Ramiro Villarreal v. Rodney Myers D/B/A I-69 Towing and Harold Waite, Individually and D/B/A La Feria Wrecker Service, 13-20-00215-CV

Background:

Villarreal sued in justice court for unpaid towing fees; justice court entered a take-nothing judgment for appellees; Villarreal appealed to county court.
The county court set multiple trial dates; appellees answered and raised a statute-of-limitations defense; Villarreal sought numerous continuances (eight total during case history).
The court granted earlier continuances but denied Villarreal’s third (filed the day before trial) after finding counsel unavailable; the bench trial proceeded on May 30, 2019, without Villarreal’s counsel (and the reporter’s record does not show Villarreal present).
Trial testimony from appellees led to a judgment for appellees; Villarreal moved for new trial asserting counsel was in a criminal trial and could not be released; the motion was denied.
On appeal Villarreal raised (reorganized) five issues: denial of the continuance, denial of new trial, insufficiency of appellees’ general denial to a sworn account, consideration of unpleaded affirmative defenses, and cumulative error. The court affirmed.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Denial of third continuance	Villarreal: court abused discretion by denying counsel’s motion for continuance due to counsel’s conflicting criminal trial setting	Appellees: motion filed late, extensive history of prior continuances, court could reasonably doubt counsel’s unavailability	Denial was not an abuse of discretion given late filing, prior continuances, and record supporting court’s skepticism; issue overruled
Denial of motion for new trial	Villarreal: new trial required because counsel was unavailable due to criminal trial and could not be released	Appellees: plaintiff failed to meet standards for setting aside a judgment or dismissal for want of prosecution; no proof of diligence or applicable Craddock analysis	Denial of new trial not abuse of discretion; Villarreal failed to present evidence/analysis required to overturn judgment or dismissal; issue overruled
Sufficiency of general denial to sworn account (Rule 185/93)	Villarreal: appellees’ unverified general denial insufficient to defeat a sworn-account claim; judgment should follow	Appellees: Villarreal did not attach the required Rule 185 affidavit to his petition, so no prima facie sworn account was established	Plaintiff failed to comply with Rule 185 affidavit requirement; defendants were not required to file a verified denial; issue overruled
Consideration of unpleaded affirmative defenses (payment/no contract)	Villarreal: trial court erred by awarding relief based on affirmative defenses not pleaded/verified under Rules 94–95	Appellees: testimony did not amount to triable affirmative defenses; even if it did, plaintiff failed to prove his case so any affirmative defense was immaterial	Any error was harmless: general denial placed issues at trial and Villarreal failed to prove his claim; unpleaded defenses did not probably cause an improper judgment; issue overruled
Cumulative error / due process / access-to-court	Villarreal: multiple trial-court rulings cumulatively deprived him of fair trial and access to court (argued generally)	Appellees: record and briefing do not support cumulative-error or due-process claim; issues inadequately briefed	Claims inadequately briefed and/or do not show reversible cumulative error; issue overruled

Key Cases Cited

Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (Tex. 2004) (standard for reviewing denial of continuance)
In re Marriage of Sandoval, 619 S.W.3d 716 (Tex. 2021) (standard for reviewing motions to set aside judgments/new-trial practice)
Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939) (test for setting aside default judgments)
Milestone Operating, Inc. v. ExxonMobil Corp., 388 S.W.3d 307 (Tex. 2012) (focuses inquiry on why party did not appear when attacking default)
Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143 (Tex. 2015) (rule interpretation reviewed de novo)
Vance v. Holloway, 689 S.W.2d 403 (Tex. 1985) (failure to file verified denial in sworn-account suit bars denial)
Hou-Tex Printers, Inc. v. Marbach, 862 S.W.2d 188 (Tex. App.—Houston [14th Dist.] 1993) (if Rule 185 affidavit is deficient, defendant need not file verified denial)
Bombardier Aerospace Corp. v. SPEP Aircraft Holdings, LLC, 572 S.W.3d 213 (Tex. 2019) (plaintiff bears burden to prove case by preponderance)
Genesis Tax Loan Servs., Inc. v. Kothmann, 339 S.W.3d 104 (Tex. 2011) (general denial puts entire matter at issue)