Core v CBNA (2015) "Account Stated" - Citibank-sponsored Cause of Action for Litigating Credit Card Collection Cases in Texas Pays Off

LEGAL DOCTRINE DESIGNED BY CITIBANK ATTORNEYS FOR COLLECTION OF DEFAULTED CONSUMER DEBT YIELDS DIVIDENDS AS OTHER TEXAS COURTS OF APPEALS FOLLOW PRECEDENT SET BY DALLAS COURT OF APPEALS IN 2008   

What to do when you don't win all of your cases ... such as a contract case when you can't find the contract, or some of the essential terms went missing because they were on a separate schedule? Citibank has shown the way: You create your own cause of action. Voila! 

-- A cause of action that does not require proof of the missing contract and its terms.  

   

citibank logo at retail bank branch  

Citibank lost a credit card collection case in 2005 on all three theories it had asserted – breach of contract, sworn account, and quantum meruit -- and then endeavored to change the legal landscape by persuading the Dallas Court of Appeals to adapt then-existing precedents governing common-law suits on account to make them amenable for its own purposes, i.e. judicial collection of bank debt. See  Dulong v. Citibank (S.D.), N.A., 261 S.W.3d 890 (Tex. App.-Dallas 2008, no pet.)(Citibank was not required to produce a written agreement to recover on account-stated theory) -- CONTRA -- Tully v. Citibank (South Dakota), N.A., 173 S.W.3d 212 (Tex.App.-Texarkana 2005, no pet.) (credit card not a sworn account because no title to personal property passes from the bank to the cardholder).   

Several of the fourteen intermediate courts of appeals in Texas have since followed suit, most recently the Corpus Christi and Eastland Courts of Appeal, both acting for the Fort Worth Court of Appeals in cases transferred to them by the Texas Supreme Court in the name of docket equalization. See TEX. GOV'T CODE ANN. § 73.001. 

• ROSE CORE v. CITIBANK (SOUTH DAKOTA), N.A. NOW MERGED INTO CITIBANK, N.A, No. 11-13-00040-CV (Tex.App.- Eastland [11th Dist.] February 27, 2015, motion for rehearing filed)(Op by Justice John M. Bailey)(case transferred from Second Court of Appeals in Fort Worth)  
• MARC R. CORE v. CITIBANK, N.A., No. 13-12-00648-CV (Tex.App.- Corpus Christi, Edinburg [13th Dist.], April 9, 2015, no pet h.) (Opinion by Justice Rodriguez)(also on transfer from 2nd COA in Fort Worth). 
• SCOTT WALKER v. CITIBANK, N.A. No. 11-13-00042-CV (Tex.App.- Eastland [11th Dist.], Feb. 27, 2015) (Op. by retired Justice Terry McCall, sitting by assignment) (case transferred from the 2nd Court of Appeals).  

Interestingly, the Fort Worth Court of Appeals had not signed on to Citibank’s revamp of the law governing suits on account under Texas common law. See Morrison v. Citibank (South Dakota) N.A., 02-07-00130-CV, 2008 WL 553284 (Tex.App.-Fort Worth Feb. 28, 2008, no pet.) (mem. op.) (per curiam)(reversing judgment on account stated theory involving debt suit on ten credit card accounts on factual sufficiency ground and declining to decide whether account stated is a viable theory of recovery in a suit to collect a credit card debt).  
   

CITIBANK FASHIONS ITS OWN LEGAL THEORY TO EASE CREDITOR'S BURDEN OF PROOF IN COLLECTION CASES: PROOF OF CARDMEMBER AGREEMENT RENDERED OPTIONAL 

  

Having lost in Tully, Citibank - then known as Citibank (South Dakota) N.A. - embarked on a different litigation strategy. It would urge the judges in the thousands of cases filed in the trial trial courts around the state, and the justices in the much smaller set that reached the courts of appeals, to accept the idea that a debt claim based on a customer's failure to make payments as required under the terms of a credit card agreement could be litigated as something other than a breach of contract: as a common-law suit on account. 

A credit card account, after all, is an account. And since there are periodic account statements, it's a stated account. To make it sound more authoritative, and to tie the proposed alternative legal theory into the legal tradition governing suits on account by merchants, the word order was flipped: Account Stated.

Under Dallas Court of Appeals opinions, Citibank is not required to prove the
contract when it invokes the "account stated" theory as an alternative
theory of recovery 

But a suit on account at common law had historically involved sales transactions between the plaintiff and the defendant rather than purely financial transactions involving a bank that is -- by definition -- not a merchant. An open account would become a stated account when merchants would strike a balance as to the net payment due by one to the other based on debits and credits associated with their mutual transactions, and a suit on account stated would be based on the amount resulting from the accounting and agreed-to by the parties as correct and owed by one to the other. 

Rule 185 of the CPRC, the sworn account rule,  merely provided an expedited mechanism for presenting such a claim. Rule 185 is not a rule of substantive law. See Rizk v. Fin. Guardian Ins. Agency, Inc., 584 S.W.2d 860, 862 (Tex.1979); A & J Printing, Inc. v. DSP Enter., L.L.C., 153 S.W.3d 676, 682 (Tex.App.-Dallas 2004, no pet.). Rather, it is a rule of procedure regarding the evidence necessary to establish a prima facie right of recovery. See Rizk, 584 S.W.2d at 862; A & J Printing, 153 S.W.3d at 682.

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.). A defendant resisting a suit on a sworn account must comply with the rules of pleading and timely file a verified denial or he will not be permitted to dispute the receipt of the services or the correctness of the charges. See TEX.R. CIV. P. 93(10), 185; Vance v. Holloway, 689 S.W.2d 403, 404 (Tex.1985); A & J Printing, 153 S.W.3d at 682. If there is a proper denial, the plaintiff must prove its claim with sufficient evidence on each of the substantive 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. 

