### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00255- CV

Dibco Underground, In c., and Li berty M utual In surance Co., Appellants

v. JCF Bridge & Concre te, Inc., Appellee

F ROM CO UNTY COURT AT LAW NO . 1 O F TRAVIS CO UNTY, NO. C-1 -CV- 07- 0077 43, H ONO RAB LE J. DAVID P HI LLIP S, JUDGE P RESIDING

M E M O R A N D U M O P I N I ON Appellee J CF Br idge & Concrete , I nc. (“JCF”) filed a suit on a sworn acc ount ag ainst appellants Dibco Under g round, I nc. (“D ibco”) and L iberty Mutual I nsuranc e Co. (“L iberty Mutual”) alleg ing that Dibco, the contra ctor on a pub l i c- wo rk s projec t for the City of Austin, failed to pay J CF, a subcontrac tor, for service s rende red pursuant to the contra ct betwee n them. J CF sued L iberty Mutual in its capa city as the surety that issued the proj ec t’s pay ment bond. Dibco filed a count e r c la im a sserting that J CF brea ched the contra ct by failing to perf orm. After multipl e discovery d isputes, the trial court g rante d defa ult judgme nt ag ainst appellants as a discovery sanction. T h e court also g rante d a no-evide nce summary judgme nt for J CF on Dibco’s counter claim and aff irmative defe nses, a no- evidenc e summary judgme nt for JC F on L iberty Mutual’s defe nses and

on J CF’s claim ag ainst L iberty Mutual, and a t ra d i t i o n al summary judgme nt for J CF on its claim ag ainst L iberty Mutual. Finally , the trial court struck sever al para g raphs of the aff idavit of Dibco’spresident that serve d as the verific ation for Dibco and L iberty Mutual’s sworn denial. I n t we l v e

issues, appellants asser

t that the trial court (1) abused its discretion by impos i n g “d ea t h-pena lty ” discovery sanctions; (2) err ed in g ranting J CF’s motions fo r s u m m ary judgme nt; (3) abused its discretion by striking portions of DiMillo’s aff idavit; and (4) err ed in awa rding J CF attorney ’s fee s. We will reverse the trial cour t’s judgme nt and re mand the ca use for further proce eding s.

F ACTUAL AND P ROCEDURAL BACK GR OUND The City of Austi n hired Dibc o as the g ener al contra ctor on a public-works pr oject
to repla ce the exis ting Ba rton Creek L ift Stati o n . Dibco, in turn, hired J CF as a subcontrac tor to complete a portion of the concr ete work. Dibco alleg es that JC F did not c omplete the work. J CF,

on the other hand, claims that the scope of the work chang ed during the job and that J CF was never paid for the additional work it pe rfor med. Dibco denies this, a sserting that J CF seeks pay ment for work e ither neve r per formed or never authorized by

Dibco. J CF filed a suit on a sworn acc ount pursuant to rule of civil proce dure 185, alleg ing that Dibco, as g ener al contra ctor, and L iberty Mutual, as surety on the pay ment bond, owed it money for work done under the subcontrac t. Appellants filed separ ate sworn denials, both of which wer e verifie d by

the af fidavit of Dibco’ s president, Ettore DiMillo. Discover y disputes arose betwee n the parties. Am o ng other complaints, J CF took issue with what it saw as L iberty Mutual’s failure to produce documents fr om its own files and to desig nate a corpor ate repr esenta tive for deposition who was an actua l employ ee of L iberty Mutual. For its part, Dibco objected to the brea dth of J CF’s reque st that it p roduce any and all contra cts rela ted to the projec t, all corr espondenc e betwee n Dibco and other suppliers and vendors on the
2projec t, and all pay ments made to any of its suppliers. Unable to come to an ag ree ment with appellants, J CF filed a motion to compel appellants to file complete response s. Acc ording to appellants, afte r a hear ing on J CF’s motion, the court ora l l y order ed Dibco to supplement its response s to J CF’s reque st for disclosure to ref lect the identity of sever al subcontrac tors. J CF was 1 unsatisfied with tha t r esolution a nd moved for a rehe aring of its motion to compel. After a second h ea ri ng , the court overr

