*Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limited circumstancesset forth in 5TH CIR.R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 22, 2007

Charles R. Fulbruge III

Clerk

In the United States Court of Appeals

for the Fifth Circuit

No. 05-51669

Summary Calendar

SUNSHINE TRADERS OF EL PASO, INC.,

Plaintiff - Appellant – Cross-Appellee,

v.

DOLGENCORP, INC., doing business as Dollar General Corporation, doing business as

Dollar General Store,

Defendant - Appellee – Cross-Appellant.

Appeals from the United States District Court

for the Western District of Texas

No. 3:02-CV-439

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

The plaintiff in this case, Sunshine Traders of El Paso (Sunshine), appealsthe district

court’s summary judgment for defendant Dolgencorp on a number of claims. We affirm in

part and reverse and remand in part.
1Willis v. Coca Cola Enters., 445 F.3d 413, 416 (5th Cir. 2006).

2

Id.

3TEX. CIV. PRAC. & REM. CODE § 16.004.

2

Dolgencorp contracted with Sunshine tomanufacture variousstyles ofjeansto be sold

in its Dollar General stores. Following a number of disagreements over the style and color

of the jeans, Dolgencorp refused to pay Sunshine for some of the jeans, and Sunshine sued

Dolgencorp. The district court granted summary judgment for Dolgencorp on Sunshine’s

breach of contract claim for invoices 334 and 335 due to a limitations bar, breach of contract

claim for boys’ jeans due to a statute of frauds defense against an oral contract, and breach

of contract claim for men’s black jeans due to a limitations bar. Sunshine now appeals.

We review a grant ofsummary judgment de novo, considering all evidence in the light

most favorable to the non-moving party.1 Summary judgment is appropriate when the

movant can demonstrate that there is no genuine issue of material fact.2

Sunshine first asserts that the district court incorrectly calculated the statute of

limitations regarding its claim for invoices 334 and 335. Sunshine argues that it is making

an “open account” claim under Texas law and that the statute of limitations should therefore

run from the point at which the two parties ceased doing business in June 2000 instead of

from the time of the breach in July 1998.3

The district court held that the open account statute of limitations was not available

in federal court. It held that open accounts are governed by Texas Rule of Civil Procedure

185, which “is not a rule of substantive law but is a rule of procedure stating the evidence
4Hou-TexPrinters, Inc. v. Marbach, 862 S.W.2d 188, 190 (Tex. App.—Houston [14thDist.]

1993, no writ).

5

See Facility Ins. Corp. v. Employers Ins. of Wausau, 357 F.3d 508, 513 (5th Cir. 2004)

(applying the open accounts statute of limitations from Texas Civil Practice & Remedies Code

§ 16.004(c) in a case based on diversity jurisdiction).

6TEX. CIV. PRAC. & REM. CODE § 16.004(c).

7

Site Work Group, Inc. v. Chemical Lime Ltd, 171 S.W.3d 512, 513-14 (Tex. App.—Waco

2005, no pet.).

3

necessary to establish a prima facie right of recovery or defense . . . [and] cannot be the basis

for any cause or causes of action.”4 The district court held that Rule 185 is a procedural rule

that cannot be applied in federal court under the Erie doctrine and that Texas’s statute of

limitations for open accounts is therefore unavailable as well. The district court granted

summary judgment for Dolgencorp because the breach occurred in July 1998, and Sunshine

filed suit on August 7, 2002, past the four-year statute of limitations.

Though Rule 185 is a procedural rule and does not apply under Erie, open accounts

are a common law cause of action in Texas. Texas Civil Practice & Remedies Code

§ 16.004(c) creates a separate statute of limitations for open accounts and is available under

the Erie doctrine because it is substantive law.5In an open account, the cause of action does

not accrue until the parties cease dealing with each other.6

Under Texas common law, the plaintiff must establish the following elements for a

cause of action on an account: “(1) a sale and delivery of the goods; (2) . . . the amount of

the account is just . . . ; and (3) that . . . amount is unpaid.”7 An account is open “when there

have been running or current dealings between the parties, and the account is kept open with
8LivingstonFord Mercury,Inc. v. Haley, 997 S.W.2d 425, 427 (Tex. App.—Beaumont 1999,

no pet.) (quoting McCamant v. Batsell, 59 Tex. 363, 368-69 (1883)).

