                                   NO. 07-08-0164-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                     MARCH 6, 2009

                          ______________________________


                 CROWN ASSET MANAGEMENT, LLC, APPELLANT

                                            V.

                            WANDA J. CARTER, APPELLEE

                        _________________________________

      FROM THE COUNTY COURT AT LAW NO. TWO OF TARRANT COUNTY;

           NO. CC- 07-51714-2; HONORABLE JENNIFER RYMELL, JUDGE
                       _______________________________


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


                               MEMORANDUM OPINION


       Appellant, Crown Asset Management, LLC, appeals from entry of summary

judgment in favor of Appellee, Wanda J. Carter, on its breach of contract claim. In support,

Crown asserts the trial court erred in granting summary judgment in Carter’s favor because

disputed issues of material fact existed whether: (1) Crown’s claim was foreclosed by the
applicable statute of limitations, and (2) whether Crown failed to mitigate its damages. We

reverse and remand.


                                      Background


       On April 9, 2007, Crown filed its original petition and subsequently amended its

petition alleging that it was a successor by assignment from Union Acceptance, LLC, to

Union’s rights under a sales contract and security agreement executed by Carter in 1997

to purchase a 1994 Nissan automobile. Under the sales contract, Carter agreed to make

78 monthly payments of $398.58 beginning March 10, 1997, and ending September 10,

2003. Carter defaulted in the payment of that contract and Crown sought contract

damages due to Carter’s default.


       In December 2007, Carter filed an amended motion for summary judgment

asserting that any claim by Crown for payments due before April 9, 2003, was barred by

the applicable four-year statute of limitations. Carter also asserted that, had Union

mitigated its damages by repossessing the Nissan, the value of the car would have

satisfied Carter’s obligation. It her motion, Carter concluded by stating:


       Most of Plaintiff’s claim is barred by the statute of limitations herein. The
       [remaining obligation] could have been satisfied by the value of the vehicle,
       had [Crown] decided to mitigate its damages. Having failed to do so, Crown
       . . . cannot now seek to collect for that failure.




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       Crown responded with an affidavit by Stephen P. Riexinger, Crown’s Chief Legal

Officer and a Managing Member. Riexinger’s affidavit states that Carter’s last payment

was made on April 25, 2003.        In support, Riexinger attached a computer print-out

represented to be a “true and correct copy of the payment history” for Carter’s loan. Carter

did not controvert this payment history.


       On February 13, 2008, the trial court granted Carter’s motion for summary judgment.

The order did not specify the grounds upon which the summary judgment was granted.

This appeal followed.


       I.     Standard of Review


       For a party to prevail on a motion for summary judgment, that party must

conclusively establish the absence of any genuine question of material fact and that he or

she is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Browning v.

Prostok, 165 S.W.3d 336, 344 (Tex. 2005). To establish entitlement to judgment as a

matter of law on an affirmative defense the defendant must establish all the elements of

the affirmative defense as a matter of law. Shaw v. Moss, 67 S.W.3d 836, 842 (Tex.

2001). Once the movant has established a right to summary judgment, the non-movant has

the burden to respond to the motion for summary judgment and present to the trial court

any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin

Auth., 589 S.W.2d 671, 678 (Tex. 1979); Barbouti v. Hearst Corp., 927 S.W.2d 37, 64

(Tex.App.–Houston [1st Dist.] 1996, writ denied).

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      When an order granting summary judgment does not specify or state the grounds

relied on, the summary judgment will be affirmed on appeal if any of the grounds presented

in the motion are meritorious. Western Investments, Inc. v. Urena, 162 S.W.3d 547, 550

(Tex. 2005); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).


      II.    Statute of Limitations


      A lender must bring suit on a debt no later than four years after the cause of action

accrues. Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a)(3) (Vernon 2002). A cause of

action for breach of contract is generally regarded as accruing when the contract is

breached or when the claimant has notice of facts sufficient to place him or her on notice

of the breach. Slusser v. Union Bankers Ins. Co., 72 S.W.3d 713, 717 (Tex.App.–Eastland

2002, no pet.). Moreover, an installment agreement is breached each time a payment is

missed. Id.; F.D. Stella Products Co. v. Scott, 875 S.W.2d 462, 466 (Tex.App.–Austin

1994, no writ); Hollander v. Capon, 853 S.W.2d 723, 726 (Tex.App.–Houston [1st Dist.]

