## NUMBER 13

- 20

- 00 215

- C V

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

– EDINBURG

RAMIRO VILLARREAL

, Appellant,

v.

RODNEY MYERS D/B/A I

- 69 TOWING

AND HAROLD WAITE, INDIVIDUALLY

AND D/B/A LA FERIA WRECKER SERVICE

, Appellee s

.

On appeal from the County Court at Law No. 1

of Cameron C ounty, Texas.



## MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Hin o josa and Silva

Memorandum Opinion by Justice Silva

This case concerns a small claims petition filed in the justice of the peace court,

wherein appellant Rami r o Villarreal alleged he had been unpaid for his work towing

vehicles for appellees Rodney Myers d/b/a I

- 69 Towing and Harold Waite, individually2 and d/b/a La Feria Wrecker Service. The justice of the peace court issued a take

- nothing

judgment in favor of appellees, and Villarreal appealed to the county (trial) court, which

also awarded judgment for appellees.

By five issues which we have reorganized below

, Villarreal claim s the trial court

(1) fail ed to grant his motion for continuance; (2) fail ed to grant his motion for new trial

based on the court’s denial of his motion for continuance ; (3) “ allow [ed] the [a]ppellees to

deny, by filing a general denial, an account of which is the foundation of [Villarreal ’ s] cause

of action in violation ” of the rules of civil procedure ; ( 4 ) provid ed unauthorized relief based

on appellees’ un pleaded affirmative defenses ; and (5) committed cumulative error

. We

affirm

.

I. B ACKGROUND

The justice of the peace court issued its judgment on October 4, 2018, and

Villarreal timely appealed to the trial court

. O n November 7, 2018, the trial court issued a

setting for a bench trial scheduled for December 13, 2018. Appellees filed a “ First

Amended Original Answer ” on November 16, 2018, raising a statute of limitations

affirmative defense.

On December 12, 2018

, the day before trial, Villarreal filed a motion for

continuance, requesting more time to conduct discovery and citing the Texas Rules of

Civil Procedure and the Texas Rules of Judicial Administration in support

. See T EX

. R.

C IV

. P. 245 ( “ The Court may set contested cases on written request of any party, or on

the court ’ s own motion, with reasonable notice of not less than forty

- five days to the

parties of a first setting for trial, or by agreement of the parties. ” ); T EX

. R. J UD

. A DMIN

.3 6.1(a)(2), reprinted in T EX

. G OV ’ T C ODE A NN

., tit. 2, subtit. F app

. ( civil nonjury case time

standards)

. The trial court granted Villarreal ’ s motion for continuance and reset the bench

trial for May 16, 2019

.

On May 13, 2019, Villarreal filed his second motion for continuance, reasserting

his right under the rules to have “ 12 months measured from the date of the answer ” to

prepare for trial and arguing that he had not received a copy of appellees ’ motion to strike

answers to requests for admissions

. 1 Villarreal additionally argued that the trial court had

yet to rule on appellees’ motion and that its ruling may “ have a direct impact on the final

outcome of the case. ” After a hearing on May 14, 2019, the trial court denied appellees ’

motion and grant ed Villarreal ’ s request for continuance. The case was reset for a bench

trial on May 30

, 2019

.

On May 29, 2019, Villarreal filed his third written motion for continuance, stating

his counsel was going to be in trial in a neighboring county

. Villarreal ’ s motion was verified

and supported by an affidavit by his counsel

. The next day

, the trial court acknowledged

on the record that he had received Villarreal’s motion for continuance, denied the motion,

and proceeded with the bench trial without Villarreal or his counsel present

. 2 Following

testimony from Myers and Waite, the trial court issued a judgment in favor of appellees

.

1 Appellee s ’ motion to strike was filed April 11, 2019. Villarreal filed a response on April 18, 2019.

2 Villarreal was not identified as present in the reporter ’ s record

. Moreover, prior to the

commencement of proceedings, the trial court stated: “ Plaintiffs? Not here? All right. ” The trial court ’ s

judgment further states that “ [p]laintiff, though notified of the trial setting, failed to appear

. ” However, o n

appeal, Villarreal claims he was present at the trial and submits an affidavit in support thereof

. Villarreal ’ s

affidavit appears only as an appendix to his brief, and therefore, it cannot be considered as evidence on

appeal. See T EX

. R. A PP

. P. 34.1; Hall v. Green Ridge Townhouse Homeowners Ass ’ n

, 635 S.W.3d 697,

701 (Tex. App.

— Texarkana 2021, pet. denied) ( “ The attachment of documents as exhibits or appendices

to briefs is not formal inclusion in the record on appeal, and, therefore, the documents cannot be4 On June 14

, 2019, Villarreal filed a motion for new trial, asserting that his counsel

had been “in trial from May 28, 2019 [,] until May 30, 2019 ” in a n unrelated criminal cause

, 3

a nd the “continuance should have been granted as a matter of law

. ” Villarreal raised no

other grounds for a new trial. Attached to the motion was an affidavit by counsel and an

exhibit from counsel’s Willacy County criminal case. The exhibit indicated that the trial

court in the criminal case had instructed the jury to c ontinue deliberating and contained a

time and date stamp of May 30, 2019, at 3:36 p.m. Following a hearing on Villarreal ’ s

motion

, t he trial court denied the motion

.

