Chapter 3-7 Suit on A Sworn Account

• Jurisdiction: United States

3-7 Suit on A Sworn Account

3-7:1 Overview

A sworn account is not a type of account parties prospectively enter into, but rather refers to the plaintiff's use of Texas Rule of Civil Procedure 185.²⁴⁹ When a plaintiff files a verified petition that conforms to Rule 185, the defendant must file a verified denial or the account is deemed to exist as the plaintiff swore.

3-7:1.1 Related Causes of Action

Suit on an account, Usury, Breach of Contract, Quantum Meruit

MUST READ CASES

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

Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821 (Tex. App.—Dallas 2014)

3-7:2 Elements

(1) The account must be one for goods, wares, merchandise, or services rendered.²⁵⁰

• Open accounts and stated accounts fall within the scope of Rule 185.²⁵¹
• Although some courts have held that a credit-card account is an "open account" for limitations purposes,²⁵² a credit-card account is likely not within the scope of Rule 185.²⁵³

(2) The account was systematically recorded.²⁵⁴

AND

(3) The account is sworn to in a verified petition.²⁵⁵

• The plaintiff files a verified petition stating:

• The account is just and true;
• The account is due; and
• That all just and lawful offsets, payments and credits have been applied.²⁵⁶

3-7:3 Damages and Remedies

3-7:3.1 Generally

The damages and remedies available on the underlying account apply. For a list of available damages and remedies, see

Chapter 3—suit on an account.

3-7:3.2 Effect of Verified Petition

An account will be deemed to exist if the defendant does not file a verified denial of the account.²⁵⁷

3-7:4 Defenses

3-7:4.1 Generally

The defenses available to the underlying account apply. For a list of available defenses, see Chapter 3—suit on an account. In order to put on proof disputing the existence of the account, the defendant must file a verified denial of the account.²⁵⁸ A defendant need not file a verified denial in response to a plaintiff's verified petition in order to assert a confession and avoidance defense.²⁵⁹

3-7:5 Procedural Implications

3-7:5.1 Pleading

The plaintiff's verified petition must include:

• An itemized statement of the goods or services sold;²⁶⁰
• Facts which show the account was kept systematically;²⁶¹
• A statement that he account is just and true;²⁶²
• A statement that any offsets, payments, or credits have been applied;²⁶³ and
• A statement that the balance is due and owing.²⁶⁴

²⁴⁷ Bryan v. Citizens Nat'l Bank in...