                                                                                             ACCEPTED
                                                                                        01-14-00571-cv
                                                                              FIRST COURT OF APPEALS
                                                                                      HOUSTON, TEXAS
                                                                                   4/17/2015 4:47:11 PM
                                                                                   CHRISTOPHER PRINE
                                                                                                 CLERK

                          CAUSE NO. 01-14-00571-CV

                                                         FILED IN
                                                  1st COURT OF APPEALS
                      IN THE COURT OF APPEALS         HOUSTON, TEXAS
                   FOR THE FIRST JUDICIAL DISTRICT4/17/2015 4:47:11 PM
                           HOUSTON, TEXAS         CHRISTOPHER A. PRINE
                                                          Clerk


                TED KALDIS AKA TED LEFTERIS KALDIS,
                             Appellant,

                                        VS.

                               CREST FINANCE,
                                  Appellee.


               ON APPEAL FROM THE 281 DISTRICT COURT
                      OF HARRIS COUNTY, TEXAS
                  The Honorable Sylvia Matthews, Presiding
                          Cause No. 2012-71189


             APPELLANT’S FIRST MOTION FOR REHEARING


TO THE HONORABLE FIRST COURT OF APPEALS:

      COMES NOW, the Appellant, TED KALDIS, AKA TED LEFTERIS

KALDIS, (hereinafter the “Appellant”), and pursuant to Rule 49 et seq., of the Rules

of Appellate Procedure and submits this his First Motion for Rehearing in the above-

styled and numbered cause, and in support thereof would show the Court the

following:

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                                          I.
                              PROCEDURAL POSTURE

      On or about May 25, 2007, Appellant entered into an agreement with the

Appellee’s predecessor in interest, Wachovia Bank, for a line of credit in the amount

of $50,000.00, (the “Agreement”). (R.R. Vol 2, p. 5-12). The Agreement required

minimum monthly payments be made by Appellant, which Appellant made for a

period of time. (R.R. Vol. 2, p. 7). However, Appellant made his last payment under

the Agreement on or around August 7, 2008. (R.R. Vol. 1, p. 38; R.R. Vol. 2, p. 53).

Accordingly, Appellant defaulted on the Agreement when he failed to pay the next

payment due under the same on or about September 6, 2008.

      On December 3, 2012, Appellee filed suit and asserted a sole cause of action,

non-payment of a debt, the filing of which lawsuit was, ostensibly, more than four (4)

years after Appellant’s default under the Agreement, September 6, 2008. (C.R. Vol.

1, p. 4). Appellee’s Original Petition did not specifically assert a suit on a sworn

account cause of action against the Appellant, nor did it contain the requisite suit on

a sworn account language, the required supporting affidavit, nor, otherwise, contain

a systematic, itemized statement of the goods or services sold, or reveal offsets made

to the account. (C.R. Vol. 1, p. 4-16).        The Court signed a Final Judgment for

Appellee on May 22, 2014. (C.R. Vol. 1, p. 53). Appellant then requested the



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issuance of findings of fact and conclusions of law on June 10, 2014. (C.R. Vol. 1,

p. 54-55). Thereafter, the Court issued its Findings of Fact and Conclusions of Law

on June 16, 2014. (C.R. Vol. 1, p. 56-59). On June 26, 2014, Appellant requested

the issuance of additional findings of fact and conclusions of law. (C.R. Vol. 1, p. 60-

62). Thereafter, the Appellant filed a notice of past due additional findings of fact

and conclusions of law on July 8, 2014. (C.R. Vol. 1, p. 63). Appellant timely filed

his Notice of Appeal on July 3, 2014. (C.R., Vol. 1, p. 67-70). This Court issued its

Judgment and Memorandum Opinion on March 12, 2015.

      The Appellant’s First Motion for Rehearing challenges the basis for this

Court’s opinion of March 12, 2015, and requests that the same be vacated.

                                          II.
                               SUMMARY OF MOTION

      The Appellee did not plead an open account claim, nor did it describe the

Agreement as on open account in its pleadings. The Appellee’s pleadings plainly

state that the only claim brought by the Appellee was for the “nonpayment of debt.”

Accordingly, the Appellee should not prevail in this case on an open account claim,

which it failed to plead.

                                         III.
                            ARGUMENTS AND AUTHORITY

     The Appellee did not plead an open account claim, nor did it describe the

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Agreement as on open account in its pleadings. The only claim brought by the

Appellee was for the nonpayment of debt. (C.R. Vol. 1, p. 4-5). While the claim

could perhaps be read as a Breach of Contract claim, there is no mention of an open

account in Appellee’s petition1 and, therefore, the petition cannot be read to include

a claim on an open account.

       As liberally as the Court would have to construe the Appellee’s Petition in this

case to read it to include a claim for an open account, any breach of contract claim

could be read to include a claim on a sworn account, as any party to breach a contract

calling for their payment of money would still owe money due to be tendered. That

cannot be the case, because the San Antonio Court of Appeals found in Dodeka v.

Campos that, while a breach of contract claim was plead, a claim on open account was

not.

       In its March 12, 2015 Opinion, the Court compares this case to Dodeka, L.L.C.

v. Campos, 377 S.W.3d 726, 730 (Tex. App.–San Antonio 2012, no pet), and LTD

Acquisitions, LLC v. Cook, No . 04-10-00296-CV, 2011 WL 61634 at *2 (Tex.

App.–San Antonio Jan. 5, 2011, no pet.)(mem. op.).However, while the Court appears

to have determined that of the two cases, this case is factually more similar to LTD

Acquisitions, LLC v. Cook, the Appellant respectfully disagrees and would ask the


       1
           C. R. Vol. 1, p. 4-5

                                           4
Court to reconsider its position in that regard, as from Appellant’s perspective, this

case is procedurally identical to Dodeka, L.L.C. v. Campos.

