Reverse and Render and Opinion Filed July 11, 2013




                                                   S    In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas
                                   ────────────────────────────
                                          No. 05-10-01349-CV
                                   ────────────────────────────

                                            HARRIS, N.A., Appellant
                                                           V.

                                       EUGENIO OBREGON, Appellee

     ═════════════════════════════════════════════════════════════
                  On Appeal from the County Court at Law No. 1
                              Dallas County, Texas
                      Trial Court Cause No. CC-07-10765-A
     ═════════════════════════════════════════════════════════════

                                    MEMORANDUM OPINION

                                 Before Justices Bridges, Francis, and Richter1
                                          Opinion by Justice Bridges

           Appellant Harris, N.A. appeals from the trial court’s order dismissing its case for want of

prosecution. In two issues, Harris alleges the trial court erred in: (1) failing to enter a default

judgment in its favor and refusing to set its May 10, 2010 motion for default judgment for hearing

and (2) dismissing the case for want of prosecution. We reverse and remand this case to the trial

court with instructions to render judgment in favor of Harris on its claims for damages, attorney’s

fees, and to determine pre- and post-judgment interest.

                                                    Background
1
    The Honorable Martin E. Richter, Retired Justice, sitting by assignment.
       This case was previously before us in 2009. See Harris N.A. v. Eugenio Obregon, No.

05-07-01647-CV, 2009 WL 4263815 (Tex. App.—Dallas Dec. 1, 2009, no pet.) (“Harris ‘09”).

In that case, the trial court had also dismissed the case for want of prosecution. On appeal, Harris

complained of the trial court’s failure to render default judgment in its favor or set its motion for

hearing. In our Harris ‘09 opinion, we concluded the trial court did not err in refusing to render

default judgment in favor of Harris because its case was not adequately pleaded. See id. at *2.

We also declined to address the trial court’s failure to conduct a hearing due to the lack of

authorities cited by Harris. See id. We did, however, address its first and third issues in which

Harris complained the trial court erred by dismissing its case for want of prosecution. Because

the trial court did not give appellant adequate notice of the court’s intent to dismiss the case, we

reversed and remanded the cause to the trial court. See id. at *3.

       Within three days of this Court’s February 22, 2010 issuance of mandate in Harris ‘09, the

trial court forwarded a letter to appellant’s counsel setting the case for dismissal hearing on June

25, 2010. The letter stated as follows:

       If no answer has been filed, or if the answer filed is insufficient as a matter of law to
       place any of the facts alleged in your petition in issue, you will be expected to have
       moved for, and to have heard, a summary judgment or to have proved up a default
       judgment on or prior to that date. Your failure to have done so will result in the
       dismissal of the case on or after the above date.

The letter further explained that “[i]n no event will live witnesses be required unless the default

prove-up is for an un-liquidated claim. Liquidated claims and attorney’s fees may be proved up

by affidavit with a form of judgment.”

       Appellant filed its first amended petition on April 29, 2010. The amended petition alleged

that Obregon entered into a retail installment contract and security agreement (“Contract”) with

Rodeo Ford to buy a motor vehicle from Rodeo Ford. In Harris ‘09, this Court determined that,




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although the Contract reflected the contracting parties were Obregon and Rodeo Ford, Harris

failed to allege in its original petition that it loaned the purchase money to Obregon or that Rodeo

Ford assigned the debt to Harris. See Harris, 2009 WL 4263815 at *3.

         The first amended petition cured the defect we mentioned in Harris ‘09. The first

amended petition alleged that “Rodeo Ford, for valuable consideration, assigned the Contract to

[Harris].” Therefore, the first amended petition established Harris is the possessor of the contract

and the obligations of Obregon as set forth therein. The Contract and an affidavit of account,

dated April 20, 2010, were also attached to the amended petition. The affidavit stated a total

balance of $7,287.68 was due and payable by Obregon to Harris, and that demand for payment was

made more than thirty days ago. Further, the affidavit stated that all just and lawful offsets,

payments, and credits to Obregon’s account had been allowed. The certificate of service for the

amended petition stated it was served upon Obregon in compliance with Texas Rule of Civil

Procedure 21a. Obregon did not file an answer.