This appeal followed

.

considered. ” (quoting Tex. Windstorm Ins. Ass ’ n v. Jones

, 512 S.W.3d 545, 552 (Tex. App.

— Houston [1st

Dist.] 2016, no pet.))); see also Pauliono v. Brownsville TX E. Price Big 22 LLC

, No. 13

- 19

- 00554

- CV, 2021

WL 727384, at *2 (Tex. App.

— Corpus Christi

– Edinburg Feb. 25, 2021, no pet.) (mem. op.) ( “ An appellate

court cannot consider documents cited in a brief and attached as appendices if they are not formally

included in the record on appeal. ” (quoting Cantu v. Horany

, 195 S.W.3d 867, 870 (Tex. App.

— Dallas 2006,

no pet.))).

A ppellees ’ brief also states that Villarreal was present at trial and urges this Court to adopt this fact

as true

. Although we have discretion to accept uncontradicted statements made in the briefs as true, we

decline to do so where the statement would be in direct conflict with information in the clerk ’ s record and

reporter ’ s record. See T EX

. R. A PP

. P. 38.1 (g) ( “ In a civil case, the court will accept as true the facts stated

unless another party contradicts them. The statement must be supported by record references

. ” ) (emphasis

added) ; see also Tran v. Nguyen

, 480 S.W.3d 119, 127 (Tex. App.

— Houston [14th Dist.] 2015, no pet.)

(declining to accept an uncontradicted statement in a brief as true when it was not supported by record

references); White v. Corpus Christi Little Misses Kickball Ass ’ n

, 526 S.W.2d 766, 769 (Tex. App.

— Corpus

Christi

– Edinburg 1975, no writ) ( “ The record in this case does not justify our acceptance of plaintiff ’ s

statements in his brief ‘ as to facts ’ as being correct. ” )

.

3 Neither the motion for continuance nor attached affidavit explicitly stated that counsel’s conflicting

setting was for a criminal matter; Villarreal’s counsel did not provide the case style for the conflicting setting

in his motion for continuance as he d id in his motion for new trial

. See generally T EX

. G OV ’ T C ODE A NN

. § 23.101 (establishing preferential priority in trial courts for criminal actions); T EX

. C ODE C RIM

. P ROC

. A NN

. art. 32A.01 (“ Insofar as is practicable, the trial of a criminal action shall be given preference over trials of

civil cases.”).5 II. M OTION FOR C ONTINUANCE

By his first issue, Villarreal asserts the trial court abused its discretion in failing to

grant his third motion for continuance

.

A. Standard of Review and Applicable Law

“ When reviewing a trial court ’ s order denying a motion for continuance

, we

consider whether the trial court committed a clear abuse of discretion on a case

- by

- case

basis. ” Joe v. Two Thirty Nine Joint Venture

, 145 S.W.3d 150, 161 (Tex. 2004)

. A court

abuses its discretion by acting unreasonably or in an arbitrary manner without reference

to any guiding rules and principles. Joe

, 145 S.W.3d at 161.

A trial court may not grant a continuance “ except for sufficient cause supported by

affidavit, or by consent of the parties, or by operation of law. ” T EX

. R. C IV

. P. 251. When a

continuance is sought because of the unavailability of counsel

, we apply Texas Rule of

Civil Procedure 253. See id. R. 253; In re Marriage of Harrison

, 557 S.W.3d 99, 117 (Tex.

App.

— Houston [14th Dist.] 2018, pet. denied). Rule 25 3 states:

Except as provided elsewhere in these rules, absence of counsel will not be

good cause for a continuance or postponement of the cause when called

for trial, except it be allowed in the discretion of the court, upon cause shown

or upon matters within the knowledge or information of the judge to be

stated on the record.

T EX

. R. C IV

. P

. 253. Generally, a trial court ’ s denial of a motion for continuance due to

unavailability of counsel will be undisturbed on appeal where a record supports skepticism

of counsel ’ s true unavailability or the record is si lent regarding whether the conflict ing

settings had been avoidable or why counsel had not taken earlier steps to make the trial

court aware of the conflict ing settings

. See R.M. Dudley Const r

. Co. v. Dawson

, 2586 S.W.3d 694, 701 (Tex. App.

— Waco 2008, pet. denied) (concluding no abuse of discretion

in denying motion for continuance where the “ record does not show the efforts

, if any,

taken ” by the attorney to have the conflicting proceeding reset and there was “ no

explanation why the motion for continuance was filed

. . . on the day before trial ” ); In re

K.A.R.

, 171 S.W.3d 705, 711 (Tex. App.

— Houston [14th Dist.] 2005, no pet.) (concluding

same and noting that appellant ’ s attorney failed to notify the trial court of a conflicting

setting as soon as she became aware “ which was no later than ” the date she received

notice of the trial court ’ s order setting case for trial); Chandler v. Chandler , 536 S.W.2d

260, 262 (Tex. App.