SOURCE: DALLAS COURT OF APPEALS - 05-06-00216-CV - 2/23/07 

Citibank scored a major victory when it persuaded the Dallas Court of Appeals to quietly delete the sales-transaction element from the cause of action. See Dulong v. Citibank (South Dakota), N.A., 261 S.W.3d 890 (Tex. App.-Dallas 2008, no pet.).  The requirement still survives in the sworn account context under rule 185, and this is logically inconsistent because a sworn account is merely as special form of a common-law suit on account, and does not itself create a cause of action.  

Nevertheless, by now, numerous courts of appeals around Texas have endorsed Citibank's program of revamping the common law to accommodate the interests of prominent and high-volume plaintiffs in more efficient litigation with lowered proof requirements, most notably itself, but -- by extension -- benefiting other creditors suing on credit card debt likewise.  

The most recent account-stated opinions handed down by Texas appellate courts no longer even cite the old cases whence the cause of action on open account and account stated stem from. See Neil v. Agris, 693 S.W.2d 604 (Tex.App.-Houston [14th Dist.] 1985, no writ);  Continental Cas. Co. v. Dr. Pepper Bottling Co. of Texas, Inc., 416 F.Supp.2d 497, 504 (N.D.Tex. 2006); Arnold D. Kamen & Co. v. Young, 466 S.W.2d 381, 388 (Tex. Civ.App.-Dallas 1971, writ ref'd n.r.e.).

DALLAS PRECEDENT SPREADS 

At Citibank’s urging, the Dallas Court first departed from long-standing precedent as to the essential nature of a suit on account in 2008, and its erroneous holding that credit card debt owed to a bank is actionable as an account stated has since acquired the status of new precedent, -- one that has been followed in numerous subsequent case in Dallas and elsewhere. 

DALLAS COURT OF APPEALS:
"CITIBANK WAS NOT REQUIRED TO PRODUCE A WRITTEN CONTRACT" 

Several sister courts of appeals have decided their own cases based on Dulong, even though they were not required to do so, and even though the Dallas court had not even acknowledged the substantive change it wrought in this area of the common law. The panel opinion, authored by Justice Richter, merely pointed out in a footnote that Dulong had not challenged the viability of an account stated cause of action in her case. 

  

The intermediate courts of appeals that have adopted the Citibank doctrine blessed by the Fifth Court of Appeals in Dulong can no longer be proven wrong because they get to say what the controlling law is, at least in their part of the State. In theory it is the prerogative of the Texas Supreme Court to determine what the common law of the state is, and whether it should be modified. With respect to collection of bank debt on “account stated” grounds, however, the supreme court has not spoken. But the older cases governing applicability and proof of an account stated have effectively been overruled by the Dallas-based court and several other appellate jurisdictions that have followed it; -- even though the Dallas Court offered no analysis and provided no reasons why the law should be changed in favor of a particular category of litigants with heavy dockets at the expense of a particular category of defendants: consumers.  

CITIBANK'S JUDICIAL LOBBYING PAYS OFF 

And Citibank did not even have to hire and pay big bucks for lobbyists to persuade the Texas Legislature to enact bank-friendly litigation to dispense with need for proof of the terms governing the account, -- even though those terms must be disclosed in writing under the Truth in Lending Act (TILA) when a consumer credit account is established. Citibank effectively got the courts to change the substance of the law and ease the burden of proving a debt collection case,  by relieving financial institutions appearing as plaintiffs from the requirement to prove the terms of the underlying contract. 
   
Copies of billing statements combined with testimony that they were mailed to the defendant will now do in most cases, and the customer's "agreement" will be inferred, rather than having to be proven, even though the notion that silence constitutes assent is generally rejected in the context of contract formation.   

Citibank may have lost many more credit card debt cases for evidentiary reasons after is suffered reversal in Tully v Citibank, but if you can persuade the courts to go with a new theory under which you do better because it lowers the burdens of proof or eliminates it altogether on a particular element, the prospects obviously look much brighter. Unsurprisingly Citibank wins virtually all of its appealed cases. It has numerous cases to its name that not only attest to its success in putting its stamp on the jurisprudence of Texas, but also control the disposition to thousands of other cases because the appellate opinion have the character of legal authority that the trial courts are not at liberty to ignore. 

  

In the meantime, other breach-of-contract plaintiffs continue to have to prove the contract on which they sue, and merchants and service providers still have to prove an agreement on price or the reasonable or customary value of the goods sold or services rendered. And those who rendered compensable services in the absence of a contract must prove the value of those services when seeking to recover in quantum meruit. 

DULONG V CITIBANK (2010): Dallas Court of Appeals deletes sale-of-goods/services elements from suit-on-account case law it cites - without acknowledging it 

Before Justices FITZGERALD, RICHTER and LANG-MIERS.

OPINION BY JUSTICE RICHTER [EXCERPT] 

A party is entitled to relief under the common law cause of action for account stated where (1) transactions between the parties give rise to indebtedness of one to the other; (2) an agreement, express or implied, between the parties fixes an amount due; and (3) the one to be charged makes a promise, express or implied, to pay the indebtedness.[2] Neil v. Agris, 693 S.W.2d 604, 605 (Tex.App.-Houston [14th Dist.] 1985, no writ); Continental Cas. Co. v. Dr. Pepper Bottling Co. of Texas, Inc., 416 F.Supp.2d 497, 504 (N.D.Tex.2006) (citing Arnold D. Kamen & Co. v. Young, 466 S.W.2d 381, 388 (Tex. Civ.App.-Dallas 1971, writ ref'd n.r.e.))[3].

