Livingston Ford Mercury, Inc. v. Haley

• Decision Date: 26 August 1999
• Citation: 997 S.W.2d 425
• Parties: (Tex.App.-Beaumont 1999) LIVINGSTON FORD MERCURY, INC., Appellant v. HAL HALEY, SR. D/B/A KETX RADIO, Appellee NO. 09-98-454 CV
• Court: Texas Court of Appeals

Page 425

997 S.W.2d 425 (Tex.App.-Beaumont 1999)

LIVINGSTON FORD MERCURY, INC., Appellant v. HAL HALEY, SR. D/B/A KETX RADIO, Appellee

NO. 09-98-454 CV

In The Court of Appeals Ninth District of Texas at Beaumont

Submitted April 9, 1999

Decided August 26, 1999

On Appeal from the 258th Judicial District Court Polk County, Texas, Trial Cause No. 16,302

Before Walker, C.J., Burgess and Stover, JJ.

OPINION

EARL B. STOVER, Justice

This is an appeal from the trial court's granting of a summary judgment on a sworn account suit brought by Hal Haley Sr., d/b/a KETX Radio (Appellee) against Livingston Ford- Mercury, Inc. (Appellant).

Based on radio advertising services provided by KETX radio station to Livingston Ford from November 1989 through March 1996, KETX's suit on a sworn account alleges that the dealership owes the station $11,340. Both parties filed motions for summary judgment; the trial court granted the radio station's motion and denied that of the dealership.

When both parties file competing motions for summary judgment and one is granted and the other denied, the reviewing court should review the summary judgment evidence presented by both sides and determine all questions presented. Commissioners Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex. 1997). If the issue raised is based upon undisputed and unambiguous facts, then the court can determine the question presented as a matter of law. McCreight v. City of Cleburne, 940 S.W.2d 285, 288 (Tex. App.--Waco 1997, writ denied). However, if determination of the issue lies in disputed or ambiguous facts, summary judgment is inappropriate, and the court will reverse and remand. Id.

Livingston Ford brings four issues on appeal. The dealership does not contend, either below or on appeal, that the account alleged by KETX does not fall within the confines of TEX. R. CIV. P. 185. Consequently, we do not address that issue. Instead, the dealership claims in its first point of error that the statute of limitations in TEX. CIV. PRAC. & REM. CODE ANN. 16.004(a)(3), as opposed to the limitations provision in sec. 16.004(c), bars all, or at least part of, the radio station's claim. We disagree and find that the applicable statute of limitations is section 16.004(c).

Section 16.004(c) applies to various types of accounts, including an open account.

An "open account" was defined over a century ago in McCamant v. Batsell, 59 Tex. 363, 367-69 (Tex. 1883):

As used in the statutes of this state, in act referred to, we believe that the word "account" is used in its popular sense, rather than in a technical sense, and that it applies to transactions between persons in which, by sale upon the one side and purchase upon the other, the title to personal property passes from the one to the other, and the relation of debtor and creditor is thereby created by general course of dealing . . . .

. . . .

An "open account" is defined to be "one in respect to which nothing has occurred to bind either party by its statements; an account which is yet fully open to be disputed." Abbott's Law Dictionary. . . .

An account is said to be open also, when there have been running or current dealings between the parties, and the account is kept open with the expectation of further dealings.

In the instant case, the summary judgment evidence reflects a running account of the advertisements done by KETX on behalf of Livingston Ford. The parties do not dispute the ongoing nature of their dealings. There is, however, no sale or purchase of personal property, as found to be necessary by McCamant in its holding regarding a suit on an account under art. 2266, one of the predecessor sworn account statutes. Id. at 368.

Prior to their amendment in 1979 and subsequent codification in the Texas Civil Practices and Remedies Code, articles 5526 and 5527 of the Revised Civil Statutes governed, among other things, limitations in contracts and open and stated accounts and read in pertinent part as follows:

Art. 5526.

There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:

. . . .

4. Actions for debt where the indebtedness is not evidenced by a contract in writing.

5. Actions upon stated or open accounts, other than such mutual and current accounts as concern the trade of merchandise between merchant and merchant, their factors or agents. In all accounts, except those between merchant and merchant, as aforesaid, their factors and agents, the respective times or dates of the delivery of the several articles charged shall be particularly specified, and limitation shall run against each item from the date of such delivery, unless otherwise specially contracted.

