Full Opinion

NUMBER 13-26-00255-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG TRES BOTES, LLC & DOS BOTES ENTERTAINMENT, INC., Appellants, v. SHREE MAA KRUPA PROPERTIES, LTD. & SDP HOTEL, LLC, Appellees. ON APPEAL FROM THE COUNTY COURT AT LAW NO. 3 OF CAMERON COUNTY, TEXAS MEMORANDUM OPINION Before Chief Justice Tijerina and Justices Cron and Fonseca Memorandum Opinion by Justice Fonseca In this case concerning the alleged breach of two commercial real estate leases, the trial court granted summary judgment awarding damages to appellees Shree Maa Krupa Properties, Ltd. (SMK) and SDP Hotel, LLC (SDP). Appellants Tres Botes, LLC (Tres Botes) and Dos Botes Entertainment, Inc. (Dos Botes) contend the trial court erred because: (1) the summary judgment motion did not address defenses raised in appellants’ amended answer; (2) SDP failed to establish all the elements of breach of contract by Dos Botes; and (3) SMK failed to establish all the elements of breach of contract by Tres Botes. We affirm in part and reverse and remand in part. I. BACKGROUND Appellees and their owner, Pankaj Patel, filed suit against appellants on November 15, 2024. The petition alleged that in May of 2012, Dos Botes entered into a ten-year lease to operate a bar named “The Toucan Lounge” at a shopping center owned by SDP in Cameron County. According to the petition, a five-year lease renewal became effective in May of 2022 at a rate of $9,000 per month, but Dos Botes abandoned the premises in May of 2024 and moved the bar to a new location across the street. The petition argued Dos Botes thus breached the lease and owed $324,000, representing the thirty-six months remaining in the renewed lease term. It also sought a declaration that the business name “The Toucan Lounge” belongs to SDP and Patel. The petition further alleged that in May of 2021, Tres Botes entered into a lease to operate a bar at a different shopping center in Cameron County, this one owned by SMK. 1 According to the petition, the lease was for six years at a rate of $4,300 per month, but Tres Botes abandoned the property around September of 2023. The petition alleged Tres Botes thus breached the lease and owed $189,200, representing four months’ delinquent rent and forty-four months remaining on the lease. Appellees and Patel filed a “Partial Motion for Traditional Summary Judgment” on 1 The petition alleged that both Dos Botes and Tres Botes are owned and operated by Andrew Lopez. 2 June 16, 2025, arguing they are entitled to judgment as a matter of law on their breach of contract claims in light of appellants’ discovery responses. On August 1, 2025, appellants filed a response to the motion as well as a “First Amended Original Answer” generally denying the allegations in the petition and asserting several affirmative defenses, including estoppel, fraud, failure of consideration, and anticipatory breach. 2 In their summary judgment response, appellants argued in part: Plaintiffs omitted relevant facts pertaining to the status of the leases at the time of their alleged breaches. . . . Specifically, each lease relied upon by Plaintiffs omits the relevant and critical fact that each property was sold to third parties; a fact that changes the nature of the lease of the Dos Botes claim by eliminating the required contractual consideration, and transforming the lease to a month-to-month lease, and deeming the lease void; and regarding the Tres Botes lease, eliminates the required contractual consideration from the Tres Botes claim, rendering the lease without consideration and unenforceable or void. Appellants noted that both lease agreements contained clauses relieving the landlord of liability in the event the premises are sold. Copies of the subject lease agreements were attached to the summary judgment response, as were deeds evidencing property transfers made by SDP and SMK. 3 After a hearing, the trial court granted the partial motion for summary judgment and it signed a judgment on September 22, 2025, awarding SMK $79,096.44 in damages 2 The record does not contain any other answer filed by appellees. 3 The leases contain physical addresses of the properties but not legal descriptions, whereas the deeds contain legal descriptions and mailing addresses but not physical addresses. Accordingly, it is not clear from the summary judgment record whether the properties conveyed by the deeds are the same as those leased to appellants. At the summary judgment hearing, appellees’ counsel conceded that the property leased to Dos Botes “was sold in December 2024.” Counsel denied that the property leased to Tres Botes was ever sold, though he conceded that this property was being leased to a different tenant as of the time of the hearing. 