Opinion
NO. 14-16-00314-CV
04-04-2017
THANH LE, Appellant v. NORTH CYPRESS MEDICAL CENTER OPERATING COMPANY, LTD AND NORTH CYPRESS MEDICAL CENTER OPERATING COMPANY, GP, L.L.C., Appellees
On Appeal from the 281st District Court Harris County, Texas
Trial Court Cause No. 2014-39435
MEMORANDUM OPINION
In this suit on a sworn account, the appellant contends that the trial court erred in granting the appellees' motion for traditional and no-evidence summary judgment and ruling that appellant take nothing on his counterclaims. We affirm.
BACKGROUND
Appellant Thanh Le was injured in an accident on December 23, 2010. North Cypress Medical Center (North Cypress) treated Le for his injuries on December 23-24 and 27. On February 3, 2011, North Cypress filed a hospital lien in Harris County to secure Le's debt for the medical services provided as a result of the December 23 accident pursuant to Texas Property Code chapter 55.
For convenience and consistency with the record, we refer to the two appellees, North Cypress Medical Center Operating Company, LTD and North Cypress Medical Center Operating Company GP, L.L.C., collectively as a single entity.
On February 4, 2013, North Cypress filed a sworn release of the hospital lien (the Original Release), in which it averred:
The above named hospital acknowledges payment in full of the above mentioned amount due for treatment, care and maintenance and the hospital hereby releases the claim and lien heretofore filed . . . ."In July 2014, North Cypress filed a suit on a sworn account, alleging that Le failed and refused to pay $8,292.54 for the medical services it provided to him in December 2010.
Le did not answer the lawsuit or respond to requests for disclosure and admissions, so North Cypress moved for a default judgment. Le, acting pro se, answered with a general denial, but did not answer the requested discovery. North Cypress moved for summary judgment on its sworn account.
Le then acquired counsel and on February 1, 2016, filed an amended answer, verified denial, affirmative defenses, request for declaratory judgment, and counterclaims for fraud and violation of the Texas Debt Collection Act. In his pleadings, Le argued that the filing of the Original Release acknowledging it received "payment in full" for the amount due for Le's treatment and releasing "the claim and lien" constituted a release of the same debt which it was suing to recover, and therefore North Cypress's claim regarding this debt should be dismissed. Contemporaneously, North Cypress amended its summary judgment motion.
On February 4, North Cypress filed a sworn amended release of its hospital lien (Amended Release), which deleted the acknowledgment of "payment in full" and the language releasing "the claim" to read simply: "The above named hospital hereby releases the lien heretofore filed . . . ." The Amended Release also adds the following introductory paragraph:
This document hereby amends [the] release of hospital lien document filing #1031012 dated February 4, 2013 and relates back to the time of filing February 4, 2013. The language of the release contained a clerical error. The charges were not paid. The Hospital Lien is being released because there is no third party liability to which the lien can attach.Both Le's answer and North Cypress's summary judgment motion were amended again, and the summary judgment motion was submitted in March.
On March 22, 2016, the trial court signed a "Final Summary Judgment," concluding that no genuine issue of material fact existed with regard to the claims brought by North Cypress, and that North Cypress was entitled to summary judgment on Le's counterclaims. The court awarded North Cypress $8,292.54, plus pre-judgment and post-judgment interest and attorney's fees.
ANALYSIS OF LE'S ISSUES
On appeal, Le presents a single issue broken down into four sub-issues. Le contends that the trial court erred in granting North Cypress's summary judgment motion because: (1) North Cypress did not satisfy its burden to prove the elements of a suit on a sworn account; (2) Le's sworn denial prevented summary judgment from being granted on a suit for a sworn account; (3) North Cypress's Original Release of its hospital lien and the subsequent Amended Release pushed the suit on the sworn account outside the statute of limitations; and (4) the trial court erred in granting the no-evidence portion of the summary judgment. We address each issue in turn.
Standards of Review
We review de novo the trial court's grant of a motion for summary judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). In reviewing either a traditional or no-evidence summary judgment motion, we must take as true all evidence favorable to the non-movant and draw every reasonable inference and resolve all doubts in favor of the non-movant. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23-24 (Tex. 2000) (per curiam); Mendoza v. Fiesta Mart, Inc., 276 S.W.3d 653, 655 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).
In a traditional motion for summary judgment, the movant must establish that no genuine issue of material fact exists and the movant is thus entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). If the movant's motion and evidence facially establish its right to judgment as a matter of law, the burden shifts to the non-movant to raise a genuine issue of material fact sufficient to defeat summary judgment. Willrich, 28 S.W.3d at 23.
