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Texas Judiciary Online - HTML Opinion

Clifton v. AMEX Centurion Bank, originally in Montgomery County
reversed and remanded.

Clifton had been sued for a debt in excess of $11K and filed an unsworn general denial. AMEX shows up in court but Clifton does not, judgment plaintiff. AMEX testified about reasonable fees and argued that $450 was appropriate but the Court awards (for unknown reasons) nearly $1800.

There is discussion about Suits on Sworn Accounts (Rule 185), but the issue was not preserved for appeal by virtue of Clifton not presenting it at trial.

The Court then looked to whether there was sufficient evidence to have proven up a 185 claim...

In this case, American Express's affidavit, when taken together with its petition, is deficient. American Express's affidavit does not state that its claim is "just and true" or that the claim is within the affiant's personal knowledge. See Tex. R. Civ. P. 185; Hou-Tex Printers, Inc. v. Marbach, 862 S.W.2d 188, 190 (Tex. App.-Houston [14th Dist.] 1993, no writ). If a party fails to attach a proper Rule 185 affidavit to its petition, then "the affidavit [is] insufficient to establish the account as prima facie evidence of the claim." Marbach, 862 S.W.2d at 190.

Further, American Express's petition states that Clifton "made various charges" and owes the net principal amount of $11,839.22. The petition, however, does not show that a systematic record was kept of the account as required by Rule 185.{FN4}

The footnote contained the following: Texas appellate courts have found sufficient compliance with Rule 185 when the plaintiff's pleadings included statements or invoices. See Panditi v. Apostle,180 S.W.3d 924, 927 (Tex. App.-Dallas 2006, no pet.) (billing statements); Powers, 2 S.W.3d at 499 (itemized monthly statements of legal services reflecting offsets, payments, and credits); Enernational Corp., 705 S.W.2d at 750-51 (dated invoices appearing to show dates when services were rendered).

While not including statements or invoices with its petition and affidavit, American Express's appendix to its appellate brief contains copies of various records related to Clifton's account. We, however, may not consider such records in our review of this appeal. See Guajardo v. Conwell, 46 S.W.3d 862, 864 (Tex. 2001); WorldPeace v. Comm'n for Lawyer Discipline, 183 S.W.3d 451, 465 n.23 (Tex. App.-Houston [14th Dist.] 2005, pet. denied) (An appellate court "cannot consider documents attached as appendices to briefs and must consider a case based solely upon the record filed.").

The Opinion concludes with discussion of remedy on an appeal involving default judgment:
We sustain Clifton's issues two and three as they relate to the legal insufficiency of the evidence on liability and damages. "When a legal insufficiency point is sustained, the reviewing court generally renders judgment in favor of the party bringing the point of error." Flores v. Brimex Ltd. Partnership, 5 S.W.3d 816, 821 (Tex. App.-San Antonio 1999, no pet.) (citing Thorp v. Adair & Myers, 809 S.W.2d 306, 308 (Tex. App.-Houston [14th Dist.] 1991, no writ)). "However, an exception is made in cases involving default judgments because the facts have not been fully developed." Armstrong v. Benavides, 180 S.W.3d 359, 364 (Tex. App.-Dallas 2005, no pet.) (citing Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 86 (Tex. 1992); United States Fire Ins. Co. v. Carter, 473 S.W.2d 2, 3 (Tex. 1971)). Furthermore, "the case can be remanded when the interests of justice require a new trial for further development of the facts." Flores, 5 S.W.3d at 821. Here, we believe the interests of justice are better served by remanding this case. Accordingly, we reverse the trial court's judgment and remand this cause to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.