                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-217-CV


MELISSA BAXLEY                                                     APPELLANT

                                        V.

PS GROUP, LLC                                                        APPELLEE

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      FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                I. INTRODUCTION

      Appellant Melissa Baxley appeals the summary judgment granted in favor

of Appellee PS Group, LLC. In a single issue, Baxley argues that the trial court

erred by granting summary judgment for PS Group because her pleadings raised

fact issues that precluded summary judgment. We will affirm.




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           See Tex. R. App. P. 47.4.
                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      Baxley entered into a commercial lease on November 30, 2006, with PS

Group to lease space in a shopping center in Arlington. The term of the lease

was for sixty months, commencing on February 1, 2007, and expiring on

January 31, 2012. Baxley paid rent and utilities under the lease for eighteen

months and then expressed a desire to terminate the lease and to vacate the

premises.   Baxley and PS Group thereafter entered into a written Lease

Termination Agreement (the Agreement). Under the terms of the Agreement,

the lease terminated on August 20, 2008; Baxley executed a promissory note

payable to PS Group in the principal amount of $65,000, which required

monthly installment payments; Baxley paid prorated rent for August 1 through

August 20, 2008; and PS Group retained Baxley’s security deposit.

      Baxley defaulted on the payment of the note by failing to make any

monthly installment payments. PS Group gave Baxley written notice of the

default, as required by the terms of the note, but Baxley’s default continued for

more than ten days from the date of the notice. PS Group declared the unpaid

principal balance on the note immediately due.

      PS Group thereafter filed suit for breach of contract, and Baxley answered

with a general denial. PS Group filed a motion for summary judgment, and

Baxley filed a response and an amended answer. The only possibly relevant

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document attached as summary judgment evidence to Baxley’s response was

Baxley’s own affidavit; that affidavit contains one sentence swearing that

Baxley has “read the foregoing [sumary judgment response] . . . [and that] [t]he

facts set out therein are true and correct.” 2 The trial court ultimately granted

PS Group’s motion for summary judgment, and this appeal followed.

           III. S UMMARY J UDGMENT P ROPERLY G RANTED FOR PS G ROUP

      In her sole issue, Baxley argues that the trial court erred by granting

summary judgment for PS Group because her pleadings and summary judgment

response raised fact issues that precluded summary judgment.              Baxley

presented no controverting summary judgment evidence; she simply swore in

her affidavit that the facts stated in her summary judgment response were true

and correct.   Baxley’s summary judgment response was simply a verified

pleading, and pleadings, though verified, are generally not competent summary

judgment evidence.     See Watson v. Tipton, 274 S.W.3d 791, 798 (Tex.

App.—Fort Worth 2008, pet. denied) (citing Laidlaw Waste Sys. (Dallas), Inc.



      2
       Baxley also attached some of PS Group’s discovery responses to her
summary judgment response, and she complained in her summary judgment
response that PS Group had not properly responded to some discovery
requests. But the record before us does not show that Baxley filed a motion to
compel, and she does not raise PS Group’s alleged failure to respond to
discovery as an issue in this appeal. We cannot consider the lack of discovery
responses (lack of evidence) alleged by Baxley to be summary judgment
evidence.

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v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995)); see also Tex. R. Civ. P.

166a(e) (setting forth requisites of summary judgment affidavits). Nontheless,

Baxley argues that she raised factual issues—whether the contract had legal

consideration, whether PS Group suffered damages, and whether PS Group

fraudulently induced her into the contract—to defeat the granting of summary

judgment.

      We review a summary judgment de novo. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). 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. Id. 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).

      Here, two of the three “factual issues” that Baxley raises—lack of

consideration and fraudulent inducement—are affirmative defenses on which

she had the burden of proof. See 1464-Eight, Ltd. v. Joppich, 154 S.W.3d

101, 103 (Tex. 2004) (noting that lack of consideration and failure of

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consideration are affirmative defenses); Bassett v. Am. Nat’l Bank, 145 S.W.3d

692, 696 (Tex. App.—Fort Worth 2004, no pet.) (stating that defendant relying

on an affirmative defense—such as failure of consideration, conditional delivery,

fraudulent inducement, and usury—in opposing a summary judgment must

come forward with summary judgment evidence sufficient to raise an issue of

material fact on each element of the defense).        A party who opposes a

summary judgment by asserting an affirmative defense must offer competent

summary judgment proof to support her allegations. See Keenan v. Gibraltar

Sav. Ass’n, 754 S.W.2d 392, 393 (Tex. App.—Houston [14th Dist.] 1988, no

writ).       Competent summary judgment proof must consist of more than a

conclusory allegation of lack of consideration or of fraud. Because Baxley’s

summary judgment response contained only a conclusory, one-sentence

allegation stating that she had asserted lack of consideration and fraud and

because that allegation is unsupported by summary judgment evidence or even

sworn factual recitations of how the elements of these defenses apply to her

particular situation, she therefore presented at most only legal conclusions,

which do not constitute competent summary judgment proof. 3 See LMB, Ltd.



         3
        We also note that the summary judgment evidence attached to PS
Group’s motion clearly refutes Baxley’s affirmative defenses. The Agreement
that she signed states that PS Group’s ability to re-lease the property “is
necessarily uncertain and speculative” and acknowledges that the consideration

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v. Moreno, 201 S.W.3d 686, 689 (Tex. 2006) (applying settled law that legal

conclusions, stated without supporting facts in affidavit, do not constitute

competent summary judgment evidence).

        The remaining “factual issue” (i.e., lack of damages) that Baxley claims

she raised to preclude summary judgment is likewise not supported by any

competent summary judgment evidence. The “affidavit” that Baxley attached

to her response to PS Group’s motion for summary judgment was not an

affidavit for purposes of Texas Rule of Civil Procedure 166a(e) but was instead

a mere verification of her summary judgment response. See, e.g., Tex. R. Civ.

P. 166a(e).    And Baxley’s summary judgment response did not constitute

competent summary judgment evidence. See LMB, Ltd., 201 S.W.3d at 689.

        PS Group conclusively established its right to summary judgment on the

note.     PS Group’s summary judgment evidence included the lease, the

Agreement, the note, Baxley’s responses to PS Group’s requests for admissions

in which Baxley admitted that she had not made payments on the note, and

affidavits from PS Group’s attorney and PS Group’s president stating that

Baxley had not made any payments on the note. Baxley failed to come forward

with summary judgment evidence raising a genuine issue of material fact on any



given by both parties is “fair, reasonable, and fully sufficient to effectuate the
intentions and wishes of the Parties.”

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element of PS Group’s breach of contract claim or raising a genuine issue of

material fact on every element of one of her affirmative defenses. Accordingly,

the trial court did not err by granting summary judgment to PS Group. See

Keenan, 754 S.W.2d at 394 (holding that guarantors failed to raise fact issues

by failing to put on competent summary judgment proof). We overrule Baxley’s

sole issue.

                                IV. C ONCLUSION

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




                                                  PER CURIAM

PANEL: WALKER, DAUPHINOT, and MEIER, JJ.

DELIVERED: March 25, 2010




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