After an adequate time for discovery, a party may move for no-evidence summary judgment if no evidence exists of one or more essential elements of a claim or defense on which the adverse party bears the burden of proof at trial. Tex. R. Civ. P. 166a(i). The trial court must grant a no-evidence summary judgment motion unless the non-movant produces competent summary judgment evidence that raises a genuine issue of material fact on each element specified in the motion. Id.; Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).
To determine if the non-movant raises a fact issue, we review the evidence in the light most favorable to the non-movant, crediting favorable evidence if reasonable jurors could do so, and disregarding contrary evidence unless reasonable jurors could not. Fielding, 289 S.W.3d at 848 (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). A no-evidence challenge will be sustained when: (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013).
I. Sufficiency of the Sworn Account
Le first contends that the trial court erred in granting North Cypress traditional summary judgment on its suit on a sworn account because North Cypress's sworn account is deficient and therefore does not constitute prima facie evidence of the alleged debt.
A suit on a sworn account is based in Rule 185. See Tex. R. Civ. P. 185. "Rule 185 . . . is a rule of procedure with regard to evidence necessary to establish a prima facie right of recovery." Rizk v. Fin. Guardian Ins. Agency, Inc., 584 S.W.2d 860, 862 (Tex. 1979) (citing Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75 (1958)). Rule 185 provides that if an action "is founded upon an open account . . . on which a systematic record has been kept, and is supported by [an] affidavit of the party, his agent or attorney . . . to the effect that such claim is, within the knowledge of affiant, just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed," then the account "shall be taken as prima facie evidence." Tex. R. Civ. P. 185.
Le argues that North Cypress's sworn account is deficient because the documentation supporting the charges "does not itemize in reasonable qualitative nor quantitative terms the labor or materials which constitute the total cost of treatment." Le complains of accounting entries such as "250 Pharmacy General 7 222.0."
North Cypress's sworn account is based on two affidavits of its custodian of records. The custodian avers to the dates North Cypress provided medical services to Le, recites the required language of Rule 185, and attaches two statements for services provided to Le and the charge for each service. In relevant part, the two invoices list the following:
| 250 | PHARMACY GENERAL | 7 | 222.00 |
|---|---|---|---|
| 258 | PHARMACY IV SOLUTIONS | 3 | 121.00 |
| 259 | PHARMACY OTHER | 2 | 10.00 |
| 260 | IV THERAPY GENERAL | 1 | 606.00 |
| 272 | M/S SUPPLY STERILE SUPPLY | 4 | 465.62 |
| 301 | LABORATORY CHEMISTRY | 2 | 632.00 |
| 305 | LAB HEMATOLOGY | 1 | 170.00 |
| 320 | RADIOLOGY DIAG GENERAL | 5 | 1538.00 |
| 324 | RADIOLOGY DIAG CHEST XRAY | 1 | 343.00 |
| 450 | EMERGENCY ROOM GENERAL | 2 | 2631.00 |
| 636 | DRUG SPEC ID DETAIL CODING | 3 | 190.00 |
| 771 | PREVENTIVE CARE VACCINE | 1 | 137.00 |
| 940 | OTHER THER GENERAL | 2 | 435.00 |
* * *
| 271 | M/S SUPPLY NONSTERILE SUP | 1 | 32.90 |
|---|---|---|---|
| 272 | M/S SUPPLY STERILE SUPPLY | 1 | 4.02 |
| 450 | EMERGENCY ROOM GEMBRAL | 1 | 755.00 |
In support of his claim that the sworn is account is deficient and does not constitute prima facie evidence of a debt, Le cites several cases for the proposition that technical notations do not sufficiently identify with reasonable certainty the items, services, or goods sold under the sworn account. See Abe I. Brilling Ins. Agency v. Hale, 601 S.W.2d 403, 405 (Tex. Civ. App.—Dallas 1980, no writ); Sherman v. Philips Indus., Inc., 560 S.W.2d 154, 156 (Tex. App.—Houston [1st Dist.] 1978, writ ref'd n.r.e.). Le's reliance on these older authorities is misplaced, however, because in 1983, Rule 185 was amended to make the requirement of particularity subject to the general rules of pleading. See Tex. R. Civ. P. 185; So. Mgmt. Servs., Inc. v. SM Energy Co., 398 S.W.3d 350, 355 (Tex. App.—Houston [14th Dist.] 2013, no pet.); Culp v. Hawkins, 711 S.W.2d 726, 727 (Tex. App.—Corpus Christi 1986, writ ref'd n.r.e); Enernational Corp. v. Exploitation Engrs., Inc., 705 S.W.2d 750, 750 (Tex. App.—Houston [1st Dist.] 1986, writ ref'd n.r.e.).