uled sever al of appellants’ objections and order ed them to amend t h ei r discovery response s, which appellants did. Stil l unsatisfied with appellants’ response s, J CF moved fo r d ef au l t judgme nt as a discovery sanction. See Tex. R. Civ. P. 215.2(5). J CF also fi l ed a no-evide nce motion for summary judgme nt on Dibco’s counter cl ai m and aff irmative defe nses as well as traditional and no-evide nce motions for summary judgme nt ag ainst L iberty Mutual on J CF’s claims and L iberty Mutual’s aff irmative defe nses. J CF also objected to parts of the DiMillo aff idavit and re quested that they

be stricke n. After a hear in g, t h e t ri al court g rante d all of J CF’s motions. Specifica lly , the trial
court (1) struck para g raphs 3, 4, 5, and 6 from DiMillo’s aff idavit as “conc lusory and inadmissible”; (2) g rante d defa

ult judgme nt ag ainst both D ibco and L iberty Mutual as a discovery sanction under rule 215.2(5); (3) g rante d J CF’s traditional and no-evide nce summary -judg ment motions ag ainst L iberty Mutual as to its aff irmative defe nses and as to J CF’s claims aga inst L iberty Mutual; (4) g rante d J CF’s n o -e v i d ence motion for summary judgme nt on Dibco’s counter claim and aff irmative defe nses; (5) awa rded J CF $92,504.03 in damag es; and (6) awa rded J CF attorney ’s fee s.

The rec ord does not c ontain a transcr ipt of that hear ing. The trial c ourt’s orde r, which is 1 in the rec ord, mere ly states that “this Court finds that at this time Plaintiff’ s M o t i o n as submitt ed should be DENI ED.” 3STANDARD OF REVIEW

Discove ry Sanction s

We revie w a trial court’s imposit ion of discovery sanctions for a n a b u s e o f d iscretion. T r ansamerican Natural Gas Corp. v. Powell , 811 S.W .2d 913, 917 (Tex. 1991). I n gen er al , a trial cour t ab u s es its discretion when it acts without ref ere nce to any g uiding rules or principles—i.e., when it acts arbitra rily or unrea sonably

. W

orford v. Stamper , 801 S.W .2d 108, 109 (Tex. 1990) (citing Downer v. Aquamarine Operators, Inc. , 701 S.W .2d 238, 241-42 (Tex. 1985)). I n discovery -sanc tion case s, a trial court’s discretion is limit ed by the require ment of rule 215.2 that the sanctions be “just” and by t he parties’ constitutional rig ht to due proce ss. Tex. R. Civ. P. 215.2(2)( b); Transamerican , 811 S.W .2d at 918-19.

Sum m ary Judgm ent

Whether summary

judgme nt is proper is a que stion of law that we r eview de novo. FM Props. Operating Co. v. C i t y o f A u stin , 22 S.W .3d 868, 872 (Tex. 2000). “Tra ditional” summary judgme nt is proper if (1) there are no g enuine issues of mater ial fac t, a nd (2) the movant is entitled to judgme nt as a matter of law. Tex. R. Ci v . P

. 1 66a(c ). To preva il on a traditional motion for summary judgme nt, plaintiff must conclusively prove all elements of its cause of action

as a matter of law. City of Houston v. Clear Creek Basin Auth. , 589 S.W .2d 671, 678 (Tex. 1979). “When revie wing a summary judgme nt, we take as true all evidenc e favor able to the nonmovant, and

we indulge ever

y rea sonable infere nce and resolve any doubts in the nonmovant’s favor .” Provident Life & Acc ident Ins. Co. v. Knott , 128 S.W .3d 211, 215-16 (Te x . 2003).

4To preva il on a “no-e vidence ” motion for s u m m ar y judgme nt on a defe ndant’s

counter claim or aff

irmative defe nses, on which the defe ndant would have the burden of proof at trial, the plaintiff must alleg e that the defe ndant has no evidenc e to support one or more elements of eac h claim or defe nse. Tex. R. Civ. P. 166(a) (i); see Southwest Elec. Power Co. v. Grant , 73 S.W .3d 211, 215 (Tex. 2002). The burden then shifts to the defe ndant to prod u ce m o re t h an a scintilla of probative evidenc e to suppor t e ach challeng ed element of its c ounterc laim or aff irmative defe nse. Forbes, Inc. v. Granada Bioscience s , 124 S.W .3d 167, 172 (Tex. 2003). More than a scintilla of evidenc e exis ts when rea sonable and fair- minded people could differ in their conclusions based on that evidenc e. Id.

