San Antonio Court of Appeals reiterates that a sworn account is not a cause of action in its own right, but instead a procedural vehicle to present a prima facie case. The benefit of a prime facie case under Rule 185 are lost when the defendant files a sworn denial. When that happens, the plaintiff must prove the suit on account under the ordinary evidentiary standards (i.e. those applicable to a trial on the merits, or for summary judgment).
NATURE OF SWORN ACOUNT SUIT (TRCP 185)
A suit on a sworn account is not an
independent cause of action. Southern
Mgmt. Servs., Inc. v. SM Energy Co., No. 14-12-00377-CV, 2013 WL 793153, at
*2 (Tex. App.-Houston [14th Dist.] Mar. 5, 2013, no pet. h.). "It is based
instead on Rule 185, which affords a procedural right of recovery in certain
contract disputes." Id.; see also Pine Trail Shores Owners Ass'n v.
Aiken, 160 S.W.3d 139, 144 (Tex. App.-Tyler 2005, no pet.) (noting Rule 185
is not a rule of substantive law and suit on sworn account is not a cause of
action).
ADDITIONAL SWORN ACCOUNT CLIPS:
Under rule 185 of the Texas Rules
of Civil Procedure, when an action is founded on an open account on which a
systematic record has been kept and is supported by an affidavit, the account
shall be taken as prima facie evidence of the claim, unless the party resisting
the claim files a written denial under oath. See Tex. R. Civ. P. 185; Panditi
v. Apostle, 180 S.W.3d 924, 926 (Tex. App.-Dallas 2006, no pet.).
SUBSTANTIVE ELEMENTS OF SWORN ACCOUNT (common-law suit on account)
SUBSTANTIVE SWORN ACCOUNT ELEMENTS
The essential elements to prove a
sworn account are: (1) that there was a sale and delivery of merchandise or
performance of services; (2) that the amount of the account is just, that is,
that the prices were charged in accordance with an agreement or were customary
and reasonable prices; and (3) that the amount is unpaid. Adams v. H & H
Meat Prods., Inc., 41 S.W.3d 762, 773 (Tex. App.-Corpus Christi 2001, no pet.).
See also Cass v. Stephens, 156 S.W.3d 38, 70 (Tex. App.-El Paso 2004, pet.
denied); Burch v. Hancock, 56 S.W.3d 257, 264 (Tex. App.-Tyler 2001, no pet.);
Tex. R. Civ. P. 185.
SALES TRANSACTION REQUIRED
A "sale
and delivery of merchandise or performance of services" is one of the
elements essential to prove a sworn account. Adams, 41 S.W.3d at 773.
A
"sale" consists in the passing of title from the "seller"
to the "buyer" for a price. Tex. Bus. & Com. Code Ann. § 2.106(a)
(Vernon 1994). "Buyer" means a person who buys or contracts to buy
goods. Tex. Bus. & Com. Code Ann. § 2.103(a)(1) (Vernon Supp. 2006).
"Seller" means a person who sells or contracts to sell goods. Id. §
2.103(a)(4). Unless otherwise agreed by the parties, title to goods passes to
the buyer at the time and place of delivery. Tex. Bus. & Com. Code Ann. §
2.401(b) (Vernon Supp. 2006).
SOURCE: DALLAS COURT OF APPEALS - 05-06-00216-CV - 2/23/2007
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