Dwayne Keith Billings v. Superior Tomato-Avocado Co., Inc.--Appeal from County Court at Law No 7 of Bexar County

No. 04-97-00746-CV
Dwayne Keith BILLINGS,
Appellant
v.
SUPERIOR TOMATO-AVOCADO CO.,
Appellee
From the County Court-at-Law No. 5, Bexar County, Texas
Trial Court No. 234,377
Honorable Wayne Christian II, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Tom Rickhoff, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: October 21, 1998

AFFIRMED

Dwayne Keith Billings ("Dwayne") brings this petition for writ of error to set aside a default judgment in a suit on a sworn account. In four points of error Dwayne contends the trial court erred in granting the default judgment; that the evidence is insufficient to support a judgment against Dwayne in his individual capacity; and that the evidence supporting such a judgment is against the great weight and preponderance of the evidence. We affirm.

Facts

Dwayne and Glenn Billings, doing business as Billings Brothers, supplied produce to restaurants. Superior Tomato-Avocado Inc. was their produce wholesaler; both Dwayne and Glenn Billings signed personal guarantees securing Billings Brothers' account. Superior filed suit on the account against Billings Brothers, Glenn and Dwayne. Glenn Billings filed an answer; however, it was captioned "Defendant Dwayne Keith Billings' Original Answer." The trial court treated this as Glenn Billings' answer and rendered a default judgment against Dwayne. This judgment was later severed from the main case, resulting in this appeal.

Default Judgment

In his third and fourth points of error Dwayne contests the sufficiency of the evidence to support a default judgment against him. We must first determine whether the trial court erred in not considering the answer on file at the time of the default judgment as Dwayne's answer, which would put Superior to its proof and render the grant of a default judgment improper.

The answer at issue is entitled, "Defendant Dwayne Keith Billings' Original Answer;" however, the body of the motion begins, "Now comes GLENN T. BILLINGS, one of the defendants in the above-entitled and numbered cause . . ." Thus the first sentence makes it clear not only that Glenn is answering, but that Glenn is the only defendant answering. Moreover, the answer is verified by the signature of Glenn T. Billings.

We look to the substance of a pleading to determine the nature of the pleading, not merely the title given it. See State Bar of Texas v. Heard, 603 S.W.2d 829, 833 (Tex. 1980); Rose v. State, 497 S.W.2d 444, 449 (Tex. 1973). In this case, although the title identifies the person answering as Dwayne Keith Billings, the body of the answer specifically limits the answer to that of Glenn T. Billings. Therefore the trial court did not err in treating this pleading as Glenn Billings' answer.

Because Dwayne did not answer, the default judgment was proper. Moreover, we find ample evidence supports the recovery in this case.

Rule 185 is a rule of procedure which sets up the conditions under which the verified account may be relied on to establish a prima facie right of recovery. Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75 (1958); 2 McDonald, Texas Civil Practice 8:67 (1992)(citing cases). In the absence of a sworn denial meeting the requirements of the rule, the account is received as prima facie evidence against the defendant as to the items and charges in the account, and the defendant may not contest the items or charges, although he may rely on other defenses. Rizk v. Financial Guardian Ins. Agency, 584 S.W.2d 860, 863 (Tex. 1979). Dwayne's default operates as an admission of all facts properly set forth in the plaintiff's petition; no challenge to the legal or factual sufficiency of the evidence to support the finding of liability will be entertained. See Norton v. Martinez, 935 S.W.2d 898, 901 (Tex. App.--San Antonio 1996, no writ). Indeed, when damages are liquidated, the law contemplates that the plaintiff be awarded its damages without the need for the presentation of damages, or even a hearing. Nat'l Bank of Irving v. Shockley, 663 S.W.2d 685, 688-689 (Tex. App.--Corpus Christi 1983, no writ).

This sworn account proceeding was for goods provided to plaintiff. The value of the goods provided was liquidated and was proved both through affidavit and invoice. Additionally, although the amount of Superior's attorney's fees was unliquidated, it was proven through the affidavit of plaintiff's trial counsel. We find the evidence is sufficient to support both Dwayne's liability for the account and for the amount of the damages. Therefore Dwayne' third and fourth points of error are overruled.

Writ of Error

In his first and second points of error Dwayne argues the trial court erred in granting the default judgment against him. He essentially argues that, because he met the three-part test set forth in Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939), the trial court erred in granting the default judgment. However, the Craddock rule sets up the test for error in denying a motion for new trial after a default judgment. Because Dwayne did not file a motion for new trial in this case, he may not avail himself of the Craddock standard.

We will therefore treat his first and second points of error as asserting that, since he met the requirements for a writ of error proceeding, he is entitled to relief. We do not agree.

A direct attack on a judgment by writ of error must: 1) be brought within six months after the judgment was signed; 2) by a party to the suit; 3) who did not participate in the actual trial; and 4) the error must be "apparent from the face of the record." General Electric Co. v. Falcon Ridge Apartments Joint Venture, 811 S.W.2d 942, 943 (Tex. 1991); Tex. R. App. P.45 (now Tex. R. App. P.30, eff. September 1, 1997). The record shows Dwayne filed his petition for writ of error exactly six months after the judgment was signed. Dwayne was a party to the suit who did not participate in the actual trial. However, we do not believe the error Dwayne cites as being apparent on the face of the record constitutes error in this case.

Dwayne argues the lack of a statement of facts in our appellate record constitutes error on the face of the record. See Stubbs v. Stubbs, 685 S.W.2d 643 (Tex. 1985). We disagree. The holding in Stubbs was based on the statutory requirement that a statement of facts be created in all suits affecting the parent-child relationship; the court held that this lack of a statement of facts constituted error on the face of the record. Stubbs, 685 S.W.2d at 645-646.

There is no statutory requirement that a statement of facts must be made in a sworn account proceeding. Indeed, suits on sworn accounts are unique for their essentially self-proving nature. See Rizk, 585 S.W.2d at 862; Shockley, 663 S.W.2d at 688-689; Norton, 935 S.W.2d at 901. In the same vein, the Texas Supreme Court has acknowledged that suits on sworn accounts are one of the few instances where summary judgment on the pleadings alone is proper. Hidalgo v. Surety Savings & Loan Ass'n, 462 S.W.2d 540, 543 n. 1 (Tex. 1971); see also Notgrass v. Equilease Corp., 666 S.W.2d 635, 639 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Waggoners' Home Lumber Co. v. Bendix Forest Products Corp., 639 S.W.2d 327, 328 (Tex. App.--Texarkana 1982, no writ); Timothy Patton, Summary Judgments in Texas -- Practice, Procedure and Review 9.05[3] (2d ed. 1996). Finding that the lack of a statement of facts in a sworn account proceeding constitutes error on the face of the record would be inconsistent with Texas procedure.

Because we hold that a statement of facts is not required to be filed after a default judgment, and because Dwayne points us to no other error apparent on the face of the record, we overrule his first two points of error.

The judgment of the trial court is in all things affirmed.

Tom Rickhoff, Justice

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