— Corpus Christi

– Edinburg 1976, writ dism’d) (concluding same

where appellant’s attorney cited unavailability due to previously scheduled conflicting

setting and submitted documented proof); see also Hontanosas v. Hontanosas

, No. 13

-

08

- 00309

- CV, 2012 WL 432642, at *3 (Tex. App.

— Corpus Christi

– Edinburg Feb. 9, 2012,

no pet.) (mem. op.) (concluding same where attorney claimed unavailability due to being

out of state); Sikes v. Sikes

, No. 11

- 08

- 00296

- CV, 2010 WL 2112809, at *2 (Tex. App.

—

Eastland May 27, 2010, no pet.) (mem. op.) ( concluding same and observing that where

“ t he record supports the court ’ s skepticism ” based on counsel ’ s failure to attend to prior

hearings, “ the trial court did not act in an arbitrary or unreasonable manner ” in denying

appellant ’ s request for continuance based on attorney unavailability).

B. Analysis

Villarreal ’ s second motion for continuance was filed on May 13

, and the trial court ’ s

order granting the continuance, signed on May 14, scheduled the case for a bench trial

on May 30, 2019. It was not until the day before trial that Villarreal filed his third motion7 for continuance and made his counsel’s impending absence and related reason known.

See T EX

. R. C IV

. P. 251, 253. Though i t is unapparent from Villarreal’s motion for

continuance when Villarreal became aware of the conflict ing settings

, it presumably

occurred before May 29

, when counsel claimed he was in the middle of trial elsewhere

,

and i t was incumbent upon Villarreal to promptly notify the trial court of the conflicting

settings. See Dawson , 258 S.W.3d at 701; see also Cameron County (Tex.) D IST

. & C NTY

.

C T

. L OC

. R

. 1.13(c) ( requiring that “ [a]t the time of announcements, counsel

shall

. . . advise the judge of anticipated conflicting engagements during the week of trial

that may affect counsel ’ s ability to attend trial ” ) ; In re W.A.B.

, No. 14

- 18

- 00181

- CV, 2019

WL 2181205, at *3 (Tex. App.

— Houston [14th Dist.] May 21, 2019, no pet.) (mem. op.)

(considering local rule requirements in its analysis of whether the trial court abused its

discretion in denying counsel ’ s request for continuance based on a conflicting setting)

.

Villarreal ’s motion provided no explanation for his late filing and did not state what, if any,

preparatory measures had been taken to avoid the conflict

. See Dawson

, 258 S.W.3d at

701; In re K.A.R.

, 171 S.W.3d at 711.

Moreover, although this was Villarreal ’ s third motion for continuance before the

trial court, the record reflects that it was Villarreal ’ s eighth motion for continuance since

the case ’ s inception. See Joe , 145 S.W.3d at 161; see also In re J.G. , No. 12

- 18

- 00111

-

CV, 2018 WL 5318008, at *2 (Tex. App.

— Tyler Oct. 29, 2018, pet. denied) (mem. op.)

(“When considering a motion for continuance, the trial court may take into account the

entire procedural history of the case.”). Villarreal filed motions requesting continuances

on February 8, 2018, March 16, 2018, July 25, 2018, August 16, 2018, and October 3,8 2018. The motions filed between February and August 2018 alleged the following causes

for continuance: (1) he requested additional time to conduct discovery; (2) “Plaintiff ’ s

[counsel] has been on a trip, [sic] father’s funeral will be going to a much needed

vacation”; and (3) “Plaintiff has been given by gift a trip to Italy and Israel that had been

planned over a month ago by the donor.” The basis for Villarreal’s October motion for

continuance , filed on the eve of tria l in the justice court

, was counsel ’s purported

unavailability due to a “scheduling conflict.” 4

Appellees state that the trial court could have reasonably surmised that Villarreal’s

May 29 motion for continuance was filed as “a tactic designed to harass [appellees]”

based on the procedural history of the case . Appellees note specifically that : (1) Villarreal

had previously filed “ a last

- minute motion for continuance followed up by the attorney ’ s

failur e to appear ” in the justice of the peace court ; and (2) Villarreal’s motion for

continuance preced ing the May 29 , 2019 continuance by two weeks was untenable

. 5 We

agree with appellees. The t rial court ’ s skepticism of counsel’s unavailability may also be

observed in its opening statement to the parties: “ Plaintiffs? Not here? All right. First

witness? I ’ ve got a Motion for a Continuance from [Villarreal ’ s counsel], but I ’ ve already

4 The record indicates that Villarreal’s counsel was not present for trial on October 4, 2018, in the

justice of the peace court

. Villarreal was in attendance but presented no evidence.

5 Vil larreal argue d in his May 13 , 2019 motion for continuance that he had a right to have “ 12

months measured from the date of the answer” to prepare for trial under the Texas Rules of Judicial

Administration. The r ule, however, provides that civil nonjury matters should be brought to trial or final

disposition “ [ w ] ithin 12 months from appearance date .” T EX

. R. J UD

. A DMIN . 6.1(a)(2), reprinted in T EX

. G OV ’ T

C ODE A NN ., tit. 2, subtit. F app. (emphasis added). Villarreal also claimed he had not received a copy of

appellees’ outstanding motion where he had already filed a response one month prior.9 been there done that with him. I ’ m not granting it. It ’ s going to be denied. ” See Joe , 145

S.W.3d at 161.

