### 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. 03-09-00215- CV

Javier G arcia and Marice la Gar cia, Both Ind ividu ally and d/b /a Gar Motor cycle , Appellan ts

v. Bush Hog, L.L.C., App ellee

F ROM CO UNTY COURT AT LAW NO . 2 O F TRAVIS CO UNTY NO. C-1 -CV- 08- 0050 30, H ONO RAB LE ERIC SH EP P ERD, JUDGE P RESIDING

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

This is a suit o n sworn acc ount. The county court at law g rante d the plaintiff’s motion for summary judgme nt and aw ar d ed damag es ag ainst the defe ndants. We reve rse the judgme nt of the county

court a t law and r emand. The appellee , Bush Hog , L .L .C., provided the appellants, J avier and Marice la Gar cia,

cer tain “g oods, war es, m erc handise, or service s.” On M ay 16, 2008, Bush Hog filed suit aga i nst 1
the Gar cias for collection of the balanc e owing on their acc o u n t

. Bush Hog filed a motion for
summary judgme nt based on its claim on the sworn acc ount. On October 28, 2008, the county court

Suit was filed ag ainst the Gar cias both individually and doing business as Gar Motorcy cle. 1 The evidenc e indicates that Gar Motorcy cle ha d enter ed into a secur ity ag ree ment with B ush Hog , and the Ga

rcia s—the owner s of Gar Motorcy cle—ha d executed a pe rsonal g uara nty

. The Gar cias arg ued at the trial court t h at Bu s h Hog sued them in the wrong capa city

. We do not addre ss this arg ument beca

use it is not necessar

y to our dispositi on of the a ppeal.at law g rante d the motion for summary judgme nt and enter ed a final judgme nt in favor of Bush Hog ,

awa rding damag es in the amount of $24,301.69 as well as attorney s’ fee s. The Ga rcia s appea l the
summary judgme nt. 2
We revie w summary judg

me nts de novo. Provident Life & Acc ident Ins. Co. v. Knott , 128 S.W .3d 211, 215 (Tex. 2003). Under the standard applicable to a traditional motion for
summary judgme nt, the m o t i o n s hould be g rante d only when the movant establishes that there is

no g enuine issue as t o any materia l fa ct an d t h at it is entitled to judgme nt as a matter of law. See
Tex

. R

. C i v . P

. 1 6 6a(c ); Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W .2d 546, 548 (Tex. 1985). I n revie wing a motion for summary judgme nt, we acc ept as true all evidenc e favorab l e to the non-movant, making ever y rea sonable infere nce and resolving all doubts in the non-movant’s favor

. See Nixon , 690 S.W .2d at 548-49.

The Gar cias filed a verifie d denial in respons e to Bush Hog ’s sworn claim on acc ount. Bush Hog conce des that, there fore , it was require d to put on proper proof of its claim. See Tex. R. Civ. P. 185; Pennwell Cor p
. v. K en Assocs., Inc. , 123 S.W .3d 756, 765 (Tex. App.—Houston [14t h Dist.] 2003, pet. denied)

. The elements o f an action on sworn acc ount are : (1) there was a sal e an d d elivery of g oods or service s; (2) the price s char g ed are pursuant to an ag ree ment or

are usual, customary , and rea sonable; and (3) the outstanding amount rema ins unpa id. See Solano

Bush Hog arg ues that we should not consider any of the Ga rc i as ’ ar gu ments beca use 2 they do not make any ref

ere nce to the cler

k’s rec ord in their appellate briefing

. An appellant’ s brief m u s t contain a clea

r and concise arg ument “with appropr iate citations to authorities and to t h e rec ord.” Tex. R. App. P. 38.1(i). Howeve r, we interpre t this require ment rea sonably and liberally

. See Republic Underwriters Ins. Co. v. Mex -Tex, Inc. , 150 S.W .3d 423, 427 (Tex. 2004). The Gar cias’ briefing contains a clea r and concise arg ument with citations to authorities, and the rec ord is not so larg e as to inhibit our revie w. 2v. Syndicated Office Sys. , 225 S.W .3d 64, 67 (Tex. App.—El Paso 2005, no pet.); Pennwell Corp. ,

123 S.W .3d at 766.

Bush Hog arg ues that it established the elements of its claim as a matter of law. To show that there was a sale and delivery of g oods or service s, Bush Hog relies on do cu ments filed with its motion for summary judgme nt. Specifica lly , Bus h Ho g re fe rs to a printout entitled “A/R I nquiry - Open I tem Detail.” T h e p ri n tout contains the name “Ga r Motorcy cle,” states an 3
“ac count balanc e” of $22,501.69 that is also labeled as “past due,” and lists twelve items repr esente d by “Ref Numbers” along with dates and dollar amounts. The printout is attache d to an aff idavit by the custodian of Bush Hog ’s rec ords, who aver s that the printout is “the orig inal or exact duplicate[] of the orig inal” and that the sum of $22,501.69 is “just, true, and due.” She also aver s that “[a]ll just and lawful offse ts, pay

ments, and cre dits have been allowed.” Neither the printout nor the aff idavit states that any

items repre sented in the printout wer e, in fa ct, sold and deliver ed. Bush Hog also relies on an af fidavit filed wit h its reply to the Garcias’ response to the m otion for summ ary judgme nt. The documents at t ac h ed t o the affidavit include (1) copies of
two chec ks signe d by Marice la Gar cia, draw n on the acc ount of Gar Motorcy cle, and made pay able
to Bush Hog , eac h chec k having been marke d as returne d for insufficient funds, (2) an acc ount statement, and (3) eleve n single -pag e invoices. The reply was filed on October 28, 2008, the same day as the hear ing on the motion for summary judgme nt. Any affi d av it supporting a motion for
summary judgme nt must be filed and ser ved at least twenty -one day s befor e the time spe cified for

The printout is also attache d to Bush Hog ’s pleading s and consists of two pag es. Howeve r, 3 the ver sion attache d to Bush Hog ’s motion for summary judgme nt includes only

the first pag e. 3a hearing , except on leave of court. Tex. R. Civ. P. 166a(c ). At the he aring , the Gar cias objec ted

to the untimely filing, and the county court at law did not g rant leave from the twenty -one- day service require ment, either at the hear ing or in its order g ranting the motion for summary judgme nt.
Moreove r, during the hear ing Bush Hog ag ree d to “withdra w the invoices.” Unless there is a basis in the rec ord to conclude tha t untimely materia l was filed with le ave of court, we presume that the trial court did not consider it. See Benc hmark Bank v. Crowder , 919 S.W .2d 657, 663 (Tex. 1996);
Luna v. Estate of Rodriguez , 906 S.W .2d 576, 582 (Tex. A pp.—Austin 1995, no writ). There fore , we do not take into consideration the e vidence attache d to Bush Hog ’s re ply

.

View ing only the evidenc e in the summary judgme nt rec ord, and making ever y

rea sonable infere nce and resolving all doubts in the Gar cias’ favor , we conclude that Bush Hog failed to establish that it is entitled to judgme nt on its sworn acc ount claim as a matter of law. We 4

reve rse the judgme nt of the county court at l aw and rema nd for further proce eding s consistent with this opi nion.

__________________________________________ G. Alan Waldrop, Just ice
Be fore Chief J ustice Jones, J ustices Waldrop and He nson Reverse d and Remande d Filed: Jul y

16, 2010

We note that the Gar cias did not file a verifie d denial until afte r Bush Hog filed its motion 4 for summary

judgme nt. 4