Motion for Summary Judgment on the Pleadings in Texas

What Is a Motion for Summary Judgment on the Pleadings?

Background

Applicable Law

Under Tex. R. Civ. P. 166a(b), a party may move for traditional summary judgment based on the pleadings and judicial admissions of the opposing party. (Edwards v. Blue Cross (2009) 273 S.W.3d 461, 466 citing Swilley v. Hughes (1972) 488 S.W.2d 64, 67.

Actions Based on Open Accounts or Claims — Applicable Law

Tex. R. Civ. P. 185 provides that when an action is founded on an open account or other claime on which a systematic record has been kept and is supported by an affidavit, the account shall be taken as prima facie evidence of the claim, unless the party resisting the claim files a written denial under oath. (Panditi v. Apostle (2006) 180 S.W.3d 924, 926 citing TEX.R. CIV. P. 185; Abe I. Brilling Ins. Agency v. Hale (1980) 601 S.W.2d 403, 404.)

Open Account/Claim items for an action under Rule 185 are:

Goods,
Wares and merchandise (including any claim for a liquidated money demand based upon written contract or founded on business dealings between the parties),
Personal service rendered,
Labor done, or
Labor or materials furnished.

(Tex. R. Civ. P. 185.)

How to Structure the Motion

Summary Judgment on the Pleadings—Arguments

“Where the plaintiff's pleadings themselves establish the lack of a valid cause of action, such as the fact that the statute of limitations has run, or if the pleadings allege facts that, if proved, establish governmental immunity, pleadings alone can justify summary judgment and special exceptions are not required.” (Washington v. City of Houston (1994) 874 S.W.2d 791, 794.)

Pleadings [themselves] may be used as summary judgment evidence when they contain statements rising to the level of admitting a fact or conclusion which is directly adverse to that party's theory or defense of recovery. (See, Judwin Props., Inc. v. Griggs and Harrison (1995) 911 S.W.2d 498, 504.)

Summary judgment may be proper if the allegations in the pleading affirmatively show the claims are barred as a matter of law and the defects cannot be cured by amendment. (Edwards v. Blue Cross (2009) 273 S.W.3d 461, 466 citing In re B.I.V. (1994) 870 S.W.2d 12, 13.)

Sworn Account Pleading for Summary Judgment

To establish a prima facie case in a sworn account suit, a plaintiff must strictly comply with Rule 185. (See Nguyen v. Short, How, Frels Heitz, P.C. (2003) 108 S.W.3d 558, 562; Powers v. Adams (1999) 2 S.W.3d 496, 498; Andrews v. East Tex. Med. Ctr.-Athens (1994) 885 S.W.2d 264, 267.)

Under Rule 185, a plaintiff must show that its account is one to which the rule applies and for which a systematic record has been kept. (See Tex. R. Civ. P. 185; Nguyen, 108 S.W.3d at 562.)

Further, the plaintiff must file a supporting affidavit stating that the claim is within the affiant's knowledge, that it is “just and true,” that the account is due, and that the plaintiff has allowed “all just and lawful offsets, payments, and credits.” (Tex. R. Civ. P. 185; see Nguyen, 108 S.W.3d at 562; Powers, 2 S.W.3d at 498; Andrews, 885 S.W.2d at 267.)

“If properly filed, the Plaintiff's petition and affidavit supporting that petition become prima facie evidence of the debt.” (Andrews, 885 S.W.2d at 267.) But, “when there is a deficiency in the plaintiff's sworn account, the account will not constitute prima facie evidence of the debt.” (Nguyen, 108 S.W.3d at 562; see Enernational Corp. v. Exploitation Eng'rs, Inc. (1986) 705 S.W.2d 749, 750.)

Response

A defendant resisting a suit on a sworn account must comply with the rules of pleading and timely file a verified denial or he will not be permitted to dispute the receipt of the services or the correctness of the charges. (Panditi, supra, at 926 citing Tex. R. Civ. P. 93(10), 185; Vance v. Holloway (1985) 689 S.W.2d 403, 404. (Tex. 1985).

A defendant's sworn denial must be written and verified by an affidavit. (Panditi, 180 S.W.3d at 926; see TEX. R. CIV. P. 185, 93(10). However, a defendant is not required to file a sworn denial if the plaintiff's suit on a sworn account was not properly pleaded. (Id.)

The Court’s Decision

Here are a some examples of how courts have ruled:

If summary judgment is granted on the pleadings, an appellate court reviews the pleadings, takes all allegations and inferences in the pleadings as true, and views them in a light most favorable to the pleader." (Conquest Drilling Fluids, Inc. v. Tri-Flo Int'l, Inc. (2003) 137 S.W.3d 299, 309. “A defending party may “move with or without supporting affidavits for a summary judgment in his favor as to all or any part” of the plaintiff's claims.” (Townsend v. Barrett Daffin Frappier Turner & Engel, LLP (2003) Tex. App. No. 09-12-00564-CV, at *9-10 citing Tex. R. Civ. P. 166a(b).)

“Texas does not recognize general demurrer and, therefore, summary judgment on the pleadings without a prior special exception is proper in only the rarest cases.” (McCrary v. Hightower (2016) 513 S.W.3d 1, 6 n.5 citing Hon. David Hittner & Lynne Liberato, Summary Judgments in Texas: State and Federal Practice, 52 Hous. L. Rev. 773, 793–95 (2015).

“One such case is limitations; [the] court has held that a plaintiff may plead itself out of court by pleading facts establishing limitations has run. (McCrary, id., citing Trail Enterprises, Inc. v. City of Houston (1997) 957 S.W.2d 625, 632.) However, [the] court also has held that any complaint that the trial court improperly granted summary judgment on the pleadings must be raised in the trial court. Id., citing Warwick Towers Council of Co–Owners ex rel. St. Paul Fire & Marine Ins. Co. v. Park Warwick, L.P. (2009) 298 S.W.3d 436, 444.)

Documents for Motion for Summary Judgment on the Pleadings in Texas

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TEXAS EMERGENCY ROOM SERVICES, P.A. vs. FIRST BAPTIST MEDICAL CENTER, LLC document preview

PLTF MOTION FOR SUMMARY JUDGMENT - MOTION - SUMMARY JUDGMENT

5 pages

FILED 3/6/2024 11:21 AM FELICIA PITRE DISTRICT CLERK …

Case Name TEXAS EMERGENCY ROOM SERVICES, P.A. vs. FIRST BAPTIST MEDICAL CENTER, LLC