Laura Arrellano v. J&K Garment Restoration Co. D/B/A J&K Cleaners

Reversed and Rendered and Memorandum Opinion filed December 28, 2006 Reversed and Rendered and Memorandum Opinion filed December 28, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00818-CV ____________ LAURA ARELLANO, Appellant V. J&K GARMENT RESTORATION CO. D/B/A J&K CLEANERS, Appellee On Appeal from the Civil County Court at Law No. 4 Harris County, Texas Trial Court Cause No. 800,777 M E M O R A N D U M   O P I N I O N Appellant, Laura Arellano, appeals the trial court=s judgment in favor of appellee, J&K Garment Restoration Co. d/b/a J&K Cleaners. According to the only fact witness to testify at trial, Solomon Dadaboy, president and owner of J&K, J&K picked up clothing and other household items from Arellano for cleaning and restoration from mold. J&K cleaned and restored all the items picked up from Arellano. J&K delivered four suits to Arellano=s husband. J&K submitted an invoice to Arellano for all the items cleaned, but she did not pay the bill. J&K filed a suit on sworn account, seeking damages in the total amount of $10,139: $6,438 for cleaning and restoration services, and $3,701 for storage at 5% per month. After a bench trial, the trial court awarded J&K $10,139.22 in damages and $3,000 in attorney fees. In her first issue, Arellano claims the trial court erred in granting judgment in favor of J&K because J&K failed to state or establish a recoverable cause of action. Rule 185 of the Texas Rules of Civil Procedure[1] is not a rule of substantive law, but is a rule of procedure stating the evidence necessary to establish a prima facie right of recovery or defense. Hou-Tex Printers, Inc. v. Marbach, 862 S.W.2d 188, 190 (Tex. App.CHouston [14th Dist.] 1993, no writ). Thus, it cannot be the basis for any cause of action. Id. Rule 185 makes the sworn account prima facie evidence of the debt. Bruce v. McAdoo, 531 S.W.2d 354, 356 (Tex. Civ. App.CEl Paso 1975, no writ). To establish sufficient evidence to support a prima facie case in a suit on sworn account, the plaintiff must strictly follow the provisions set forth in Rule 185. Pine Trail Shores Owners= Ass=n, Inc. v. Aiken, 160 S.W.3d 139, 144 (Tex. App.CTyler 2005, no pet.). Prior to the start of the trial, Arellano objected to J&K=s petition on the grounds that J&K did not plead or swear there was a systematic record kept of the account and the invoice was not verified in the affidavit. The trial court held the affidavit did not set out an itemization of the alleged debt, but only a conclusory amount, and ruled the affidavit did not comport with Rule 185. Accordingly, the case was not tried under Rule 185, but under the common law. Under Rule 185, a claim is liquidated if the amount of damages can be accurately calculated by the trial court from the factual allegations, as opposed to conclusory allegations, in the plaintiff=s petition and the instrument in writing evidencing the account. Id.; Mantis v. Resz, 5 S.W.3d 388, 392 (Tex. App.CFort Worth 1999, pet. denied), overruled on other grounds by Sheldon v. Emergency Med. Consultants, I, P.A., 43 S.W.3d 701, 702B03 (Tex. App.CFort Worth 2001, no pet.). AWhen a plaintiff=s suit on sworn account is not based on a liquidated amount, the pleadings are neutralized and the plaintiff must prove his case at common law.@ Pine Trail Shores Owner=s Ass=n, Inc., 160 S.W.3d at 145; (citing Jones v. Ben Maines Air Conditioning, Inc., 621 S.W.2d 437, 439 (Tex. Civ. App.CTexarkana 1981, no writ)). If the cause of action is unliquidated or is not proved by an instrument in writing, the court shall hear evidence of damages. Pine Trail Shores Owner=s Ass=n, Inc., 160 S.W.3d at 145 (citing Tex. R. Civ. P. 243). The elements of a common law cause of action on account are (1) a sale and delivery of goods or services; (2) the charges on the account are just, that is, the prices are charged in accordance with an agreement or, in the absence of an agreement, are the usual, customary, and reasonable prices for that good or service; and (3) the amount remains unpaid. Andrews v. East Tex. Med. Ctr.-Athens, 885 S.W.3d 264, 266 (Tex. App.CTyler 1994, no writ). The unsigned invoice describes the items, the number of each item, and the price to clean each item. Out of all the items picked up from Arellano and cleaned, four suits were delivered to Arellano=s husband. Dadaboy received a phone call from Arellano=s husband that they did not need the clothes and he could donate them. Dadaboy stated that the items were stored for over a year. He expected Arellano to pay for the cleaning and restoration and submitted the invoice to her for payment. Dadaboy believes that he Adid that work in a reasonable and necessary way.@ Arellano asserts there is no evidence of the reasonableness of the charges. We agree. In the absence of an agreement, J&K was required to show the prices for cleaning and restoring Arellano=s clothes and household items were usual, customary, and reasonable. While Dadaboy opined that he performed the work in Aa reasonable and necessary way,@ he failed to testify or offer evidence that the prices were usual, customary, and reasonable. See Marr v. Craddock, 406 S.W.2d 278, 280 (Tex. Civ. App.CTyler 1966, no writ) (holding evidence was insufficient to support judgment in favor of appellee in the absence of evidence that the charges for premiums for insurance policies and the services rendered in connection therewith, were usual, customary, standard or reasonable, and evidence of an agreed purchase price with respect to the premiums in the absence of an agreement). Moreover, Dadaboy did not state the specific length of time the items were in storage. He also acknowledged the invoice does not mention delivery costs. No facts underlying the conclusory numbers were put in evidence. See Pine Trail Shores Owners= Ass=n, Inc., 160 S.W.3d at 145 (holding home owners= association failed to put into evidence any facts underlying the conclusory numbers and, therefore, failed to meet its burden to establish the amount of assessments due from each lot owner). Arellano=s first issue is sustained.[2] Accordingly, the judgment of the trial court is reversed and judgment is rendered that J&K take nothing on its suit on account and its claim for attorney fees. /s/ J. Harvey Hudson Justice Judgment rendered and Memorandum Opinion filed December 28, 2006. Panel consists of Justices Anderson, Hudson, and Guzman. [1] Tex. R. Civ. P. 185. [2] Because of our disposition of Arellano=s first issue, it is not necessary to address her remaining issues.