Sworn Account Litigation

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Sworn Account

A suit on sworn account is not actually a separate independent cause of action, but rather is a procedural tool based on Rule 185 of the Texas Rules of Civil Procedure that limits the evidence necessary to establish a prima facie right to recovery against a person or entity who defaults 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.); see Tex. R. Civ. P. 185. In any action founded upon an open account or claim for goods, including a claim for a liquidated money demand based upon written contract, the account is prima facie (meaning minimally sufficient for legal purposes) evidence that a claim for the amount is owed if a systematic record has been kept and the record is supported by an affidavit. Tex. R. Civ. P. 185. A defendant must rebut a sworn account with a sworn denial. Id.; Tex. R. Civ. P. 93(10); Canter v. Easley, 787 S.W.2d 72, 73 (Tex. App.--Houston [1st Dist.] 1990, writ denied); see also Huddleston v. Case Power & Equip. Co., 748 S.W.2d 102, 103-04 (Tex. App.--Dallas 1988, no writ) (holding that sworn general denial is insufficient). Basically, this means if one party swears under oath that the account is true and unpaid, the other side is required to swear under oath that it isn't for the case to proceed. Otherwise, the court may assume that party under oath is telling the truth and grant judgment.

What this means is that the normal proveup of an unpaid invoice is not that difficult. Basically, all one has to provide is:

1) A copy of the underlying contract (if any). Often times the invoice or service order is the only documentation of any agreement between the parties. Although this may present difficulties in more complex litigation (i.e. the Defendant counter-claims for breach of contract), it is not necessarily a problem in sworn account litigation.

2) A copy of the invoice - with proof that it was presented to the Defendant. One can't claim someone refused to pay a bill if it was never presented to them. This is normally taken care of with the record keeper's affidavit. (See below.)

3) An affidavit from the owner, bookkeeper, or officer of the company swearing that the documents are true and correct, the services and/or materials were provided, the invoice was presented and that the account remains unpaid. This basically stems from case law and Tex. R. Civ. P. 185 which provide that:

The elements of a sworn account claim are: (1) the sale and delivery of merchandise or service, (2) the amount of the account is just, that is, the price charged is either in accordance with the agreement or is the usual, customary, and reasonable price for the merchandise or service; and (3) the amount is unpaid. Hose Pro Connectors, Inc. v. Parker Hannifin Corp., 889 S.W.2d 555, 558 (Tex. App. – Houston [14th Dist.] 1994, no writ).

Of course every case has potential for obstacles and pitfalls, procedural and substantive. However, the experienced attorneys at JH&A are ready to lead you through these.

JH&A regularly takes sworn account cases on a contingency fee basis - meaning you pay nothing and we collect the costs and our fees from the opponent. Contact JH&A for your Pre-Suit Evaluation of your sworn account to see if we can help you collect your outstanding receivables.

Record-keeping and invoicing isn't really a recent concept. The item above is a receipt from ancient Samaria circa 3200 B.C. Not sure if it was used in court proceedings. But if it was, 'throwing the book' at somebody meant a lot more back then.

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