The current version of Rule 185 provides:
A party resisting such a sworn claim shall comply with the rules of pleading as are required in any other kind of suit, provided, however, that if he does not timely file a written denial, under oath, he shall not be permitted to deny the claim, or any item therein, as the case may be. No particularization or description of the nature of the component parts of the account or claim is necessary unless the trial court sustains special exceptions to the pleadings.Tex. R. Civ. P. 185 (emphasis added). Le did not specially except to the specificity of the account's component parts. In the absence of a special exception, we hold that the statements did not render the account deficient for purposes of Rule 185. See SM Energy Co., 398 S.W.3d at 355-56 (rejecting appellant's complaints that accounting did not specify exactly what services were provided and included unexplained abbreviations, when appellant did not specially except); Enernational Corp., 705 S.W.2d at 750-51 (holding that sworn account was not deficient for lack of specificity in absence of special exception asking for particularity); see also Culp, 711 S.W.2d at 727 (holding appellants waived complaint that invoice was insufficient as a "systematic record" under Rule 185 when they failed to except to appellee's pleadings). We overrule Le's first sub-issue.
II. Effect of Verified Denial
In his second sub-issue, Le contends that his third amended answer contained a verified denial, and a second verification was attached to his response to North Cypress's summary judgment motion. Because Rule 185 provides that the filing of a verified denial in response to a claimant's suit on a sworn account overcomes the evidentiary presumption that would otherwise apply, Le argues that his verified denial "should defeat a motion for summary judgment based solely on the pleadings."
Despite Le's sworn denial, however, North Cypress was entitled to obtain summary judgment on its sworn account by filing legal and competent summary judgment evidence establishing the validity of its claim as a matter of law. See Ellis v. Reliant Energy Retail Servs., L.L.C., 418 S.W.3d 235, 246 (Tex. App.—Houston [14th Dist.] 2013, no pet.). The elements of a sworn account are: (1) the sale and delivery of merchandise or performance of services; (2) that the amount of the account is "just," i.e., the prices charged are pursuant to an express agreement, or in the absence of an agreement, that the charges are usual, customary, or reasonable; and (3) that the outstanding amount remains unpaid. Id.
Here, North Cypress supported its summary judgment motion not only with sworn affidavits complying with Rule 185, but also consent-to-treatment forms signed at the time of treatment and debt-collection correspondence sent to Le. This evidence demonstrates that North Cypress was entitled to summary judgment on its sworn account unless Le came forward with evidence raising a fact issue precluding summary judgment. See Willrich, 28 S.W.3d at 23-24. We overrule Le's second sub-issue.
III. Statute of Limitations
In his third sub-issue, Le contends that to the Original Release specifically acknowledged payment in full of the amount due for treatment and care for Le's accident on December 23, 2010, and that the Amended Release, which was filed after the four-year statute of limitations had run on North Cypress's suit, did not relate back to the Original Release. Therefore, Le argues, the Amended Release was not effective to reinstate the previously released lien and claim "done in accordance with the Texas Chapter 55 requirements," and North Cypress's release relieves him from responsibility to pay his hospital bill. We disagree.
The parties agree that the applicable statute of limitations for a suit on a sworn account is four years. See Tex. Civ. Prac. & Rem. Code § 16.004.
The Texas Legislature passed the hospital lien statute "to provide hospitals an additional method of securing payment for medical services, thus encouraging the prompt and adequate treatment of accident victims" and reducing hospital costs. McAllen Hosps., L.P. v. State Farm Cty. Mut. Ins. Co. of Tex., 433 S.W.3d 535, 537 (Tex. 2014) (quoting Bashara v. Baptist Mem'l Hosp. Sys., 685 S.W.2d 307, 309 (Tex.1985)). Under the hospital lien statute, a hospital has a lien on the cause of action of a patient "who receives hospital services for injuries caused by an accident that is attributed to the negligence of another person," provided that the patient is admitted to the hospital within seventy-two hours of the accident. Tex. Prop. Code § 55.002(a). A hospital lien under chapter 55 attaches to:
(1) a cause of action for damages arising from an injury for which the injured individual is admitted to the hospital or receives emergency medical services;
(2) a judgment of a court in this state or the decision of a public agency in a proceeding brought by the injured individual or by another person entitled to bring the suit in case of the death of the individual to recover damages arising from an injury for which the injured individual is admitted to the hospital or receives emergency medical services; and
(3) the proceeds of a settlement of a cause of action or a claim by the injured individual or another person entitled to make the claim, arising from an injury for which the injured individual is admitted to the hospital or receives emergency medical services.Id. § 55.003(a)(1)-(3). Thus, a hospital lien attaches to (1) a patient's cause of action against a tortfeasor; (2) a judgment; or (3) the proceeds of a settlement.