DISCUSSIO N Discove ry Sanction s

I n their first issue, appellants complain that the trial court ab u s ed i ts discretion by g ranting a def

ault judgme nt ag ainst them as a discove ry sanction. Trial courts have wide discretion to use discovery sanctions to ensure compliance with the discover y rules, to punish violators, and to deter would-be violators. Chrysler Corp.

v. Blackm on , 841 S.W .2d 844, 850 (Tex

. 1 9 9 2 ). As noted above, a trial court’s imposit ion of discovery sanctions is revie wed for an abuse of discretion, but that discretion is circ u m s cr i b ed to

ensure that sanctions comport with due proce ss and ar e “j u s t ” as require d by rule 215.2. Transamerican , 811 S.W .2d at 917. For sanctio n s to be just, there must be a direc t rela tionship betwee n the offe nsive conduct and the sanction, and the sanction must not be excessive. Chrysler Corp. , 841 S.W .2d at 850. For a sanction to avoid being excessive, “a court must consider rela tively

5less stringe nt sanctions first to deter mine whether l es s er sanctions will fully promote compliance , deter

renc e, and discourag e further abuse.” Id. Sanctions that preve nt a decision on the merits—i.e., “death-pena lty sanctions”—“ cannot be justified ‘abse nt a party ’s flag rant bad faith or

co u n s el ’s callous disreg ard for the responsibilities of discovery under the rules.’” Id. (quot i n g Transamerican , 811 S.W .2d at 918). “Discove ry sanctions cannot be used to adjudicate the merits

. . . unless a party ’s hi n d ra n ce o f t h e discovery proce ss justifies a presumption that its claims or defe nses lack merit.” Transamerican , 811 S.W .2d at 918 (citing Insuran ce C o r p. of Ireland

v. Compaigne des Bauxites de Guinee , 456 U.S. 694, 705-06 (1982))

. The s u p reme court has reiter ated that “‘[c]ase deter minative sanctions may be imposed in the first i n s t an ce only in except ional case s when they are clea rly justified and it is fully appar ent that no lesser sanctions would promote compliance with the rules.’” Spohn Hosp. v. Maye r , 104 S.W

. 3 d 8 7 8 , 8 8 2 (Tex. 2003) (quoting GTE Commc’ns Sy s. Corp. v. Tanner , 856 S.W .2d 725, 729 (Tex. 1993)). J CF alleg ed five instances of discovery abuse by appellants: (1) L iberty Mutual did
not produce any documents in response to the court’s order c o mpelling discovery ; (2) L iberty Mutual failed to provide information reg arding the method of calc ulating damag es under Texas Rule of Civil Procedur e 194.2(d); (3) L iberty Mutual failed to produce a corpor ate repr esenta tive for deposition; (4) Dibco failed to disclose a rele vant settlement ag ree ment pursuant to Texas Rule of Civil Procedur e 192.3(g ); and (5) appellants did not verify their interrog atory answe rs. I n response , appellants arg ued that (1) the rec ord shows that L iberty Mutual produce d responsive documents via its ag ent, Aviva I nsuranc e Company , which L iberty Mutual adopted as its own documents; (2) L iberty Mutual’s response to J CF’s reque st for disclosure rec ites that “L iberty Mutual denies that

6Plaintiff can r ecove r any economic damag es” and that L iberty Mutual itself did not seek damag es

in this suit, so it did not have to provide a method of calc ulating its damag es; (3) L iberty Mutual had produce d for deposition J ason Malik, a repre sentative of Aviva, who had the requisite knowledge and who spoke as an ag ent of L iberty Mutual; (4) J CF had knowledg e of and acc ess to the settlement ag ree ment via an open rec ords reque st to the City of Austin, and the ag ree ment was also part of the documents that Dibco al l o we d J CF’s counsel to inspect and copy ; and (5) the rec ord shows that appellants ve rified their

interrog atory

answe rs, albeit bela tedly

. The trial c ourt made the following rele vant finding s of fa ct:

