law-breach-of-lease claim cannot be brought as sworn account suit under TRCP 185 (Houston caselaw) |
equipment lease | breach of contract | breach of commercial lease | breach of residential lease | eviction |
commercial lease law | residential landlord-tenant lease law |
BREACH OF LEASE CLAIM NOT VIABLE AS SWORN ACCOUNT SUIT
AKIB Construction, Inc. v. Neff Rental, Inc. (Tex.App.- Houston [14th Dist.] Apr. 3, 2008)(Hedges)
(sworn account, breach of contract, quantum meruit)
REVERSED AND REMANDED: Opinion by Chief Justice Hedges
14-07-00063-CV AKIB Construction, Inc. v. Neff Rental, Inc.
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge: Ed Landry
Although Neff contends that it fulfilled the requirements of Rule 185 in the present action, several courts of
appeals, including the Fourteenth, have held that suit on a sworn account is inapplicable when the underlying
agreement resulting in the alleged debt was a lease agreement. See, e.g., Schorer v. Box Serv. Co., 927 S.W.2d
132, 134‑35 (Tex. App.-Houston [1st Dist.] 1996, writ denied); Murphy v. Cintas Corp., 923 S.W.2d 663, 665 (Tex.
App.-Tyler 1996, writ denied); Great‑Ness Prof. Servs., Inc. v. First Nat'l Bank, 704 S.W.2d 916, 917 (Tex. App.-
Houston [14th Dist.] 1986, no writ). Neff does not dispute that its suit on a sworn account theory of recovery is
based on an alleged lease agreement.
Neff contends that AKIB's failure to argue improper use of sworn account in the trial court resulted in waiver of this
argument on appeal, citing Clifton v. American Express Centurian Bank, No. 09-06-00283-CV, 2007 WL 2493517
(Tex. App.-Beaumont 2007, no pet.). The Clifton court indeed held that the appellant in that case could not raise
a similar issue (the impropriety of suit on a sworn account based on a credit agreement) on appeal because he
had not raised it in the trial court. Id. at *1. However, Clifton was not an appeal from a summary judgment. Id. In
the summary judgment context, such as we encounter here, an appellant may attack the legal sufficiency of the
grounds on which judgment was based even if it did not do so in the trial court. E.g., McConnell v. Southside I.S.
D., 858 S.W.2d 337, 343 (Tex. 1993); Tello v. Bank One, N.A., 218 S.W.3d 109, 118-19 (Tex. App.-Houston [14th
Dist.] 2007, no pet.).
Neff additionally argues that the courts of appeals addressing the sworn account/lease agreement issue simply
got it wrong, citing Schorer, 927 S.W.2d at 135 (Mirabal, J., concurring). We decline to adopt the position set
forth in the Schorer concurring opinion, which disagrees with the longstanding principle that Rule 185 does not
apply to lease agreements. Neff also cites Tenneco Oil Co. v. Padre Drilling Co., 453 S.W.2d 814 (Tex. 1970), a
case involving recovery of attorney's fees, in an attempt to persuade us to change the applicability of the sworn
account remedy. The analogy is too remote to be compelling.
We find no merit in Neff's contention that a suit on a sworn account can be based on a lease agreement.
Because Neff's sworn account was based on a lease agreement, the trial court erred if it based the summary
judgment on this theory of recovery.
BREACH OF LEASE CLAIM NOT A SWORN ACCOUNT CITES: AKIB Constr., Inc. v. Neff Rental, Inc., No. 14-07-00063-CV,
2008 WL 878935, at *2 (Tex. App.-Houston [14th Dist.] Apr. 3, 2008, no pet.) (mem. op.); see also Schorer v. Box Serv. Co.,
927 S.W.2d 132, 134-35 (Tex. App.-Houston [1st Dist.] 1996, writ denied) (same); Murphy v. Cintas Corp., 923 S.W.2d 663,
665 (Tex. App.-Tyler 1996, writ denied) (same); Murphy v. Budget Rent-A-Car Sys., Inc., No. 14-95-00099-CV, 1996 WL
275072, at *1 (Tex. App.-Houston [14th Dist.] May 23, 1996, no writ) (mem. op.) (not designated for publication) ("A lawsuit
based on the breach of a lease agreement is not a suit on a sworn account because the parties have not conducted a
purchase or sale of property whereby title to the property has passed from one party to the other.").
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