PANDITI v. APOSTLE

Factual and Procedural Background

James N. Apostle, an attorney who formerly represented R.K. Panditi, filed a lawsuit against Panditi for breach of contract and on a sworn account to collect unpaid legal fees and attorney's fees incurred in bringing the collection suit. Apostle moved for traditional summary judgment on his sworn account claim, arguing that Panditi's unsworn general denial did not satisfy the Texas Rules of Civil Procedure and thus precluded him from denying Apostle's claim. Panditi did not respond to the motion. The trial court granted summary judgment for Apostle and denied all other relief. Panditi filed a motion for new trial, which was overruled by operation of law. Panditi appeals the summary judgment, contending the trial court erred in granting it.

Legal Issues Presented

Whether the trial court erred in granting traditional summary judgment in favor of Apostle on the basis that Panditi did not file a sworn denial to the sworn account claim.

Whether Apostle properly pleaded his suit on a sworn account, including the sufficiency of the affidavit and supporting evidence regarding attorney's fees.

Arguments of the Parties

Appellant's Arguments

Panditi contends the trial court erred in granting summary judgment because he was not required to file a sworn denial, as Apostle did not properly plead his suit on a sworn account.

He asserts Apostle's sworn account was defective for failing to support the petition with evidence that the attorney's fees were reasonable, necessary, and assessed at the usual and customary rate.

The appellee, Apostle, did not file a brief in this appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Price v. Pratt, 647 S.W.2d 756 (Tex.App.-Corpus Christi 1983, no writ)	Limits appellate review when defendant fails to file sworn denial; courts determine sufficiency of pleadings for sworn account as a matter of law.	Court cited Price to explain that without a sworn denial, the defendant cannot dispute the claim, but sufficiency of pleadings on sworn account is a legal question for the court.
Nguyen v. Short, How, Frels Heitz, P.C., 108 S.W.3d 558 (Tex.App.-Dallas 2003, pet. denied)	Defines open account under Rule 185 and requirements for sworn account, including affidavit and itemization.	Court relied on Nguyen to affirm that Apostle's billing statements and affidavit met Rule 185 requirements and that failure to file a sworn denial precluded Panditi from disputing the claim.
Rizk v. Fin. Guardian Ins. Agency, Inc., 584 S.W.2d 860 (Tex. 1979)	Rule 185 is procedural, governing evidence to establish prima facie right of recovery on an open account.	Court cited Rizk to clarify that Rule 185 does not create substantive law but sets evidentiary standards for sworn accounts.
A J Printing, Inc. v. DSP Enter., L.L.C., 153 S.W.3d 676 (Tex.App.-Dallas 2004, no pet.)	Defendant must file verified denial to dispute sworn account claim; failure results in preclusion.	Used to support that Panditi's failure to file verified denial barred him from disputing Apostle's claim.
Abe I. Brilling Ins. Agency v. Hale, 601 S.W.2d 403 (Tex.Civ.App.-Dallas 1980, no writ)	Requirements for sworn account: itemization and affidavit.	Affirmed that Apostle’s statements and affidavit satisfied these requirements.
Howard v. Weisberg, 583 S.W.2d 920 (Tex.Civ.App.-Dallas 1979, no writ)	Plaintiff's suit on sworn account must reveal offsets; defendant not required to file sworn denial if pleading is defective.	Referenced to note that if pleading is defective, defendant need not file sworn denial, but court found Apostle’s pleading sufficient.
Vance v. Holloway, 689 S.W.2d 403 (Tex. 1985)	Defendant must comply with verified denial rules to contest sworn account claim.	Supported the requirement that Panditi file a verified denial, which he did not.
Cont'l Carbon Co. v. Sea-Land Serv., Inc., 27 S.W.3d 184 (Tex.App.-Dallas 2000, pet. denied)	Verified denial requirement in sworn account suits.	Further supported the procedural requirements for contesting sworn accounts.
Solano v. Syndicated Office Sys., No. 08-04-00166-CV, 2005 WL 2044604 (Tex.App.-El Paso Aug. 25, 2005, no pet.)	Affidavit requirements for sworn account.	Used to confirm proper affidavit content in Apostle's petition.
Andrews v. E. Tex. Med. Ctr-Athens, 885 S.W.2d 264 (Tex.App.-Tyler 1994, no writ)	Verified denial and affidavit requirements in sworn account suits.	Supported the procedural standards Apostle met and Panditi failed to meet.
Unit, Inc. v. Ten Eyck-Shaw, Inc., 524 S.W.2d 330 (Tex.Civ.App.-Dallas 1975, writ ref'd n.r.e.)	Detailing and itemization requirements for sworn account statements.	Confirmed the sufficiency of Apostle's billing statements.
Powers v. Adams, 2 S.W.3d 496 (Tex.App.-Houston [14th Dist.] 1999, no pet.)	Itemized monthly statements sufficient to establish sworn account.	Supported the court’s finding that Apostle’s statements were sufficient evidence.

