Preview
FILED
3/6/2024 11:21 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Jenifer Trujillo DEPUTY
NO. DC-23-00398
TEXAS EMERGENCY ROOM § IN THE DISTRICT COURT OF
SERVICES, P.A., §
§
Plaintiff, §
§ DALLAS COUNTY, TEXAS
v. §
§
FIRST BAPTIST MEDICAL CENTER, §
LLC, § 134th JUDICIAL DISTRICT
Defendant.
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Texas Emergency Room Services, P.A. (“Plaintiff”) files this Motion for
Summary Judgment, and respectfully shows the Court as follows:
I. INTRODUCTION
1. On January 10, 2023, Plaintiff filed its Original Petition against Defendant First
Baptist Medical Center, LLC (“Defendant”), asserting a suit on sworn account arising from a
Services Agreement entered into between the parties. Plaintiff s Petition was verified and complied
with Texas Rule of Civil Procedure 185.
2. On February 13, 2023, Defendant filed its Original Answer, which contained a
general denial and was not sworn or verified.
3. Plaintiff is entitled to judgment as a matter of law because Defendant’s Original
Answer, being a general denial and unsworn, fails to comply with the requirements prescribed for
an answer to a suit on sworn account pursuant to Rule 185, in addition to additional fatal defects.
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT — Page 1
II. ARGUMENT & AUTHORITIES
4. Rule 185 provides that if an action “is founded on an open account...on which a
systematic record has been kept, and is supported by [an] affidavit of the party, his agent or
attorney,” then the accoun “shall be taken as prima facie evidence.” TEX. R. CIV. P. 185.
5. If the Defendant, as it did here, “fails to file a sworn denial of the account, no fiirther
evidence is required.” Brown Found. Repair & Consulting, Inc. v. Friendly Chevrolet Co., 715
S.W.2d 115, 1 16 (Tex. App—Dallas 1986, writ ref’d n.r.e.) (citing Airborne Freight Corp. v. CRB
Mktg., Ina, 566 S.W.2d 573, 575 (Tex. 1978)). Therefore, “[w]hen a nonmovant fails to file a
required sworn written denial in a case on a sworn account, the movant is entitled to summary
judgment on the pleadings, because noncompliance with Tex. R. Civ. P. 185 conclusively
establishes that there is no defense.” Enernational Corp. v. Exploitation Engrs., Inc, 705 S.W.2d
749, 750 (Tex. App—Houston [1st Dist.] 1986, writ ref‘d n.r.e.); see also Buholtz v. Gibbs, 2019
WL 3940973, at *3-4 (Tex. App—Dallas Aug. 21, 2019, pet. denied).
6. Because Defendant’s answer was not sworn in compliance with Rule 185, Plaintiff
is entitled to summary judgment on its sworn account. See Enernational Corp. , 705 S.W.2d at 750;
see also Panditi v. Apostle, 180 S.W.3d 924, 927 (Tex. App—Dallas 2006, no pet.) (“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”).
7. Not only must Defendant verify its answer, it must specially deny the allegations
in Plaintiffs Petition under oath to survive this Motion for Summary Judgment. Indeed, under
Texas law, “[u]nless a defendant’s written denial states more than a broad generalization that he
‘specially denies’ each and all of the allegations, he fails to address the facts on which he intends
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT — Page 2
to rebut the plaintiff’s affidavit, and files no more than a verified general denial.” Andrews v. E.
Tex. Med. Ctr.-Athens, 885 S.W.2d 264, 268 (Tex. App.—Tyler 1994, no writ). “A general denial,
even if sworn to, does not raise a fact issue on a suit on sworn account.” Id.
8. Here, Defendant merely filed a general denial, which cannot defeat the prima facie
evidence of Plaintiff’s sworn account set forth in its Petition. Accordingly, Plaintiff is entitled to
summary judgment as to the matters set forth in the Original Petition. See id. (granting summary
judgment when defendant’s answer did not sufficiently deny the account at issue).
III. CONCLUSION
WHEREFORE, Plaintiff requests that the Court enter summary judgment in its favor on
its sworn account and enter judgment against Defendant as follows:
a. $861,605.00 as the amount due on the account;
b. Prejudgment and post judgment interest at the highest amount allowable at law;
c. Court costs;
d. Attorney fees to be briefed by Plaintiff following this partial summary judgment;
and,
e. Such other and further relief to which Plaintiff may be justly entitled.