Dulong contends the summary judgment evidence did not establish that Citibank had an agreement with Dulong, that Citibank owned the debt, or that she acknowledged the total amount due.[4] In support of her argument that Citibank failed to prove an agreement, Dulong points to the fact that Citibank failed to attach a cardholder agreement to the Affidavit. Because an agreement on which an account stated claim is based can be express or implied, Citibank did not have to produce a written contract as long as it could produce other evidence of the agreement between the parties to meet its burden of proof. See Neil, 693 S.W.2d at 605. An express contract arises when its terms are stated by the parties whereas an implied contract can arise from the acts and conduct of the parties. Harrison v. Williams Dental Group, P.C., 140 S.W.3d 912, 916 (Tex.App.-Dallas 2004, no pet.).

Therefore, we examine the summary judgment evidence to determine whether Citibank adduced evidence to establish the existence of an implied agreement between the parties. Citibank submitted billing statements from January 1999 to November 2006. The statements are issued to Dulong at the same billing address. There is no evidence to suggest the statements were not received. The statements reflect that when credit was available, new charges were made on the account almost every month. Payments were also made. The Affidavit states that the initial interest rate on the account is set forth on the first billing statement, and the subsequent financial terms in effect each time the card was issued are set out on each monthly statement. The credit card statements support this fact. The credit card statements also show that late fees and "over the limit" fees were periodically assessed. There is no evidence Dulong ever objected to or disputed these fees. Based on the series of transactions reflected on the account statements, it is reasonable to infer that Dulong agreed to the full amount shown on the statements and impliedly promised to pay the indebtedness.

On this record, we conclude Citibank established as a matter of law that Citibank and Dulong had an implied agreement fixing an amount due and that Dulong impliedly promised to pay Citibank the amount due. Dulong's issue is resolved against her. The judgment of the trial court is affirmed.

NEIL V AGRIS: Mailing of a bill is not enough if there is no agreement on price for the services rendered 

Neil v. Agris, 693 S.W.2d 604 (Tex.App.-Houston [14th Dist.] 1985, no writ)(overruled by Dallas Court of Appeals in Dulong without saying so)  

Before JUNELL, ROBERTSON and CANNON, JJ.

OPINION BY JUSTICE ROBERTSON

This is an appeal from a judgment entered against appellant in a suit on an account stated. In three points of error, appellant asserts there is no evidence of 1) a prior transaction by which appellant became indebted to appellee; 2) any agreement, express or implied, fixing the amount for the services; or 3) a promise, express or implied, to pay for the services. 

We reverse and render.

Suit was filed on a sworn account and, alternatively, account stated. The money allegedly due appellee resulted from professional services rendered by him to appellant following injuries received by her in an accident. She had never been previously treated by appellee. During trial, appellee elected to proceed only on an account stated.

An account stated has been defined as an agreement 1) between two persons who have had previous transactions, 2) fixing the amount due in respect of such transactions and 3) promising payment. H.G. Berning, Inc. v. Waggoner, 247 S.W.2d 570, 571 (Tex.Civ.App.—Beaumont 1952, no writ). At a minimum, appellee was required to prove 1) that professional services were rendered and 2) the prices charged were agreed to by appellant or that, in the absence of an agreement, the prices charged were usual, customary and reasonable. Eastern Dev. & Inv. v. City of San Antonio, 557 S.W.2d 823, 825 (Tex. Civ.App.—San Antonio 1977, writ ref'd n.r. e.).

In her second point of error, appellant contends that there was no evidence offered that she agreed to pay appellee $1700 for professional services. We agree.

At trial, appellee did not testify. While there was some discussion concerning appellee's affidavit attached to his motion for summary judgment on a sworn account, it was never offered or admitted. His sole attempt to prove an account stated was through his bookkeeper, who testified that she mailed appellant a bill which was never paid. There is no evidence in the record to show at the time the services were rendered or even subsequently that appellant agreed to pay $1700 to appellee for the professional services rendered. In the absence of an agreement fixing the price for the services, appellee was required to prove that the price charged for his services was usual, customary and reasonable; this he failed to do. 

We therefore sustain appellant's second point of error.

Our disposition of appellant's second point makes it unnecessary for us to pass on appellant's other points. Since appellee failed to prove an element of his cause of action at trial, appellant's motion for judgment should have been granted. We will therefore now render the judgment which the trial court should have rendered.

The judgment is reversed and here rendered that appellee take nothing.

TULLY V CITIBANK – Sworn account not a proper theory of recovery, given that were was no sale of goods or services by the creditor to the debtor 

Tully v. Citibank (South Dakota), N.A., 173 S.W.3d 212 (Tex, App. - Texarkana 2005, no pet.) 

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION BY JUSTICE CARTER [excerpt] 

Citibank cannot collect a credit card debt through a suit on a sworn account. A suit on a sworn account is permitted only if the claim is "founded upon an open account or other claim for goods, wares and merchandise, including any claim for a liquidated money demand based upon written contract or founded on business dealings between the parties, or is for personal service rendered, or labor done or labor or materials furnished...." TEX.R. Civ. P. 185. "A sworn account applies only to transactions between persons, in which there is a sale upon one side and a purchase upon the other, whereby title to personal property passes from one to the other, and the relation of debtor and creditor is thereby created by general course of dealing—it does not mean transactions between parties resting upon special contract." Bird v. First Deposit Nat'l Bank, 994 S.W.2d 280, 282 (Tex. App.-El Paso 1999, pet. denied). Because no title to personal property passes from the bank to the cardholder, a credit card debt is not a sworn account as contemplated by Texas Rule of Civil Procedure 185. Id. Citibank was not entitled to summary judgment based on its suit on a sworn account theory.