. . . .

Art. 5527.

There shall be commenced and prosecuted within four years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:

1. Actions for debt where the indebtedness is evidenced by or founded upon any contract in writing.

. . . .

3. Actions by one partner against his co-partner for a settlement of the partnership accounts, or upon mutual and current accounts concerning the trade of merchandise between merchant and merchant, their factors or agents; and the cause of action shall be considered as having accrued on a cessation of the dealings in which they were interested together.

Codified in the Texas Civil Practices and Remedies Code, the current statute, quoted in pertinent part below, is similar to the 1979 amended versions:¹

16.004. Four-Year Limitations Period

(a) A person must bring suit on the following actions not later than four years after the day the cause of action accrues:

. . . .

(3) debt.

. . . .

(c) A person must bring suit against his partner for a settlement of partnership accounts, and must bring an action on an open or stated account, or on a mutual and current account concerning the trade of merchandise between merchants or their agents or factors, not later than four years after the day that the cause of action accrues. For purposes of this subsection, the cause of action accrues on the day that the dealings in which the parties were interested together cease.

TEX. CIV. PRAC. & REM. CODE ANN. 16.004(a)(3), (c) (Vernon 1986).

Under the pre-1979 limitations statutes, the accrual date for open and stated accounts was the date of delivery of the "item." By its very language, the prior provision restricted open and stated accounts to "items" or personal property. With the 1979 amendment, open and stated accounts were moved to the four year statute² (now section 16.004(c)) and grouped with partnership accounts and mutual and current accounts between merchants. In 16.004(c), the accrual date is the day "the dealings in which the parties were interested together cease[d]." TEX. CIV. PRAC. & REM. CODE ANN. 16.004(c) (Vernon 1986).

Under the current version of the statute, the accounts between merchants continue to be specifically restricted to "merchandise" or items. However, unlike their treatment in the earlier statute, open and stated accounts are not made subject to such a restriction. We conclude the change in the statutory provisions regarding open and stated accounts effectively eliminates the requirement that such accounts, as least as to section 16.004(c), be restricted to those involving "items" or personal property.³

We find the cause of action herein is an "open account" within the meaning of section 16.004(c). See generally Little v. Air Force Village Foundation, 974 S.W.2d 88, 93 (Tex. App.--San Antonio 1998, pet. denied) (Applying section 16.004(c), appeals court found statute of limitations accrued on contract claim for money due on nursing home care "on the day that the dealings in which the parties were interested together cease[d]." In applying the statute to the facts of this case, we note that the account, attached by KETX as summary judgment evidence, reflects monthly dealings between the parties from 1989 through March 1996, with the exception of May and June in 1994. February 1996 was the last month in which the radio station actually advertised for the dealership. The date the "last dealings in which the parties were interested together cease[d]" was March 29, 1996; on that date, an entry on the account shows the receipt of a $250 payment from appellant. Based on the statute, we conclude the cause of action accrued in March 1996, and, therefore, KETX's suit filed on January 24, 1997, was not barred by the statute of limitations. Issue one is overruled.

In issues two and three, Livingston Ford contends the trial court erred in granting summary judgment on the sworn account because appellee did not establish the account as a matter of law and because appellant raised a material fact issue regarding the account. In its brief on appeal, the dealership states that the actual radio advertising in dispute is for the period May 31, 1991, through April 21, 1994. We, therefore, limit our review in points two and three to the scope of appellant's complaint.

To be entitled to summary judgment, the movant must conclusively prove all essential elements of his claim. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979). After the movant produces evidence entitling it to summary judgment, the burden then shifts to the non-movant to present evidence creating a fact issue. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). Although summary judgments in sworn account suits are subject to the same standard of review as other summary judgments, sworn accounts nonetheless have a unique feature, as explained in Andrews v. East Texas Med. Center-Athens, 885 S.W.2d 264, 267 (Tex. App.--Tyler 1994, no writ):

Although TEX. R. CIV. P. 166a was never intended to deprive a litigant of a full hearing on the merits of any fact issue [appellant's] arguments overlook the unique...