Opinion
No. 05-08-00093-CV
Opinion Filed March 30, 2009.
On Appeal from the County Court at Law No. 5, Dallas County, Texas, Trial Court Cause No. 06-12942-E.
Before Justices BRIDGES, RICHTER and MAZZANT.
MEMORANDUM OPINION
This case involves the Jale Group, Inc.'s ("Landlord") recovery for rental payments on a commercial lease from certain shareholders of its tenant, Counseling Center Administration, Inc. d/b/a Park Cities Counseling Center ("Tenant"). The trial court granted Landlord summary judgment against two of the Tenant's shareholders, Cheryl D. Cox and Ann Roose ("Shareholders"). On appeal, the Shareholders raise two issues: (1) whether there was a genuine issue of material fact as to the capacity in which each of the Shareholders signed the lease; and (2) whether each of the Shareholders was liable for one-fifth of the total monthly rental fee owed by the Tenant.
Although only Cox and Roose were sued, Carol Montgomery, Molly Behannon, Patrick Savage and Randy Gibson were also shareholders in Counseling Center Administration, Inc. Montgomery and Gibson are or have ben officers and shareholders of the Landlord.
Background
In September 2000, Landlord renewed a lease on office space leased to Tenant. Each of the owners of shares in the Tenant were required to sign the Lease under the signature line identified with the Tenant's name. No representative capacity was identified by any name. The lease provided for joint and several liability stating: "[a]ll parties signing this lease as Tenant shall be jointly and severally liable for all obligations of Tenant." In December 2005, the Shareholders notified other members of the Tenant that they were moving their offices and would no longer pay any rent owed to Landlord under the lease. Landlord filed this lawsuit against the Shareholders individually. The Shareholders answered that they were not liable in the capacities in which they were sued. Their answer, however, was not verified. The Shareholders also raised counterclaims of fraud and breach of contract.
Landlord moved for a traditional summary judgment on its claim for past-due rent and a no-evidence summary judgment on the Shareholders' counterclaims. The trail court granted Landlord summary judgment on all claims. On appeal, the Shareholders raise two issues: (1) did the trial court err as a matter of law in deciding there existed no genuine issue of material fact regarding the capacity in which Cox and Roose signed the lease; and (2) did the trial court err in determining as a matter of law there existed no genuine issue of material fact establishing Landlord was entitled to judgment against Cox and Roose, individually, each in the amount of $6,000.00 for the apportionment of rental payments to each. Neither issue persuades us and we affirm the trial court's summary judgment.
Standard of Review
Although the trial court also granted Landlord's no-evidence motion for summary judgment on the Shareholders' counterclaims, the two issues raised by the Shareholders pertain to Landlord's traditional summary judgment on its claim for past-due rent. Accordingly, we confine our inquiry to the trial court's ruling on the Landlord's traditional motion for summary judgment.
We review the trial court's granting of a traditional motion for summary judgment de novo. Tex. Mun. Power Agency v. Pub. Util. Comm'n, 253 S.W.3d 184, 192 (Tex. 2007). To prevail on a traditional summary judgment motion, a movant must show there is no genuine issue as to any material fact and it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Little v. Tex. Dep't of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004). To defeat a plaintiff's cause of action on a traditional summary judgment motion, a defendant must either conclusively negate at least one element of each of the plaintiff's theories of recovery or conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff's cause of action. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Case Corp. v. Hi-Class Bus. Sys. of Am., Inc., 184 S.W.3d 760, 776 (Tex.App. 2005, pet. denied). When, as here, the trial court's order granting summary judgment does not specify the grounds upon which it was granted, we will affirm the judgment if any of the grounds presented to the trial court and preserved for appellate review are meritorious. See Provident Life Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Ling v. BDAK Bus. Servs., Inc., 261 S.W.3d 341, 345 (Tex.App. 2008, no pet.).
Discussion
A. Capacity of the Shareholders
In their first issue, the Shareholders argue summary judgment is improper because there is a genuine issue of material fact regarding the capacity in which each of them signed the Lease. However, the Shareholders failed to file verified denials of the individual capacity in which each was sued. Accordingly, the Shareholders waived any complaint they had about the capacity in which they were sued. Tex. R. Civ. P. 93; Ray Malooly Trust v. Juhl, 186 S.W.3d 568, 571 (Tex. 2006) ("[P]arties who do not follow rule 93's mandate waive any right to complain about the matter on appeal.") (quoting Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996)); Landry's Seafood House-Addison, Inc. v. Snadon, 233 S.W.3d 430, 433 (Tex.App. 2007, pet. denied) (citing Tex. R. Civ. P. 93(2) (providing "[a] pleading . . . shall be verified by affidavit . . . [t]hat there is a defect of parties, plaintiff or defendant")).
In addition, the lease states "[a]ll parties signing this lease as Tenant shall be jointly and severally liable for all obligations of Tenant." Neither of the Shareholders denies they signed the lease under the line entitled Tenant. Under the express terms of the lease, therefore, each of the Shareholders is jointly and severally liable for past-due rent not paid to the Landlord.
B. Damages for Past-Due Rent
In their second issue, the Shareholders contend the summary judgment evidence does not support the damages award against each of them for $6,000.00 for the apportionment of unpaid rental payments. However, the affidavit filed in support of Landlord's motion for summary judgment establishes (1) the total rent owed under the lease per month was $6,000.00, (2) neither of the Shareholders paid any potion of rent for six months in 2006, and (3) each of the Shareholders was liable for $1,200.00 of the rent for each month. Cox's affidavit filed in opposition to the motion admits she paid a proportionate share of the lease payments and that "in or around December, 2005", she and Roose moved their practices from the leased premises. Cox does not dispute the amount of the rent or the amount of months during which neither of the Shareholders paid rent. We conclude summary judgment was proper and overrule the Shareholders' second issue.
Conclusion
We affirm the trial court's summary judgment in favor of the Jale Group, Inc.