      In Dodeka, L.L.C. v. Campos, Dodeka filed suit against Campos for the

nonpayment of credit card debt. At the time of trial, the only claim against Campos

was for breach of contract. Campos defended Dodeka’s claim with a statute of

limitations. The trial court concluded that Campos’ breach of contract occurred thirty

days after Campos made her last minimum monthly payment when she failed to make

her next minimum monthly payment , and that since Dodeka filed suit more than four

years after that time, its claims was time barred. Accordingly, the trial ruled in favor

of Campos. Dodeka appealed urging the San Antonio Court of Appeals to treat the

action as a suit on open account claim even though there had been no open account

claims included in his trial court pleadings, arguing that the case was tried by consent

as an open account claim. The San Antonio Court of Appeals disagreed and ruled in

favor of Campos on that point of error. Where Campos lost the appeal was that

Campos made periodic payments after its last minimum monthly payment, so the San

Antonio Court of Appeals recalculated the statute of limitations to determine it ran

from Campos’ last payment of any kind.

      The case currently before this Court mirrors Dodeka, L.L.C. v. Campos exactly

with the only exception being that the Appellant’s last payment of any kind to

                                           5
Appellee fell more than four (4) years before Appellee filed suit. Exactly like in

Dodeka, L.L.C. v. Campos, the Appellee/Plaintiff in this case failed to plead an open

account claim prior to trial prior to trial. Admittedly, in LTD Acquisitions, LLC v.

Cook, the San Antonio Court of Appeals considered a post-trial motion to reconsider

sufficient pleadings to allow the trial court to consider the Plaintiff’s claim in that case

as an open account, but the Appellee in this case (Crest Finance) did not file any post-

trial pleadings or motions, i.e., a motion for leave to amend pleadings. A trial brief is

not a pleading, nor should it be allowed to satisfy Appellee’s responsibility to plead

its claims prior to trial, so that the Defendant/Appellant would have some notice as to

the claims he was expected to defend at trial. See TEX. R. CIV. P. 47(a).

       Noteably, in opinion, the San Antonio Court of Appeals cited LTD Acquisitions,

LLC v. Cook, the earlier case out of the San Antonio Court of Appeals that this Court

used to support its opinion in this case. In citing LTD Acquisitions, LLC v. Cook, the

San Antonio Court of Appeals distinguished Dodeka, L.L.C. v. Campos from LTD

Acquisitions, LLC v. Cook by noting that there were no trial court pleadings filed by

Dodeka in which Dodeka asserted an open account claim, whereas in LTD

Acquisitions, LLC v. Cook , the Plaintiff filed a Motion to Reconsider in which it plead

its case as an open account. As was the case in Dodeka, L.L.C. v. Campos , the

Plaintiff in this case, now the Appellee, did not file trial court pleadings pleading its

                                             6
case as an open account.

      In light of Appellee’s lack of pleadings on an open account, the trial court erred

in considering the Appellee’s claims as an open account in calculating the statute of

limitations for the purpose of determining the applicable statute of limitations to

Appellee’s claim. Accordingly, this Court should rule as the San Antonio Court did

in Dodeka, L.L.C. v. Campos, in favor of the party against whom insufficient pleadings

were plead. After all, Appellee had the burden of proof in this case, as well as the

burden of giving the Appellant fair notice of its claims against him, which the

Appellee failed to do in this case.

                                          IV.
                             CONCLUSION AND PRAYER

      Based on the above and foregoing, the Appellant requests that the Court

reconsider its Opinion, vacate the same, and issue a new Opinion in favor of the

Appellant.

      WHEREFORE, PREMISES CONSIDERED, Appellant, TED KALDIS, AKA

TED LEFTERIS KALDIS, requests that this Court grant his First Motion for

Rehearing and upon the same, vacate its March 12, 2015 Judgment, and issue an

opinion, which reverses the trial court’s judgment, and for such other and further relief

to which Appellant is entitled.



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                                              Respectfully submitted,

                                              DABNEY & PAPPAS

                                              By: /s/ Nicole M. Hilburn
                                                Gus E. Pappas
                                                State Bar No. 15454850
                                                Nicole M. Hilburn
                                                State Bar No. 24055663
                                                1776 Yorktown, Suite 425
                                                Houston, Texas 77056
                                                713-621-2678 Telephone
                                                713-621-0074 Facsimile
                                                gus@dabneypappas.com
                                                nicole@dabneypappas.com

                                              ATTORNEYS FOR APPELLANTS


                             CERTIFICATE OF SERVICE

       In accordance with TEX. R. CIV. P. 21a, I, Nicole M. Hilburn, counsel for the
Appellants, do hereby certify that a true and correct copy of the foregoing Appellant’s
First Motion for Rehearing was served on the Appellee, by and through its attorney
of record, Andrew Olivo, 1622 E. Beltline Rd, Suite 100, Carrollton, Texas 75006, via
facsimile, on this the 17th day of April, 2015.

                                           /s/ Nicole M. Hilburn
                                           Nicole M. Hilburn




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           CERTIFICATE OF COMPLIANCE WITH T EX. R. A P P. P. 9.4

1.    This brief complies with the type-volume limitation of Tex. R. App. P.
      9.4(i)(2)(D), because this Motion for Rehearing contains 1,428 words.

2.    This brief complies with the requirements of Tex. R. App. P. 9.4 and the type
      style requirements of Tex. R. App. P. 9.4(e), because this Motion for Rehearing
      has been prepared in proportionally space typeface using WordPerfect 12 in 14
      point font size in Times New Roman typeface.

Dated: April 17, 2015

                                         /s/ Nicole M. Hilburn
                                         Nicole M. Hilburn




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