Opinion
NO. 14-18-01104-CV
08-25-2020
SALEEM SYED, Appellant v. WEATHERSHIELD SOLUTIONS, LLC, Appellee
On Appeal from the County Civil Court at Law No. 2 Harris County, Texas
Trial Court Cause No. 1115880
MEMORANDUM OPINION
Saleem Syed appeals from the trial court's grant of traditional summary judgment favoring Weathershield Solutions, LLC. Weathershield sued Syed alleging breach of contract and suit on a sworn account. In its judgment, the trial court awarded Weathershield $13,321.69 in damages and $4,500 in attorney's fees. In three issues, Syed contends that the trial court erred in granting summary judgment because (1) he presented evidence raising material issues of fact, (2) an inadequate time had passed for discovery, and (3) the evidence was legally and factually insufficient to support the judgment. We affirm.
Background
Weathershield filed its original petition on August 21, 2018, alleging it sold and provided Syed with the goods and services described in an account statement attached to the petition. The account statement shows labor and materials for a reroofing job, with a total charge of $13,321.69, which Weathershield states in the petition was the agreed upon price. Weathershield further asserted that Syed had promised to pay the account but despite several requests had failed and refused to do so. Weathershield additionally stated that it was entitled to recover attorney's fees of $4,500 and prejudgment interest.
Attached to the petition was an affidavit from Rodrigo Rios-Pinto, who averred that he was a Weathershield manager, was competent and qualified to make the affidavit, and had personal knowledge of all matters stated therein. He further stated that the account statement attached to the petition was a true and correct copy of a statement for Syed's account that was made in the regular course of business by a Weathershield employee and kept by Weathershield in the regular course of business. He again stated that Syed had failed and refused to pay the outstanding amount on the account and that the amount remained "due and owing after all just and lawful payments, credits and offsets have been allowed."
Syed was served with the petition on September 19, 2018, and he filed an answer—an unverified general denial—on October 15, 2018. Weathershield filed and served its traditional motion for summary judgment on October 24, 2018. In the motion, Weathershield first reiterated the basis of its suit and then asserted that there were no questions of fact concerning its right to payment from Syed and that Syed had failed to file a verified denial in response to Weathershield's suit on a sworn account as required by Texas Rule of Civil Procedure 185. An affidavit by Rios-Pinto similar to the one attached to the petition was attached to the motion along with another copy of the account statement and a written contract signed by Syed. An affidavit from Weathershield's attorney was also attached to the motion, stating that reasonable attorney's fees in the case amounted to $4,500.
In his response to the motion for summary judgment, Syed stated that a genuine issue of material fact existed, thus precluding summary judgment. Although Syed did not make a specific argument in this regard, he did cite to an attached affidavit and documentary evidence. Syed additionally asserted in the response that Weathershield filed its motion prematurely and "failed to allow an adequate amount of time to complete discovery." Syed, however, did not request a continuance in the response or otherwise or state what discovery still needed to be done.
In his affidavit attached to the response, Syed stated that while he did not deny that he owed Weathershield for work performed on his home, the amount owed "cannot be determined due to conflicting documents generated by [Weathershield]." He further insisted that Weathershield "made promises . . . before and during the time in question that may give rise to a counter-claim, once discovery has been completed" and the parties had entered an oral agreement that superseded the earlier written contracts. Syed also attached to his response a copy of an account statement from Weathershield showing the same amount due, $13,321.69, but with itemized pricing for each component part of the reroofing job, including a "Discount for Yard Sign" of $2,423.69. The statement Weathershield attached to its petition and motion listed the steps involved in the job and a total price but did not break the amount down by each step. It also did not list the discount.
A hearing on the motion for summary judgment was set for November 30, 2018. The trial court signed the summary judgment on December 3, 2018, awarding damages and attorney's fees as requested in the petition.
In his appellate briefing, Syed explains that he had an oral agreement with Weathershield under which he was to receive discounts off the price if he posted a Weathershield sign in his yard and if he referred neighbors to Weathershield. Syed states that he did both things, but he questions whether he received the correct discounts. When he asked about the discounts after receiving his account statement, he says that Weathershield provided him with the itemized statement showing the yard sign discount. We will begin by addressing Syed's first and third issues, which challenge the evidentiary support for the summary judgment, and then will turn to his second issue, which asserts the trial court prematurely granted summary judgment without allowing an adequate time for discovery.