6. Def endant L iberty Mutual failed to p roduce any documents or any disclosures reg arding damag es or otherwise provide any information or calc ulations of damag es as require d by the [J une 10, 2008] Orde r [on J CF’s motion to compel] and the Texas Rules of Civil P roce dure a nd there fore is in viol ation of the June 10, 2008 Order

. 7. Def endant L iberty Mutual fa i l ed to produce a corpor ate repr esenta tive for deposition despite the deposition being proper ly noticed by

Plaintiff. 8. Def endant Dibco submitt ed a claim t o the C ity of Austi n for incr ease d cost and time, and hired a

n expert to assist with i ts claim to the city

. 9. Dibco did not proper ly disclos e t h i s claim, the ex pert, or any rela ted s ettlement ag ree ment as re quired by

the J une 10, 2008 Or der. 10. Def endants L iberty Mutual and Dibco failed to proper ly verify their interrog atory response s.

The c ourt also made the following rele vant conc lusions of law:

2. P l ai n t i ff has been materia lly prejudice d by Def endants [si c] failure to provide evidenc e eve n afte r being order ed to do so by the Court. . . .

73. A defa ult judgme nt is war

rante d beca

use lesser sanctions would not and could not cure the prejudice to Plaintiff, espec ially in light of two prior hear ings conc er n i ng Def endants [si c] failure to adequately respond to discovery

. L esser sanctions failed to produce compliance

.
After revie wing the rec ord and considering the trial court’s finding s of fac t and conclusions of law, we conclude that death- penalty sanctions wer e not justified under the particula r circumstances of this case . First, the rec ord does not show a direc t rela tionship betwe en t h e offe nsive conduct and the sanction impose d

. S ee Chrysler Corp. , 841 S.W .2d at 850. Whil e the court’s conclusions of law re ci t e that J CF was materia lly prejudice d and could not prosec ute its claim without the desired discovery , the evidenc e in the rec ord does not support that conclusion. I t is unclea r how L iberty Mutual’s production of documents throug h its ag ent, Aviva—docume nts that L iberty Mutual adopted a s its own—materially prejudice d J CF such that it could not prosec ute i ts claim. The same is true of L iberty Mutual’s desig nation of J ason Malik, an employ ee of Aviva, as its repr esenta tive for deposition. L iberty Mutual’s counsel stated on the rec ord in the trial court and
at oral arg ument in this Court that Malik was the most qualified repr esenta tive of L iberty Mutual to testify on the topics reque sted by J CF and that his statements would b i n d L i b er t y Mutual. Fur thermore , late verific ation of interrog atory answe rs, failure to produce a settlem ent ag ree ment that was otherwise publicly available , and failure to specify the method by which a party calc ulates damag es it was not seeking would not, absent an otherwise eg reg ious course of conduct not shown here , war rant death- penalty sanctions. See Transam er i ca n , 8 11 S.W .2d at 920 (Gonzalez, J .,
concur ring ) (“ [T] he punishment must fit the crime.”)

.

8Second, death- penalty sanctions are excessive under the circ umstances shown here

.

Despite the conclusion of law that “[l] esser sanctions failed to produce compliance ,” the rec ord does
not show that the court ever imposed lesser sanctions; it had mer ely order ed appellants to comply wi t h some of J CF’s discovery reque sts. Whil e in some limit ed instances a court may i m p o s e death- penalty

sanctions without first try ing le sser sanc tions, the present re cord does not show that the con d u ct o f ap p ellants rose to the level of “fla g rant bad faith” or “ca llous disreg ard for the responsibilities of discovery ” such that death- penalty sanctions wer e wa rr an t ed without first attempting to se cure compliance throug h lesser sa nctions. Chrysler Corp. , 841 S.W .2d at 850. Third, there is no indication in the recor d that appellants’ defe nses or c ounterc laim lack merit. As noted above, “[d] iscovery sanctions cannot be used to adjudicate the merits

. . . unless

a party ’s hindranc e of the discovery proce ss justifies a presumption that its claims or defe nses lack merit.” Transamerican , 811 S.W .2d at 918. This is espec ially true here , as appellants challeng e the

vera city of JC F’ s claim in its entirety

. I n light of the fore g oing, we sustain appellants’ first issue and hold that the trial court abused its discretion in g ranting a defa ult judgme nt ag ain s t appellants. Be cause we sustain appellants’ f

irst issue, we nee d not addre ss issues two and three

.
Motion s for Sum m ary Judgm ent

By their fourth throug h tenth issues, appellant s assert that the trial court err ed in g ranting J CF’s thre e motions for summary judgme nt. We will address ea ch motion in turn.

