Sundance Resources, Inc. v. Dialog Wireline Services, L.L.C., No. 06-08-00137-CV (Tex. App. 4/8/2009)
| Decision Date | 08 April 2009 |
| Docket Number | No. 06-08-00137-CV.,06-08-00137-CV. |
| Parties | SUNDANCE RESOURCES, INC., Appellant, v. DIALOG WIRELINE SERVICES, L.L.C., Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 188th Judicial District Court, Gregg County, Texas, Trial Court No. 2007-2140-A.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
Dialog Wireline Services, L.L.C., brought suit against Sundance Resources, Inc., bringing an action on a sworn account and, alternatively, in quantum meruit. The trial court granted Dialog's traditional motion for summary judgment on the sworn account claim and Sundance has filed this appeal, claiming that the trial court erred in two respects: (1) that there was insufficient evidence to sustain the summary judgment and (2) that it should have sustained Sundance's special exceptions to the summary judgment motion and its objections to summary judgment affidavits presented by Dialog.
At Sundance's request, Dialog provided wireline services1 to Sundance for a period beginning May 31, 2006 until June 19, 2006, and charged a total of $64,336.20 for those services. Either at the outset of their relationship or during its first month, Sundance made one $7,000.00 payment, leaving a total balance of $57,336.20 remaining unpaid. More than thirty days after having sent a final demand for payment of the balance, Dialog filed its original verified petition, seeking payment of the outstanding balance, plus attorney's fees in the amount of $18,920.00. Although primarily a suit on sworn account, an alternative plea of recovery under quantum meruit was pled.
Sundance's first pleading, filed October 26, 2007, was an original answer denying "each and every item of [Dialog's] sworn account," denying, more specifically, "that [Dialog] provided all necessary consideration for the alleged contract(s) and/or that such consideration failed." Although an affidavit was appended to this pleading and signed by the chief operating officer of Sundance which said that the pleadings were true and correct, the affidavit did not make the statement that the information was within the personal knowledge of the affiant.
Dialog filed a motion for summary judgment on August 12, 2008, "embrac[ing] its entire cause of action against [Sundance]." Attached was the affidavit of Renee Meaux stating that as the financial manager of Dialog, she had personal knowledge of the facts in the motion for summary judgment and the attached invoices, and that both were true and correct.2
The trial court set the summary judgment for hearing on September 22, 2008. Six days before the summary judgment was to be heard, Sundance filed its response and objections to Dialog's supporting affidavits. The response alleged that summary judgment was inappropriate because: (1) there was no evidence of a written account or prior course of dealing between the companies; (2) Dialog had not proven the amount owed was just; and (3) there was no evidence that Sundance had actually received services. Included in that response was a special exception to Dialog's motion for summary judgment, which claimed that it was fatally vague.
A hearing was held at the appointed time and date, during which Dialog's counsel clarified it was only going to proceed to recover summary judgment on the sworn account pleading. He mentioned the invoices and affidavits attached as summary judgment evidence and concluded his argument. Afterward, Sundance stated, Because the trial court asked Sundance to proceed on the summary judgment, it argued in response before discussing the special exception and objections to the affidavits.
Ruling in favor of Dialog, the trial court found that "the pleadings and affidavit[s] are sufficient to grant a summary judgment on the sworn account." The following day, the trial court issued an interlocutory order granting summary judgment on the sworn account, with attorney's fees to be decided on a later date. After this interlocutory order was entered, Dialog requested rulings on the special exception and objections to the summary judgment affidavits.
The day following the hearing on the motion for summary judgment, Dialog filed an amended original petition, the primary difference between this amended petition and the original petition being more specificity regarding Dialog's claim for recovery of attorney's fees and asking the court to take judicial notice of the usual and customary fees in connection with suits on sworn accounts. The parties filed a written stipulation that should Dialog recover $57,336.20 on its principal claim, it would be entitled to recover $12,500.00 in attorney's fees. The trial court then entered a judgment in favor of Dialog for $57,336.20 and attorney's fees in the sum of $12,500.00.
Sundance now appeals this award complaining that the trial court erred in the following respects: (1) that it failed to require that Dialog identify the grounds upon which it sought summary judgment; (2) that it erred in overruling Sundance's objections to the summary judgment affidavit of Meaux; (3) that it erred in overruling Sundance's objections to the affidavit of Hill; (4) that the absence of competent evidence of a written account or prior course of dealing between Sundance and Dialog prevented the entry of a summary judgment on a sworn account; and (5) that there was no evidence that the amount charged by Dialog was just and reasonable.
A trial court's summary judgment is reviewed de novo. Lamar Corp. v. City of Longview, 270 S.W.3d 609, 613 (Tex. App.-Texarkana 2008, no pet.); see Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995). Summary judgment is proper when a movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); French v. Gill, 252 S.W.3d 748, 751 (Tex. App.-Texarkana 2008, pet. denied); Powers v. Adams, 2 S.W.3d 496, 497 (Tex. App.-Houston [14th Dist.] 1999, no pet.) ). In deciding whether there is a disputed material fact issue which precludes summary judgment, proof favorable to the nonmovant will be taken as true. Nixon, 690 S.W.2d at 548-49. We indulge every reasonable inference in favor of the nonmovant. Limestone Prods. Distribution, Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002).
"Generally, pleadings are not competent evidence, even if sworn or verified." Livingston Ford Mercury, Inc. v. Haley, 997 S.W.2d 425, 431 (Tex. App.-Beaumont 1999, no pet.) (citing Laidlaw Waste Sys. (Dallas), Inc., 904 S.W.2d at 660). The exception to the general rule, of course, is found in a suit on sworn account. Id. Rule 185 of the Texas Rules of Civil Procedure () states:
When any action or defense is founded upon an open account . . . 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, . . . 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. . . . . 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).
Dialog attached itemized invoices to its original sworn petition and alleged that Sundance promised to pay it a sum certain for goods and/or services provided. Although the record fails to specify the type of services rendered, we note that attached invoices indicate Dialog provided mechanical repair services, including labor, to Sundance. Sundance paid Dialog $7,000.00 on the first invoice; Dialog continued to perform services for Sundance after that payment. A suit on a sworn account must be founded on 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." Id. The claim in Dialog's petition was founded partially on an open account established by dealings between the parties and entirely for labor performed or materials furnished, thereby falling within the purview of a suit on sworn account. The original petition was verified by Hill, who stated:
[U]pon oath states that he is the attorney of record for Plaintiff, Dialog Wireline Services, L.L.C., in the above-styled and numbered cause, and that the annexed account in favor of Plaintiff against Defendant are within the personal knowledge of Affiant, just and true, that it is due, and that all just and lawful offsets, payment and credits have been allowed.
Under Rule 185, this verified petition constituted prima facie evidence of the sworn account, creating an evidentiary presumption in favor of Dialog. S...
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