         On May 10, 2010, Harris filed its motion for default judgment.2 In support of its motion,

appellant attached the following: (1) the transmittal letter to the clerk of the trial court, filing first

amended petition; (2) the United States Postal Service green card, showing receipt of the first

amended petition by Obregon; (3) a copy of the first amended petition; (4) the affidavit of account,

attached to the amended petition; (5) a copy of the contract at issue, attached to the petition; (6) a

certificate of last known mailing address for Obregon; (7) a non-military affidavit; and (8) the

affidavit of Alan B. Padfield in support of attorney’s fees. Padfield’s affidavit states, in pursuing

this claim against Obregon, he has “incurred reasonable and necessary attorney’s fees in the


2
  During the hearing on its motion to reinstate, counsel for Harris acknowledged that the title of the motion did not
reflect that it was actually an “amended” motion for default judgment.




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amount of $7,000.00” and elaborates upon the work he has done in this case.

       On May 14, 2010, Harris forwarded to the trial court a copy of this Court’s judgment and

opinion issued in Harris ‘09. The letter asked the clerk of the trial court to “[p]lease present to the

Judge for consideration of the Motion for Entry of Default Judgment.”

       On June 15, 2010, Harris filed its motion to retain the case on the court’s docket. In its

motion, Harris noted the case was still set for a dismissal hearing on June 25, 2010 as stated in the

trial court’s February 25 letter. The motion to retain reiterated that no answer had been filed by

Obregon and that Harris filed and moved for default judgment against Obregon. Harris also

stated it had requested a hearing from the trial court on its motion for default judgment. Further,

in the motion to retain, Harris indicated its requests for hearing on the motion for default judgment

had been refused by the court coordinator since the trial court did not set such motions unless the

trial court deemed it necessary. Harris noted its motion for default judgment had not yet been

ruled upon and that the deadline for the trial court’s dismissal hearing was quickly approaching.

Thus, Harris asked the trial court to set its motion to retain for hearing and grant such motion,

allowing time to have the motion for default granted.

       On June 16, 2010, counsel for Harris sent a letter to the clerk of the court, outlining its

understanding of the status of the case on the trial court’s docket as follows:

       This Notice of Hearing [on Harris’s motion to retain] was provided to [Harris] on
       June 15, 2010 and at that time, [Harris] was notified by the Clerk of Court at Law
       Number One, Dallas County, Texas, that the dismissal hearing in this case, set for
       June 25, 2010, would be removed as a result of the filing of Plaintiff’s Motion to
       Retain and the setting of hearing on same. Therefore, Plaintiff understands that
       the dismissal hearing scheduled for June 25, 2010 at 9:00 a.m. in Dallas County
       Court at Law Number One is moot and will be removed as a result of the July 16,
       2010 hearing on Plaintiff=s Motion to Retain.

       Next, the record includes a letter from Harris’s counsel to the trial court clerk, dated July 7,




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2010. In that letter, counsel stated that the court coordinator for the trial court notified counsel

that Harris’s motion for default judgment was denied because Harris had filed a motion to retain.

Although counsel respectfully disagreed with the trial court’s decision to deny its motion for

default judgment, counsel requested that the trial court sign an order reflecting its decision to deny

the motion.

       Instead, on July 26, 2010, the trial court signed an order of dismissal for the following

reasons: (1) failure to take action after notice of intent to dismiss for want of prosecution (in

accordance with rule 165a letter) and (2) dismiss for want of prosecution.

       On July 27, 2010, counsel for Harris delivered a letter to the trial judge. In that letter,

Harris’s counsel outlined the history of the case and requested the trial court to set its motion to

retain for hearing. The record does not include an order on the motion to retain.

       On August 24, 2010, Harris filed its motion to reinstate and request for oral hearing. The

hearing on the motion to reinstate was held on September 7, 2010. During the course of the

hearing, the trial court asked trial counsel for Harris whether an amended motion for default

judgment had been filed. The trial court ended the hearing by taking the motion to reinstate under

advisement, but the record does not include an order on the motion. This appeal ensued from the

trial court’s failure to enter a default judgment and its subsequent dismissal of appellant’s case.

                                              Analysis

       In its first issue, Harris argues the trial court erred in failing to enter a default judgment in

its favor and in refusing to set its May 10, 2010 motion for default judgment for hearing to allow

for prove-up of liquidated damages under rule 243 of the Texas Rules of Civil Procedure. We

review the denial of a default judgment for abuse of discretion. Aguilar v. Livingston, 154

S.W.3d 832, 833 (Tex. App.—Houston [14th Dist.] 2005, no pet.). “With respect to factual




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matters, a trial court abuses its discretion if, under the record, it reasonably could have reached

only one decision and it failed to do so. However, because a trial court has no discretion in

determining what the law is or applying the law to the facts, a clear failure by the trial court to

analyze or apply the law correctly will constitute an abuse of discretion.” Moroch v. Collins, 174

S.W.3d 849, 864-65 (Tex. App.—Dallas 2005, pet. denied) (citations omitted). “Another way of

stating the test is whether the act was arbitrary or unreasonable.” Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985).

