Jimmey Worth Smarr v. Kimed Austin, Inc. ( 1995 )

Smarr v. Kimed TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-94-00323-CV



Jimmey Worth Smarr, Appellant

v.

Kimed Austin, Inc., Appellee



FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY NO. 217,750, HONORABLE STEVE RUSSELL, JUDGE PRESIDING

PER CURIAM

Appellant Jimmey Worth Smarr brings this appeal by writ of error from a default judgment. Appellee Kimed Austin, Inc., sued Smarr, alleging a sworn account, breach of contract, quantum meruit, and violation of the covenant of good faith and fair dealing. Kimed also alleged that William Cannon Chiropractic Center, P.C., which had provided chiropractic services to Smarr, assigned its rights against Smarr to Kimed. Following Smarr's failure to answer, the trial court held a hearing and rendered judgment for Kimed. We will affirm the trial court's judgment.

In point of error one, Smarr contends that the record fails to show valid service on him because the transcript contains only a citation marked "COPY" rather than the original. A default judgment cannot withstand direct attack when the record does not affirmatively show that the defendant was served in strict compliance with the applicable requirements. Wood v. Brown, 810 S.W.2d 799, 800 (Tex. 1991). Kimed was required to have Smarr served by delivering to him "a true copy" of the citation. Tex. R. Civ. P. 106. The person executing citation on Smarr was then required to endorse his return on either the citation or an attachment to it. Tex. R. Civ. P. 107. Smarr does not allege that the copy of the citation in the record has been tampered with or is inaccurate.

No case or procedural rule requires the person serving citation to file the original citation with the clerk's office after executing it. One commentator has even referred to "the copy of the citation filed in court with the officer's return." 3 Texas Civil Practice § 11:14, at 29 (Diane M. Allen et al. eds., 1992 ed.). Because Rules 106 and 107 relate the particulars of service and its return, but do not require the original citation to be filed, we conclude that the copy of the citation in the record here conforms to the requirements. E.g., A.J. Hill Co. v. Tex-Tan, 235 S.W.2d 945, 947 (Tex. Civ. App.--Galveston 1951, writ dism'd). We overrule point one.

In his second point of error, Smarr complains that no evidence shows that William Cannon Chiropractic Center, P.C., assigned its account to Kimed. The account attached to Kimed's petition shows that the transactions sued on were between William Cannon Chiropractic Center, P.C., and Smarr. Kimed pleaded in its petition that the rights of William Cannon Chiropractic Center, P.C., were fully assigned to Kimed, which was the owner and holder of all rights of William Cannon Chiropractic Center, P.C., as to Smarr, including the account set forth in the attached exhibits.

Open accounts have long been subject to oral or written assignments, and an assignee can sue in its own name. First Nat'l Bank v. Sheffield, 475 S.W.2d 820, 821 (Tex. Civ. App.--Austin 1972, no writ). Smarr's failure to answer before judgment admitted all facts properly pleaded by Kimed. Stoner v. Thompson, 578 S.W.2d 679, 684 (Tex. 1979). Kimed properly pleaded that William Cannon Chiropractic Center, P.C., had assigned the account to Kimed, and the fact of that assignment was accordingly admitted.

Smarr also argues that the affidavit attached to the petition is not made by a party to the suit, or the agent of a party, as Texas Rule of Civil Procedure 185 requires. Although Kimed brought suit, the affidavit is sworn to by Sandra Johnson, as the office manager of William Cannon Chiropractic. Kimed, however, properly alleged a cause of action for debt and alleged liquidated damages of $5,394.62 in its petition. Smarr, by failing to answer, admitted these properly pleaded allegations. Stoner, 578 S.W.2d at 684. In view of Smarr's default, we need not address whether the affidavit was proper. We therefore overrule point two.

In his third point of error, Smarr argues that no evidence supports the trial court's finding that he breached his fiduciary duty of good faith and fair dealing. The trial court recited in its judgment that Smarr withheld from Kimed $2,500 in personal injury protection payments received from his insurer, that Smarr had previously assigned the payments to Kimed, and that the withholding was an intentional violation of Smarr's fiduciary duty and covenant of good faith and fair dealing.

Kimed alleged in its petition that Smarr assigned to Kimed's assignor the insurance benefits covering the services provided by the assignor and that Smarr refused to deliver those benefits to Kimed or its assignor, thereby breaching his duty of good faith and fair dealing. See Searle-Taylor Mach. Co. v. Brown Oil Tools, Inc., 512 S.W.2d 335, 337-38 (Tex. Civ. App.--Houston [1st Dist.] 1974, writ ref'd n.r.e.). Smarr admitted these allegations by failing to answer Kimed's petition. Stoner, 578 S.W.2d at 684. In any event, the trial court's judgment can be sustained solely on the cause of action for debt. We therefore overrule point three.

Smarr argues in point of error four that no evidence supports the trial court's award of $2,500 in attorney's fees or the reasonableness and necessity of the award. Kimed pleaded that it was necessary to hire an attorney, that it presented its claims to Smarr, and that its claims remained unpaid for thirty days. Smarr's default admitted these factual allegations. Stoner, 578 S.W.2d at 684; Wall v. Wall, 630 S.W.2d 493, 497 (Tex. App.--Fort Worth 1982, writ ref'd n.r.e.); see Tex. Civ. Prac. & Rem. Code Ann. § 38.002 (West 1986).

Although the amount of the fee was unliquidated, the trial court took judicial notice of the case file and of the usual and customary fees in such cases as this. The court was authorized to judicially notice these matters without receiving further evidence. Tex. Civ. Prac. & Rem. Code Ann. § 38.004(1) (West 1986). Because this was a claim for a sworn account or an oral or written contract, we presume that the usual and customary attorney's fees are reasonable. Tex. Civ. Prac. & Rem. Code Ann. §§ 38.001, .003 (West 1986). We conclude that some evidence supports the trial court's award of attorney's fees and their reasonableness and necessity, and we accordingly overrule point four. See Gill Sav. Ass'n v. Chair King, Inc., 797 S.W.2d 31, 32 (Tex. 1990).

We affirm the trial court's judgment.

Before Chief Justice Carroll, Justices Jones and Kidd

Affirmed

Filed: June 21, 1995

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