For these reasons, we conclude that the trial court ’ s denial of Villarreal ’ s motion

for continuance was not made “ unreasonably or in an arbitrary manner without reference

to any guiding rules and principles

. ” See id. We overrule Villarreal ’ s first issue.

III. M OTION FOR N EW T RIAL

By his second issue, Villarreal argues the trial court erred in denying his “ motion

for new trial even when [his] attorney testified that he could not be present for the trial due

to his [attorney] having to be in a trial on a criminal case in a district court in another

county and had not been allowed to leave the criminal trial. ”

We also review a trial court ’ s denial of a motion for new trial for an abuse of

discretion. In re Marriage of Sandoval

, 619 S.W.3d 716, 721 (Tex. 2021) (per curiam). As

stated above, a trial court abuses its discretion when it acts in an arbitrary or unreasonable

manner or without reference to guiding rules and principles. See Joe

, 145 S.W.3d at 161 ;

see also Sanchez v. Garcia , No. 13

- 05

- 557

- CV, 2006 WL 2076752, at *3 (Tex. App.

—

Corpus Christi

– Edinburg July 27, 2006, pet. denied) (mem. op.) ( “The trial court may

consider the entire history of the case, including the length of time the case was on file,

the amount of activity in the case, the request for a trial setting, and the existence of

reasonable excuses for delay.”)

.

As a preliminary matter, we address Villarreal ’ s assertion that the trial court

“ g rant[ed] a final default judgment. ” If what is before the trial court on a motion for new

trial is a request that the trial court set aside a default judgment, then the trial court’s10 discretion is “limited

, ” and the application of a multipart test is necessary

. Sandoval , 619

S.W.3d at 721 ( citing Craddock v. Sunshine Bus Lines

, Inc.

, 133 S.W.2d 124 , 126 (Tex.

1939)). Generally, Texas recognizes two types of default judgments: (1) no

- answer

judgment “caused by a defendant’s failure to answer after service,” and (2) post

- answer

judgment “caused by a defendant’s failure to appear for trial after answering a suit.”

Paradigm Oil, Inc. v. Retamco Operating, Inc.

, 372 S.W.3d 177, 183

– 84 ( Tex . 2012)

(observing that “ default judgments may generally be categorized as pre

- or post

- answer”

but “other variations exist”). Irrespective of the type of default judgment before a court,

the “critical question” when a default judgment is attacked by a motion for new trial is:

“ Why did the defendant not appear?” Milestone Operating, Inc. v. ExxonMobil Corp. , 388

S.W.3d 307, 309 (Tex. 2012) (per curiam) (quoting Sutherland v. Spencer , 376 S.W.3d

752, 755 (Tex. 2012) ). I t is clear from a review of our jurisprudence and the rules of civil

procedure that “default judgments” concern a defendant’s default

— not a plaintiff’s. See

T EX

. R. C IV

. P. 239, 239a, 241; Milestone Operating , 388 S.W.3d at 309 ; Paradigm Oil

,

372 S.W.3d at 183

– 84

.

V illarreal cites no caselaw

, and we have found none

, concerning the review of a

motion for new trial on a “ default judgment ” where the plaintiff was the absentee party.

We observe that the lack of caselaw likely stems from the “well

- establish[ed] rule” that a

trial court cannot issue a judgment adjudicating the merits where a plaintiff fails to appear.

Smock v. Fischel , 207 S.W.2d 891, 892 (Tex. 1948) (“It is a well

- establish[ed] rule that

when a plaintiff fails to appear and prosecute his case, the court can[]not try the plaintiff’s

cause of action, but the only remedy is to dismiss the same.”) ; see also In re J.D.F. , No.11 13

- 13

- 00337

- CV, 2014 WL 15142 27, at *4 (Tex. App.

— Corpus Christi

– Edinburg Apr. 17,

2014, pet. denied) (mem. op.) (observing the rule in dicta); Tewell v. Tewell , 599 S.W.2d

351, 354 (Tex. App.

— Corpus Christi

– Edinburg 1980, writ ref’d n.r.e.) (observing an

exception to rule when the de fendant files a counterclaim). If a plaintiff does not appear

“for any hearing or trial of which the party had notice,” the appropriate avenue to resolve

the case in favor of the defendant is a dismissal without prejudice for want of prosecution,

and a pla intiff may challenge a trial court’s dismissal by filing a motion to reinstate. T EX

.

R. C IV

. P . 165a; see Smith v. Babcock & Wilcox Const r

. Co

. , 913 S.W.2d 467, 468 (Tex.

1995) (per curiam) (reviewing a trial court’s refusal to reinstate a case following its

dismissal for want of prosecution based on an attorney’s failure to appear); see also

Dolenz v. Pirate’s Cove Water Supply & Sewage Serv. Cor p. , No. 13

- 99

- 740

- CV, 2001

WL 1002434, at *1 (Tex. App.