9(

i) No-Evidenc e Summary Judgme nt Against Dibco Dibco asser

ts that the no-eviden ce summary judgme nt rende red ag ainst it was improper beca

use (1) Dibco proved that it was reg istered to do business in Texas and there fore could maintain a counter claim, (2) the moti o n wi t h respe ct to Dibco’s aff irmative defe nses was not sufficie ntly

specific as re quired by

rule 166a (i), (3) Dibco ra ised a fa ct issue as to ea ch ele ment of its aff irmative defe nses and its counter claim, and (4) the court allowed insufficient time for discove ry . I n its no-evide nce motion for summary judgme nt ag ainst Dibco’s counter claim, J CF

asser ted t hat because Dibco, a Mi chig an corporation, had not obtained a ce rtificate of authority to do business in Texas from the secr etar y of state, it was not allowed to maintain its counter claim. See Tex. Bus. Org

. Code Ann. § 9.051(b) (West 2009). Dibco acknow ledg ed that when it filed its
counter claim it did not have the proper cer tificate; howeve r, it obtained its cer tificate befor e J CF’s

mo t i o n wa s fi led. I n its appellee ’s brief, J CF conce ded that Dibco’s eventua l acquisition of a

cer tificate of authority was sufficie nt to meet the require ments of section 9.051(b). Consequently , we sustain appe llants’ fourth issue.

We now turn to J C F’ s no-evide nce motion for summary judgme nt on Dibco’s aff irmative def

enses. The rele vant portion of JC F’ s motion, i n its entirety , is set out below.

Nor can Dibco provide any evidenc e to support the essential elements of its defe nses t h at: (a) it proper ly denied the acc ount; (b) it perf ormed by tender ing p aym en t ; (c) there was a failure of consideration; (d) Dibco was mi siden t i fi ed ; (e) there was no valid contra ct; (f) notice of proof of loss with a claim for damag e by J CF was not g iven as alleg ed; (g ) there was a failure of condition prec edent; (h) J CF failed to mitigate its damag es; (i) J CF repudia ted the contra ct or there was an an t icipatory

10brea ch; (j) any acc ord and satisfac tion occur red; or (k) that its c laims a re barr ed by the statute of f

rauds.

J CF’s motion is insufficient to meet the specific ity require ment of rule 166a(i). Rule 166a(i) allows

a movant, afte r rea sonable time f or discovery has elapse d, to move for summary judgme nt “ on the g round that there is no evidence of one or more e ssential elements of a claim or defense on w hich

an adver se party would have the burden of proof at trial.” Tex. R. Civ. P. 166a(i). The rule require s that “[t] he motion must state the elements as to which there is no evidenc e.” Id. J CF’s motion does
not cha ll e n g e s p e cific elements of Dibco’s aff irmative defe nses, nor even differ entiate its aff irmative defe nses from its reg ular defe nses. Conseq u en t l y , i t is not sufficie ntly specific to meet the require ments of rule 166a(i). See Thomas v. Omar In vs . , In c. , 156 S.W .3d 681, 685 (Tex. App.—Dallas 2005, no p et

. ) (“[Def endants’] motion for summary judgme nt fails to meet the require ments of Rule 166a(i) beca use it does not specify any elements of [pl aintiffs’] claims that lack supporting evidenc e.”)

. Be cause we sustain appellants’ fifth issue, we need not addre ss appellants’ six th and seve nth issues. ( ii) No-Evidenc e Summary Judgme nt Against L iberty Mutual J CF broug ht a combined no-evide nce and traditional motion for summary judgme nt ag ainst L iberty Mut u al

. The no-evide nce portion of the motion was direc ted at L iberty Mutual’s aff irmative def

enses. I t is set forth below:

L iber t y can provide no competent summary judgme nt evidenc e to establish any defe nses enumer ated in its Answer , or to controve rt J CF’s claim as set forth above. Specifica lly , L iberty has no evidenc e that “JC F has perf ormed all acts require d of it to establish and perf

ect a claim on t h e b o nd,” under Texas Gover nment Code
11Chapter 2253 and/or under Tex as P ro p er t y Code Chapter 53. As such, this court

should g rant J CF summary judgme nt as to all of L iberty ’s aff irmative d ef

en s es , dismiss ing the same, a

nd rende r judg ment for JCF on these issues.

