Juarez v. Dunn

• Decision Date: 29 March 1978
• Docket Number: No. 6719,6719
• Citation: Juarez v. Dunn, 567 S.W.2d 223 (Tex. Ct. App. 1978)
• Parties: Jesse JUAREZ, Appellant, v. Thomas S. DUNN et al., Appellees.
• Court: Texas Civil Court of Appeals

Page 223

567 S.W.2d 223

Jesse JUAREZ, Appellant, v. Thomas S. DUNN et al., Appellees.

No. 6719.

Court of Civil Appeals of Texas,El Paso.

March 29, 1978.

Rehearing Denied April 26, 1978.

Craig L. Austin, Ingram Blair McLeod, San Antonio, for appellant.

Morriss, Boatwright, Lewis & Monnig, Clarence R. Boatwright, Stanley E. Burch, San Antonio, for appellees.

OPINION

WARD, Justice.

Jesse Y. Juarez sued to recover compensation for architectural services rendered to Thomas S. Dunn under the terms of a written contract. The Plaintiff also sought recovery from Norman Harwell on the basis that Dunn and Harwell were operating under a partnership arrangement. The trial Court, sitting without a jury, entered judgment for the architect against Dunn and entered a take nothing judgment in favor of the Defendant Harwell. The Plaintiff, on appeal, complains of the take nothing judgment against Harwell and of the trial Court's failure to enter judgment for the Plaintiff on reasonable attorney's fees against both Defendants. We reform the judgment below by permitting the Plaintiff to recover attorney's fees against the Defendant Dunn, and affirm in all other respects.

The Plaintiff's trial petition alleged that on August 10, 1975, he entered into a written contract with Dunn to perform architectural services for the partial design of a shopping center for which he was to be paid the agreed sum of 13 cents per square foot or the total amount of $12,389.00, a copy of the contract being made a part of the petition and attached as Exhibit "A". He alleged that he had received four partial payments totaling $5,250.00, and that a balance of $7,139.00 was past due and owing. The Plaintiff further alleged that Dunn and Harwell were partners operating under the terms of a written partnership agreement, the copy thereof being attached as Exhibit "B" and made a part for all purposes. The Plaintiff alleged, in the alternative, that the reasonable value of his architectural services was in excess of the contractual amount, that he was entitled to reasonable attorney's fees, and attached an affidavit stating that "the foregoing account" was just, true and correct, the affidavit being in the form required by Rule 185, Tex.R.Civ.P.

The trial Court found as a fact that the Plaintiff substantially performed the contract for architectural services and was entitled to receive the full agreed consideration of $12,389.00, and that, since he had been paid $5,250.00, there was a balance due and owing of $7,139.00. There was also a finding that the fair market value of his services was the amount of $12,389.00, which services were received and retained by the Defendant Dunn for his use and benefit. The Court determined that reasonable fees for the Plaintiff's attorney were in the sum of $1,427.80 in the trial Court, and $1,000.00 in the Court of Civil Appeals, but that, as a matter of law, no attorney's fees were allowable. As pointed out, the judgment was then entered against Dunn only for the balance due and owing for the services rendered.

The Plaintiff's first point is to the effect that his suit was properly brought under Rule 185, Tex.R.Civ.P.; that the Defendant Harwell did not file a verified denial as required by that Rule; and, consequently, he was entitled to judgment on his pleadings against Defendant Harwell. He contends that his petition evidenced a suit on a sworn account founded upon the written contract, and in the absence of a sworn denial under Rules 185 and 93(k), Tex.R.Civ.P., his account became prima facie evidence, with Harwell not being permitted to dispute the items or services or the correctness of the stated charges. Edinburg Meat Products Company v. Vernon Company, 535 S.W.2d 432 (Tex.Civ.App. Corpus Christi 1976, no writ); Leyendecker v. Santa Rosa Medical Center, 533 S.W.2d 868 (Tex.Civ.App. Tyler 1976, no writ).

Harwell argues generally that the Plaintiff's pleadings and exhibits taken together in no wise complied with the minimum requirements of a sworn account as contemplated by Rule 185, as this was a suit on an express contract with no itemization showing the nature of each item, the date, and the charges therefor. The cases are legion to support that contention where the account is an open one involving sales of personal property, but those cases do not relate to the subdivision of Rule 185 before us, which is one for personal services rendered by a plaintiff-architect under the terms of a written contract. As to that part of the Rule, the Rule itself is not clear that there must have been a systematic record maintained by the plaintiff of all charges and credits, entered in regular sequence and sworn to, before a plaintiff can be entitled to the advantages of the Rule. The Rule, as adopted in 1941, came from Article 3736, Tex.Rev.Civ.Stat.Ann. That Statute, before it was amended in 1931, limited a sworn account to one which was an open account, in which there was a sale on one side and a purchase on the other side whereby title to personal property passed from one person to another creating the relationship of creditor and debtor. In 1931, the Statute was amended and the benefits of a suit and the proof on a sworn account were extended to claims for liquidated money demands based upon contracts, or based upon business dealings between the parties, or for personal services rendered on which a systematic record of accounts had been kept. That amendment required that a systematic record of accounts be kept where the suit was for the recovery of personal services. That requirement was reflected by the emergency clause of the 1931 amendment, where it was repeated in the following language:

"The fact that there is no existing statute authorizing a judgment to be rendered upon a claim for liquidated money demands based upon their contracts, or based upon business dealings between the parties, or for personal services rendered on which a systematic record of accounts has been kept which is supported by the affidavit of the party, his agent or attorney creates an emergency * * *."

Substantially the same wording is carried forward into the present Rule. Thus, it would seem necessary that under Rule 185, where the suit was based upon the personal services rendered, a plaintiff should swear to a systematic record of all charges and payments, entered in regular sequence, before he would be entitled to the benefits of the Rule; that is, that a statement or invoice be set forth in the pleadings or by an attached and incorporated exhibit which clearly identifies the nature of the items constituting the sworn account, particularly where it is a suit for personal services. This thought is present in the...