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT — Page 3
Respectfillly Submitted,
GREENBERG TRAURIG LLP
/s/ Steve Walkowz'ak
Joseph F. Coniglio
State Bar No. 24001914
coniglioj@gtlaw.com
Steve Walkowiak
State Bar No. 24047060
walkowiaks@gtlaw.com
Alyssa Ortiz Johnston
State Bar No. 24102312
johnstona@gtlaw.com
2200 Ross Avenue, Suite 5200
Dallas, Texas 75201
Phone: (214) 665 -3600
Fax: (214) 665-3601
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing document was
forwarded to all counsel of record Via the Court’s electronic filing system on March 6, 2024.
/S/ Steve Walkowiak
Steve Walkowiak
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT — Page 4
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Audreana Motley on behalf of Steven Walkowiak
Bar No. 24047060
motleya@gtlaw.com
Envelope ID: 85251019
Filing Code Description: Motion - Summary Judgment
Filing Description:
Status as of 3/6/2024 1:57 PM CST
Associated Case Party: TEXAS EMERGENCY ROOM SERVICES, P.A.
Name BarNumber Email TimestampSubmitted Status
Steven Walkowiak walkowiaks@gtlaw.com 3/6/2024 11:21 :21 AM SENT
Joseph F.Conig|io coniglioj@gtlaw.com 3/6/2024 11:21:21 AM SENT
Alyssa Ortinohnston johnstona@gtlaw.com 3/6/2024 11:21:21 AM SENT
Hannah Putnam hannah.putnam@gtlaw.com 3/6/2024 11:21:21 AM ERROR
Associated Case Party: FIRST BAPTIST MEDICAL CENTER, LLC
Name BarNumber Email TimestampSubmitted Status
Tamara Hyndman thyndman@spencerfane.com 3/6/2024 11:21:21 AM SENT
Kunal Shah kshah@spencerfane.com 3/6/2024 11:21:21 AM SENT
Anita Gallaway agallaway@spencerfane.com 3/6/2024 11:21:21 AM SENT
Ariane Tolliver atolliver@spencerfane.com 3/6/2024 11:21:21 AM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Michele McPherson mcphersonm@gtlaw.com 3/6/2024 11:21:21 AM SENT
Audreana Motley motleya@gtlaw.com 3/6/2024 11:21:21 AM SENT
Francine Ly fly@dallascourts.org 3/6/2024 11:21:21 AM SENT
Preview
FILED 3/6/2024 11:21 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Jenifer Trujillo DEPUTY NO. DC-23-00398 TEXAS EMERGENCY ROOM § IN THE DISTRICT COURT OF SERVICES, P.A., § § Plaintiff, § § DALLAS COUNTY, TEXAS v. § § FIRST BAPTIST MEDICAL CENTER, § LLC, § 134th JUDICIAL DISTRICT Defendant. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Plaintiff Texas Emergency Room Services, P.A. (“Plaintiff”) files this Motion for Summary Judgment, and respectfully shows the Court as follows: I. INTRODUCTION 1. On January 10, 2023, Plaintiff filed its Original Petition against Defendant First Baptist Medical Center, LLC (“Defendant”), asserting a suit on sworn account arising from a Services Agreement entered into between the parties. Plaintiff s Petition was verified and complied with Texas Rule of Civil Procedure 185. 2. On February 13, 2023, Defendant filed its Original Answer, which contained a general denial and was not sworn or verified. 3. Plaintiff is entitled to judgment as a matter of law because Defendant’s Original Answer, being a general denial and unsworn, fails to comply with the requirements prescribed for an answer to a suit on sworn account pursuant to Rule 185, in addition to additional fatal defects. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT — Page 1 II. ARGUMENT & AUTHORITIES 4. Rule 185 provides that if an action “is founded on an open account...on which a systematic record has been kept, and is supported by [an] affidavit of the party, his agent or attorney,” then the accoun “shall be taken as prima facie evidence.” TEX. R. CIV. P. 185. 5. If the Defendant, as it did here, “fails to file a sworn denial of the account, no fiirther evidence is required.” Brown Found. Repair & Consulting, Inc. v. Friendly Chevrolet Co., 715 S.W.2d 115, 1 16 (Tex. App—Dallas 1986, writ ref’d n.r.e.) (citing Airborne Freight Corp. v. CRB Mktg., Ina, 566 S.W.2d 573, 575 (Tex. 1978)). Therefore, “[w]hen a nonmovant fails to file a required sworn written denial in a case on a sworn account, the movant is entitled to summary judgment on the pleadings, because noncompliance with Tex. R. Civ. P. 185 conclusively establishes that there is no defense.” Enernational Corp. v. Exploitation Engrs., Inc, 705 S.W.2d 749, 750 (Tex. App—Houston [1st Dist.] 1986, writ ref‘d n.r.e.); see also Buholtz v. Gibbs, 2019 WL 3940973, at *3-4 (Tex. App—Dallas Aug. 21, 2019, pet. denied). 