Ex cluding the perf

ection-of -bond issue, J CF’s motion ag ainst L iberty Mutual falls short of the specific ity

require ments of rule 166a (i) for the same r easons a s its mot ion ag ainst Dibco. See id. The perf ection- o f

- b o n d issue also fails, not for lack of specific ity , but beca use L iberty Mutual would not, at trial, bear the burden to pr ove that “JC F ha s perf ormed a ll acts requir ed of it
to establish and perf

ect a claim o n the bond.” See Tex. R. Civ. P. 166a(i); Thomas , 156 S.W .3d at 684 (par

ty with burden of proof at trial cannot bring no-evidenc e sum mary -jud gm en t m otion). J CF contends that L iberty Mutua l b ear s the burden of proof on this issue beca use of this case ’s p ro ce d u ra l p o s ture as a suit on a sworn acc ount under rule 185. J CF arg ues that, under rule 185,

once it filed a proper ly verifie d suit on a sworn acc ount it made out a prima fac ie case ag ainst L iberty Mutual. See Tex. R. Civ. P. 185. The burden, say s J CF, then shifted to L iberty Mutu al to file a proper sworn denial. See id. (plaintiff’s sworn petition is prima fac ie case “unless the party resisting such claim shall file a written denial, under oath”)

. J CF asser ts that L iberty Mutual’s sworn denial

was insufficient to rebut the presumption in favor of J CF beca use L i berty Mutual’s aff

idavit was “conc lusory .” Appellants, on the ot her hand, have maintain ed fr o m t h e beg inning of the s uit that J CF’s petition itself was insufficient to constitute a proper suit on a sworn acc ount beca use, among other things, it f

ailed to show how its claim is ba sed on a “sy stematic rec ord” as the rule require s. See Nguyen v. Short, How, Frels & Heitz, P.C. , 108 S.W .3d 558, 562 (Tex. App.—Dallas 2003, pet. denied) (if there is defic iency in plaintiff’s sworn acc ount, plaintiff has not made prima fac ie case );

see also Panditi v. Apostle , 180 S.W .3d 924, 926 (Tex. App.—Dallas 2006, no pet.) (“[D]efenda nt
12is not require d to file a sworn denial if the plaintiff’s suit on a sworn ac co u n t wa s n o t proper ly

pleade d.”). We a g ree with appellants.

To establish a prima fac ie case in a suit on a sworn acc ount, a plaintiff must strictly comply with rule 185. See Nguyen , 108 S.W .3d at 562. By its own terms, rule 185’s burden- shifting provision is meant to apply only when a plaintiff’s suit is based on cer tain ty pes of claims “on which

a sy stematic rec ord h as b ee n k ep t .” Tex. R. Civ. P. 185. “The sy stematic rec ord of labor or materia ls furnished must clea rly identify the amount or nature of the labor done or of the materia ls furnished, the date that such l ab o r was perf ormed or materia ls furnished, the char g e for the l abor, and the ch ar ge for materia ls.” Jones v. Ben Maines Air Conditi oning, Inc. , 621 S.W .2d 437, 438 (Tex. Civ. App.—Texarkana 1979, no writ); see also Brown El ec. Contractors, Inc. v. Kelly , 595 S.W .2d 610, 611 (Tex. Civ. App.—Austin 1980, no writ). “The ac co u n t m u s t show with

rea sonable cer

tainty the name, date, and char g e for eac h item, and provide specific s or details as to how the fig ures wer e arr ived at.” Panditi , 180 S.W .3d at 926. “Ge nera l statements contained in an aff id av i t wi thout descr iption of specific items are insufficient to comply with Rule 185.” Jones , 621 S.W .2d at 438; see also Panditi , 180 S.W .3d at 927 (re g ular billing statements sufficie nt) ; Powers v. Adams , 2 S.W .3d 496, 499 (Tex. App.—Houston [14t h Dist.] 1999 , n o p et .) (itemized monthly statements of service s rendered listi ng offse ts, pay ments, and cre dits sufficie nt); Enernational Corp. v. Exploitation Eng’rs, Inc. , 705 S.W .2d 749, 750-51 (Tex. App.—Houston [1st Dist.] 1986, writ ref