The statute provides for exceptions, but these are not relevant here. See Tex. Prop. Code § 55.003(b)(1)-(2), (c).
North Cypress argues that that chapter 55 does not apply to this case because Le does not have a claim against any third party for causing his injury. We agree. A release of lien cannot release more than the security that the corresponding lien encumbered. See id. § 55.002(a). Moreover, Le does not contend that he has paid his debt to the hospital, nor does he cites any authority to support his suggestion that a hospital that files and subsequently releases a chapter 55 lien somehow extinguishes any debt owed to the hospital by the patient. Here, North Cypress filed its suit on a sworn account within four years of the date of Le's treatment and never asserted or otherwise attempted to enforce any lien or make any claims under chapter 55. Therefore, the filing of the Amended Release had no effect on the timeliness of North Cypress's suit. We overrule Le's third sub-issue.
In his reply brief, Le argues for the first time that the Original Release is an unambiguous, unilateral contract between the parties that must be enforced as written. Because Le did not raise this argument in the trial court or in his opening brief, the argument is waived and we do not address it. See Priddy v. Rawson, 282 S.W.3d 588, 597 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). Le does not argue that the language in the Original Release acknowledging payment in full alone created a fact issue precluding summary judgment on the sworn account claim, and we express no opinion on that question.
IV. Le's Counterclaim for Fraud
Finally, Le contends that there was sufficient evidence before the trial court to support his counterclaim for fraud based on the alleged material representations in the Original Release that North Cypress "acknowledges payment in full" of the amount due for Le's treatment and "releases the claim and lien" it previously filed in the county records. In support of this contention, Le points to the Original Release, the only evidence he offered in response to North Cypress's summary judgment motion.
Le does not challenge the trial court's grant of summary judgment on his counterclaim alleging violation of the Texas Debt Collection Act or his declaratory judgment action. When, as here, a summary judgment fails to specify the grounds upon which the trial court relied for its ruling, we must affirm the judgment if any of the grounds advanced is meritorious. Merriman, 407 S.W.3d at 248. Further, when a particular summary judgment ground goes unchallenged, we affirm the judgment as to that ground. PAS, Inc. v. Engel, 350 S.W.3d 602, 608 (Tex. App.—Houston [14th Dist.] 2011, no pet.).
The elements of a common law fraud claim are: (1) a material representation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made the representation with the intent that the other party should act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001) (citing Formosa Plastics Corp. v. Presidio Engrs. & Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998)).
In the no-evidence portion of its summary judgment motion, North Cypress asserted that there was no evidence of several elements of Le's common law fraud claim based on the alleged material representations in the Original Release, including no evidence that: (1) North Cypress filed the release with the intent that Le should act upon it; (2) Le acted in reliance on the release; and (3) Le suffered injury or damage as a result of relying on the alleged misrepresentation.
On appeal, Le argues that the Original Release is some evidence that North Cypress made false representations that Le's debt was paid in full and that the claim and lien were released, because otherwise North Cypress would not have sued to recover a debt that was already paid. Le further argues that he acted in reliance on the misrepresentation because he denied the charge when sued and was injured by being forced to become a defendant in this suit. Le concludes that "[f]rom those four elements it is possible, at a summary judgment level, to infer intent and thus acquire the required mere scintilla of evidence."
We disagree. No inference can made that North Cypress intended Le to rely on the statements, given that North Cypress presented evidence of numerous attempts to collect the debt from Le. Furthermore, Le has failed to present any competent summary judgment evidence that he sustained damages as a result of the alleged fraud. Le's unsworn assertions in his response that he suffered economic harm or detriment as a result of North Cypress's lawsuit are merely conclusory statements that do not constitute competent summary judgment evidence. See Doherty v. Old Place, Inc., 316 S.W.3d 840, 844 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (stating that broad, conclusory statements in summary judgment response did not constitute competent summary judgment evidence in response to no-evidence summary judgment motion).
We hold that, in the absence of competent summary judgment evidence to support the challenged elements of his claims, Le did not raise a fact issue as to those elements sufficient to defeat North Cypress's no-evidence motion for summary judgment on Le's counterclaim for fraud. See Tex. R. Civ. P. 166a(i); Tamez, 206 S.W.3d at 582. We overrule Le's fourth sub-issue.
CONCLUSION
We overrule Le's issues and affirm the trial court's judgment.
/s/ Ken Wise
Justice Panel consists of Justices Boyce, Busby, and Wise.