                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00079-CV



 CAMARGOCOPELAND ARCHITECTS, L.L.P., Appellant

                            V.

       CRT SIGNATURE PLACE, L.P., Appellee



         On Appeal from the 68th District Court
                 Dallas County, Texas
             Trial Court No. DC-12-09362




       Before Morriss, C.J., Carter and Moseley, JJ.
         Memorandum Opinion by Justice Carter
                                         MEMORANDUM OPINION
         CRT Signature Place, L.P. (CRT), sued CamargoCopeland Architects, L.L.P. (Camargo),

for breach of a lease agreement. The 68th Judicial District Court of Dallas County granted

summary judgment in favor of CRT and awarded $515,059.68 in actual damages. 1 Camargo

challenges the court’s ruling on appeal, arguing that CRT’s proof of the damage element “does

not constitute competent summary judgment proof” because the affidavit relied on was

“conclusory in nature.” We disagree with Camargo’s assertion that the “only summary judgment

evidence . . . was the Affidavit of Lisa Donovan” or that Donovan’s affidavit was conclusory,

find that the record sufficiently established CRT’s damages claims, and affirm the trial court’s

judgment.

         A traditional motion for summary judgment is granted only when the movant establishes

that there are no genuine issues of material fact and that it is entitled to judgment as a matter of

law. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).

We review de novo the grant or denial of a motion for summary judgment “to determine whether

a party’s right to prevail is established as a matter of law.” Lamar Corp. v. City of Longview,

270 S.W.3d 609, 613 (Tex. App.—Texarkana 2008, no pet.); see Nash v. Beckett, 365 S.W.3d

131, 136 (Tex. App.—Texarkana 2012, pet. denied) (citing Fielding, 289 S.W.3d at 848).

         When reviewing the grant of a traditional summary judgment, we take as true all

evidence favorable to the nonmovant and indulge every reasonable inference and resolve any


1
 Originally appealed to the Fifth Court of Appeals, this case was transferred to this Court by the Supreme Court pursuant to its
docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are unaware of any conflict between
precedent of the Fifth Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.

                                                               2
doubts in the nonmovant’s favor. Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308,

311 (Tex. 2002); Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). On appeal,

the movant must show that there is no material fact issue and that the movant is entitled to

judgment as a matter of law. McNamara, 71 S.W.3d at 311; Steel, 997 S.W.2d at 223; City of

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

        To prevail on its claim for unpaid rent, CST was required to prove (1) the existence of a

valid contract, (2) its performance or tendered performance, (3) Camargo’s breach of the

contract, and (4) damages as a result of the breach. See Stovall & Assocs., P.C. v. Hibbs Fin.

Ctr., Ltd., 409 S.W.3d 790, 797 (Tex. App.—Dallas 2013, no pet. h.) (citing Paragon Gen.

Contractors, Inc. v. Larco Constr., Inc., 227 S.W.3d 876, 882 (Tex. App.—Dallas 2007, no

pet.)). Only the last element is at issue in this case.

        “To defeat a plaintiff’s cause of action on a traditional motion for summary judgment, the

defendant must either ‘conclusively negate an element of the plaintiff’s claim or conclusively

establish every element of an affirmative defense.”’ Id. at 795 (quoting Ohio Cas. Ins. Co. v.

Time Warner Entm’t Co., L.P., 244 S.W.3d 885, 888 (Tex. App.—Dallas 2008, pet. denied)). “A

matter is conclusively established if ordinary minds cannot differ as to the conclusion to be

drawn from the evidence.” Id. (citing Holloway v. Dekkers, 380 S.W.3d 315, 320 (Tex. App.—

Dallas 2012, no pet.)). “The defendant, however, is not required to respond with evidence if

deficiencies in the plaintiff’s own proof or legal theories will defeat the movant’s right to

judgment as a matter of law.” Id. (citing Clear Creek Basin Auth., 589 S.W.2d at 678).