Summary Judgment
We review a trial court's grant of summary judgment under a de novo standard. Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex. 2009) (per curiam). In a traditional motion for summary judgment, the movant bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We take as true all evidence favorable to the nonmovant, indulging every reasonable inference and resolving any doubts in the nonmovant's favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The nonmovant has no burden to respond to a traditional motion for summary judgment unless the movant conclusively establishes each element of its cause of action or defense as a matter of law. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex. 1999).
We begin our analysis by noting that a suit on a sworn account is not an independent cause of action but is an expedited method for proving a certain type of breach of contract claim. See Rizk v. Fin. Guardian Ins. Agency, Inc., 584 S.W.2d 860, 862 (Tex. 1979); S. Mgmt. Servs., Inc. v. SM Energy Co., 398 S.W.3d 350, 353 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Under Texas Rule of Civil Procedure 185, when a claim is based on an open account for goods or services in which a systematic record has been kept, an account statement shall be taken as prima facie evidence of the claim if it is supported by affidavit. Tex. R. Civ. P. 185; S. Mgmt. Servs., 398 S.W.3d at 354. The affidavit must specifically state that the "claim is, within the knowledge of [the] affiant, just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed." Tex. R. Civ. P. 185; S. Mgmt. Servs., 398 S.W.3d at 354. When prima facie evidence of the claim is established, the movant is entitled to summary disposition of the case. S. Mgmt. Servs., 398 S.W.3d at 354. However, Rule 185 further provides that the party resisting the claim may counter the evidentiary effect of the account statement by filing a written denial under oath. Tex. R. Civ. P. 185; S. Mgmt. Servs., 398 S.W.3d at 354. In such cases, a sworn denial forces the movant to put on proof of the claim. See Rizk, 584 S.W.2d at 862; S. Mgmt. Servs., 398 S.W.3d at 354. A party who does not file a sworn denial may not dispute either the receipt of the items or services or the correctness of the stated charges. See Rizk, 584 S.W.2d at 862; S. Mgmt. Servs., 398 S.W.3d at 354.
In his first and third issues, Syed asserts the trial court erred in granting summary judgment favoring Weathershield because Weathershield's evidence was deficient and Syed's evidence raised material issues of fact. Specifically, Syed asserts that Rios-Pinto's affidavit was conclusory and deficient because it provided no explanation regarding how the amount due was calculated and the account statement was similarly deficient because it did not provide itemized pricing. Syed further contends that the account statement he attached to his response to the motion creates a conflict in the evidence because—although it shows the same total amount due—it shows a discount applied for Syed putting a Weathershield sign in his yard, whereas the account statement Weathershield provided did not show that discount.
Weathershield's original petition and attached affidavit and account statement were sufficient to state and support a suit on a sworn account claim. The affidavit and account statement demonstrate that the account was for the provision of goods and services, a systematic record was kept, the claim was just and true and due, and all just and lawful offsets, payments, and credits had been allowed. See Tex. R. Civ. P. 185; S. Mgmt. Servs., 398 S.W.3d at 354-55. The fact that the account statement did not break down the pricing for the component parts of the reroofing job is irrelevant under the circumstances. Rule 185 provides that "[n]o 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; see also S. Mgmt. Servs., 398 S.W.3d at 355. Syed did not file special exceptions in this case.
A plaintiff who complies with the requirements of Rule 185 is entitled to judgment as a matter of law unless the defendant files a verified denial. See Tex.R. Civ. P. 185; S. Mgmt. Servs., 398 S.W.3d at 356; Tandan v. Affordable Power, L.P., 377 S.W.3d 889, 894 (Tex. App.—Houston [14th Dist.] 2012, no pet.); see also Nguyen v. Short, How, Frels & Heitz, P.C., 108 S.W.3d 558, 562 (Tex. App.—Dallas 2003, pet. denied) ("In other words, a defendant's noncompliance with rule 185 conclusively establishes that there is no defense to the suit on the sworn account."). Syed did not file a verified denial in this case. Syed's original answer, a general denial, was unverified. Syed did not file an amended answer, even after the motion for summary judgment pointed out his failure to file a verified denial. Although Syed filed an affidavit in response to the motion for summary judgment, a sworn denial or affidavit in response to a motion for summary judgment does not satisfy the requirements of Rule 185. Bavishi v. Sterling Air Conditioning, Inc., No. 01-10-00610-CV, 2011 WL 3525417, at *6 (Tex. App.—Houston [1st Dist.] Aug. 11, 2011, no pet.) (mem. op.); Rush v. Montgomery Ward, 757 S.W.2d 521, 523 (Tex. App.—Houston [14th Dist.] 1988, writ denied).