3 from Tres Botes4 and SDP $108,000 in damages from Dos Botes. 5 The judgment stated that “[a]ll other relief not otherwise granted herein is [d]enied, and the Plaintiffs’ causes of action for [d]eclaratory relief in the underlying lawsuit remain active.” Subsequently, appellees and Patel non-suited their declaratory judgment action, thereby rendering the September 22 judgment final. This appeal followed. II. SUMMARY JUDGMENT A. Applicable Law and Standard of Review When a plaintiff moves for summary judgment on its own affirmative claim, “it must conclusively prove all essential elements of its claim as a matter of law.” Wyrick v. Bus. Bank of Tex., N.A., 577 S.W.3d 336, 346 (Tex. App.—Houston [14th Dist.] 2019, no pet.); see TEX. R. CIV. P. 166a(a)(1), (h)(2); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. Franks v. Roades, 310 S.W.3d 615, 621 (Tex. App.—Corpus Christi–Edinburg 2010, no pet.) (citing City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005)). But “a plaintiff is not required to move for summary judgment on the defendant’s affirmative defenses and has no obligation to negate those defenses.” Marx v. FDP, LP, 474 S.W.3d 368, 377 (Tex. App.—San Antonio 2015, pet. denied). Instead, “[i]f the party opposing a summary judgment relies on an affirmative defense, he must come forward with summary judgment evidence sufficient to raise an issue of fact on each element of the defense to avoid summary judgment.” Brownlee v. Brownlee, 665 4 The judgment states Tres Botes is liable for “$4,300.00 per month from the date of delinquency, specifically June 1, 2023, until the time that the property was sold to a third party, said date being December 12, 2024.” Thus, the damages award represents “18 full months of rent and one month prorated.” 5 The judgment states Dos Botes is liable for “$9,000.00 per month from the date of delinquency, specifically May 1, 2024, until the time that the property was rented to a third party, said date being June 1, 2025.” Thus, the damages award represents “12 months of rent.” 4 S.W.2d 111, 112 (Tex. 1984); Turbo Rests., LLC v. 900 S. Jackson, LLC, No. 13-25- 00529-CV, 2026 WL 1978673, at *3 (Tex. App.—Corpus Christi–Edinburg July 9, 2026, no pet.). We review a trial court’s ruling on a summary judgment motion de novo. Tarr v. Timberwood Park Owners Ass’n, Inc., 556 S.W.3d 274, 278 (Tex. 2018). To determine if a genuine issue of material fact exists, “we take as true all evidence favorable to the non- movant, indulge every reasonable inference in favor of the non-movant, and resolve any doubts in the non-movant’s favor.” First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 219 (Tex. 2017). B. Tres Botes As the parties appear to acknowledge, the claims against Tres Botes are not factually related to the claims against Dos Botes except insofar as they involve similar (but not identical) parties and similar (but not identical) lease terms. Accordingly, we address the claims against each appellant separately. First, as to the claim against Tres Botes, SMK pointed to responses to requests for admission in which Tres Botes conceded that: (1) it vacated the subject property prior to expiration of the lease, (2) the lease agreement “was still in effect” at the time it vacated, (3) it did not provide written notice of intent to vacate, and (4) it “did not pay rent for the remaining term of the lease” after vacating. SMK argued that, by virtue of these admissions, all elements of its breach of contract claim against Tres Botes were established as a matter of law. See, e.g., Tex. Dep’t of Transp. v. Crockett, 257 S.W.3d 412, 416 (Tex. App.—Corpus Christi–Edinburg 2008, pet. denied) (“The elements of a breach of contract action are: (1) the existence of a valid contract; (2) performance or 5 tendered performance by the plaintiff; (3) breach by the defendant; and (4) damages sustained by the plaintiff as a result of the breach.”). In its response, as noted above, Tres Botes invoked a provision in its lease concerning the potential sale of the premises by the landlord during the lease term. The provision states as follows under the heading “31. GENERAL PROVISIONS”: (xv) Sale of Premises by Landlord. In the event of any sale of the Premises and/or the Shopping Center by Landlord, Landlord shall be and is hereby entirely freed and relieved of all liability under any and all of its covenants and obligations contained in or derived from this Lease arising out of any act, occurrence or omission occurring after the consummation of such sale; and the purchaser, at such sale or any subsequent sale of the Premises shall be deemed without any further agreement between the parties o[r] their successors in interest or between the parties and any such purchaser, to have assumed and agreed to carry out any and all of the covenants and obligations of the Landlord under this Lease. Appellants’ summary judgment response included a warranty deed showing that SMK conveyed the subject property to YOG Properties, LLC on December 12, 2024. Appellants asserted the “lease[] terminated by [its] own terms upon the sale of the premises.” 