Affirmed and Memorandum Opinion filed October 4, 2016.

In The

Fourteenth Court of Appeals

NO. 14-15-00853-CV

AMIR BAJMANLOU, Appellant

V.

SIGNAD LTD, Appellee

On Appeal from the County Civil Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 1047396

M E M O R A N D U M O P I N I O N

Defendant Amir Bajmanlou appeals the judgment rendered against him after 

a non-jury trial on plaintiff SignAd, Ltd.’s claim, which was pleaded alternatively 

as a breach-of-contract cause of action, an action on an open account, a suit on a 

guaranty agreement, and a claim in quantum meruit. Bajmanlou contends that 

there is legally and factually insufficient evidence that SignAd performed the 

contract, but he has raised no issue about whether SignAd’s claim is an action on 
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an open account as alleged. He also does not argue that SignAd failed to follow 

the procedure set forth in Texas Rule of Civil Procedure 185 that gives rise to an 

evidentiary presumption in the claimant’s favor in a suit on account, nor does he 

deny that he failed to overcome the evidentiary presumption by filing a verified 

denial. In the absence of a successful challenge on one of these points, the 

evidentiary presumption, without more, is legally and factually sufficient to 

support the judgment in a suit on an open account. Because Bajmanlou does not 

address these points at all, we affirm the trial court’s judgment. 

I. BACKGROUND

Appellant Amir Bajmanlou d/b/a Houston Outdoor Advertising contracted 

for appellee SignAd, Ltd. to print and display advertising on one of its illuminated 

billboards for Bajmanlou’s client “One Stop Clinic” for one year. In exchange, 

Bajmanlou was to pay SignAd $24,000.00 in monthly installments of $2,000.00. 

Bajmanlou also was required to notify SignAd in writing at least thirty days before 

the contract’s expiration if he intended the contract to lapse, and if he failed to do 

so, SignAd had the sole option to extend the contract on a monthly basis at the 

same rate for as long as Bajmanlou failed to provide a thirty-day notice of 

cancelation. Bajmanlou signed the contract both as the owner of his sole 

proprietorship and as “guarantor.” 

About eighteen months later, SignAd sued Bajmanlou for amounts due 

under the contract, variously characterizing the same complaint as (a) an action on 

an open account on which Bajmanlou was primarily liable; (b) a suit on a guaranty 

agreement, that is, a suit for payment of a debt for which Bajmanou was 

secondarily liable; (c) a breach-of-contract claim; and (d) a claim in quantum 
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meruit.1 SignAd’s records custodian and collections manager Angie Heckel 

verified the petition and provided a supporting affidavit, together with 

authenticated copies of the parties’ contract and SignAd’s account records. After a 

no-answer default was rendered and then set aside, Bajmanlou filed an unverified 

answer. 

At the non-jury trial, SignAd’s evidence consisted of a copy of the one-page 

contract, Bajmanlou’s admission that he executed the contract, Heckel’s live 

testimony concerning the amount due, and testimony from SignAd’s counsel 

regarding attorney’s fees. Bajmanlou left the courtroom before the case was 

called, and his attorney introduced no evidence. The trial court rendered judgment 

for SignAd in the principal amount of $17,814.79, plus attorney’s fees of 

$3,500.00, pre-and post-judgment interest, and costs. The trial court denied 

Bajmanlou’s motion for new trial.

In Bajmanlou’s first two issues on appeal, he challenges the legal and factual 

sufficiency of the evidence supporting the judgment against him “for breach of the 

guaranty agreement.” In his third issue, he asserts that the “terms of the guaranty 

agreement are uncertain due to the illegibility and ambiguousness” of one section 

of the contract.

II. STANDARD OF REVIEW

Where, as here, a case was tried without a jury and no findings of fact or 

conclusions of law were requested or filed, then we will uphold the trial court’s 

judgment on any theory supported by the record, implying the necessary fact 

findings. See Branch v. Monumental Life Ins. Co., 422 S.W.3d 919, 923 (Tex. 

App.—Houston [14th Dist.] 2014, no pet.) (citing Rosemond v. Al-Lahiq, 331 

 

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SignAd also named two other defendants that it believed were associated with 

Bajmanlou’s company, but abandoned the claims against them.
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S.W.3d 764, 766 (Tex. 2011) (per curiam)). Thus, a litigant seeking reversal of 

such a judgment must challenge every ground that could support it. See Powell v. 

Reiswerg, No. 14-12-00776-CV, 2013 WL 5883807, at *3 (Tex. App.—Houston 

[14th Dist.] Oct. 13, 2013, no pet.) (citing Kelly v. Klein, 827 S.W.2d 609, 611 

(Tex. App.—Houston [14th Dist.] 1992, no writ)).

Bajmanlou contests his liability only for breach of “the guaranty 

agreement.”

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Even assuming, without deciding, that this theory of the case does 

not support the judgment, we must affirm on any unchallenged alternative theory 

supported by the record. For the reasons explained below, the record supports 

Bajmanlou’s liability under the rules governing a suit on an open account.