       A plaintiff may seek a default judgment if the time has passed for the defendant to answer,

the defendant has not answered, and the citation with the officer’s return has been on file with the

clerk for ten days. See TEX. R. CIV. P. 107, 239. In a no-answer default judgment, the failure to

file an answer operates as an admission of the material facts alleged in the petition, except as to

unliquidated damages. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992). A

claim for damages is liquidated if the amount of damages can accurately be calculated by the court

from the factual, as opposed to the conclusory allegations in the petition and written instruments.

Aavid Thermal Tech. v. Irving Sch. Dist., 68 S.W.3d 707, 711 (Tex. App.—Dallas 2001, no pet.);

see also Novosad v. Cunningham, 38 S.W.3d 767, 773 (Tex. App.—Houston [14th Dist.] 2001, no

pet.) (suit to recover amount due for professional services was liquidated claim proved by written

instruments where plaintiff attached original instruments to verified petition and motion for

default judgment). When damages are unliquidated, the judge must “hear” evidence on the

damages. See Argyle Mech., Inc. v. Unigus Steel, Inc., 156 S.W.3d 685, 687 (Tex. App.—Dallas

2005, no pet.); see also TEX. R. CIV. P. 243. In contrast, “if the claim is liquidated and proved by

an instrument in writing, the damages shall be assessed by the court, or under its direction, and

final judgment shall be rendered therefor. . . .” TEX. R. CIV. P. 241; see Mantis v. Resz, 5 S.W.3d




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388, 392 (Tex. App.—Fort Worth 1999, pet. denied) (in suit on sworn account, petition with

attached sworn account and verified affidavit of sworn account was liquidated claim proved by

written instruments), overruled in part on other grounds by Sheldon v. Emergency Med.

Consulting, I, P.A., 43 S.W.3d 701, 701-02 n.2 (Tex. App.—Fort Worth 2001, no pet.).

       Here, the pleadings provide the requisite factual allegations to prove Harris’s claim for suit

on sworn account. 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.). Suits on sworn accounts are governed by Texas Rule of Civil Procedure

185. See TEX. R. CIV. P. 185. “Rule 185 is not a rule of substantive law. Rather it is a rule of

procedure regarding the evidence necessary to establish a prima facie right of recovery.” Panditi

v. Apostle, 180 S.W.3d 924, 926 (Tex. App.—Dallas 2006, no pet.). Rule 185 defines an open

account to include any claim for a liquidated money demand based upon written contract or

founded on business dealings between the parties. See TEX. R. CIV. P. 185. Under rule 185, a

plaintiff’s petition on a sworn account must contain a systematic, itemized statement of the goods

or services sold, reveal offsets made to the account, and be supported by an affidavit stating the

claim is within the affiant’s knowledge, and that it is “just and true.” Id.; see Panditi, 180 S.W.3d

at 926. If a party resisting such claim does not timely file a written denial, under oath, he shall not

be permitted to deny the claim, or any item therein. TEX. R. CIV. P. 185. In other words, a

defendant’s noncompliance with rule 185 conclusively establishes that there is no defense to the

suit on the sworn account. See Enernational Corp. v. Exploitation Eng’rs, Inc., 705 S.W.2d 749,

750 (Tex. App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.).

       Recovery under suit on sworn account requires proof of (1) the sale and delivery of




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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.

See Powers v. Adams, 2 S.W.3d 496, 499 (Tex. App.—Houston [14th Dist.] 1999, no pet.).

         The first amended petition alleges that, in exchange for a motor vehicle, Obregon entered

into the Contract with Rodeo Ford. The petition further alleges Rodeo Ford assigned the Contract

to Harris for valuable consideration and that Harris is the holder in due course of the Contract. The

petition continues that Harris has accelerated the maturity of the Contract in accordance with its

terms and the unpaid balance owed on Obregon’s account is $7,287.68. In accordance with the

trial court’s February 25, 2010 order, the Contract, an affidavit of account, and an attorney=s fee

affidavit are attached to the amended petition. The affidavit of account stated that all just and

lawful offsets, payments, and credits to Obregon’s account had been allowed. Finally, the first

amended petition states numerous demands for payment have been made on Obregon, but he has

failed and refused to pay. Because the requisite factual allegations are included in the first

amended petition, we conclude Harris met the requirements for asserting a suit on sworn account

under rule 185. See TEX. R. CIV. P. 185; Panditi, 180 S.W.3d at 926. When Obregon failed to

answer Harris’ suit on sworn account, the trial court erred in refusing to grant a default judgment to