6 On appeal, appellants contend the lease agreement “became null and void ab initio or unenforceable on December 12, 2024,” because “(a) the express language of Paragraph 31(xv) extinguishes all consideration flowing from [SMK] to Tres Botes; and (b) a contract that lacks consideration is unenforceable as a matter of law.” We disagree that the lease language or deed created a fact issue regarding the claim against Tres Botes. The alleged breach—i.e., Tres Botes’s abandonment of the 6 Following the summary judgment hearing, appellants filed a supplemental response arguing in part that “the evidence will show that Landlord significantly and [sic] limited Defendants’ use of the parking lots originally conveyed by lease to Defendants, thereby rendering the lease significantly less useable.” Because the supplement was untimely filed, we do not consider it as part of the summary judgment record. See TEX. R. CIV. P. 166a(d)(1) (“Except on leave of court or agreement of the parties, the nonmovant must file a response within 21 days after the motion is filed.”). We note in any event that no additional evidence was attached to the supplement. 6 property in September 2023—occurred before the sale. Moreover, paragraph 31(xv) of the lease does not prescribe any retroactive ramifications on the lease’s enforceability, or on Tres Botes’s obligations under the lease, in the event the property is sold. Instead, it merely absolves SMK of liability in that situation. More importantly, Tres Botes admitted in discovery responses that its lease “was still in effect” at the time it vacated the property in September 2023. Tres Botes is therefore precluded from now challenging the enforceability of the lease. See TEX. R. CIV. P. 198.3 (“A matter admitted under this rule is conclusively established as to the party making the admission unless the court permits the party to withdraw or amend the admission.”); Cartwright v. MBank Corpus Christi, N.A., 865 S.W.2d 546, 550 (Tex. App.—Corpus Christi–Edinburg 1993, writ denied) (“Matters admitted in response to requests for admission are conclusively established as to the party making the admission.”). The remaining breach of contract elements were also conclusively established by the summary judgment evidence. 7 See Crockett, 257 S.W.3d at 416. And Tres Botes did not produce any evidence supporting any affirmative defense. See Brownlee, 665 S.W.2d at 112. The fact that the summary judgment motion did not explicitly address the affirmative defenses raised in appellants’ amended answer is immaterial because a plaintiff moving for summary judgment has no obligation to negate affirmative defenses. Marx, 474 S.W.3d at 377. Accordingly, the trial court did not err in granting summary judgment in favor of SMK and against Tres Botes. We overrule appellants’ first and third issues. 7 Notably, in response to an interrogatory asking why it vacated the premises, Tres Botes averred: “We vacated the premises because of a lack of business, internal issues among principals, and management issues.” 7 C. Dos Botes Dos Botes admitted in response to discovery requests that: (1) it entered into a ten-year lease with SDP in 2012, (2) the lease agreement “included two 5 year options after the expiration of the original ten year lease term,” and (3) it “relocated its business to a new address after vacating the leased premises.” SDP argued in its summary judgment motion that, by virtue of these admissions, all elements of its breach of contract claim against Dos Botes were established as a matter of law. See, e.g., Crockett, 257 S.W.3d at 416. In response, Dos Botes sought to invoke paragraph 31(xv) of its lease, 8 and it attached a copy of a warranty deed indicating SDP conveyed certain Cameron County property to KSN Hospitality LLC on July 1, 2013. Dos Botes also noted that, in its discovery responses, it denied that it executed a five-year renewal of the lease or that the lease was still in effect when it vacated the property. Rather, it claimed in an answer to an interrogatory that SDP committed a prior breach of the lease in that: “[SDP] failed to maintain the building and premises; the parking lot was poorly illuminated; [SDP] raised the rental rate; and [SDP] increased the rental by 5% on a new proposed lease agreement that I did not sign, and I did not sign the 5-year option to continue under the old lease.” We conclude