Second, because Citibank proved the existence of an express contract, Citibank cannot recover under the theory of quantum meruit. "Quantum meruit is an equitable theory of recovery which is based on an implied agreement to pay for benefits received." Heldenfels Bros., Inc. v. City of Corpus Christi, 

832 S.W.2d 39, 41 (Tex.1992).

Third, Citibank failed to prove the amount due based on the breach of contract argument.[2] Although Tully's affidavit failed to raise a fact issue,[3] Citibank failed to prove it was entitled to summary judgment. Specifically, Citibank failed to prove that the interest rate charged was agreed on by Tully.[4] The contract introduced into evidence does not specify the interest rate that was agreed on. Further, there were no notices of interest rate increases introduced into evidence. The only evidence concerning the rate of interest are the rates specified on the copies of the monthly statements Citibank sent to Tully.[5] Citibank failed to prove its damages as a matter of law. Because a genuine issue of material fact issue exists concerning the interest rates agreed on, the trial court erred in granting summary judgment. 

BIRD V FIRST DEPOSIT NATIONAL BANK - Bank debt not actionable as suit on account 

Bird v. First Deposit Nat'l Bank,  994 S.W.2d 280, 282 (Tex. App.-El Paso 1999, pet. denied).

Before BARAJAS, C.J., LARSEN, and McCLURE, JJ.

OPINION BY JUSTICE SUSAN LARSEN [EXCERPT]

In her sole issue on appeal, Smith urges that the trial court erred in entering judgment against her because a credit card is not a sworn account as contemplated by Texas Rule of Civil Procedure 185. A sworn account applies only to transactions between persons, in which there is a sale upon one side and a purchase upon the other, whereby title to personal property passes from one to the other, and the relation of debtor and creditor is thereby created by general course of dealing—it does not mean transactions between parties resting upon special contract.[11] A credit card transaction is a "transaction in which a card that may be used for personal, family, or household use is used to debit an open-end account in connection with: (A) a purchase or lease of goods or services; or (B) a loan of money."[12] A cash advance, like the $3,500 extended on the credit card here, is clearly a loan.[13]

We find that a credit card issued by a financial institution does not create the sort of debtor-creditor relationship required in order to bring suit under Texas Rule of Civil Procedure 185. We reach this conclusion because no title to personal property passes from the bank to the cardholder; rather, the card evidences a line of credit extended by the bank which the cardholder may use to purchase goods and services from a third party. And where the transaction in question is a cash advance, there is no good or service involved at all, but a pure loan of money. An unpaid bank credit card account, therefore, creates a cause of action for the bank's money or credit advanced as a loan, but not for goods or services sold or delivered to the cardholder.[14] (This case does not involve a credit card issued directly by a provider of goods or services, such as a gasoline card or department store card. We therefore do not reach the question of whether that type of credit card debt is subject to collection by a suit on sworn account.) We find that a bank's credit card account is analogous to a promissory note, which has been specifically excluded from the definition of sworn account.[15] Thus, Texas Rules of Civil Procedure 93 and 185 do not apply to the bank's action here. The trial court's entry of judgment based solely upon Smith's failure to file a sworn denial of the bank's petition was incorrect. Accordingly, we find that Smith has met the fourth element required in a restricted appeal, error on the face of the record. We sustain her issue on appeal.

MAGIC CARPET COMPANY v. PHARR - Delivery of goods as element of account stated suit 

Magic Carpet Co. v. Pharr, 508 S.W.2d 696 (Tex.Civ.App.-Dallas 1974, no writ)

OPINION BY JUSTICE GUITTARD [EXCERPT] 

Although there is some question as to whether "account stated" is the proper term for establishing the amount due for goods or services furnished without previous agreement on the price, all authorities agree that proof of plaintiff's delivery of goods or rendition of services to defendant and defendant's acknowledgment of a certain sum as due to plaintiff is sufficient for a prima facie case, without other proof of price, value, quantity, or specific items. Dodson v. Watson, 110 Tex. 355, 220 S.W. 771 (1920); Alexander Marketing Co. v. Medford, 170 S.W.2d 809 (Tex. Civ.App.—Texarkana 1943, no writ); Central Nat'l Bank v. Cox, 96 S.W.2d 746 (Tex.Civ.App.—Austin 1936, writ dism'd); 6 Corbin on Contracts §§ 1305, 1310, 1312 (1962).

The "delivery receipt" signed by defendant shows that plaintiff delivered materials to defendant. Defendant's check of the same date payable to plaintiff for $1,070 is amply sufficient as an acknowledgment of the amount due in view of decisions holding that an implied acknowledgment of the amount due is sufficient. Graham v. San Antonio Machine and Supply Corp., 418 S.W.2d 303, 312 (Tex.Civ. App.—San Antonio 1967, writ ref'd n. r. e.); Wilson v. Clarke Floor Machine Co., 380 S.W.2d 768 (Tex.Civ.App.—Eastland 1964, no writ); Davis v. Gilmore, 244 S. W.2d 671 (Tex.Civ.App.—San Antonio 1951, writ ref'd); Peurifoy v. Hood Rubber Products Co., 59 S.W.2d 428 (Tex. Civ.App.—Eastland 1933, no writ). A check on which payment was later stopped was specifically held to be an acknowledgment sufficient to establish a stated account by the Supreme Court of Nebraska in Hansen v. Abbott, 187 Neb. 248, 188 N. W.2d 717 (1971). Consequently, a prima facie case was shown, and the trial court erred in rendering judgment for defendant on the ground of lack of evidence of a contractual relationship.