Precedent

Rule or Principle Cited For

Application by the Court

Price v. Pratt, 647 S.W.2d 756 (Tex.App.-Corpus Christi 1983, no writ)

Limits appellate review when defendant fails to file sworn denial; courts determine sufficiency of pleadings for sworn account as a matter of law.

Court cited Price to explain that without a sworn denial, the defendant cannot dispute the claim, but sufficiency of pleadings on sworn account is a legal question for the court.

Nguyen v. Short, How, Frels Heitz, P.C., 108 S.W.3d 558 (Tex.App.-Dallas 2003, pet. denied)

Defines open account under Rule 185 and requirements for sworn account, including affidavit and itemization.

Court relied on Nguyen to affirm that Apostle's billing statements and affidavit met Rule 185 requirements and that failure to file a sworn denial precluded Panditi from disputing the claim.

Rizk v. Fin. Guardian Ins. Agency, Inc., 584 S.W.2d 860 (Tex. 1979)

Rule 185 is procedural, governing evidence to establish prima facie right of recovery on an open account.

Court cited Rizk to clarify that Rule 185 does not create substantive law but sets evidentiary standards for sworn accounts.

A J Printing, Inc. v. DSP Enter., L.L.C., 153 S.W.3d 676 (Tex.App.-Dallas 2004, no pet.)

Defendant must file verified denial to dispute sworn account claim; failure results in preclusion.

Used to support that Panditi's failure to file verified denial barred him from disputing Apostle's claim.

Abe I. Brilling Ins. Agency v. Hale, 601 S.W.2d 403 (Tex.Civ.App.-Dallas 1980, no writ)

Requirements for sworn account: itemization and affidavit.

Affirmed that Apostle’s statements and affidavit satisfied these requirements.

Howard v. Weisberg, 583 S.W.2d 920 (Tex.Civ.App.-Dallas 1979, no writ)

Plaintiff's suit on sworn account must reveal offsets; defendant not required to file sworn denial if pleading is defective.

Referenced to note that if pleading is defective, defendant need not file sworn denial, but court found Apostle’s pleading sufficient.

Vance v. Holloway, 689 S.W.2d 403 (Tex. 1985)

Defendant must comply with verified denial rules to contest sworn account claim.

Supported the requirement that Panditi file a verified denial, which he did not.

Cont'l Carbon Co. v. Sea-Land Serv., Inc., 27 S.W.3d 184 (Tex.App.-Dallas 2000, pet. denied)

Verified denial requirement in sworn account suits.

Further supported the procedural requirements for contesting sworn accounts.

Solano v. Syndicated Office Sys., No. 08-04-00166-CV, 2005 WL 2044604 (Tex.App.-El Paso Aug. 25, 2005, no pet.)

Affidavit requirements for sworn account.

Used to confirm proper affidavit content in Apostle's petition.

Andrews v. E. Tex. Med. Ctr-Athens, 885 S.W.2d 264 (Tex.App.-Tyler 1994, no writ)

Verified denial and affidavit requirements in sworn account suits.

Supported the procedural standards Apostle met and Panditi failed to meet.

Unit, Inc. v. Ten Eyck-Shaw, Inc., 524 S.W.2d 330 (Tex.Civ.App.-Dallas 1975, writ ref'd n.r.e.)

Detailing and itemization requirements for sworn account statements.

Confirmed the sufficiency of Apostle's billing statements.

Powers v. Adams, 2 S.W.3d 496 (Tex.App.-Houston [14th Dist.] 1999, no pet.)

Itemized monthly statements sufficient to establish sworn account.

Supported the court’s finding that Apostle’s statements were sufficient evidence.

