law-sworn account | Rule 185 Tex. R. Civ. P. 185  | suit on account | breach of contract | credit card debt suits |
sworn account suit | TRCP 185
| account-suits | suit on open account | account stated | sworn account |
credit card debt collections suits not viable as sworn account suits under TRCP 185 |

SWORN ACCOUNT SUIT

A suit on sworn account is not an independent cause of action; it is a procedural rule for proof of certain
types of contractual (account) claims under Texas Rule of Civil Procedure 185. Tex. R. Civ. P. 185; Sanders v.
Total Heat & Air, Inc. No. 05-05-00524-CV, slip op. at 3 (Tex. App.-Dallas Mar. 31, 2008 no pet. h.).

Under
rule 185, a plaintiff's petition on sworn account 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 is “just and true.” Nguyen v. Short, How, Frels & Heitz, P.C., 108 S.W.3d 558,
562 (Tex. App.-Dallas 2003, pet. denied). If a plaintiff complies with rule 185, the sworn account is received as
prima facie evidence of the debt. Id

The
elements of a sworn account claim are: (1) the sale and delivery of merchandise or performance of
services, (2) the amount of the account is just, that is, the prices charged are usual, customary, or reasonable,
and (3) outstanding amounts remain unpaid. Tex. R. Civ. P. 185; Wright v. Christian & Smith, 950 S.W.2d 411,
412 (Tex. App.-Houston [1st Dist.] 1997, no writ). Under Rule 185 of the Texas Rules of Civil Procedure, a
plaintiff's petition on a sworn account must contain a systematic, itemized statement of the goods or services
sold, must reveal offsets made to the account, and must be supported by an affidavit stating that the claim is,
within the affiant's knowledge, "just and true." Tex. R. Civ. P. 185; Andrews v. East Texas Med. Ctr.—Athens,
885 S.W.2d 264, 267 (Tex. App.-Tyler 1994, no writ); see also Anderson v. Hake,  300 S.W.2d 663, 664 (Tex.
Civ. App.-Dallas 1957, no writ) (holding that statement of account attached to petition was not sufficiently
itemized for purposes of sworn account rule where statement only showed date of purchase and amount
thereof).
Ton's Remodeling v. Tot Hoi Fund d/b/a Fung's Kitchen (Tex.App.- Houston [1st Dist.] Jun. 21, 2007,
no pet.) (Hanks)(
construction dispute, commercial, breach of contract, sworn account)

Rule 185 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 the 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.

Tex. R. Civ. P. 185 (emphasis added). "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, 264 S.
W.3d 231, 234 (Tex. App.--Houston [1st Dist.] 2008, no pet.).

Resurgence Financial, LLC v. Lawrence (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(Radack)
(
credit card debt suit not properly brought as sworn account suit under Rule 185, damages not proven)
AFFIRM TC JUDGMENT: Opinion by
Chief Justice Radack   
Before Chief Justice Radack, Justices Bland and Massengale
01-08-00341-CV  Resurgence Financial, L.L.C. v. James T. Lawrence   
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge:
Hon. Jacqueline Lucci Smith

SWORN ACCOUNT CASE LAW FROM HOUSTON COURTS OF APPEAL
(TRCP 185)

Andy's Sunmart #352, Inc. v. Reliant Energy Retail Services (Tex.App.- Houston [1st Dist.] Nov. 5, 2009)
(Jennings) (
sworn account judgment reversed, reasonableness of charges not established)  
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by
Justice Jennings      
Before Justices Jennings, Higley and Sharp    
01-08-00890-CV Andy's Sunmart #352, Inc., Holcombe Sunmart Inc., aka Sunmart #139 and Adnan A. Najm,
Individually v. Reliant Energy Retail Services    
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge:
Hon. Roberta A. Lloyd    
The invoices and summaries attached to Mena’s affidavit reflect that Sunmart # 139 had paid Reliant for electrical services
based upon terms and prices that, in some cases, were very similar to, or even more favorable than, the terms and prices
applying to the outstanding amounts on which the Sunmarts defaulted. However, other fluctuations in the terms of the invoices
defeat Reliant’s claim that these documents established, as a matter of law, the justness of the account, that there was some
sort of implicit agreement to pay all the charges, or that the prices were reasonable, usual, or customary. In regard to Sunmart #
352, there is no evidence showing that the Sunmarts ever made payments on this account. Footnote Additionally, one of the
invoices for this account also included charges for multiple-usage periods, and Reliant does not provide any evidence or
explanation that such charges were in accordance with an agreement or were customary or usual. Footnote We conclude that
Reliant failed to conclusively establish that the amounts of the outstanding accounts were just, and, thus, that Reliant failed to
establish its sworn account claim as a matter of law. Footnote