Suit on sworn account is not a cause of action, but a different way to plead a common-law suit on account

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).
   

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-12-00029-CV – 6/5/2013
   

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

Sworn account suit under TRCP 185 not available for any and all types of claims involving an unpaid account

  
Suit for unpaid electrical power service may be brought as sworn account, but claim for early termination fee required proof of breach of the underlying contract, according to an opinion issued by Houston's First Court of Appeals.   
  
SUIT ON A SWORN ACCOUNT
   
Rule 185 of the Texas Rules of Civil Procedure, entitled Suit on Account, provides:
 
When any action or defense is founded upon an open account or other claim for goods, wares and merchandise, including any claim for a liquidated money demand based upon written contract or founded on business dealings between the parties, or is for personal service rendered, or labor done or labor or materials furnished, on which a systematic record has been kept, and is supported by the affidavit of the party, his agent or attorney taken before some officer authorized to administer oaths, to the effect that such claim is, within the knowledge of affiant, just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed, the same shall be taken as prima facie evidence thereof, unless the party resisting such claim shall file a written denial, under oath. A party resisting such a sworn claim shall comply with the rules of pleading as are required in any other kind of suit, provided, however, that if he does not timely file a written denial, under oath, he shall not be permitted to deny the claim, or any item therein, as the case may be. No particularization or description of the nature of the component parts of the account or claim is necessary unless the trial court sustains special exceptions to the pleadings.
 
The elements of a suit on a sworn account claim are thus (1) the sale and delivery of merchandise or performance of services; (2) that the amount of the account is “just,” that is, the prices charged are pursuant to an express agreement, or in the absence of an agreement, that the charges are usual, customary, or reasonable; and (3) that the outstanding amounts remain unpaid. E.g., Powers v. Adams, 2 S.W.3d 496, 499 (Tex. App.—Houston [14th Dist.] 1999, no pet.).
 
“Rule 185 is a procedural tool that limits the evidence necessary to establish a prima facie right to recovery 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.). “Rule 185 applies only to ‘transactions between persons, in which there is a sale upon one side and a purchase upon the other, whereby title to personal property passes from one to the other, and the relation of debtor and creditor is thereby created by general course of dealing . . . .’” Id. (quoting Meaders v. Biskamp, 316 S.W.2d 75, 78 (Tex. 1958) (emphasis in original)). “It does not apply to transactions between parties resting upon a special contract.” Id. (quoting Meaders, 316 S.W.2d at 78).
 
SOURCE: HOUSTON COURT OF APPEALS - FIRST DISTRICT - 01-11-00027-CV - 1/12/12
 
The trial court’s $29,615.04 award was made up of $12,994.18 for unpaid electrical service and a $16,620.86 early termination fee. A suit on a sworn account applies to the sale of electric service. See generally Rimco Enters., Inc. v. Texas Elec. Serv. Co., 599 S.W.2d 362, 365 (Tex. Civ. App.—Fort Worth 1980, writ ref’d n.r.e.).
  
While the defendants dispute here that the electric service charges were reasonable, accurate, or just, Affordable Power’s petition attached an affidavit, made on the affiant’s personal knowledge, attesting that:
 
Attached to this affidavit is the final bill and/or invoice that was sent to the listed customer. The final invoice was based on an open account with the customer for goods and/or services rendered. The final invoice is part of our systematic records, based on goods and/or services provided to the customer. A true and correct copy of the Contract Agreement with the listed customer and Terms of Service is attached as Exhibit “1” of this Petition.
 
The final invoice accurately reflects charges for goods and/or services provided. The amount of the account is just and true, it is due, the prices were charged according to a written contract with the customer and the charges are usual, customary and reasonable. The just and true amount of $29,615.04 plus interest, is currently due having been unpaid by the customer. This amount includes all lawful offsets, payments and credits.
 
Because this affidavit meets the requirements to establish a prima facie case under Rule 185, the defendants’ failure to file a verified denial would have precluded them from disputing the $12,994.18 charges for electrical service on Affordable Power’s suit on a sworn account at trial. See Vance v. Holloway, 689 S.W.2d 403, 404 (Tex. 1985).
  
For the reasons further explained below, however, we nonetheless remand Affordable Power’s claim based on unpaid electrical services to the trial court because judgment on that claim is not “separable without unfairness to the parties” from the judgment on Affordable Power’s breach of contract claim related to the termination fee, which is not supported by legally sufficient evidence. Tex. R. App. P. 44.1(b); Iron Mountain Bison Ranch, Inc. v. Easley Trailer Mfg., Inc., 42 S.W.3d 149, 162 (Tex. App.—Amarillo 2000, no pet) (“Given the intertwined nature of appellee’s promissory estoppels theory and its other theories, we remand the promissory estoppel issue for a new trial in the interest of justice.”).
 
SOURCE: HOUSTON COURT OF APPEALS - FIRST DISTRICT - 01-11-00027-CV - 1/12/12

Unpaid equipment rental charges not collectible through sworn account suit, Houston CoA says

 

SUIT ON EQUIPMENT LEASE NOT VIABLE AS SWORN ACCOUNT UNDER RULE 185

   

Houston Court of Appeals again states (albeit in a footnote) that failure to pay rental charges for loaned equipment is not actionable as a sworn account under Tex. R. Civ. P. 185 because when goods are merely leased, there is no sale through which title passes.