— Corpus Christi

– Edinburg June 28, 2001, pet. denied)

(mem. op. , not designated for publication ) ( concluding that “[a] trial court may not

adjudicate the merits of a plaintiff’s claim when he fails to a ppear for trial, but may only

dismiss for want of prosecution”).

In any event , the “operative standard” for reviewing a case dismissed for want of

prosecution is “essentially the same as that for setting aside a default judgment

. ” Smith

,

913 S.W.2d at 468; see Garcia v. Barreiro , 115 S.W.3d 271, 277 (Tex. App.

— Corpus

Christi

– Edinburg 2003, no pet.)

. The party seeking new trial or reinstatement of a case

dismissed for want of prosecution “ has the burden and must provide some proof of an

a dequate justification for the failure [to appear] that negates intent or conscious

indifference.” Gillis v. Harris County , 554 S.W.3d 188, 194 (Tex. App.

— Houston [14th12 Dist.] 2018, no pet.) (citing Smith , 913 S.W.2d at 468) ; see Sutherland , 376 S.W.3d at

755

. I f the dismissal order “does not state the grounds on which it was granted

, ” a plaintiff

seeking reinstatement must also show that they were diligent in prosecuting suit against

the defendant

. See Henderson v. Blalock , 465 S.W.3d 318, 323 (Tex. App.

— Houston

[14th Dist.] 2015, no pet.) ; see also De La Garza v. Ramirez , No. 13

- 12

- 00711

- CV, 2015

WL 2159941, at *3 (Tex. App.

— Corpus Christi

– Edinburg May 7, 2015, pet. denied) (mem.

op.) (concluding trial court did not err in refusing to reinstate appellant’s case where

dismissal occurred following plaintiff’s counsel’s absence at trial in part because the

plaintiff “submitted no evidence of diligence in his motion to reinstate ” )

. Villarreal’s motion

for new trial and related argument on appeal is simply a reprise of his motion for

continuance

, already discussed supra

, and the trial court’s order denying Villarreal’s

motion for new trial does not specify the grounds for its denial

. Villarreal provided no

argument or evidence of diligence i n prosecution

. See Henderson , 465 S.W.3d at 323;

see also De La Garza , 2015 WL 2159941, at *3. And although Villarreal characterizes the

trial court’s judgment as a “default judgment,” Villarreal does not cite to Craddock or its

progeny or provide an analysis of the three factors utilized in reviewing a motion for a new

trial in either his motion or on appeal. See Craddock

, 133 S.W.2d at 126.

We acknowledge the unusual procedural predicate before us. Nonetheless,

Villarreal did not address or produce evidence under any applicable standard to avail

himself to any relief

. Under these facts, the trial court did not abuse its discretion in

denying Villarreal ’ s motion for new trial. See Joe

, 145 S.W.3d at 161. We overrule

Villarreal’s second issue.13 I V

. S WORN A CCOUNT

By Villarreal ’ s third issue

, he argues appellees ’ unverified general denial was

insufficient to meet the pleading requirements under Rule 93 in response to his sworn

account ; therefore, Villarreal was entitled to judgment as a matter of law

. See T EX

. R. C IV

.

P. 9 3(10) ; see also Tandan v. Affordable Power, L.P.

, 377 S.W.3d 889, 894 (Tex. App.

—

Houston [14th Dist.] 2012, no pet.)

.

A. Standard of Review and Applicable Law

“ A suit on a sworn account is not an independent cause of action. ” Sherrard v.

SignAd, Ltd.

, 637 S.W.3d 192, 201 (Tex. App.

— Houston [14th Dist.] 2021, no pet.)

.

Rather, it is a mechanism under the Texas Rule of Civil Procedure which affords a plaintiff

“ a procedural right of recovery in certain contract disputes. ” S. Mgmt. Servs

. , Inc. v. SM

Energy Co.

, 398 S.W.3d 350, 353 (Tex. App.

— Houston [14th Dist.] 2013, no pet.) ; see

also Salazar v. Delta Rest. Supply Co.

, No. 13

- 02

- 448

- CV, 2003 WL 21706018, at *1

(Tex. App.

— Corpus Christi

– Edinburg July 24, 2003, no pet.) (mem. op.)

. Rule

interpretation is a question of law over which the trial court has no discretion, and “ which

we review de novo by applying the same canons of construction applicable to statutes. ”

Zorrilla v. Aypco Constr. II, LLC

, 469 S.W.3d 143, 155 (Tex. 2015).

Texas Rules of Civil Procedure 185 and 93(10) govern a suit for debt on sworn

account. Rule 185 provides as follows:

When any action or defense is founded upon an open account or other claim

for goods, wares 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 attorney14 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. 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

. . . .

T EX

. R. C IV

. P. 185 (emphasis added)

.

Rule 93 requires

, in relevant part, that “ [a] denial of an account which is the

foundation of the plaintiff ’ s action ” “ shall be verified by affidavit. ” T EX

. R. C IV

. P. 93 (10) ;

see Day Cruises Mar., L.L.C

. v. Christus Spohn Health Sys.

, 267 S.W.3d 42, 55 (Tex.

App.