Syed cites Horizon 2003, LLC v. JKC & Associates, No. 14-08-00691-CV, 2011 WL 1744192 (Tex. App.—Houston [14th Dist.] May 5, 2011, no pet.) (mem. op.), to support his contention that Weathershield provided incompetent support for its suit on a sworn account. Horizon 2003, however, is readily distinguishable. To begin with, both defendants in that case filed verified denials. Id. at *2. Moreover, we held that the plaintiff's summary judgment evidence was deficient in Horizon 2003 because the plaintiff failed to provide any competent testimony that the accounts in question were just or that all credits had been applied. Id. In the present case, we need not address the sufficiency of Weathershield's summary judgment evidence because Syed did not file a verified denial. See S. Mgmt. Servs., 398 S.W.3d at 356; Tandan, 377 S.W.3d at 894; Nguyen, 108 S.W.3d at 562.
Because Weathershield established entitlement to recover on a suit on a sworn account, we overrule Syed's first and third issues.
Adequate Time for Discovery
In his second issue, Syed contends that the trial court erred in granting summary judgment before an adequate time had passed for discovery. Under Rule 166a(a), a party seeking to recover on a claim may move for summary judgment at any time after the adverse party has appeared or answered. Tex. R. Civ. P. 166a(a). Except with leave of court, a motion for summary judgment and any supporting affidavits must be on file and served at least twenty-one days before the time specified for a hearing. Tex. R. Civ. P. 166a(c). A trial court may order a continuance of a summary-judgment hearing "to permit affidavits to be obtained or depositions to be taken or discovery to be had." Tex. R. Civ. P. 166a(g). When a party contends that it has not had an adequate opportunity for discovery before a summary judgment hearing, the party must file either an affidavit explaining the need for further discovery or a verified motion for continuance. Tenneco Inc. v. Enter. Prod. Co., 925 S.W.2d 640, 647 (Tex. 1996); Muller v. Stewart Title Guar. Co., 525 S.W.3d 859, 866 (Tex. App.—Houston [14th Dist.] 2017, no pet.); Nguyen, 108 S.W.3d at 561-62. The decision of whether to grant a continuance is committed to the trial court's sound discretion. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004).
Syed did not file a motion for continuance in this case, verified or not, but he did file an affidavit attached to his response to the motion for summary judgment. In his affidavit, Syed asserted that the amount he owed Weathershield could not "be determined due to conflicting documents generated by [Weathershield]," Weathershield "made promises . . . that may give rise to a counter-claim, once discovery has been completed," and the parties had entered an oral agreement that superseded earlier written contracts. At no point in the affidavit did Syed request a continuance of the summary judgment hearing. In the unverified response to the motion for summary judgment, he asserted Weathershield had filed its motion prematurely and "failed to allow an adequate amount of time to complete discovery." Syed did not, however, request a continuance or state what discovery still needed to be done and why.
Even read generously, Syed's response and affidavit were not sufficient to constitute a request for a continuance. As stated, these documents did not, in fact, request that the trial court grant a continuance of the hearing, describe in particular the evidence Syed wished to discover, or state the diligence with which he had sought discovery up to that point. See, e.g., Emanuel v. Citibank (S. Dakota), N.A., No. 01-10-00768-CV, 2011 WL 5429042, at *2 (Tex. App.—Houston [1st Dist.] Nov. 10, 2011, no pet.) (mem. op.) ("The affidavit or motion must describe the evidence sought, state with particularity the diligence used to obtain the evidence, and explain why the continuance is necessary."). Moreover, even if Syed's affidavit and response were sufficient, there is no indication in the record that Syed received a ruling regarding a continuance or objected to the court's failure to rule; thus, he has preserved nothing for review. See Hood v. Hanna & Hanna Inc., No. 14-18-00557-CV, 2020 WL 1951636, at *2 (Tex. App.—Houston [14th Dist.] Apr. 23, 2020, no pet.) (mem. op.) (citing Muller v. Stewart Title Guar. Co., 525 S.W.3d 859, 867 n.7 (Tex. App.—Houston [14th Dist.] 2017, no pet.)); Jackson v. FedEx Ground Package Sys., Inc., No. 2-07-246-CV, 2008 WL 1867931, at *2 (Tex. App.—Fort Worth Apr. 24, 2008, no pet.) (mem. op.). Accordingly, we overrule Syed's second issue.
Conclusion
Having overruled each of Syed's issues, we affirm the trial court's judgment.
/s/ Frances Bourliot
Justice Panel consists of Justices Christopher, Bourliot, and Hassan.