       With regard to the statute of frauds defense specifically, Sibley, P.C.’s argument was

based on the conclusion that a written agreement did not exist between the parties based on

Brentwood’s failure to sign the lease. As we have concluded that the omission of the lessor’s

signature was not fatal to the lease’s enforceablity, Sibley, P.C.’s statute of frauds argument is

without merit. Similarly, Sibley, P.C.’s remaining challenges to the trial court’s judgment also

rely on its conclusion that the lease document did not constitute an enforceable written contract.

Having concluded that Sibley, P.C. has not raised a genuine issue of material fact regarding the

existence of an enforceable written agreement, the balance of Sibley, P.C.’s arguments related to

the lease as a basis for contractual liability are also overruled. Accordingly, we overrule the


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remainder of Issue One.

       Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.



September 7, 2011
                                              DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Rivera, JJ.




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