’d n.r.e .) (da ted invoices showing work pe rfor med suffic ient). I n the prese nt case , J CF has not attache d a sy stematic rec ord to any of its pleading s, incorpora ted one by ref

ere nce, or aver

red that one actua lly exis ts. I ts “sworn statement of acc ount”

13mere ly states that Dibco owes J CF cer tain amounts for “labor perf ormed and/or materia ls delivere d” and div i des t he amounts into three time periods: (1) November 2006 throug h Dec ember 5, 2006; (2) Dec ember 6 throug h Dec em b er 31, 2006; and (3) Marc h and April 2007. The sworn-a ccount aff idavit also states that J CF is owed $54,342.28 for “Ove rhea d and Profit.” For the rea sons stated above, this aff

idavit, which was appar ently cre ated for purposes of this lawsuit and does not set out the information normally found in a sy stematic rec ord, is insufficient to proper ly plead a claim under rule 185. See Jones , 621 S.W .2d at 438 (“ Ge n er al statements contained in an aff idavit without descr iption of specific items are insufficient to comply wi t h Rule 185.”). Having not proper ly pleade d a claim under rule 185, J CF cannot invoke the rule’s burden- shifting presumption. Be cause J CF would bear the burden of proof on its claim at trial, it was err or to g ran t J C F’ s n o -e v idence summary -judg ment motion on L iberty Mutual’s perf

ection-of -bond def ense. Having sustained appella n t s’ eig hth issue, we need not addre ss their ninth. Also, beca use we hold that J CF’s petition fails as a suit on a sworn acc ount, we need not consider appell ants ’ eleve nth issue—whether the trial court err ed in striking cer tain portions of DiMillo’s aff idavit. 2

The trial court struck para g raphs three throug h six of DiMillo’s aff idavit as “conc lusory .” 2 Wit hout deciding whether the statements wer e, in fac t, mere leg al conclusions, we note that even a basic verifie d denial has been held to be sufficie nt to rebut rule 185’s evidentiar y presumption. See Rizk v. Financial Guar dian Ins. Agenc y, Inc. , 584 S.W .2d 860, 863 (Tex. 1979) (statement that plaintiff’s sworn-a cco u nt items wer e “not just or true in whole or in part” sufficie nt to meet require ments of rule 185); see also Five Star E n er g y C o r p . v. Sowell, Ogg & Hinton , 640 S.W .2d 722, 725 (Tex. App.—Houston [14t h Dist.] 1982, no writ) (f ollowing Rizk

). 14(iii) Tradit ional Summary Judgm ent Against Liberty Mutual I n their tenth issue, appellants asser t tha t the trial court err ed when it g rante d J CF’s traditional motion for summary judgme nt ag ainst L iberty Mutual. J CF asser ted that it was entitled
to judgme nt ag ainst L iberty Mutual, Dibco’s surety , as a matter of law beca use it sent proper notice of its claim to L iberty Mutual and Dibco pursuant to g overnme nt code section 2253.041 and did not

rec eive a notice of dispute from either party within 60 day s . Gover nment code section 2253.041 states in pertinent pa

rt: (a) To rec over in a sui t under Sec tion 2253.073 on a pay ment bond for a

claim for pay ment for public work labor perf ormed or p u b l i c work materia l delivere d, a pay

ment bond benef

iciary must mail to the prime contra ctor and the surety written notice of

the claim. (b) The notice must be mailed on or befor e the 15th day of the third month after eac h month in which any of t he claimed labor was perf ormed o r an y o f the claimed mate rial wa s delivere d.

