Schorer v. Box Service Co.

927 S.W.2d 132, 1996 WL 343428

• Court: Court of Appeals of Texas
• Decided: August 29, 1996
• Docket: 01-95-01369-CV
• Status: Published

Opinions

OPINION

HUTSON-DUNN, Justice.

Appellant, Kordula Schorer (Kordula), appeals by writ of error a directed verdict granted in favor of appellee, Box Service Company (Box). In 10 points of error, Kor-dula complains of the legal and factual sufficiency of the evidence to support the judgment against her, and she complains of the amount of attorney’s fees awarded against her. We reverse.

Auto German Imports, Inc. (AGI) was incorporated on April 12, 1982. Josef Michael Schorer was the director and president of AGI, Karolin Schorer was the vice president and secretary, and Kordula Schorer was the treasurer. On June 16, 1985, AGI had its corporate privileges forfeited for failure to satisfy franchise tax requirements. As notified by the Secretary of State of Texas, the corporate charter was forfeited December 2, 1985. The corporate charter was not reinstated.

On August 28, 1987, Box entered into a written lease agreement with Auto German Imports and Josef Schorer, whereby Josef leased a forty-foot container, the BSA 420. The BSA 420 container was delivered to 11460 Gulf Freeway, and the lease provided that Josef would not move the container without Box’s consent. The lease agreement for the BSA 420 provided for lease payments of $109.50 per month. It also provided that if Josef did not make the rental payments, Box may immediately terminate the agreement and repossess the container, and Josef would remain liable for all sums due and unpaid.

In 1990, when Josef moved the business from the Gulf Freeway address to 8910 Ed-gebrook, he also moved the container without Box’s consent. Josef did not pay rentals due under the lease agreement. Invoices dated from September 18, 1990, to September 10, 1993, valued at $4,698.91 were not paid. On July 8, 1992, Box sent a letter to Josef, AGI, Karolin Schorer and Kordula informing them of the continued default of rental payments due and that it was terminating the lease agreement. On September 9, 1993, Box repossessed its container at a cost of $399.51.

Box filed suit against AGI, Josef Schorer, Karolin Schorer, Kordula, and Josef Michael Schorer, d/b/a AGI. When Box amended its pleadings, it alleged this was a suit on a sworn account. It prayed for rentals due in the amount of $4,698.91, damages for removing the container at a cost of $399.51, and attorney’s fees in an amount not less than $3,000. Both Josef and Kordula, representing themselves pro se, answered separately, but neither verified their answers in compliance with Tex.R.Civ.P. 93(10). Kordula did not participate in any other pretrial proceedings or the trial. A jury heard testimony from John Nicholson, president and chief operating officer of Box, and Josef cross-examined him. After Nicholson testified, the court directed the verdict in favor of Box because none of the parties verified their answers as required by Tex.R.Civ.P. 93(H)).¹

Kordula appeals by writ of error to this Court. In order to obtain relief from an adverse judgment by a writ of error to the court of appeals, the party seeking relief must show (1) the petition was perfected within six months of the date of the judgment; (2) by a party to the suit; (3) who did not participate in the trial; and (4) there is error apparent on the face of the record. Havens v. Ayers, 886 S.W.2d 606, 508 (Tex. App. — Houston [1st Dist.] 1994, no writ). In this case, the judgment was signed on April 17, 1995, and the writ of error was perfected on October 16, 1995. Appellant was a party to the suit who did not participate in trial.² Thus, the only remaining issue is whether there is error apparent on the face of the record.

Box contends in his pleadings this was a suit on a sworn account, and the trial court directed the verdict in favor of Box because this was a suit on a sworn account and none of the parties verified their answers. However, the sworn account rules have previously been held inapplicable to suits on lease agreements. Murphy v. Cintas, 923 S.W.2d 663, 665 (Tex.App.—Tyler 1996, n.w.h.); Great-Ness Professional Serv. v. First Nat’l Bank of Louisville, 704 S.W.2d 916, 917 (Tex.App.—Houston [14th Dist.] 1986, no writ); Meineke Discount Muffler Shops, Inc. v. Coldwell Banker Property Management Co., 635 S.W.2d 135, 138 (Tex.App.—Houston [1st Dist.] 1982, writ refd n.r.e.). This Court notes that the Meineke case, on which Murphy and Great-Ness rely, was issued under a former version of TexR.Civ.P. 185.³ However, the 1984 amendment to rule 185 did not substantively change the rule; rather, the rule was rewritten so that suits on sworn accounts would be subject to ordinary rules of pleadings and practice.⁴ Because the 1984 amendment to the rule did not change the substantive application of rule 185, the rule in Meineke is unaffected by the amendment, and we continue to rely on its holding.

Our posture on review is to look for error on the face of the record. Because the trial court directed a verdict on the erroneous basis that this suit involved a sworn account, we hold there is error on the face of the record.

We reverse the portion of the judgment of the trial court that was directed against Kor-dula and remand the case for a trial on the merits.

1 . TexR.Civ.P. 93(10) provides:

A pleading setting up any of the following matters, unless the truth of such matters appear of record, shall be verified by affidavit.

(10). A denial of an account which is the foundation of the plaintiffs action, and supported by affidavit.

2 . We note that filing an answer, alone, does not constitute participating in trial so as to preclude review by writ of error. Bailout Bonding Co. v. State, 797 S.W.2d 275, 276 (Tex.App.—Dallas 1990, writ ref'd).

3 . When any action or defense is founded upon an open account or other claim for goods, ware and merchandise, 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 or materials 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, before an announcement of ready for trial in said cause, file a written denial, under oath, stating that each and eveiy item is not just or true, or that some specified item or items are not just and true; provided, that when such counter-affidavit shall be filed on the day of the trial the party asserting such verified claim shall have the right to postpone such cause for a reasonable time. When the opposite party fails to file such affidavit, he shall not be permitted to deny the claim, or any item therein, as the case may be.

TexR.Civ.P. 185 (Vernon 1976).

4 .When any action or defense is founded upon an open account or other claim for goods, ware and merchandise, 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 or materials 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. [Change begins here.] A party resisting such a sworn claim shall comply with the rules of pleading as are required in any other kind of suit, provided, however, that if he does not timely file a written denial, under oath, he shall not be permitted to deny the claim, or any item therein, as the case may be. 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.

TexR.Civ.P. 185 (Vernon 1995) (written as amended in 1984) (emphasis added).