Court of Appeals of Texas, Seventh District, Amarillo
JUAN CARLOS CERVANTES, INDIVIDUALLY AND D/B/A PANGEA FLOOR COVERINGS, APPELLANT
TRAVIS TILES SALES, INC., APPELLEE
Appeal from the County Court at Law No. 1 Travis County,
Texas Trial Court No. C-1-CV-15-000813, Honorable Eric
CAMPBELL and PIRTLE and PARKER, JJ.
T. Campbell, Justice
Juan Carlos Cervantes, Individually and d/b/a Pangea Floor
Coverings, brings this restricted appeal challenging a
post-answer default judgment in favor of appellee Travis
Tiles Sales, Inc. We will reverse the judgment of the trial
court and remand the cause for further proceedings.
Tiles approved a credit application Cervantes submitted.
Cervantes thereafter made purchases of materials from Travis
Tiles, incurring charges totaling $10, 705.21. Cervantes made
partial payments but apparently did not pay the entire
Tiles filed suit, and after a bench trial at which Cervantes
failed to appear, the court entered judgment for Travis
Tiles. This restricted appeal followed.
appeal, Cervantes raises several issues. In a restricted
appeal, our "review is limited to errors apparent on the
face of the record." Fid. & Guar. Ins. Co. v.
Drewery Const. Co., 186 S.W.3d 571, 573 (Tex. 2006);
Alexander v. Lynda's Boutique, 134 S.W.3d 845,
848 (Tex. 2004). The face of the record, for this purpose,
includes all the documents in the appellate record, including
the clerk's and reporter's records. See Norman
Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270
(Tex. 1997) (per curiam) (writ of error review).
prevail on a restricted appeal, the appellant must prove: (1)
he filed notice of the restricted appeal within six months
after the judgment was signed; (2) he was a party to the
underlying lawsuit; (3) he did not participate in the hearing
that resulted in the judgment complained of, and did not
timely file any post-judgment motions or requests for
findings of fact and conclusions of law; and (4) error is
apparent on the face of the record. Tex.R.App.P. 30
(restricted appeal); Pike-Grant v. Grant, 447 S.W.3d
884, 886 (Tex. 2014) (citing Alexander, 134 S.W.3d
at 848). The record shows Cervantes has satisfied the first
three requirements to prevail on a restricted appeal. We will
consider whether there is error apparent on the face of the
record. Sharif v. Par Tech, Inc., 135 S.W.3d 869,
873 (Tex. App.-Houston [1st Dist.] 2004, no pet.) (citing
Stubbs v. Stubbs, 685 S.W.2d 643, 644 (Tex. 1985)).
Tiles's suit was filed as a suit on sworn account under
Civil Rule 185. Tex.R.Civ.P. 185. A suit on a sworn account
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
Assignee of Citibank, 264 S.W.3d 231, 234 (Tex.
App.-Houston [1st Dist.] 2008, no pet.); Panditi v.
Apostle, 180 S.W.3d 924, 926 (Tex. App.-Dallas 2006, no
pet.). Recovery under suit on sworn account requires proof
of: (1) the sale and delivery of merchandise or performance
of services; (2) that the amount of the account is
"just, " that is, the prices charged are pursuant
to an express agreement, or in the absence of an agreement,
that the charges are usual, customary, or reasonable; and (3)
that the outstanding amounts remain unpaid. Powers v.
Adams, 2 S.W.3d 496, 499 (Tex. App.-Houston [14th Dist.]
1999, no pet.). See also Dibco Underground, Inc. v. JCF
Bridge & Concrete, Inc., No. 03-09-00255-CV, 2010
Tex.App. LEXIS 2531, at *19 (Tex. App.-Austin Apr. 8, 2010,
no pet.) (discussing requirements of Rule 185).
noted, the trial court entered a post-answer default judgment
against Cervantes. A post-answer default judgment
"occurs when a defendant who has answered fails to
appear for trial." Baska v. McGuire, No.
01-16-00337-CV, 2017 Tex.App. LEXIS 9593, at *11 (Tex.
App.-Houston [1st Dist.] Oct. 12, 2017, no pet.) (mem. op.)
(citing Dolgencorp of Tex., Inc. v. Lerma, 288
S.W.3d 922, 925 (Tex. 2009)). "[A] post-answer default
constitutes neither an abandonment of the defendant's
answer nor an implied confession of any issues thus joined by
the defendant's answer." Id. (citing
Paradigm Oil, Inc. v. Retamco Operating, Inc., 372
S.W.3d 177, 183 (Tex. 2012) (internal quotations omitted)).
Post-answer default judgments "cannot be entered on the
pleadings, but, rather, a plaintiff must offer evidence and
prove his case as in a judgment on trial." Par Tech,
Inc., 135 S.W.3d at 873 (citing Stoner v.
Thompson, 578 S.W.2d 679, 683 (Tex. 1979)).
third issue, Cervantes challenges the sufficiency of the
evidence supporting Travis Tiles's entitlement to default
judgment on its sworn account claim. He argues Travis Tiles
failed to present sufficient evidence during the bench trial.
answer to Travis Tiles's petition contains his written
denial, under oath, as required by rule 185. See
Tex. R. Civ. P. 185. The denial was specific to the sworn
account claim. See United Bus. Mach. v. Entertainment
Mktg., Inc., 792 S.W.2d 262, 263 (Tex. App.-Houston [1st
Dist.] 1990, no writ) ("It is settled that a
defendant's verified denial of the correctness of a
plaintiff's sworn account, in the form required by rule
185, destroys the evidentiary effect of the itemized account
and forces the plaintiff to put on proof of its claim").
Travis Tiles sued Cervantes "individually, dba Pangea
Floor Coverings." Travis Tiles contends, however, that
Cervantes did not sign the verification of his ...