Affirmed, Request for Rule 45 Damages Denied, and Opinion filed July 30,
2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-13-01000-CV

         LORI BECKER-WHITE AND CAROL GOULD, Appellants

                                         V.

                        C. GREG GOODRUM, Appellee

             On Appeal from the County Civil Court at Law No. 2
                           Harris County, Texas
                      Trial Court Cause No. 1028280


                                OPINION
      On appeal from a judgment in favor of the plaintiff following a bench trial,
the defendants assert that (1) the plaintiff’s sworn-account affidavit did not satisfy
the requirements of Texas Rule of Civil Procedure 185; (2) the trial court
erroneously prevented the defendants from presenting various types of evidence at
trial; and (3) the trial court erroneously prevented the defendants from pursuing
their third-party claims. The appellee/plaintiff asserts that this court should award
him damages under Texas Rule of Appellate Procedure 45. We affirm the trial
court’s judgment and deny the request for Rule 45 damages.

                I.     FACTUAL AND PROCEDURAL BACKGROUND

      Appellee/plaintiff C. Greg Goodrum is a Texas attorney who filed this suit
against appellants/defendants Lori Becker-White and Carol Gould (hereinafter the
“Gould Parties”) seeking to recover unpaid attorney’s fees that the Gould Parties
allegedly owed Goodrum based on Goodrum’s representation of Becker-White in
two lawsuits. Goodrum asserted various claims and sought to utilize the sworn-
account procedure under Texas Rule of Civil Procedure 185.

      The Gould Parties did not file a sworn denial of the account, nor did they
respond to Goodrum’s requests for disclosure. The Gould Parties asserted various
counterclaims against Goodrum, and they also filed third-party claims against
Goodrum’s wife.

      Following a bench trial, the trial court rendered a final judgment in
Goodrum’s favor for $16,084.82, the amount of the unpaid account, attorney’s
fees, and postjudgment interest. The trial court also rendered judgment that the
Gould Parties take nothing by their counterclaims.

                                  II.    ANALYSIS

   A. Did Goodrum’s sworn-account affidavit satisfy the requirements of
      Texas Rule of Civil Procedure 185?
      In their first issue, the Gould Parties assert the trial court erred in rendering
judgment in Goodrum’s favor because Goodrum’s sworn-account affidavit did not
satisfy the requirements of Texas Rule of Civil Procedure 185. A plaintiff who
strictly adheres to the requirements of the Rule 185 procedure is entitled to


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judgment as a matter of law if the defendant fails to file a sworn denial of the
account. See Southern Management Services, Inc. v. SM Energy Co., 398 S.W.3d
350, 356 (Tex. App.—Houston [14th Dist.] 2013, no pet.); PennWell Corp. v. Ken
Associates, Inc., 123 S.W.3d 756, 765–66 (Tex. App.—Houston [14th Dist.] 2003,
pet. denied). Rule 185 provides in pertinent part as follows:

          When any action . . . is founded upon an open account or other claim .
          . . including any claim for a liquidated money demand based upon
          written contract or founded on business dealings between the parties,
          or is for personal service rendered, or labor done or labor . . .
          furnished, on which a systematic record has been kept, and is
          supported by the affidavit of the party, his agent or attorney taken
          before some officer authorized to administer oaths, to the effect that
          such claim is, within the knowledge of affiant, just and true, that it is
          due, and that all just and lawful offsets, payments and credits have
          been allowed, the same shall be taken as prima facie evidence thereof,
          unless the party resisting such claim shall file a written denial, under
          oath.
Tex. R. Civ. P. 185. If a party resisting such a sworn claim does not timely file a
written denial, under oath, that party shall not be permitted to deny the claim, or
any item therein, as the case may be. Id. No 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.1 Id.

          Goodrum invoked the Rule 185 procedure in his original petition and
attached to that petition his affidavit, taken before an officer authorized to
administer oaths, to the effect that Goodrum’s claim for $16,084.82 is, within his



1
    In the case under review, the trial court did not sustain any special exceptions to the pleadings.


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personal knowledge, just and true, that it is due, and that all just and lawful offsets,
payments and credits have been allowed. Goodrum swore that all facts stated in
the petition were true and correct, and in the petition Goodrum stated that the
verified account was the record of business dealings between Goodrum and the
Gould Parties. Goodrum included in the affidavit an itemized statement of the
account, including deductions for more than $25,000 in payments.

      The Gould Parties complain on appeal that Goodrum failed to include more
than $20,000 in payments they claim to have made. But, an unsworn allegation by
the Gould Parties that they made additional payments not reflected in Goodrum’s
affidavit does not mean that Goodrum failed to comply with Rule 185’s
requirements. We conclude that Goodrum strictly adhered to these requirements.
See Southern Management Services, Inc., 398 S.W.3d at 357; PennWell Corp., 123
S.W.3d at 765–66. Accordingly, we overrule the Gould Parties’ first issue.

