Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Thursday, August 11, 2011

Sworn Account under TRCP 185 & Breach of Contract: Basic Requirements for each

How to recover on Sworn Account and for Breach of Contract:

There are differences. Rule 185 is limited to certain types of claims and imposes additional procedural requirements.

What is a sworn account? - Sworn Account Suit defined

A suit on a sworn account is “a procedural tool that limits the evidence necessary to establish a prima facie right to recover on certain types of accounts.” Williams v. Unifund CCR Partners Assignee of Citibank, 264 S.W.3d 231, 234 (Tex. App.—Houston [1st Dist.] 2008, no pet.); see Tex. R. Civ. P. 185.

Rule 185 Suit on Account requisites

To establish a claim under Rule 185 of the Rules of Civil Procedure, a plaintiff must allege that: it sold and performed services for the defendant; the claim is due; the charges were just and true; all lawful offsets, payments, and credits were applied; and the damages are liquidated. The plaintiff must also include in its petition a systematic record of the services provided, which shows with a reasonable degree of certainty the name, date, and charge for each item and provides details on how the total amount was determined. Meaders v. Biskamp, 316 S.W.2d 75, 78 (Tex. 1958); Hou–Tex Printers, Inc. v. Marbach, 862 S.W.2d 188, 190 (Tex. App.—Houston [14th Dist.] 1993, no writ).

Elements of Breach of Contract claim generally

To prevail on its breach of contract claim, [ Plaintiff ] must prove the essential elements of a breach of contract claim, which are: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of contract by the defendant; and (4) damages sustained as a result of the breach. Williams, 264 S.W.3d at 235–36 (citing Winchek v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197, 202 (Tex. App.—Houston [1st Dist.] 2007, no pet.)).

SOURCE: Houston Court of Appeals - 01-10-00042-CV - 8/4/11

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