— Corpus Christi

– Edinburg 2008, pet. denied) ( observing that “ Rule 93 (10),

applicable to the denial of a sworn account

, does not permit verification based on

‘ information and belief ’ ; rather, it requires verification unqualifiedly based on the affiant ’ s

personal knowledge ” ) . “A sworn general denial does not constitute a denial of the account

and is insufficient to remove the evidentiary presumption created by a properly worded

and verified suit on an account.” Woodhaven Partners, Ltd. v. Shamoun & Norman,

L.L.P.

, 422 S.W.3d 821, 833 (Tex. App.

— Dallas 2014, no pet.)

.

In other words, where a plaintiff presents prima facie sworn evidence of an account

pursuant to R ule 185, the defendant must file a proper verified denial if it wishes to

challenge the validity or amount of the account. See T EX

. R. C IV

. P. 185

. Where a

defendant fails to do so

, he will not be permitted to dispute the receipt of the services or

the correctness of the charges

, and the plaintiff is entitled to recovery. Vance v. Holloway

,

689 S.W.2d 403, 404 (Tex. 1985) (per curiam); see Cont ’ l Carbon Co. v. Sea

- Land Serv.,15 Inc.

, 27 S.W.3d 184, 190 (Tex. App.

— Dallas 2000, pet. denied) ( “ A defendant who fails

to file a written denial under oath in a suit on a sworn account shall not be permitted to

deny the claim, or any item therein. ” )

. Conversely, where a plaintiff does not strictly

comply with R ule 185

, a defendant is not required to file a verified denial. See Hou

- Tex

Printers, Inc. v. Marbach

, 862 S.W.2d 188, 190 (Tex. App.

— Houston [14th Dist.] 1993,

no writ) ( “ In the absence of a proper Rule 185 affidavit establishing the account, Hou

– Tex

was under no obligation to file the denial required by Rule 185. ” ) ; see also Meza Sierra

Enters

. , Inc. v. Kingdom Fresh Produce, Inc.

, No. 13

- 13

- 00119

- CV, 2016 WL 5941890,

at *3 (Tex. App.

— Corpus Christi

– Edinburg Oct. 13, 2016, no pet.) (mem. op.) (concluding

that where a plaintiff ’ s “ affidavit does not strictly comply with rule 185 because it did not

state that the claim was within his knowledge and just and true

. . . the claim is not

supported by prima facie evidence of the debt, [and] [the defendant] was not required to

file a verified denial ” ).

B. Analysis

Villarreal is correct in that appellees only asserted a general unverified denial in

response to Villarreal ’ s petition

. However, Villarreal did not comply with the affidavit

requirement of rule 185. See T EX

. R. C IV

. P. 185

. The record contains no affidavit attached

to Villarreal’s petition

. See id. ; see also Meza Sierra Enters

. , 2016 WL 5941890, at *3

.

Therefore, w e conclude appellees ’ failure

, if any, to file a verified denial in response is of

no import. See Marbach

, 862 S.W.2d at 190; see also Salazar v. Delta Rest. Supply Co.

,

No. 13

- 02

- 448

- CV, 2003 WL 21706018, at *1 (Tex. App.

— Corpus Christi

– Edinburg July

24, 2003, no pet.) (mem. op.) ( concluding that where plaintiff “ did not establish a prima16 facie case in its petition, we need not examine whether [the defendant’s] answer was

sufficient under rule 185 ” ). We overrule Villarreal ’ s third issue.

V

. A FFIRMATIVE D EFENSES

Villarreal contends by his fourth issue that the trial court erred in granting relief

based on the unpleaded affirmative defenses of “ no contract ” or “ payment

. ” See T EX

. R.

C IV

. P. 94, 95

.

A. Standard of Review and Applicable Law

Texas Rule of Civil Procedure 94 requires a party to plead affirmatively those

affirmative defenses listed in the rule “ and any other matter constituting an avoidance or

affirmative defense

. ” T EX

. R. C IV

. P. 94; Zorrilla

, 469 S.W.3d at 155. “[A]n affirmative

defense is by nature one of confession and avoidance and ‘ does not seek to defend by

merely denying the plaintiff ’ s claims

, but rather seeks to ‘ establish an independent reason

why the plaintiff should not recover .’” Dixie Carpet Installations, Inc. v. Residences at

Riverdale, LP , 599 S.W.3d 618, 631 (Tex. App.

— Dallas 2020, no pet.) ( quoting Tex. Beef

Cattle Co. v. Green , 921 S.W.2d 203, 212 (Tex. 1996)). Stated differently, an affirmative

defense is one which “ defeats the plaintiff ’ s claim without regard to the truth of the

plaintiff ’ s assertions. ” Phila

. Indem. Ins. Co. v. White

, 490 S.W.3d 468, 485 (Tex. 2016)

(quoting Zorrilla

, 469 S.W.3d at 156).

Rule 95 governs payment as an affirmative defense

. T EX

. R. C IV

. P. 95; see Tex.

Mut. Ins. Co. v. Ledbetter

, 251 S.W.3d 31, 37 (Tex. 2008)

. Rule 95 requires a defendant

raising the affirmative defense of payment to “ file with his plea an account stating distinctly

the nature of such payment. ” T EX

. R. C IV

. P. 95. If a defendant fails to do so, “ he shall not17 be allowed to prove the same, unless it be so plainly and particularly described in the plea

as to give the plaintiff full notice of the character thereof. ” Id.