Court's Reasoning and Analysis

The court analyzed the pleadings and evidence submitted by Apostle, including four itemized billing statements covering legal services rendered over a specified period, and an affidavit attesting to the accuracy and justness of the account and that all offsets had been applied. The court found Apostle's statements and affidavit complied with Texas Rule of Civil Procedure 185, which governs suits on sworn accounts by requiring an itemized account and affidavit to establish a prima facie case. Because Apostle properly pleaded a sworn account, Panditi was required under Texas Rules of Civil Procedure 93(10) and 185 to file a verified denial to contest the claim. Panditi failed to do so, thereby precluding him from disputing the claim or any item therein. The court rejected Panditi's argument that Apostle needed to prove the reasonableness and necessity of the attorney's fees or that they were assessed at the usual and customary rate, holding that the sworn account itself was sufficient prima facie evidence without additional proof. Consequently, the summary judgment in favor of Apostle was proper.

Holding and Implications

The trial court's summary judgment in favor of James N. Apostle is affirmed.

This decision directly results in the dismissal of Panditi's appeal and upholds the trial court's ruling that Panditi was precluded from disputing Apostle's sworn account claim due to failure to file a verified denial. The opinion does not establish new legal precedent beyond the application of existing procedural rules governing sworn accounts and verified denials.

R.K. PANDITI, Appellant v. James N. APOSTLE, Appellee.

OPINION

Opinion by Justice LANG.

R.K. Panditi, pro se, appeals the trial court's summary judgment in favor of James N. Apostle, plaintiff below. Apostle has not filed a brief in this appeal. On appeal, Panditi argues the trial court erred when it granted traditional summary judgment in favor of Apostle because Apostle did not properly plead his suit on a sworn account. We conclude the trial court did not err when it granted summary judgment in favor of Apostle. The trial court's summary judgment is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

Apostle, an attorney who formerly represented Panditi, filed a lawsuit against Panditi for breach of contract and a suit on a sworn account to collect his unpaid legal fees as well as attorney's fees incurred in bringing the instant suit for collection. Apostle moved for traditional summary judgment on his sworn account claim arguing Panditi's unsworn general denial did not satisfy Texas Rules of Civil Procedure "185 and 93(1)[sic]," precluding him from denying Apostle's claim. Panditi did not file a response to Apostle's motion for summary judgment. The trial court granted summary judgment in favor of Apostle and "denie[d] all relief not granted in th[e] [summary] judgment." Panditi filed a motion for a new trial which was overruled by operation of law.

II. SUIT ON SWORN ACCOUNT

Panditi argues the trial court erred when it granted traditional summary judgment in favor of Apostle on the ground that Panditi failed to file a sworn denial. He contends he was not required to file a sworn denial because Apostle did not properly plead his suit on a sworn account. Specifically, he claims Apostle's sworn account was defective because Apostle failed to support his petition with evidence that his attorney's fees were reasonable and necessary, and the fees were assessed at the usual and customary rate.

A. Standard of Review

When a defendant fails to file a sworn denial, a court of appeals is limited in what it can consider to set aside a summary judgment on a sworn account because the defendant will not be permitted to dispute the plaintiff's claim. See Price v. Pratt, 647 S.W.2d 756, 757 (Tex.App.-Corpus Christi 1983, no writ). However, it is within the province of the court of appeals to determine, as a matter of law, whether the pleadings are sufficient on their face to constitute a sworn account. See id.

B. Applicable Law

Rule 185 states an open account includes, "any claim . . . for personal services rendered." See TEX.R. CIV. P. 185; Nguyen v. Short, How, Frels Heitz, P.C., 108 S.W.3d 558, 562 (Tex.App.-Dallas 2003, pet. denied). Rule 185 is not a rule of substantive law. See Rizk v. Fin. Guardian Ins. Agency, Inc., 584 S.W.2d 860, 862 (Tex. 1979); A J Printing, Inc. v. DSP Enter., L.L.C., 153 S.W.3d 676, 682 (Tex.App.-Dallas 2004, no pet.). Rather, it is a rule of procedure regarding the evidence necessary to establish a prima facie right of recovery. See Rizk, 584 S.W.2d at 862; A J Printing, 153 S.W.3d at 682.