Harris in this case. See Moroch v. Collins, 174 S.W.3d 849, 864-65; TEX. R. CIV. P. 239. We

sustain appellant=s first issue.3

         In its second issue, Harris contends the trial court erred in dismissing its case for want of

prosecution. We review a dismissal for want of prosecution for abuse of discretion. Crown

3
  In his first issue, Harris also complains about the trial court’s refusal to grant a hearing on its motion for default
judgment. However, because the first amended petition presented a claim for liquidated damages and attached the
requisite proof, no hearing on the motion for default judgment is necessary. See Aavid, 68 S.W.3d at 711.




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Asset Mgmt., L.L.C. v. Loring, 294 S.W.3d 841, 844 (Tex. App.—Dallas 2009, pet. denied) (en

banc). Harris argues the trial court abused its discretion by dismissing its case in spite of its

diligence in pursuing the case and without giving Harris an opportunity to be heard. The supreme

court has held that “a party must be provided with notice and an opportunity to be heard before a

court may dismiss a case for want of prosecution under either Rule 165a or its inherent authority.”

Villareal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999).

       As to whether Harris was denied an opportunity to be heard, the record indicates the trial

court dismissed Harris’s case for want of prosecution on July 26, 2010, without providing Harris

notice or an opportunity to be heard.        However, Harris ultimately received notice and an

opportunity to be heard in connection with its motion to reinstate; therefore, Harris was not harmed

by the lack of notice and a hearing on the motion to dismiss. Polk v. S.W. Crossing Homeowner’s

Ass’n, 165 S.W.3d 89, 95 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).

       As to Harris’s due diligence, the record provides evidence of Harris’s due diligence in

attempting to prosecute its case. See Villareal, 994 S.W.2d at 630 (the common law vests the trial

court with the inherent power to dismiss independently of the rules of procedure when a plaintiff

fails to prosecute its case with due diligence). As directed by the trial court’s February 25, 2010

order, Harris filed its first amended petition on April 29, 2010 and corrected the defect this Court

had found in Harris ‘09. Harris further complied with the trial court’s February 25 order by

proving up its liquidated claims and attorney’s fees by affidavit. When Obregon failed to answer,

Harris filed its motion for default judgment. As discussed above, the record demonstrates Harris

then filed multiple motions and letters in an attempt to prosecute its case. At the hearing on

Harris’s motion to reinstate, however, the trial court stated that it did not “have an obligation to go

searching through the file to find an amended petition.” However, a search of the court’s file




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would be unnecessary since the petition is labeled “amended.” Second, the May 10, 2010 motion

for default judgment is the only motion for default judgment filed upon remand. In light of

Harris’s diligence in prosecuting its case, we conclude the trial court erred in dismissing Harris’s

case for want of prosecution. See Villareal, 994 S.W.2d at 630. We sustain appellant’s second

issue.

         Having sustained appellant=s two issues, we reverse the decision of the trial court and

remand this case to the trial court to render judgment in Harris’s favor for $7,287.68 in damages

and $7,000.00 in attorney’s fees, and, in addition, to determine pre- and postjudgment interest.

See Oliphant Financial, L.L.C. v. Galaviz, 299 S.W.3d 829, 840 (Tex. App.—Dallas 2009, no pet.)

(citing TEX. R. APP. P. 43.2(c), (d) (court of appeals may reverse the trial court’s judgment and

render judgment in whole or in part, or may reverse the trial court’s judgment and remand the

cause for further proceedings)).




                                                    /David L. Bridges/
101349F.P05                                         DAVID L. BRIDGES
                                                    JUSTICE




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                                      S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

HARRIS N.A., Appellant                            On Appeal from the County Court at Law No.
                                                  1, Dallas County, Texas
No. 05-10-01349-CV           V.                   Trial Court Cause No. CC-07-10765-A.
                                                  Opinion delivered by Justice Bridges.
EUGENIO OBREGON, Appellee                         Justices Francis and Richter participating.

    In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and judgment is RENDERED that:
    the trial court is ORDERED to render judgment in favor of Harris N.A. for
    $7,287.68 in damages and $7,000 in attorney's fees and determine pre- and
    post-judgment interest..
    It is ORDERED that appellant HARRIS N.A. recover its costs of this appeal from appellee
EUGENIO OBREGON.


Judgment entered July 12, 2013




                                                /David L. Bridges/
                                                DAVID L. BRIDGES
                                                JUSTICE




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