                                                   3
        Camargo entered into an agreement to lease 6,597 square feet of office space from CRT

for a term beginning October 1, 2010, and ending May 31, 2016. 2 The lease included the

following rent schedule:

                   Months                   Monthly Basic Rent               Annual Basic Rent
              10/01/10–05/31/11                $ 5,085.19                          N/A
              06/01/11–05/31/12                $ 9,345.75                      $112,149.00
              06/01/12–05/31/13                $ 9,620.63                      $115,447.50
              06/01/13–05/31/14                $ 9,895.50                        $118,746.00
              06/01/14–05/31/15                $10,170.38                        $122,044.50
              06/01/15–05/31/16                $10,445.25                        $125,343.00


In addition to these fees, Camargo agreed to pay its proportionate share of electrical costs,

(estimated at $893.18 per month for 2010), operating costs, and taxes.

        CRT alleged that Camargo failed to pay its June 2012 rent and then abandoned the

property without notice. The lease provided that failure to pay rent within five days after

delivery of written notice from CRT constituted default. Upon default, Section 18(b) of the lease

gave CRT the right to:

        Terminate Tenant’s right to possess the Premises without terminating this Lease
        by giving written notice thereof to Tenant, in which event Tenant shall pay to
        Landlord (1) all Rent and other amounts accrued hereunder to the date of
        termination of possession, (2) all amounts due from time to time under Section
        19.(a), and (3) all Rent and other net sums required hereunder to be paid by
        Tenant during the remainder of the Term, diminished by any net sums thereafter
        received by Landlord through reletting the Premises . . . . If Landlord elects to
        proceed under this Section 18.(b), it may at any time elect to terminate this Lease
        under Section 18(a).


2
 In this opinion, the term “lease” refers both to the original lease agreement, which was executed in 2000, and the
second amendment to the lease, which renewed the original lease.
                                                        4
Section 18(a) gave CRT the additional right to:

       Terminate this Lease by giving Tenant written notice thereof, in which event
       Tenant shall pay to Landlord the sum of (1) all Rent accrued hereunder through
       the date of termination, (2) all amounts due under Section 19.(a), and (3) an
       amount equal to (A) the total Rent that Tenant would have been required to pay
       for the remainder of the Term discounted to present value at a per annum rate
       equal to the “Prime Rate” as published on the date this Lease is terminated by The
       Wall Street Journal, Southwest Edition, in its listing of “Money Rates” minus one
       percent, minus (B) the then present fair rental value of the Premises for such
       period, similarly discounted.

       An August 10, 2012, letter from CRT’s counsel informed Camargo of CRT’s intent to

terminate the lease, accelerate rent, and demand payment. The letter stated,

       Under cover of letter of July 3, 2012, my client requested that the Tenant pay all
       past due amounts owing under the Lease Agreement, equaling the sum of
       $10,603.11, by July 12, 2012. To date, my client has not received this payment.
       The Tenant has now also missed rent payment of $10,587.33 due on August 1,
       2012. Under Section 5 of the Lease, Tenant is responsible for late fees and
       charges for these past due amounts. As of the date [o]f this letter, Tenant owes
       my client the total sum of $22,368.21 for past due rents, late fees, and handling
       charges.

               Furthermore, due to the Tenant’s uncured payment defaults and
       abandonment of the Premises, the Landlord hereby gives written notice, pursuant
       to Section 18(b) of the Lease Agreement, of termination of the Tenant’s right of
       possession of the Premises. Under Section 18(b), the Tenant is obligated to pay
       (1) all outstanding past due amounts, plus late fees and charges as set out in
       Section 5 of the Lease; (2) all rents and other sums due for the remainder of the
       Term of the Lease; and (3) all costs and fees incurred under Section 19 of the
       Lease. The total amount of (l) above, is $22,368.21. The total amount of (2),
       above, is $492,239.52. My client estimates that the total cost of (3), above, is
       $1092.99. In sum, Tenant owes my client $515,700.72 for its breaches of the
       Lease Agreement and the consequent damages, fees, and charges associated
       with those breaches. In addition, under Section 5 of the Lease, late fees and
       charges will continue to accrue so long as Tenant refuses to satisfy its obligations.