[The Fourteenth Court of Appeals ] has held that a party may not recover under a sworn account theory when the underlying transaction involved equipment rentals.  See, e.g., AKIB Constr., Inc. v. Neff Rental, Inc., No. 14-07-00063-CV, 2008 WL 878935, at *1–3 (Tex. App.—Houston [14th Dist.] Apr. 3, 2008, no pet.) (mem. op.) (reversing summary judgment for plaintiff because a sworn account claim cannot be based on leased goods).  See generally 1 Tex. Jur. 3d Accounts & Accounting § 80 (2004) (discussing the inapplicability of a sworn account claim for transactions not passing title to personal property from one party to another).

SOURCE: HOUSTON COURT OF APPEALS - FOURTEENTH DISTRICT - 14-11-00048-CV – 12/13/11 

Sworn Account suit requires more than a verified general denial to destroy prime-facie case if the petition conforms with TRCP 185

    
An answer in the form of a general denial does not controvert a prima-face case under Rule 185 (Suit on [sworn] Account) even if it puts all claims and facts in issue in other civil suits in Texas courts. Because the evidentiary presumption in favor of the plaintiff created by the sworn account rule is not destroyed, judgment may be had on the pleadings without the need for additional summary judgment evidence. Rule 185 provides an exception to the general rule that pleadings are not evidence and cannot support a judgment, standing alone. 
     

A SUIT ON SWORN ACCOUNT UNDER TEX. R. CIV. P. 185 IS DIFFERENT FROM OTHER CIVIL LAWSUITS

  

Under rule 185, a suit on a sworn account must contain a systematic record of the goods sold or services rendered and be supported by an affidavit stating that the “claim is, within the knowledge of affiant, just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed.” Tex. R. Civ. P. 185. This is a rule of procedure regarding the evidence necessary to establish a prima facie right of recovery.. Panditi v. Apostle, 180 S.W.3d 924, 926 (Tex. App.--Dallas 2006, no pet.). An open account .on which a systematic record has been kept and is supported by an affidavit. is prima facie evidence of a claim. Id. A plaintiff claiming a suit on a sworn account is not required to formally introduce the account as evidence of the debt. Brown Found. Repair & Consulting, Inc. v. Friendly Chevrolet Co., 715 S.W.2d 115, 116 (Tex. App.--Dallas 1986, writ ref'd n.r.e.).

The evidentiary presumption can be defeated, and the plaintiff forced to introduce proof of its claim, if the defendant files a sworn denial of the plaintiff's account supported by an affidavit denying the account as required by rule 93(10). See Tex. R. Civ. P. 93(10); Powers v. Adams, 2 S.W.3d 496, 498 (Tex. App.--Houston [14th Dist.] 1999, no pet.). But a sworn general denial does not constitute a denial of the account and is insufficient to remove the evidentiary presumption created by a properly worded and verified suit on an account. See Panditi, 180 S.W.3d at 927; Andrews v. East Tex. Med. Ctr., 885 S.W.2d 264, 268 (Tex. App.--Tyler 1994, no writ); Cooper v. Scott Irrigation Const., Inc., 838 S.W.2d 743, 746 (Tex. App.--El Paso 1992, no writ); Huddleston v. Case Power and Equipment Co., 748 S.W.2d 102, 103 (Tex. App.--Dallas 1988, no writ). Moreover, the defendant's written denial must state more than a .broad generalization that he .specially denies' each and all of the allegations . . . [and must] address the facts on which he intends to rebut the plaintiff's affidavit.. Andrews, 885 S.W.2d at 268. A defendant is not required to file a sworn denial if the plaintiff's suit on a sworn account was not properly pleaded. Panditi, 180 S.W.3d at 927.        
   

In this case, appellee sued appellant based on a sworn account for liquidated damages under rule 185. Appellee alleged that it delivered “certain goods, wares and merchandise and/or personal services” to appellant, that appellant agreed to pay appellee the sums charged, and that, after all “just and lawful offsets, payments and credits,” the sum of $775.68 was past due and owing. In addition, appellee sought $300 in reasonable attorney's fees. Appellee's petition included an affidavit from Bong Hoe Kim, president of Everbeauty, Inc. d/b/a Hair to Go, alleging that appellant's account, which was attached to the affidavit and incorporated by reference, was true and correct. Appellant's last responsive pleading, a verified “Fifth Amended Answer and Petition for Declaratory Judgement,” in addition to containing a general denial, included the following list of matters that were designated as defenses:

1. Defendant affirmatively claims defense of estoppel.

2. Defendant affirmatively claims defense of accord and satisfaction.

3. Defendant affirmatively claims defense of latches.

4. Defendant affirmatively claims defense of statute of limitations.

5. Defendant pleads defense of waiver.

6. Defendant pleads defense of satisfaction.

7. Defendant pleads defense of offsets for the returned merchandises to Plaintiff.

8. Defendant pleads defense of credit for the returned merchandises to Plaintiff.

9. Defendant pleads that he was always willing and able to pay Plaintiff any amount that was owed to Plaintiff.

10. Defendant pleads that attorney's fees requested by Plaintiff be denied because Defendant was always willing and able to pay the appropriate amount that was owed to Plaintiff.

11. Any demands for payment by Plaintiff was excessive and in bad faith. Therefore, attorney's fees for Plaintiff should be denied.

    

Attached to appellant's answer was a business records affidavit from Chu Chang Shu, the custodian of records for Q Hair Beauty Supply II, that included two collection notices, a UPS merchandise return receipt, an invoice, and a translated statement signed by appellee's salesperson on June 27, 2006.

