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Cervantes v. Travis Tiles Sales, Inc.

Court of Appeals of Texas, Seventh District, Amarillo

January 24, 2018


         On Appeal from the County Court at Law No. 1 Travis County, Texas Trial Court No. C-1-CV-15-000813, Honorable Eric Shepperd, Presiding

          Before CAMPBELL and PIRTLE and PARKER, JJ.


          James T. Campbell, Justice

         Appellant 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.[1] We will reverse the judgment of the trial court and remand the cause for further proceedings.


         Travis 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 balance.

         Travis 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.


         On 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).

         To 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)).

         Travis 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).

         As 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)).

         In his 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. We agree.

         Cervantes's 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 ...

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