6. Because Defendant’s answer was not sworn in compliance with Rule 185, Plaintiff is entitled to summary judgment on its sworn account. See Enernational Corp. , 705 S.W.2d at 750; see also Panditi v. Apostle, 180 S.W.3d 924, 927 (Tex. App—Dallas 2006, no pet.) (“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”). 7. Not only must Defendant verify its answer, it must specially deny the allegations in Plaintiffs Petition under oath to survive this Motion for Summary Judgment. Indeed, under Texas law, “[u]nless a defendant’s written denial states more than a broad generalization that he ‘specially denies’ each and all of the allegations, he fails to address the facts on which he intends PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT — Page 2 to rebut the plaintiff’s affidavit, and files no more than a verified general denial.” Andrews v. E. Tex. Med. Ctr.-Athens, 885 S.W.2d 264, 268 (Tex. App.—Tyler 1994, no writ). “A general denial, even if sworn to, does not raise a fact issue on a suit on sworn account.” Id. 8. Here, Defendant merely filed a general denial, which cannot defeat the prima facie evidence of Plaintiff’s sworn account set forth in its Petition. Accordingly, Plaintiff is entitled to summary judgment as to the matters set forth in the Original Petition. See id. (granting summary judgment when defendant’s answer did not sufficiently deny the account at issue). III. CONCLUSION WHEREFORE, Plaintiff requests that the Court enter summary judgment in its favor on its sworn account and enter judgment against Defendant as follows: a. $861,605.00 as the amount due on the account; b. Prejudgment and post judgment interest at the highest amount allowable at law; c. Court costs; d. Attorney fees to be briefed by Plaintiff following this partial summary judgment; and, e. Such other and further relief to which Plaintiff may be justly entitled. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT — Page 3 Respectfillly Submitted, GREENBERG TRAURIG LLP /s/ Steve Walkowz'ak Joseph F. Coniglio State Bar No. 24001914 coniglioj@gtlaw.com Steve Walkowiak State Bar No. 24047060 walkowiaks@gtlaw.com Alyssa Ortiz Johnston State Bar No. 24102312 johnstona@gtlaw.com 2200 Ross Avenue, Suite 5200 Dallas, Texas 75201 Phone: (214) 665 -3600 Fax: (214) 665-3601 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE The undersigned certifies that a true and correct copy of the foregoing document was forwarded to all counsel of record Via the Court’s electronic filing system on March 6, 2024. /S/ Steve Walkowiak Steve Walkowiak PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT — Page 4 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Audreana Motley on behalf of Steven Walkowiak Bar No. 24047060 motleya@gtlaw.com Envelope ID: 85251019 Filing Code Description: Motion - Summary Judgment Filing Description: Status as of 3/6/2024 1:57 PM CST Associated Case Party: TEXAS EMERGENCY ROOM SERVICES, P.A. Name BarNumber Email TimestampSubmitted Status Steven Walkowiak walkowiaks@gtlaw.com 3/6/2024 11:21 :21 AM SENT Joseph F.Conig|io coniglioj@gtlaw.com 3/6/2024 11:21:21 AM SENT Alyssa Ortinohnston johnstona@gtlaw.com 3/6/2024 11:21:21 AM SENT Hannah Putnam hannah.putnam@gtlaw.com 3/6/2024 11:21:21 AM ERROR Associated Case Party: FIRST BAPTIST MEDICAL CENTER, LLC Name BarNumber Email TimestampSubmitted Status Tamara Hyndman thyndman@spencerfane.com 3/6/2024 11:21:21 AM SENT Kunal Shah kshah@spencerfane.com 3/6/2024 11:21:21 AM SENT Anita Gallaway agallaway@spencerfane.com 3/6/2024 11:21:21 AM SENT Ariane Tolliver atolliver@spencerfane.com 3/6/2024 11:21:21 AM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Michele McPherson mcphersonm@gtlaw.com 3/6/2024 11:21:21 AM SENT Audreana Motley motleya@gtlaw.com 3/6/2024 11:21:21 AM SENT Francine Ly fly@dallascourts.org 3/6/2024 11:21:21 AM SENT