ACCEPTED
01-14-00571-cv
FIRST COURT OF APPEALS
HOUSTON, TEXAS
4/17/2015 4:47:11 PM
CHRISTOPHER PRINE
CLERK
CAUSE NO. 01-14-00571-CV
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
FOR THE FIRST JUDICIAL DISTRICT4/17/2015 4:47:11 PM
HOUSTON, TEXAS CHRISTOPHER A. PRINE
Clerk
TED KALDIS AKA TED LEFTERIS KALDIS,
Appellant,
VS.
CREST FINANCE,
Appellee.
ON APPEAL FROM THE 281 DISTRICT COURT
OF HARRIS COUNTY, TEXAS
The Honorable Sylvia Matthews, Presiding
Cause No. 2012-71189
APPELLANT’S FIRST MOTION FOR REHEARING
TO THE HONORABLE FIRST COURT OF APPEALS:
COMES NOW, the Appellant, TED KALDIS, AKA TED LEFTERIS
KALDIS, (hereinafter the “Appellant”), and pursuant to Rule 49 et seq., of the Rules
of Appellate Procedure and submits this his First Motion for Rehearing in the above-
styled and numbered cause, and in support thereof would show the Court the
following:
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I.
PROCEDURAL POSTURE
On or about May 25, 2007, Appellant entered into an agreement with the
Appellee’s predecessor in interest, Wachovia Bank, for a line of credit in the amount
of $50,000.00, (the “Agreement”). (R.R. Vol 2, p. 5-12). The Agreement required
minimum monthly payments be made by Appellant, which Appellant made for a
period of time. (R.R. Vol. 2, p. 7). However, Appellant made his last payment under
the Agreement on or around August 7, 2008. (R.R. Vol. 1, p. 38; R.R. Vol. 2, p. 53).
Accordingly, Appellant defaulted on the Agreement when he failed to pay the next
payment due under the same on or about September 6, 2008.
On December 3, 2012, Appellee filed suit and asserted a sole cause of action,
non-payment of a debt, the filing of which lawsuit was, ostensibly, more than four (4)
years after Appellant’s default under the Agreement, September 6, 2008. (C.R. Vol.
1, p. 4). Appellee’s Original Petition did not specifically assert a suit on a sworn
account cause of action against the Appellant, nor did it contain the requisite suit on
a sworn account language, the required supporting affidavit, nor, otherwise, contain
a systematic, itemized statement of the goods or services sold, or reveal offsets made
to the account. (C.R. Vol. 1, p. 4-16). The Court signed a Final Judgment for
Appellee on May 22, 2014. (C.R. Vol. 1, p. 53). Appellant then requested the
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issuance of findings of fact and conclusions of law on June 10, 2014. (C.R. Vol. 1,
p. 54-55). Thereafter, the Court issued its Findings of Fact and Conclusions of Law
on June 16, 2014. (C.R. Vol. 1, p. 56-59). On June 26, 2014, Appellant requested
the issuance of additional findings of fact and conclusions of law. (C.R. Vol. 1, p. 60-
62). Thereafter, the Appellant filed a notice of past due additional findings of fact
and conclusions of law on July 8, 2014. (C.R. Vol. 1, p. 63). Appellant timely filed
his Notice of Appeal on July 3, 2014. (C.R., Vol. 1, p. 67-70). This Court issued its
Judgment and Memorandum Opinion on March 12, 2015.
The Appellant’s First Motion for Rehearing challenges the basis for this
Court’s opinion of March 12, 2015, and requests that the same be vacated.
II.
SUMMARY OF MOTION
The Appellee did not plead an open account claim, nor did it describe the
Agreement as on open account in its pleadings. The Appellee’s pleadings plainly
state that the only claim brought by the Appellee was for the “nonpayment of debt.”
Accordingly, the Appellee should not prevail in this case on an open account claim,
which it failed to plead.
III.
ARGUMENTS AND AUTHORITY
The Appellee did not plead an open account claim, nor did it describe the
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Agreement as on open account in its pleadings. The only claim brought by the
Appellee was for the nonpayment of debt. (C.R. Vol. 1, p. 4-5). While the claim
could perhaps be read as a Breach of Contract claim, there is no mention of an open
account in Appellee’s petition1 and, therefore, the petition cannot be read to include
a claim on an open account.
As liberally as the Court would have to construe the Appellee’s Petition in this
case to read it to include a claim for an open account, any breach of contract claim
could be read to include a claim on a sworn account, as any party to breach a contract
calling for their payment of money would still owe money due to be tendered. That
cannot be the case, because the San Antonio Court of Appeals found in Dodeka v.
Campos that, while a breach of contract claim was plead, a claim on open account was
not.
In its March 12, 2015 Opinion, the Court compares this case to Dodeka, L.L.C.
v. Campos, 377 S.W.3d 726, 730 (Tex. App.–San Antonio 2012, no pet), and LTD
Acquisitions, LLC v. Cook, No . 04-10-00296-CV, 2011 WL 61634 at *2 (Tex.
App.–San Antonio Jan. 5, 2011, no pet.)(mem. op.).However, while the Court appears
to have determined that of the two cases, this case is factually more similar to LTD
Acquisitions, LLC v. Cook, the Appellant respectfully disagrees and would ask the
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C. R. Vol. 1, p. 4-5
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Court to reconsider its position in that regard, as from Appellant’s perspective, this
case is procedurally identical to Dodeka, L.L.C. v. Campos.