A n affirmative defense not properly raised in pretrial pleadings is generally waived.

MAN Engines & Components, Inc. v. Shows , 434 S.W.3d 132, 13 6

– 3 7 (Tex. 2014) ; see

T EX

. R. C IV

. P. 94; Sage St. Assocs. v. Northdale Const r

. Co. , 863 S.W.2d 438, 443 (Tex.

1993) (observing exceptions where the unpleaded affirmative defense is tried by

consent) ; see also Moreno v. Ocadiz , No. 13

- 19

- 00116

- CV, 2021 WL 3085855, at *5

(Tex. App.

— Corpus Christi

– Edinburg July 22, 2021, pet. denied) (mem. op.) ( cautioning

that trial by consent “ is the exception, not the rule, and should not be allowed in doubtful

cases”)

.

B. Analysis

Villarreal’s petition asserted that the appellees owed h im $9,000 in employment

related fees . It is undisputed that appellees’ answer provided a general denial and did not

set forth any affirmative defenses such as payment

. See T EX

. R. C IV

. P. 94, 95. Villarreal

argues appellees’ trial testimony impermissibl y invo ked an affirmative defense of “no

contract” or “payment” which appellees had been required to properly plead and verify

prior to trial. See id. R. 94, 95

. Appellees disagree with Villarreal’s characterization of their

testimony as raising an “affirmative defense. ” Assuming arguendo that appellees’

testimony invoked an unpleaded affirmative defense, and that the trial court erred by

considering such affirmative defense, for the reasons set forth below, the error is not

reversible because it cannot be said to have “p robably caused the rendition of an improper

judgment.” See T EX

. R. A PP . P. 44.1(a)(1).18 “[A] trial court’s error is reversible only if it was harmful.” In re Commitment of

Jones , 602 S.W.3d 908, 913 (Tex. 2020) (per curiam) . No specific test exists for

determining harmful error. Caffe Ribs, Inc. v. State , 487 S.W.3d 137, 145 (Tex. 2016) ;

TXI Transp. Co. v. Hughes , 306 S.W.3d 230, 242

– 43 (Tex. 2010) ( “ Probable error is

. . . a

matter of judgment drawn from an evaluation of ‘ the whole case from voir dire to closing

argument, considering the state of the evidence, the strength and weakness of the case,

and the verdict. ’ ” (quoting Reliance Steel & Aluminum Co. v. Sevcik , 267 S.W.3d 867,

871 (Tex. 2008))). A reviewing court, in exercising its sound discretion, may reverse only

if “the error complained of

. . . probably caused the rendition of an improper judgment” or

“probably prevented the appellant from properly presenting the case to the court of

appeals.” T EX

. R. A PP . P. 44.1(a)(1); see Caffe Ribs , 487 S.W.3d at 145.

It is true that a defendant asserting an affirmative defense at trial must “present

sufficient evidence to establish the defense and obtain the requisite [trial] findings.”

Zorrilla , 469 S.W.3d at 156. However, equally axiomatic is that a defendant’s “ general

denial of the plaintiff’s claim puts the entire matter at issue,” Genesis Tax Loan Servs.,

Inc. v. Kothmann , 339 S.W.3d 104, 108 (Tex. 2011), and at trial, the burden of proof rests

with the plaintiff “ to establish their case by a preponderance of the evidence .” Bombardier

Aerospace Corp. v. SPEP Aircraft Holdings, LLC , 572 S.W.3d 213, 221 (Tex. 2019) (citing

Merrell Dow Pharm., Inc. v. Havner

, 953 S.W.2d 706, 728 (Tex. 1997); Boswell v. Pannell

,

180 S.W. 593, 595 (Tex. 1915)); see also Estrada v. Dillon , 44 S.W.3d 558, 562 (Tex.

2001) (per curiam) ( “If a party files a general denial in the trial court, that pleading puts a

plaintiff to his or her proof on all issues.”). In other words, where a general denial exists19 and the plaintiff fails to establish his claim at trial , the viability o f an unpleaded affirmative

defense is irrelevant

. See Boswell , 180 S.W. at 595 (“ The burden of proof never shifts

from the plaintiff to the defendant.”); see also S. States Life Ins. v. Paul , 390 S.W.2d 479

(Tex. Civ. App.

— Waco 1965, no writ) (“ Affirmative defenses in the nature of avoidance

do not come into play until a prima facie case is established.”)

.

We are unable to consider the effect of Villarreal’s absence as it is not the basis

for his complained

- of error on appeal , and we are unable to reverse except where “ the

error complained of

. . . probably caused the rendition of an improper judgment” or barred

his presentment of his case on review. See T EX

. R. A PP . P. 44.1(a) (emphasis added) ; In

re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P. , 290 S.W.3d 204, 211 (Tex. 2009)

(orig. proceeding) ( “Appellate judges have much less discretion because they are limited

to the issues urged and record presented by the parties and because appellate courts are

specifically limited to reve rsing judgments only for errors [under Rule 44.1] .”)