T ex . Gov’t Code Ann. § 2253.041 (West 2008). J CF sent two notices. The first was d at ed Marc h 14, 2007, and included a o n e-line entry for work dated “Nove mber throug h Dec ember 5, 2006,” and a one-line entry for work dated “De cembe r 6 throug h Dec ember 31, 2006.” The second was dated J une 15, 2007. I t included two additional claims—a one-line entry for work dated “ Marc h and Apr il 2007” and an unda ted one- line entry

for “ Over

head a nd Profit.” L iberty Mutual arg ues that J CF’s Marc h 2007 n o t i ce was untimely with respe ct to claims for labor done or materia ls delivere d in November 2006. I t also asser ts that “Ove rhea d and Profit” constitute neither “public work labor” nor “public work materia l” as those terms are define d in chapte r 2253 of t he gover nment code. See id. § 2253.001 (West 2008). Be caus e ch apter 2253

15limit s rec overy on a pay ment bond to claims rela ted t o furnishing public work labor and material, L iberty Mutual arg

ues that J CF’s claim for overhe ad and profit is i m p ro p er . Fo r those rea sons, L iberty Mutual arg ues that JC F ha s not shown itself entitled to judgment as a matter of la

w. We ag ree that summary judgme nt on this issue was improper. First, J C F’s Marc h 2007 notice appea

rs to be untimely with respe ct to its claims for labor and materia ls provided in November 2006. A notice of claim for labor p er fo rm ed or materia ls delivere d during November 2006 had to be mailed by Fe bruar y 15, 2007, the “15th day of the third month afte r eac h month in which any of the claimed labor was perf ormed or any of the claimed materia l was delivere d.” Id. J CF sent its first notice on Marc h 14, 2007. Timely notice under section 2253.041 i s a s u b s tantive condition prec edent to rec overy under chapte r 2253. See Harve st Constr. T

ea m

v. Hartford Fid. & Bonding , No. 05-03-00006- CV, 2003 WL 23095668, at *2 (Tex. App.—Dallas Dec

. 31, 2003, pet. denied) (citing Bunch Elec. Co. v. Tex-Craft Builders, Inc ., 480 S.W .2d 42, 45 (Tex. Civ. App.—Ty ler 1972, no writ) (discussing require ments of substantially simil ar prede cessor statute)); see also I

n re Contractor Tec h., Ltd ., 529 F.3d 313, 321 (5th Cir. 2008). At a minimum , L iberty Mutual’s asser

tion that J CF’s notice was untimely as to its claim for work done in November raises a fac t question as to the proper amount of JC F’ s damag es. Second, chapte r 2253 allows a pay ment bond benef

iciary like J CF to rec over only for “public work labor” and “public work materi al ” as those terms are define d in section 2253.001. See Tex. Gov’t Code Ann. § 2253.001. Part of J CF’s claim in the prese nt case includes an undated entry for “Overh ea d an d Profit.” Whil e it is conce ivable that overhe ad and profit could be components of char g es for p u b lic work materia l and labor, chapte r 2253.001 does not appea r to

16contemplate rec overy of those items separ ately

. At the very least, there i s a fac t question as to

whether J CF’s claims for profit and overhe ad are for public work mate rial and la bor and the ref

ore

rec overa ble under chapte r 2253. Fur thermore , assuming any of the overhe ad and profit was proper ly allocable to public work materia l or labor, the amount of such allocation might have v ar i ed by month. Be cause L iberty Mutual is challeng ing J CF’s ability to rec over for any claim during November 2006, a fa ct question exist s as to the prope r amount of ove rhea d and prof it allocable to November

2006. Acc ording ly , we conclude that it was err or to g rant J CF’s t raditional motion for summary judgme nt. We therefor e sustain appe llants’ tenth issue.

Attorn ey’ s Fees Be cause J CF was not entitled to defa ult or summary judgme nt ag ainst appellants, we sustain appellants’ twe lfth issue and re verse the trial cour t’s awa rd of a ttorney ’s fe es.

CONCLUSION We c onclude that the trial court abused its discretion in r ender ing defa ult judg ment ag ainst appellants as a death- penalty sanction for discovery abuse. The trial court also err ed in g ranting summary judgme nt ag ain s t appellants in favor of J CF. We reve rse the trial court’s judgme nt and re mand the ca use for further proce eding s.

17__________________________________________ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pemberton a nd Waldrop Reverse d and Remande d Filed: Apr il 8, 2010

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