4

the expectation of further dealings.”8 This allows for parties with frequent dealings to credit

and debit the account without settling it.

Sunshine arguesthat the account was an open account because Dolgencorp submitted

purchase orders that Sunshine subsequently split into separate invoices based on where

Dolgencorp required Sunshine to ship the products. Payment for the invoices was due thirty

days after they were issued. Dolgencorp did not pay invoices separately; rather it submitted

payments to Sunshine based on the initial purchase orders, so a number of invoices would

be satisfied through a single purchase order payment. These purchase orders were paid after

delivery. Even after delivery and payment in full, Dolgencorp had the opportunity to “charge

back” a portion of the invoiced price if it later determined that the jeans did not meet its

specifications. The charge back was not an automatic debit; instead, Dolgencorp would

subtract the amount from a payment on a subsequent purchase order. Sunshine then had the

opportunity to present evidence to Dolgencorp that the jeans were within Dolgencorp’s

specifications. If Dolgencorp accepted this refutation, it would credit the amount to

Sunshine on a future purchase order payment.

Invoices 334 and 335 were initially paid in full, but the disputed portions were

charged back due to “incorrect carton info[rmation].” Dolgencorp subtracted the disputed

amount from its next payment to Sunshine on later purchase orders. Dolgencorp did not

accept Sunshine’s refutation, and the charged back amount remains unpaid.
9

See Oppenheim v. Hood, 33 S.W.2d 265, 267 (Tex. Civ. App.—Dallas 1930, writ ref’d)

(holding that an account was an open account because it “was composed of debitsin favor of appellee

company and credits in favor of appellant, extended over quite a period of time, and had not been

agreed to by the partied hereto so as to become a stated account”).

10TEX. CIV. PRAC. & REM. CODE § 16.004(c).

11TEX. BUS. & COM. CODE § 2.201(b).

5

The account between Sunshine and Dolgencorp was an open account because it

allowed for crediting and debiting through multiple transactions, extending over a period of

time.9 The account facilitated the on-going business relationship between the two companies

by allowing delivery before payment, charge backs for one purchase to be debited from

future payments for another purchase order, and the ability to refute the charge backs and

have the amount credited in a future payment. Because it is an open account, the statute of

limitations did not begin to run until the parties ceased doing business, which was in June

2000.10 Sunshine filed its original complaint on August 7, 2002, well within the four-year

statute of limitations. The district court’s summary judgment as to the claims based on

invoices 334 and 335 is therefore reversed and remanded.

Sunshine also arguesthat an oral contractregarding boys’ jeansshould be enforceable

despite the statute of frauds under the “merchant exception” or “specially manufactured

goods” exception. The merchant exception allows a writing in confirmation to be used

against merchants if it is for the sale of goods, is signed, and specifies a quantity.11 Because

Sunshine fails to show a writing in confirmation and instead presents evidence of on-going

negotiations, the merchant exception does not apply.
12Id. § 2.201(c).

13TEX. CIV. PRAC. & REM. CODE § 16.068.

6

The specially manufactured goods exception allows for enforcement of an oral

contract “if the goods are to be specially manufactured for the buyer and are not suitable for

sale to othersin the ordinary course of the seller’s business. . . .”12 Sunshine was able to sell

72,316 pairs of the jeans in question with minor alterations to remove Dolgencorp’s

trademark. Thus the specially manufactured goods exception does not apply and the district

court properly applied the statute of frauds defense.

Sunshine also arguesthat its breach of contract claimfor men’s black jeansshould not

have been barred by the statute of limitations because the claim should relate back to the

filing of Sunshine’s original petition. Sunshine was aware of the breach by June 1999, but

the claim was not asserted until the amended complaint in November 2003. To relate back

to the filing time of a prior petition, the amended petition cannot be “wholly based on a new,

distinct, or different transaction or occurrence.”13 Sunshine’s original petition only mentions

boys’ jeans, and the claim for men’s black jeans is a distinct claim. Thus the claim in the

amended petition does not relate back and is time-barred by the statute of limitations.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.