  

At the trial held before the court on July 12, 2010, appellee's counsel requested judgment based on the rule 185 pleading and appellant's failure to file a verified denial of the account. The trial court discussed with counsel for both parties the sufficiency of appellant's answer and defenses. The court told appellant's trial counsel that appellant's answer and accompanying business records affidavit were insufficient to remove the evidentiary presumption because they did not allege any facts rebutting appellee's affidavit. The trial court heard argument from both parties before granting judgment for appellee, after which it listened to testimony from appellee's counsel regarding attorney's fees. The court did not enter findings of fact and conclusions of law.

   

Appellant now argues that the trial court “refused to hear [appellant's] defenses,” and that “failure to comply with the rule requiring sworn denials . . . does not foreclose assertion of other defenses that are not inconsistent with a true and just account for goods as delivered.” But appellant's written denial did not comply with rule of civil procedure 93(10), “which requires a special verified denial of the account to put plaintiff's claim at issue.. Huddleston, 748 S.W.2d at 103; see Tex. R. Civ. P. 93(10). Appellant denied .each and every allegation of [appellee's] [p]etition” and demanded “strict proof thereof.” This general denial, however, even though sworn to, did not constitute a denial of the account, and it was insufficient to rebut the evidentiary effect of appellee's pleadings. See Tex. R. Civ. P. 185, 93(10); Andrews, 885 S.W.2d at 268; Cooper, 838 S.W.2d at 746; Huddleston, 748 S.W.2d at103-04; see also Panditi, 180 S.W.3d at 927; Nguyen v. Short, How, Frels & Heitz, P.C., 108 S.W.3d 558, 562 (Tex. App.--Dallas 2003, pet. denied); Seisdata, Inc. v. Compagnie Generale de Geophysique, 598 S.W.2d 690, 692 (Tex. App.--Houston [14th Dist.] 1980, writ ref'd n.r.e.). As we have observed, “[a] defendant resisting a suit on a sworn account must comply with the rules of pleading and timely file a verified denial or he will not be permitted to dispute the receipt of the services or the correctness of the charges.” Panditi, 180 S.W.3d at 927 (citing, in part, rules 185 and 93(10)). “In other words, a defendant's noncompliance with rule 185 conclusively establishes that there is no defense to the suit on the sworn account.” Nguyen, 108 S.W.3d at 562.

Pursuant to the rules that govern sworn accounts, appellee presented a prima facie case and was not required to offer additional proof. The record also shows that appellant never offered evidence regarding any affirmative defenses, nor did it seek evidentiary rulings from the court, and it did not make an offer of proof or file a bill of exception. We further note that although appellant cites Cooper and Seisdata to support its argument, neither case suggests a party is free to argue that a trial court “refused to hear” its defenses when, as in this case, no effort was made to prove those defenses. See Cooper, 838 S.W.2d at 747; Seisdata, 598 S.W.2d at 691-92; see also Heggy v. Am. Trading Employee Ret. Account Plan, 123 S.W.3d 770, 778 (Tex. App.--Houston [14th Dist.] 2003, pet. denied) (“an affirmative defense does not rebut the factual proposition of the plaintiffs' pleading, but instead, allows the defendant to introduce evidence to establish an independent reason why the plaintiff should not prevail”). Accordingly, the trial court did not err by entering judgment against appellant.

   

We overrule appellant's issue.

 

We affirm the trial court's judgment.

   

SOURCE: DALLAS COURT OF APPEALS - 05-10-01268-CV -  11/22/11

Sworn Account Pleading Requirements & How to Respond - TRCP 185 and 93(10)(verified denial)

  
SUIT ON SWORN ACCOUNT UNDER RULE 185

  
Pleading requirements for petition and answer - A general denial is insufficient to controvert a prima-facie case created by proper sworn account pleading, but the Plaintiff must comply with Rule 185 to take advantage of evidentiary benefits of the sworn account rule.  

  
Texas Rule of Civil Procedure 185 applies to “any claim for a liquidated money demand . . . [for] labor done or labor or materials furnished . . . .” Tex. R. Civ. P. 185. This rule is not a rule of substantive law; rather, “it is a rule of procedure regarding the evidence necessary to establish a prima facie right of recovery” on certain types of contractual account claims. See Rizk v. Fin. Guardian Ins. Agency, Inc., 584 S.W.2d 860, 862 (Tex. 1979); Smith v. CDI Rental Equipment, Ltd., 310 S.W.3d 559, 566 (Tex. App.—Tyler 2010, no pet.); Panditi v. Apostle, 180 S.W.3d 924, 926 (Tex. App.—Dallas 2006, no pet.).

Rule 185 provides that “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.” Panditi, 180 S.W.3d at 926; see Tex. R. Civ. P. 185.

To establish a prima facie case in a suit on a sworn account, the plaintiff must strictly comply with the requirements of Rule 185. Nguyen v. Short, How, Frels & Heitz, P.C., 108 S.W.3d 558, 562 (Tex. App.—Dallas 2003, pet. denied).

The plaintiff’s petition “must contain a systematic itemized statement of the services rendered, reveal offsets made to the account, and be supported by an affidavit stating the claim is within the affiant’s knowledge and that it is ‘just and true.’” Id.; see also Panditi, 180 S.W.3d at 926 (stating requirements for sworn account petition and accompanying affidavit). If there is a deficiency in the plaintiff’s sworn account, the account will not constitute prima facie evidence of the debt. Panditi, 180 S.W.3d at 927; Nguyen, 108 S.W.3d at 562.

The defendant resisting the sworn account must also strictly comply with the requirements of Rule 185, “or he will not be permitted to dispute the receipt of the services or the correctness of the charges.” See Panditi, 180 S.W.3d at 927; see also Vance v. Holloway, 689 S.W.2d 403, 404 (Tex. 1985) (per curiam) (“Holloway failed to file a sworn denial and he has, therefore, waived his right to dispute the amount and ownership of the account.”).

