law-mitigation-by-landlord | other Houston lease law cases | mitigation as a legal concept generally |



The Williamses argue that the issue of mitigation was not pled by Rosales and Ontiveros and, thus, shall not be
considered by this Court on appeal.

Section 91.006 of the Texas Property Code requires a landlord to mitigate his damages after the breach of a
lease and declares void any lease provision to the contrary. Tex. Prop. Code Ann. § 91.006 (Vernon 2007).
When a tenant contends that the landlord has mitigated his damages, the breaching tenant need not plead the
landlord's mitigation as an affirmative defense; rather, the tenant's evidence of the landlord's mitigation tends to
rebut the amount of damages claimed by the landlord for the breach and may be admitted under a general
denial. McGraw v. Brown Realty Co., 195 S.W.3d 271, 277-78 (Tex. App.--Dallas 2006, no pet.). Thus, it was not
necessary for Rosales and Ontiveros to plead that the Williamses mitigated their damages, and the issue is
properly before our consideration.

On the other hand, a tenant's contention that the landlord failed to mitigate his damages must be pleaded as an
affirmative defense, and the filing of a general denial is usually not sufficient to raise the issue. Id. at 277; see
Tex. R. Civ. P. 94 (party relying on affirmative defense must specifically plead defense). However, when a plaintiff
in his pleadings anticipates defensive matters and pleads them, the defendant may rely upon defenses though
his only pleading is general denial. Phillips v. Phillips, 820 S.W.2d 785, 789 (Tex. 1991) (citing Raney v. White,
267 S.W.2d 199, 200 (Tex. Civ. App.--San Antonio 1954, writ ref'd)).

Here, the Williamses pled in "Plaintiff's [sic] Original Petition" that "Plaintiffs reasonably mitigated their damages."
Although the Williamses, as plaintiffs, had no obligation to anticipate defenses and plead those issues, by
anticipating the defense in their pleadings, they allowed the defendants to properly respond with a general
denial. See id. Because the plaintiffs' petition claimed they reasonably mitigated damages, the defendants' filing
of a general denial, "den[ying] each and every allegation of Plaintiffs' Original Petition," put failure to mitigate at
issue in the case.

Moreover, even if the pleadings had not put mitigation at issue, both parties addressed the issue in their
summary judgment pleadings and attached evidence, without objection from the Williamses. An unpleaded
affirmative defense may serve as the basis for a summary judgment when it is raised in the summary judgment
motion and the opposing party does not object to the lack of a Rule 94 pleading in either its written response or
before the rendition of judgment. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494 (Tex. 1991). In other
words, trial by consent applies in the summary judgment context. Id.; see also Segal v. Emmes Capital, L.L.C.,
155 S.W.3d 267, 298 (Tex. App.--Houston [1st Dist.] 2004, pet. dism'd). "The failure to plead an affirmative
defense under rule 94 is an issue that must be raised in the trial court, or it may not be urged on appeal." Roark,
813 S.W.2d at 495.

Rosales and Ontiveros's response to the Williamses' Motion for Summary Judgment states facts raising the issue
of mitigation and failure to mitigate. The Williamses filed a reply brief to Rosales and Ontiveros's response, but
did not object or specially except. Thus, the issue of failure to mitigate was properly before the consideration of
the trial court in deciding the motion and accordingly, is also properly before the consideration of this Court on

a) Actual Mitigation of Damages

Rosales and Ontiveros's response to the Motion for Summary Judgment and attached evidence creates a fact
issue as to whether the Williamses actually mitigated their damages. The response states that Rosales and
Ontiveros requested to stay in the house for an additional month but were told that they could only stay "until
April 11, 2008 because the house had been rented to another tenant." In Rosales' affidavit, she states that
Kimberly Williams told her that they "had to leave the house by April 11, 2008 because she needed two weeks to
clean the house before the new tenants arrived." Additionally, the response alleges and the attached affidavit
states that Rosales observed and spoke with the new tenant renting the house in May and June of 2008.

The Williamses argue in their appellate brief that the affidavits of Rosales and Ontiveros are self-serving
conclusory statements based on supposition and hearsay and do not amount to more than a scintilla of
evidence. However, the Williamses did not make these objections before the trial court. Because the objections
to hearsay and speculation are objections to form, the Williamses waived them by failing to present the objection
to the trial court. See Tex. R. Evid. 802; Pico v. Capriccio Italian Rest., Inc., 209 S.W.3d 902, 909 (Tex.
App.--Houston [14th Dist.] 2006, no pet.). Hearsay, when not objected to, is relevant evidence that can be
considered on appeal. Tex. R. Evid. 802.

An objection that an affidavit is conclusory can be raised for the first time on appeal, as it goes to a substantive
defect. See Pico, 209 S.W.3d at 909. A conclusory statement in an affidavit is insufficient to raise an issue of fact
in response to a motion for summary judgment. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). A
conclusory statement is one that does not provide the underlying facts to support the conclusion. Winchek v.
Amer. Express Travel Related Servs. Co., 232 S.W.3d 197, 206 (Tex. App.--Houston [1st Dist.] 2007, no pet.).

Here, the statements made by Rosales in her affidavit are not conclusory. The legal conclusion at issue here is
that the Williamses actually mitigated their damages. Rosales' affidavit does not state the legal conclusion that
damages were mitigated; rather, she states facts that indicate that the property had been rented.

Thus, the statements in the affidavits attached to Rosales and Ontiveros's response are some evidence that the
Williamses mitigated their damages for an amount greater than what they acknowledged in their motion for
summary judgment.

b) Failure to Mitigate

While it is Rosales and Ontiveros's primary contention that the Williamses actually mitigated their damages by
leasing the property to another tenant, the facts provided in response to the Williamses' Motion for Summary
Judgment alternatively show that the Williamses failed to mitigate their damages. It is undisputed that Rosales
and Ontiveros asked to stay in the apartment for an additional month but were only allowed to stay in the house
until April 11. Because the landlords have an obligation to avoid waste, their refusal to allow Rosales and
Ontiveros to stay at the house longer, if the property were not leased to another tenant, would constitute a failure
to mitigate.
Ontiveros v. Williams (Tex.App.- Houston [1st Dist.] Feb. 11, 2010)(Hanks)
breach of residential lease claim, mitigation of damages and failure to mitigate as affirmative defense,
trial by consent in summary judgment context, partial summary judgment on liability only,
proving amount of damages, attorney's fees)
Opinion by
Justice Hanks    
Before Justices Jennings, Hanks and Bland  
01-09-00454-CV  Francisca Rosales and Jose Ontiveros v. Kimberly Williams   
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge:
Hon. Linda Storey