               Demand is now made for immediate payment of this amount.


                                                  5
       Camargo was sued by CST after failure to submit payment. CST moved for summary

judgment on its claim and attached the lease provisions and its counsel’s August 10, 2012, letter

as its summary judgment proof. In addition, CST submitted the affidavit of Lisa Donovan, the

“Senior Director for Property Management for CASE Commercial Partner, which managed the

building for CRT Signature Place, LP.” In relevant part, the affidavit stated,

       3.    As Senior Director, I oversee the commercial lease . . . between CRT . . .
       and Camargo . . . . including, but not limited to, Camargo’s failure to pay rent.

               ....

       7.       On July 1, 2012, Camargo’s Basic Rent and Additional Rent were due
       under the Lease. The total amount due was $10,603.11.
       8.       Camargo did not make this payment.
       9.       On July 3, 2012, I sent a letter to Camargo demanding payment of the
       July 3, 2012 rent by July 12, 2012.
       10.      Camargo did not make the July 2012 payment. Camargo has not made
       any other payments under the Lease.
       11.      On 6/29/2012, I observed Camargo moving furniture from the Premises
       and Building. In a previous conversation that took place early the same week
       Camargo indicated they were consolidating their operation all into Suite 845.
       This was false. Camargo actually vacated the Premises, without notice and in
       violation of Section 17(b) of the Lease.
       12.      Under Section 18(b) of the Lease, Plaintiff, by and through its counsel,
       sent notice of termination of the Lease and acceleration of rents due, and made
       demand for the full amount of rents owed, as well as costs and fees owed and
       payable under Section 19 of the Lease.
       13.      Plaintiff has made reasonable efforts to re-lease the Premises, but has been
       unsuccessful to date.
       14.      As a result of Camargo’s breach of the Lease, Plaintiff has suffered
       $515,059.68 in damages. This amount represents: (1) all outstanding past due
       amounts, plus late fees and charges set forth in Section 5 of the Lease Agreement;
       (2) all rents and other sums due for the remainder of the Term of the Lease; and
       (3) all costs and fees incurred under Section 19 of the Lease.

       Camargo never contested its liability under the lease or its obligation to pay accelerated

rent. Instead, it filed an objection to Donovan’s affidavit contending that it “completely fails to
                                                 6
describe the amounts that comprise her $515,059.68 damages calculation.” “Conclusions in an

affidavit are insufficient either to support summary judgment or to raise a fact issue in response

to a summary-judgment motion.” Neel v. Tenet HealthSystem Hosps. Dallas, Inc., 378 S.W.3d

597, 607 (Tex. App.—Dallas 2012, pet. denied) (citing Mercer v. Daoran Corp., 676 S.W.2d

580, 583 (Tex. 1984); James L. Gang & Assocs. v. Abbott Labs., Inc., 198 S.W.3d 434, 442 (Tex.

App.—Dallas 2006, no pet.)).      “A conclusory statement is one that does not provide the

underlying facts in support of the conclusion.” Id. at 607–08 (citing Schindler v. Baumann, 272

S.W.3d 793, 796 (Tex. App.—Dallas 2008, no pet.); 1001 McKinney Ltd. v. Credit Suisse First

Boston Mortg. Capital, 192 S.W.3d 20, 27 (Tex. App.—Houston [14th Dist.] 2005, pet. denied)).

       “Texas Rule of Civil Procedure 166a(c) provides that a summary judgment may be based

on uncontroverted testimonial evidence of an interested witness if the evidence is clear, positive

and direct, otherwise credible and free from contradictions and inconsistencies, and could have

been readily controverted.” Stucky v. Noble, 963 S.W.2d 776, 780 (Tex. App.—San Antonio

1998, pet. denied). Donovan’s affidavit specified the amount of rent past due, referenced the

monthly rent payment schedule and other sums in the lease, and provided that the total damages

were calculated using the lease provisions, which included the applicable rate of interest. Thus,

the affidavit provided a basis from which the damages could be calculated and constituted

sufficient summary judgment proof. See Energico Prod., Inc. v. Frost Nat’l Bank, No. 02-11-