Rule 185 requires the defendant to “comply with the rules of pleading” and “timely file a written denial, under oath,” or else the defendant “shall not be permitted to deny the claim, or any item therein.” Tex. R. Civ. P. 185; Panditi, 180 S.W.3d at 927 (noting that Rule 185 requires sworn denial to be written and verified by affidavit). To place the plaintiff’s sworn account claim at issue, the defendant must file a “special verified denial of the account” in accordance with Texas Rule of Civil Procedure 93. See Huddleston v. Case Power & Equip. Co., 748 S.W.2d 102, 103 (Tex. App.—Dallas 1988, no writ); see also Tex. R. Civ. P. 93(10) (“A pleading setting up any of the following matters, unless the truth of such matters appear of record, shall be verified by affidavit[:] A denial of an account which is the foundation of the plaintiff’s action . . . .”).

This sworn denial must be included in the defendant’s answer; a sworn denial in a response to a summary judgment motion does not satisfy Rule 185. See Cooper v. Scott Irrigation Constr., Inc., 838 S.W.2d 743, 746 (Tex. App.—El Paso 1992, no writ); see also Rush v. Montgomery Ward, 757 S.W.2d 521, 523 (Tex. App.—Houston [14th Dist.] 1988, writ denied) (“Only in the affidavit accompanying his response to Ward’s motion for summary judgment did appellant dispute the correctness and fairness of the charges, and demand additional proof of his liability. Because the combined effect of Texas Rule of Civil Procedure 185 and Texas Rule of Civil Procedure 93(10) required appellant to raise those claims in his answer, we hold that appellant raised his assertions too late.”).

If the defendant fails to file a verified denial to the sworn account, the sworn account is received as prima facie evidence of the debt, and the plaintiff, as summary judgment movant, is entitled to summary judgment on the pleadings. Nguyen, 108 S.W.3d at 562; see Livingston Ford Mercury, Inc. v. Haley, 997 S.W.2d 425, 430 (Tex. App.—Beaumont 1999, no pet.) (holding that when plaintiff files proper sworn account petition but defendant does not comply with Rule 185, the petition will support summary judgment and “additional proof of the accuracy of the account is unnecessary”).

“In other words, a defendant’s noncompliance with rule 185 conclusively establishes that there is no defense to the suit on the sworn account.” Nguyen, 108 S.W.3d at 562; see Whiteside v. Ford Motor Credit Corp., 220 S.W.3d 191, 194 (Tex. App.—Dallas 2007, no pet.) (“When the defendant fails to file a sworn denial and the trial court enters summary judgment on a sworn account, appellate review is limited because the defendant will not be allowed to dispute the plaintiff’s claim.”).

If, however, the plaintiff’s suit on a sworn account was not properly pleaded pursuant to Rule 185, the defendant is not required to file a sworn denial. Panditi, 180 S.W.3d at 927. In this circumstance, a general denial is sufficient to controvert the account. Tex. Dep’t of Corrs. v. Sisters of St. Francis of St. Jude Hosp., 753 S.W.2d 523, 524 (Tex. App.—Houston [1st Dist.] 1988, no writ).

SOURCE: Houston Court of Appeals - 01-10-00610-CV - 8/11/11

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

What kind of debt can be collected in sworn account suit under TRCP 185?

SWORN ACCOUNT SUIT UNDER RULE 185 REQUIRES UNDERLYING SALE 

A claim based on a sworn account is brought pursuant to Texas Rule of Civil Procedure 185. Tex. R. Civ. P. 185. Rule 185 is a procedural tool that limits the evidence necessary to establish a prima facie right to recovery on certain types of accounts. Id.
 
Rule 185 applies only "to transactions between persons, in which there is a sale upon one side and a purchase upon the other, whereby title to personal property passes from one to the other, and the relation of debtor and creditor is thereby created by general course of dealing . . . ." Bird v. First Deposit Nat'l Bank, 994 S.W.2d 280, 282 (Tex. App.-El Paso 1999, pet. denied); see also Hou-Tex Printers, Inc. v. Marbach, 862 S.W.2d 188, 190 (Tex. App.-Houston [14th Dist.] 1993, no writ). Williams v. Unifund CCR Partners Assignee of Citibank, 264 S.W.3d 231, 234 (Tex. App.-Houston [1st Dist.] 2008, no pet.) (noting that passage of title is required to invoke procedural rule on sworn account).

SOURCE: Fort Worth Court of Appeals Nos. 02-09-00446-CV, 02-09-00320-CV 3/24/11

Numerous cases can be cited for the proposition that a sworn account suit not viable for credit-card debt collection:

See Dulong v. Citibank (South Dakota), N.A., 261 S.W.3d 890, 894 (Tex.App.-Dallas 2008, no pet.); Williams v. Unifund CCR Partners, 264 S.W.3d 231, 234 (Tex.App.-Houston [1st Dist.] 2008, no pet.); Sherman Acquisition II LP v. Garcia, 229 S.W.3d 802, 807 (Tex.App.-Waco 2007, no pet.); Tully v. Citibank (South Dakota), N.A., 173 S.W.3d 212, 216 (Tex.App.-Texarkana 2005, no pet.); Bird v. First Deposit Nat'l Bank, 994 S.W.2d 280, 282 (Tex.App.-El Paso 1999, pet. denied); Hou-Tex Printers, Inc. v. Marbach, 862 S.W.2d 188, 190 (Tex. App.-Houston [14th Dist.] 1993, no writ).

Text of Rule 185 title "Suit of Account"