that summary judgment in favor of SDP against Dos Botes was 8 The version of the provision in the Dos Botes lease states: (xv) Sale of Premises by Landlord. In the event of any sale of the Premises and/or the Shopping Center by Landlord, Landlord shall be and is hereby entirely freed and relieved of all liability under any and all of its covenants and obligations contained in or derived from this Lease arising out of any act, occurrence or omission occurring after the consummation of such sale; and the purchaser, at such sale or any subsequent sale of the Premises shall be deemed with new agreement between the parties o[r] their successors in interest or between the parties and any such purchaser and this Lease shall void [sic]; provided Landlord gives Tenant a minimum of 75 days written notice. 8 improper. 9 Unlike Tres Botes, Dos Botes did not admit in discovery that its lease was still in effect at the time it vacated the property. Instead, in response to requests for admission, it denied that the lease was effective at the time it vacated, and it denied that it executed any option to extend the lease. 10 If these denials are true, they would negate SDP’s claim against Dos Botes for breach of the lease, because SDP sought only rent payments which became due after May of 2024. See Parker, 514 S.W.3d at 219. In other words, if the lease was never renewed in 2022, then Dos Botes did not commit a breach by abandoning in 2024. 11 Ultimately, appellees produced no evidence indicating that Dos Botes ever exercised an option to renew the lease, which expired according to its own terms in May of 2022. Thus, they failed to conclusively demonstrate the existence of an enforceable contract, and summary judgment in favor of SDP was erroneous. See TEX. R. CIV. P. 166a(a)(1); Crockett, 257 S.W.3d at 416. In their summary judgment motion, appellees argued that Dos Botes’s “denial lacks any factual basis and is contradicted by Dos Botes’[s] own detailed interrogatory responses.” Specifically, they argued that Dos Botes’s “explanation only makes sense if the original lease was still in effect, as one cannot refuse to exercise renewal options under a lease that has already expired.” But the question is whether the lease was renewed in 2022, not whether the original ten-year lease was still in effect at that point. 9 We assume for purposes of this analysis that, as appellees contend on appeal, the property conveyed by the July 1, 2013 deed is not the same property later leased to Dos Botes. 10 Denials made in response to requests for admission are not competent summary judgment evidence. Americana Motel, Inc. v. Johnson, 610 S.W.2d 143 (Tex. 1980); Twenty-Nine (29) Gambling Devices v. State, 110 S.W.3d 146, 152 (Tex. App.—Amarillo 2003, no pet.). However, our ruling herein is based on the failure of appellees to conclusively demonstrate SDP’s entitlement to judgment as a matter of law, not on appellants’ production of evidence creating a fact issue. See TEX. R. CIV. P. 166a(a)(1). 11 At the summary judgment hearing, appellees’ counsel observed that “the lease is silent . . . as to how you go about renewing the lease.” However, counsel acknowledged that if no five-year lease renewal was executed, then Dos Botes had a month-to-month lease under the terms of the agreement. 9 On appeal, appellees misleadingly state that “Dos Botes admitted the ten-year lease and its two five-year options.” The record is clear, however, that while Dos Botes admitted the existence of the options in the lease, it explicitly denied that it ever exercised any option or that the lease was effective at the time it vacated the premises. Accordingly, appellants’ second issue on appeal is sustained. III. STANDING By a fourth enumerated issue, appellants argue “Patel lacks standing to pursue this appeal because he was not a party” to either lease agreement and “is not a necessary party to this appeal because no claim asserted by him in the trial court was adjudicated in the summary judgment proceedings” and “he non-suited all claims he was pursuing.” Appellants cite no legal authority in support of this issue. See TEX. R. APP. P. 38.1(i). We further note that Patel is not named as creditor in the judgment and is not named a party to this appeal. In any event, as appellees observe, “Patel’s presence or absence as a party does not affect the breach-of-contract judgment against either [appellant].” We overrule this issue. IV. CONCLUSION We reverse that portion of the trial court’s judgment awarding damages to SDP from Dos Botes, and we remand for further proceedings consistent with this memorandum opinion. The remainder of the judgment is affirmed. YSMAEL D. FONSECA Justice Delivered and filed on the 17th day of September, 2026. 10