   B. May this court sustain the second, third, or fourth issue without an offer
      of proof?
      Under their second issue, the Gould Parties assert that, even if Goodrum
complied with Rule 185’s requirements, the Gould Parties’ failure to file a sworn
denial of the account would not preclude them from proceeding on their
affirmative defenses and counterclaims. Thus, the Gould Parties assert, the trial
court erroneously prevented them from presenting evidence at trial regarding their
affirmative defenses and counterclaims. Under their third and fourth issues, the
Gould Parties assert the trial court abused its discretion when, based on their
failure to respond to Goodrum’s requests for disclosure, the trial court prevented
the Gould Parties from presenting any evidence at trial, including testimony from
named parties.

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      At trial, the only witnesses the Gould Parties sought to call were (1)
defendant Lori Becker-White, and (2) the Gould Parties’ counsel as an expert
witness regarding the attorney’s fees claimed by Goodrum.           When Goodrum
objected that the subject of the proposed witnesses’ testimony had not been
identified in response to his requests for disclosure and that counsel had not been
designated as an expert witness, the trial court ruled that neither witness could
testify. As to Becker-White, the court ruled that the Gould Parties had not shown
good cause or lack of surprise or prejudice.

      To preserve error on the ground that the trial court improperly excluded
evidence for failure to make a timely discovery response, a party must inform the
trial court of the substance of the evidence by an offer of proof, unless the
substance was apparent from the context. See Tex. R. Evid. 103(a)(2); Gipson-
Jelks v. Gipson, —S.W.3d—,—, No. 14-13-00967-CV, 2015 WL 3424714, at *4
(Tex. App.—Houston [14th Dist.] May 28, 2015, no. pet. h.); Nelson v. Duesler,
No. 09-09-00288-CV, 2010 WL 1796098, at *2–3 (Tex. App.—Beaumont May 6,
2010, no pet.) (mem. op.). The Gould Parties did not make an offer of proof
describing the evidence that they would have sought to introduce at trial had the
trial court not allegedly prevented them from presenting any evidence at trial. The
substance of this evidence is not apparent from the context. Therefore, the Gould
Parties did not preserve error in the trial court as to their second, third, or fourth
issues. See Tex. R. Evid. 103(a)(2); Gipson-Jelks, —S.W.3d at —, 2015 WL
3424714, at *4. Accordingly, we overrule these issues.

   C. Did the Gould Parties preserve error as to their fifth issue?
      Under their fifth issue, the Gould Parties assert that Goodrum’s wife failed


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to answer their third-party petition and that the trial court erred in preventing the
Gould Parties from pursuing their claims against her. The record does not reflect
that the third-party petition was ever served on Goodrum’s wife, that she waived
citation, or that she made an appearance in this case. Nor does the record reflect
that the Gould Parties ever sought a default judgment against Goodrum’s wife.
And, the record does not reflect that the Gould Parties voiced in the trial court the
complaint that they now urge in and under the fifth issue. Therefore, we conclude
that the Gould Parties failed to preserve error in the trial court as to their fifth issue.
See Meek v. Onstad, 430 S.W.3d 601, 611 (Tex. App.—Houston [14th Dist.] 2014,
no pet.). Accordingly, we overrule this issue.

   D. Should this court award Goodrum damages under Texas Rule of
      Appellate Procedure 45?
      In his appellee’s brief, Goodrum seeks an award of just damages against the
Gould Parties under Texas Rule of Appellate Procedure 45, which governs
damages for frivolous appeals in civil cases, because either their fifth issue or all
their appellate grounds are frivolous. See Tex. R. App. P. 45. We may award just
damages under Rule 45 if, after considering everything in the court’s file, we make
an objective determination that the appeal is frivolous. Glassman v. Goodfriend,
347 S.W.3d 772, 782 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (en
banc). To determine whether an appeal is objectively frivolous, we review the
record from the viewpoint of the advocate and decide whether the advocate had
reasonable grounds to believe the case could be reversed. Id. But, Rule 45 does
not mandate that we award just damages in every case in which an appeal is
frivolous. Id. The decision to award such damages is a matter within this court’s
discretion, which we exercise with prudence and caution after careful deliberation.

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Id. We conclude that damages under Rule 45 are not warranted. Accordingly, we
deny Goodrum’s request for just damages under Rule 45.

                                III.   CONCLUSION

       Goodrum strictly adhered to Texas Rule of Civil Procedure 185’s
requirements. The Gould Parties did not preserve error in the trial court as to their
second, third, fourth, or fifth issues. Because we conclude that damages under
Texas Rule of Appellate Procedure 45 are not warranted, we deny Goodrum’s
request for this relief.

       The trial court’s judgment is affirmed.




                                 /s/   Kem Thompson Frost
                                       Chief Justice



Panel consists of Chief Justice Frost and Justices Christopher and Busby.




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