1993, writ denied). Thus, when a contract, such as Union’s contract with Carter, calls for

periodic payments, a cause of action for nonpayment accrues at the end of each period

until the contract is complete. Hoarel Sign Co. v. Dominion Equity Corp., 910 S.W.2d 140,

144 (Tex.App.–Amarillo 1995, writ denied); Townewest Homeowners Ass’n, Inc. v. Warner

Communication, Inc., 826 S.W.2d 638, 640 (Tex.App.–Houston [14th Dist.] 1992, no writ).


      Crown’s suit to recover on Carter’s debt was filed on April 9, 2007. Crown’s

uncontroverted evidence establishes that Carter’s last payment on Union’s installment

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contract was made on April 25, 2003, when there were still additional payments due Union.

Therefore, absent evidence of acceleration of Carter’s debt, Crown’s claim against Carter

was not barred in its entirety.


       Thus, we find, as a matter of law, that, if Crown is able to establish that it is a

successor to Union by assignment,1 Crown has a right to pursue Union’s claims for breach

of contract for non-payment for four years prior to the filing of its suit, i.e., the five payments

owing on the installment contract due each month for May through September 2003.

Crown’s issue is sustained as to Carter’s affirmative defense of limitations.


       III.    Mitigation of Damages


       Carter’s affidavit also indicates that, in April 2003, she contacted Union and

“voluntarily relinquished the vehicle, as she was unable to continue to make the required

payments.” Even if Crown had a duty to mitigate, the burden of proving failure to mitigate

is on Carter who must show the amount by which Crown’s damages were increased by the

failure to mitigate. See Stucki v. Noble, 963 S.W.2d 776, 781 (Tex.App.–San Antonio

1998, pet. denied); Brown Supply Co. v. Rushing, 361 S.W.2d 728, 730


       1
          To obtain judgment on Union’s sales agreement with Carter, Crown must prove that
it is the note’s holder or owner. Priesmeyer v. Pacific Southwest Bank, F.S.B., 917 S.W.2d
937, 940 (Tex.App.–Austin 1996, no writ). That is, Crown must prove the transfer by which
it acquired the note. Id. Although Carter raised issues regarding Crown’s ownership of
Union’s contract in response to Riexinger’s Affidavit through a separate filing, these issues
are not before this Court. The trial court did not rule on Carter’s objections prior to granting
Carter’s motion for summary judgment, and Carter did not seek summary judgment below
on the issue of Crown’s ownership of Carter’s promissory obligation.

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(Tex.Civ.App.–Amarillo 1962, no writ). Carter offered no proof of failure to mitigate, nor did

she offer any evidence of how much Crown’s damages increased by such failure.


       Carter offered only a statement in her motion that “[e]ven today, the vehicle

concerned, a 1994 Nissan Maxima has residual value that could have offset the entire

amount of the remaining payments due under the contract after the application of the

statute of limitations above.” The party asserting an affirmative defense bears the burden

of pleading and proving its elements. Quantum Chemical Corp. v. Toennies, 47 S.W .3d 473,

481 (Tex. 2001); Compass Bank v. MFP Financial Services, Inc., 152 S.W .3d 844, 851

(Tex.App.–Dallas 2005, pet. denied). And, generally, pleadings are not competent evidence,

even if sworn or verified. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997); Laidlaw

Waste Systems (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995); Collier

Services Corp. v. Salinas, 812 S.W.2d 372, 377 (Tex.App.–Corpus Christi 1991, no writ).


       Accordingly, Carter failed to meet her burden of proof on this issue and Crown’s

issue is sustained as to Carter’s affirmative defense of mitigation.


                                        Conclusion


       We reverse the judgment and remand the cause to the trial court for further

proceedings.


                                                  Patrick A. Pirtle
                                                      Justice


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