In Dodeka, L.L.C. v. Campos, Dodeka filed suit against Campos for the
nonpayment of credit card debt. At the time of trial, the only claim against Campos
was for breach of contract. Campos defended Dodeka’s claim with a statute of
limitations. The trial court concluded that Campos’ breach of contract occurred thirty
days after Campos made her last minimum monthly payment when she failed to make
her next minimum monthly payment , and that since Dodeka filed suit more than four
years after that time, its claims was time barred. Accordingly, the trial ruled in favor
of Campos. Dodeka appealed urging the San Antonio Court of Appeals to treat the
action as a suit on open account claim even though there had been no open account
claims included in his trial court pleadings, arguing that the case was tried by consent
as an open account claim. The San Antonio Court of Appeals disagreed and ruled in
favor of Campos on that point of error. Where Campos lost the appeal was that
Campos made periodic payments after its last minimum monthly payment, so the San
Antonio Court of Appeals recalculated the statute of limitations to determine it ran
from Campos’ last payment of any kind.
The case currently before this Court mirrors Dodeka, L.L.C. v. Campos exactly
with the only exception being that the Appellant’s last payment of any kind to
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Appellee fell more than four (4) years before Appellee filed suit. Exactly like in
Dodeka, L.L.C. v. Campos, the Appellee/Plaintiff in this case failed to plead an open
account claim prior to trial prior to trial. Admittedly, in LTD Acquisitions, LLC v.
Cook, the San Antonio Court of Appeals considered a post-trial motion to reconsider
sufficient pleadings to allow the trial court to consider the Plaintiff’s claim in that case
as an open account, but the Appellee in this case (Crest Finance) did not file any post-
trial pleadings or motions, i.e., a motion for leave to amend pleadings. A trial brief is
not a pleading, nor should it be allowed to satisfy Appellee’s responsibility to plead
its claims prior to trial, so that the Defendant/Appellant would have some notice as to
the claims he was expected to defend at trial. See TEX. R. CIV. P. 47(a).
Noteably, in opinion, the San Antonio Court of Appeals cited LTD Acquisitions,
LLC v. Cook, the earlier case out of the San Antonio Court of Appeals that this Court
used to support its opinion in this case. In citing LTD Acquisitions, LLC v. Cook, the
San Antonio Court of Appeals distinguished Dodeka, L.L.C. v. Campos from LTD
Acquisitions, LLC v. Cook by noting that there were no trial court pleadings filed by
Dodeka in which Dodeka asserted an open account claim, whereas in LTD
Acquisitions, LLC v. Cook , the Plaintiff filed a Motion to Reconsider in which it plead
its case as an open account. As was the case in Dodeka, L.L.C. v. Campos , the
Plaintiff in this case, now the Appellee, did not file trial court pleadings pleading its
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case as an open account.
In light of Appellee’s lack of pleadings on an open account, the trial court erred
in considering the Appellee’s claims as an open account in calculating the statute of
limitations for the purpose of determining the applicable statute of limitations to
Appellee’s claim. Accordingly, this Court should rule as the San Antonio Court did
in Dodeka, L.L.C. v. Campos, in favor of the party against whom insufficient pleadings
were plead. After all, Appellee had the burden of proof in this case, as well as the
burden of giving the Appellant fair notice of its claims against him, which the
Appellee failed to do in this case.
IV.
CONCLUSION AND PRAYER
Based on the above and foregoing, the Appellant requests that the Court
reconsider its Opinion, vacate the same, and issue a new Opinion in favor of the
Appellant.
WHEREFORE, PREMISES CONSIDERED, Appellant, TED KALDIS, AKA
TED LEFTERIS KALDIS, requests that this Court grant his First Motion for
Rehearing and upon the same, vacate its March 12, 2015 Judgment, and issue an
opinion, which reverses the trial court’s judgment, and for such other and further relief
to which Appellant is entitled.
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Respectfully submitted,
DABNEY & PAPPAS
By: /s/ Nicole M. Hilburn
Gus E. Pappas
State Bar No. 15454850
Nicole M. Hilburn
State Bar No. 24055663
1776 Yorktown, Suite 425
Houston, Texas 77056
713-621-2678 Telephone
713-621-0074 Facsimile
gus@dabneypappas.com
nicole@dabneypappas.com
ATTORNEYS FOR APPELLANTS
CERTIFICATE OF SERVICE
In accordance with TEX. R. CIV. P. 21a, I, Nicole M. Hilburn, counsel for the
Appellants, do hereby certify that a true and correct copy of the foregoing Appellant’s
First Motion for Rehearing was served on the Appellee, by and through its attorney
of record, Andrew Olivo, 1622 E. Beltline Rd, Suite 100, Carrollton, Texas 75006, via
facsimile, on this the 17th day of April, 2015.
/s/ Nicole M. Hilburn
Nicole M. Hilburn
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CERTIFICATE OF COMPLIANCE WITH T EX. R. A P P. P. 9.4
1. This brief complies with the type-volume limitation of Tex. R. App. P.
9.4(i)(2)(D), because this Motion for Rehearing contains 1,428 words.
2. This brief complies with the requirements of Tex. R. App. P. 9.4 and the type
style requirements of Tex. R. App. P. 9.4(e), because this Motion for Rehearing
has been prepared in proportionally space typeface using WordPerfect 12 in 14
point font size in Times New Roman typeface.
Dated: April 17, 2015
/s/ Nicole M. Hilburn
Nicole M. Hilburn
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