Texas Rule of Civil Procedure 185 provides that when an action is founded on an open account on which a systematic record has been kept and is supported by an affidavit, the account shall be taken as prima facie evidence of the claim, unless the party resisting the claim files a written denial under oath. See TEX.R. CIV. P. 185; Abe I. Brilling Ins. Agency v. Hale, 601 S.W.2d 403, 404 (Tex.Civ.App.-Dallas 1980, no writ). Also, a plaintiff's suit on a sworn account must "reveal" any offsets made to the account. See TEX.R. CIV. P. 185; Nguyen, 108 S.W.3d at 562; Howard v. Weisberg, 583 S.W.2d 920, 922 (Tex.Civ.App.-Dallas 1979, no writ). The account must show with reasonable certainty the name, date, and charge for each item, and provide specifics or details as to how the figures were arrived at. See Abe I. Brilling Ins. Agency, 601 S.W.2d at 405 (discussing bill for insurance premiums); Unit, Inc. v. Ten Eyck-Shaw, Inc., 524 S.W.2d 330, 333 (Tex.Civ.App.-Dallas 1975, writ ref'd n.r.e.); see also Powers v. Adams, 2 S.W.3d 496, 499 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (itemized monthly statements of legal services reflecting offsets, payments, and credits sufficient). Also, a suit on a sworn account must be accompanied by the affidavit of the plaintiff, his agent, or his attorney taken before an officer authorized to administer oaths. See TEX.R. CIV. P. 185; Solano v. Syndicated Office Sys., No. 08-04-00166-CV, ___ S.W.3d ___, ___, 2005 WL 2044604, at *2 (Tex.App.-El Paso Aug.25, 2005, no pet.); Andrews v. E. Tex. Med. Ctr-Athens, 885 S.W.2d 264, 267 (Tex.App.-Tyler 1994, no writ). The affidavit must state the following: (1) the claim is within the knowledge of the affiant; (2) the claim is just and true; (3) the account is due; and (4) all just and lawful offsets, payments, and credits have been allowed. See TEX.R. CIV. P. 185; Nguyen, 108 S.W.3d at 562. If there is a deficiency in the plaintiff's sworn account, the account will not constitute prima facie evidence of the debt. Nguyen, 108 S.W.3d at 562.

A defendant resisting a suit on a sworn account must comply with the rules of pleading and timely file a verified denial or he will not be permitted to dispute the receipt of the services or the correctness of the charges. See TEX.R. CIV. P. 93(10), 185; Vance v. Holloway, 689 S.W.2d 403, 404 (Tex. 1985); A J Printing, 153 S.W.3d at 682; see also Cont'l Carbon Co. v. Sea-Land Serv., Inc., 27 S.W.3d 184, 190-91 (Tex.App.-Dallas 2000, pet. denied). A defendant's sworn denial must be written and verified by an affidavit. See TEX.R. CIV. P. 185, 93(10); Andrews, 885 S.W.2d at 267. However, a defendant is not required to file a sworn denial if the plaintiff's suit on a sworn account was not properly pleaded. See Howard, 583 S.W.2d at 922; Price, 647 S.W.2d at 757-58.

C. Application of the Law to the Facts

Attached to Apostle's petition were four statements addressed to Panditi, dated January 28, 2004, April 2, 2004, May 14, 2004, and July 20, 2004. The statements describe legal services rendered from September 10, 2003 through July 17, 2004. These four statements list the date and type of legal services rendered, the total number of hours spent on those legal services, the total fees for the professional services and expenses, and the total combined amount owed. The last statement dated July 20, 2004, lists the cumulative total fees and expenses owed as $26,684.81. Attached to Apostle's petition was his affidavit which reveals offsets by stating the balance due is $16,334.81:

The foregoing and annexed account, claim and cause of action in favor of James N. Apostle, in the principle sum of sixteen thousand three hundred thirty four [sic] and 81/100 dollars ($16,334.81), is within the knowledge of affiant, just and true, and that it is due and unpaid and that all just and lawful offsets, payments and credits have been allowed.

Apostle's billing statements and affidavit complied with the requirements of rule 185. See TEX.R. CIV. P. 185. As a result, Panditi was required to file a verified denial. See TEX.R. CIV. P. 93(10), 185. Panditi did not file a verified denial and he was precluded from denying "the claim, or any item therein." See TEX.R. CIV. P. 185. Pursuant to the rules applicable to a sworn account, Apostle presented a prima facie case and was not required to offer additional proof, as argued by Panditi, that the fees and expenses were reasonable and necessary, and assessed at the usual and customary rate.

III. CONCLUSION

The trial court did not err when it granted summary judgment in favor of Apostle. The trial court's summary judgment is affirmed.