. The “error

complained of” here is the trial court’s consideration of appellees’ affirmative defense

testimony

. Even assuming without deciding that the testimony improperly invoked an

unpleaded affirmati ve defense

, the testimony was legally immaterial because Villarreal

did not carry his burden of proof. See T EX

. R. A PP . P. 44.1(a); Bombardier Aerospace

,

572 S.W.3d at 221; Boswell , 180 S.W. at 595; Paul , 390 S.W.2d at 479. T herefore, the

trial court’s consideration of appellees’ testimony did not cause the rendition of an

improper judgment or prevent Villarreal from presenting his case

. See T EX

. R. A PP . P.

44.1(a) ; see also G & H Towing Co. v. Magee , 347 S.W.3d 293, 298 (Tex. 2011)

(concluding a trial court erred in “ granting a summary judgment on a cause of action not20 expressly presented by written motion,” but “the error is harmless when the omitted cause

of action is precluded as a matter of law b y other grounds”) ; Bryant v. Lucent Techs., Inc.

,

175 S.W.3d 845, 850 (Tex. App.

— Waco 2005, pet. denied) (concluding that where the

plaintiff “failed as a matter of law to establish her claim” at trial, the trial court ’ s “erroneous

restriction on [plaintif f’s] closing argument did not result in the rendition of an improper

judgment”).

We overrule Villarreal’s fourth issue.

VI. C UMULATIVE E RROR

We are uncertain what precisely Villarreal means to appeal by his multifaceted fifth

issue, which presents largely fragmented, conclusory arguments

. See T EX

. R. A PP

. P

.

38.1(i) (brief argument requirements) ; see generally Lion Copolymer Holdings, LLC v.

Li on Polymers, LLC , 614 S.W.3d 729, 732 (Tex. 2020) (per curiam) ( “To determine

whether an issue was waived, a court looks not only to the wording of the issue but the

argument under each heading to assess the intent of the parties.”).

In the “Argument and A uthorities” portion of this issue in Villarreal’s brief, he

“request[s] for this [C]ourt to weigh in the cumulative effect of the trial court’s decisions,”

“invokes” Rule 44 of the Texas Rules of Appellate Procedure, avers that his prior “ motions

should no t have been grounds for the last motion for continuance to have been denied,”

and argues:

The individual being punished is [Villarreal]. [Villarreal] had been present at

all times. Unfortunately, on that date, inadvertently, the documents had

been left in [Villarreal’s] attorney’s car. With no fault of [Villarreal’s] attorney,

[Villarreal] was left unrepresented at the day when he was led to believe

that there would be a trial but he would not participate. And if he had been21 allowed to participate, he could do nothing without the documents and with

no skill to defend himself.

See T EX

. R. A PP

. P . 44.1(a).

Villarreal cites to one page of the reporter’s record he alleges evidences error,

wherein the trial court orally acknowledged Villarreal’s motion for continuance and denied

it before proceeding with the hearing, but Villarreal provides no further discussio n.

Therefore, it remains unclear which “[m]ultiple errors” Villarreal challenges, what actions

by the trial court prejudiced Villarreal’s ability to present an issue for review, or which

issue on appeal was prejudiced. See id. To the extent that issue five is a reiteration of

issue one or two

— which concern the trial court’s denial of his third motion for

continuance

— having already concluded that the trial court did not abuse its discretion in

denying Villarreal’s motion for continuance, we find no reversibl e error on this basis under

Rule 44.1.

Despite language insinuating a due process and/or an access

- to

- court challenge,

Villarreal’s brief does not support these issues with specific arguments or appropriate

references to the record 6 or to relevant author ity. 7 See id. R

. 38.1(i). Provided that

Villarreal means to raise a cumulative effect, due process, and/or access

- to

- court issue,

we conclude these matters have been inadequately briefed

. See id. ; Schack v. Prop.

Owners Ass’n of Sunset Bay , 555 S.W.3d 339, 354 (Tex. App.

— Corpus Christi

– Edinburg

6 The record is devoid of any evidence indicating that the trial court refused to let Villarreal appear

. Villarreal’s affidavit submitted as an appendix on appeal does not include these allegations.

7 Villarreal cites to five cases in this section of his brief

— three of which concern the standard of

review and two sister court cases citing to Rule 44.1 of the Texas Rules of Appellate Procedure

— with no

explanation or elaboration of case applicability. Se e T EX

. R. A PP

. P . 44.1.22 2018, pet. denied) (concluding an issue was inadequately briefed where appellants “d[id]

not include any specific argument related to this issue”) ; see also In re K.S. , No. 13

- 19

-

00416

- CV, 2021 WL 31 7656, at *6 (Tex. App.

— Corpus Christi

– Edinburg Jan. 28, 2021,

no pet.) (mem. op.) (concluding same where appellant’s “argument in support of this issue

is conclusory,” and “she fails to support her argument with citation to the record or

pertinent authorit y”). We overrule Villarreal’s fifth issue.

VII

. C ONCLUSION

We affirm the trial court’s judgment.

CLARISSA SILVA

Justice

Delivered and filed on the

24th day of March

, 2022

.