III. SUIT ON AN OPEN ACCOUNT

To maintain a suit on an open account for which a systematic record has 

been kept, the plaintiff’s claim must be supported by an affidavit “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.” TEX. R. CIV.

P. 185. A petition supported by this material is “taken as prima facie evidence 

thereof, unless the party resisting such claim shall file a written denial, under 

 

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The contract between Bajmanlou and SignAd does not constitute or contain a guaranty 

agreement. “A true guaranty creates a secondary obligation whereby the guarantor promises to 

answer for the debt of another and may be called upon to perform once the primary obligor has 

failed to perform.” Republic Nat’l Bank of Dall. v. Nw. Nat’l Bank of Fort Worth, 578 S.W.2d 

109, 114 (Tex. 1978) (emphasis added); see also Dann v. Team Bank, 788 S.W.2d 182, 184 

(Tex. App.—Dallas 1990, no writ) (“For there to be a guarantor, there must be a primary 

obligation on the part of another, the performance of which is guaranteed.”). Because 

Bajmanlou promised only to answer for his own debts, he is the primary obligor, not a guarantor. 

Cf. Maan v. First ATM, Inc., No. 03-06-00698-CV, 2008 WL 5210923, at *14 (Tex. App.—

Austin Dec. 12, 2008, no pet.) (mem. op.) (“If Maan had signed the Agreement in his personal 

capacity as the ‘Merchant,’ he would be the Agreement’s primary obligor and not additionally an 

‘individual guarantor’ of its own obligations.”); Eubank v. First Nat’l Bank of Bellville, 814 

S.W.2d 130, 133–34 (Tex. App.—Corpus Christi 1991, no writ) (“To treat Segundo as the 

guarantor as well as the borrower would negate the purpose of the guaranty.”).
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oath.” Id.; see also Pascual Madrigal P.L.L.C. v. Commercial IT Solutions Inc., 

No. 04-13-00742-CV, 2014 WL 4230174, at *2 n.1 (Tex. App.—San Antonio 

Aug. 27, 2014, no pet.) (mem. op.) (explaining that Rule 185 is an exception to the 

general rule that pleadings are not evidence). 

To overcome this evidentiary presumption, the defendant must file a verified 

answer denying the account. See TEX. R. CIV. P. 185; TEX. R. CIV. P. 93(10); Rizk 

v. Fin. Guardian Ins. Agency, Inc., 584 S.W.2d 860, 862 (Tex. 1979) (“[A]

defendant’s verified denial of the correctness of a plaintiff’s sworn account in the 

form required by Rule 185 destroys the evidentiary effect of the itemized account 

attached to the petition and forces the plaintiff to put on proof of his claim.”). A 

defendant who fails to answer with a sworn denial waives the right to dispute the

receipt of the goods or services or to contest the accuracy of the stated charges. 

See TEX. R. CIV. P. 185 (“[I]f 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.”); Rizk, 584 S.W.2d at 862.

On appeal, Bajmanlou does not dispute that SignAd’s claim is an action on 

an open account and that SignAd complied with the requirements of Rule 185. 

SignAd pleaded that it provided services to Bajmanlou on an open account; that 

Bajmanlou accepted the services; and that Bajmanlou failed to pay the amounts

due under the contract. In the affidavit attached to and incorporated in SignAd’s 

petition, Heckel verified the petition, provided all information required under Rule 

185, and authenticated attached copies of the contract and of the account activity. 

At trial, Heckel testified that further offsets reduced the amount owed, but the 

claim was otherwise unchanged. Bajmanlou introduced no controverting evidence.

Bajmanlou also does not dispute that he failed to overcome the evidentiary 

presumption by answering the suit with a verified denial. Bajmanlou’s answer 
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contains a section with the heading, “Verified Denials,” and a verification form 

attached to the answer contains Bajmanlou’s name, but the form purports to verify 

a petition for expunction in a different case, and it is neither signed nor notarized. 

Because Bajmanlou did not file a verified denial, SignAd’s evidence is 

legally and factually sufficient to support the judgment in its favor on the open 

account. See Vance v. Holloway, 689 S.W.2d 403, 404 (Tex. 1985) (per curiam) 

(explaining that, absent a verified answer denying the sworn account, the plaintiff’s 

prima facie evidence is legally and factually sufficient to support the judgment). 

We accordingly overrule Bajmanlou’s first and second issues. 

In Bajmanlou’s third issue, he asserts that the guaranty agreement’s terms

are uncertain because the contract is illegible. We are required to address this issue 

only if it “is necessary to final disposition of the appeal.” See TEX. R. APP. P. 47.1. 

Because Bajmanlou has waived the right to dispute that he received the services 

SignAd promised and that he owes the amount stated, his argument that the 

contract is illegible can make no difference in the disposition of the case. We 

therefore do not consider Bajmanlou’s third issue. 

III. CONCLUSION

Bajmanlou challenges the judgment only on the ground that he is not liable 

for breach of a guaranty agreement. Because the record supports the judgment 

against him on an open account, we affirm the judgment on that basis..

/s/ Tracy Christopher

Justice

Panel consists of Chief Justice Frost and Justices Boyce and Christopher.