00148-CV, 2012 WL 254093, at *5 (Tex. App.—Fort Worth Jan. 26, 2012, pet. denied) (mem.

op.); Sonterra Capital Partners, Ltd. v. Sonterra Prop. Owners Ass’n Inc., 216 S.W.3d 417, 423

(Tex. App.—San Antonio 2006, pet. denied); Martin v. First Republic Bank, Fort Worth, N.S.,

                                                7
799 S.W.2d 482, 485 (Tex. App.—Fort Worth 1990, writ denied) (holding affidavit setting forth

total balance due on note sufficient to sustain award of summary judgment) (citing Morgan v.

Amarillo Nat’l Bank, 699 S.W.2d 930 (Tex. App.—Amarillo 1985, writ ref’d n.r.e.)).

       Camargo’s objection to Donovan’s affidavit confirmed and conceded that the total future

rent due under the lease amounted to $471,959.06. Its complaint was essentially that the trial

court erred in awarding damages because no math worksheet was provided showing the step-by-

step calculation of how the figure of $515,059.68 was derived. Referring to Section 18(a) of the

lease, which provided the method of calculating damages, Camargo argued,

       Thus, even before the $471,959.06 is discounted to present value, and further
       reduced by the present fair rental value for that same period – in accordance with
       Section 18(a) of the Lease – the amount in question is significantly less than the
       $515,059.68 that Plaintiff claims as damages in this case.

       Camargo’s argument failed to take into consideration its obligation to pay its

“Proportionate Share of the cost of all electricity used by the Complex,” taxes, and operating

expenses under the lease. These additional expenses amounted to $966.70 for the month of

August, which was calculated by subtracting the amount due by Camargo in August 2012 from

the base rent. Also, Section 5 of the lease agreement provided,

               All past due payments required of Tenant hereunder shall bear interest
       from the date due until paid at the lesser of eighteen percent per annum or the
       maximum lawful rate of interest. . .; additionally, Landlord may charge Tenant a
       fee equal to five percent of the delinquent payment to reimburse Landlord for its
       costs and inconvenience incurred as a consequence of Tenant’s delinquency.

        Camargo had notice of CST’s acceleration of the rent payment on August 10, 2012. As

of the date of summary judgment, March 18, 2013, the $471,959.06 that Camargo concedes was

owed was past due by seven months. The interest on this sum alone, which was allowed by
                                                8
Section 5 of the lease, and the estimated additional expenses far exceeded the trial court’s award

of actual damages.

        If the plaintiff satisfies its burden, the burden shifts to the defendant to preclude summary

judgment by presenting evidence that raises a genuine issue of material fact. Westland Oil Dev.

Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 907 (Tex. 1982); Affordable Motor Co. v. LNA, LLC,

351 S.W.3d 515, 519 (Tex. App.—Dallas 2011, pet. denied). Camargo’s objection to Donovan’s

affidavit did not constitute controverting summary judgment evidence. Stovall, 409 S.W.3d at

802; Zeifman v. Nowlin, 322 S.W.3d 804, 808 (Tex. App.—Austin 2010, no pet.) (“It is well-

settled that . . . pleadings are not competent summary judgment evidence.”). “[T]he showing of

a lack of information shows no more than [that] there is an absence of summary judgment proof

to raise a fact issue to defeat the summary judgment motion . . . .” Martin, 799 S.W.2d at 485

(quoting Morgan v. Amarillo Nat’l Bank, 699 S.W.2d 930, 938 (Tex. App.—Amarillo 1985, writ

ref’d n.r.e.).

        After reviewing the summary judgment record, we conclude that CST met its summary

judgment burden showing it was entitled to summary judgment as a matter of law on its claim

for unpaid rent and damages under the lease and that no genuine issues of material fact exist as to

the elements of CST’s breach of contract claim. We overrule Camargo’s sole issue.




                                                 9
      We affirm the trial court’s judgment.



                                              Jack Carter
                                              Justice

Date Submitted:      November 18, 2013
Date Decided:        December 11, 2013




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