Appellants note in their brief that Hudson's petition was not verified.  A plaintiff's petition on sworn account 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." Tex. R.
Civ. P. 185; see also Andrews v. E. Tex. Med. Ctr.-Athens, 885 S.W.2d 264, 267 (Tex. App.- Tyler 1994, no
writ).  If there is a deficiency in the plaintiff's sworn account, the account will not constitute prima facie evidence
of the debt. See Enernational Corp. v. Exploitation Eng'rs, Inc., 705 S.W.2d 749, 750 (Tex. App.- Houston [1st
Dist.] 1986, writ ref'd n.r.e.).  Given that Hudson did not file a petition on sworn account, its failure to attach an
affidavit to the petition is immaterial to our review.
Butler v. Hudson & Keyse (Tex.App.- Houston [14th Dist.]
Feb. 19, 2009)(Hudson) (credit card debt suit, account stated theory)

Speck v. First Evangelical Lutheran Church of Houston (Tex.App.- Houston [1st Dist.] May 31, 2007)(Bland)
(BoC, breach of contract,
quantum meruit, sworn account)
[breach of contract,
quantum meruit, sworn account suit)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR
FURTHER PROCEEDINGS: Opinion by Justice Bland
Before Justices Nuchia, Hanks and Bland
01-06-00638-CV Pat K. Speck v. First Evangelical Lutheran Church of Houston, and Dry Bones Coffee House
Appeal from County Civil Court at Law No 2 of Harris County (
Hon. Gary Michael Block)

AKIB Construction, Inc. v. Neff Rental, Inc. (Tex.App.- Houston [14th Dist.] Apr. 3, 2008)(Hedges)
(
breach of lease claim not a sworn account, contract formation and breach, quantum meruit not proven)
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

Williams v. Unifund CCR Partners Assignee of Citibank (Tex.App.- Houston [1st Dist.] Feb. 7, 2008)(Keyes)
(
consumer credit card debt suit, judgment reversed,credit card debt claim not as sworn account, attorney's
fees)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by
Justice Keyes
Before Justices Taft, Keyes and Alcala
01-06-00927-CV Edward Williams v.
Unifund CCR Partners Assignee of Citibank
Appeal from County Civil Court at Law No 3 of Harris County (Judge Lynn Bradshaw-Hull)  
In his fifth issue, Williams argues that the trial court erred in granting summary judgment on Unifund's claim for
a sworn account pursuant to Texas Rule of Civil Procedure 185.[1] Rule 185 is a procedural tool that limits the
evidence necessary to establish a prima facie right to recovery on certain types of accounts.[2] TEX.R. CIV. P.
185. 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. . . ." Meaders v. Biskamp, 159 Tex. 79,
316 S.W.2d 75, 78 (Tex.1958) (emphasis in original); 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). It does not apply to transactions between parties resting upon a special
contract. Meaders, 316 S.W.2d at 78; Bird, 994 S.W.2d at 282. A credit card issued by a financial institution is
a special contract that does not create the sort of debtor-creditor relationship to bring a claim within the scope
of Rule 185. See Bird, 994 S.W.2d at 282; see also 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.). The Bird court reasoned:
    We reach this conclusion because no title to personal property passes from the 235 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.
Bird, 994 S.W.2d at 282. Therefore, Rule 185 is not available in a suit to recover credit card debt. The trial
court erred to the extent it granted summary judgment on Unifund's claim on a sworn account.
We sustain Williams's fifth issue and hold that Unifund is not entitled to summary judgment on a sworn account
under Rule 185. Although Unifund cannot prevail under Rule 185, it is important to remember that Rule 185 is
merely a procedural tool that is unavailable here under established law. Williams also argues that Unifund was
not entitled to summary judgment on its breach of contract theory.[3]

Powells v. Nova Factor, Inc. (Tex.App.- Houston [14th Dist.] Mar. 27, 2007)(Fowler)
(suit on sworn account, breach of contract,
attorney's fees)
AFFIRMED: Opinion by Justice Fowler
Before Justices Fowler, Edelman and Frost
14-05-00912-CV        Janice R. Powells, M.D., and Houston Infant & Adolescent Medicine, P.A,
v. Nova Factor, Inc.
Appeal from County Civil Court at Law No 4 of Harris County

Awalt Group, Inc. v. M Power Entertainment (Tex.App.- Houston [14th Dist.] May 19, 2007)(Hudson)
(
sworn account suit, special exception, motion for summary judgment, statute of limitations, SoL)
AFFIRMED: Opinion by Justice Hudson
Before Justices Brock Yates, Anderson and Hudson
14-05-01208-CV Awalt Group, Inc. v. M Power Entertainment
Appeal from 189th District Court of Harris County (
Judge William R. Burke JR)

AKIB Construction, Inc. v. Neff Rental, Inc. (Tex.App.- Houston [14th Dist.] Apr. 3, 2008)(Hedges)
(
breach not a sworn account claim, breach of contract contract not formed, quantum meruit claim fails)
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).[3]  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.").

Carrasco v. City of  Alvin (Tex.App.- Houston [14th Dist.] Mar. 27, 2007)(Guzman)
(
suit on sworn account, breach of contract, attorney's fees)
AFFIRMED: Opinion by
Justice Guzman
Before Chief Justice Hedges, Justices Frost and Guzman
14-06-00687-CV        Virginia and Jose Carrasco v. City of Alvin
Appeal from 412th District Court of Brazoria County


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