Ayers v. Commtron Corp.

594 S.W.2d 515, 1979 Tex. App. LEXIS 4435

• Court: Court of Appeals of Texas
• Decided: December 12, 1979
• Docket: No. 16296
• Status: Published

Opinions

OPINION

MURRAY, Justice.

This is an appeal from a summary judgment. Plaintiff, Commtron Corporation, filed suit against defendant, Otho D. Ayers, seeking to recover the sum of $1,932.28, plus interest and attorneys’ fees, which it alleges to be the balance due upon an account with the defendant for the sale of various items of merchandise. Plaintiff further alleges in the petition that on or about June 8, 1977, the defendant tendered two checks to the plaintiff in the amount of $1,932.28 for the payment of the account, but that the checks were returned for insufficient funds. In its petition plaintiff also states that the account is still owing. The petition contains an affidavit that meets the requirements of Rule 185, Texas Rules of Civil Procedure.

This case was originally filed by plaintiff in the Count Court at Law of Harris County and transferred to the District Court of Dimmit County on a plea of privilege filed by defendant. Paragraph four of defendant’s plea of privilege reads: “[tjhat the checks attached to Plaintiff’s Petition have been paid and that accordingly, the underlying account has been paid in full, and that accordingly each and every item is not just and true and not all credits have been given.”

After the case was transferred to Dimmit County, plaintiff filed its motion for summary judgment. No answer was filed in response to plaintiff’s motion. At the time of the hearjng on the motion for summary judgment the only instrument filed by defendant in this case was the plea of privilege filed in the County Court at Law of Harris County, Texas.

The defendant contends that the trial court erred in rendering summary judgment because the sworn denial in defendant’s plea of privilege raised an issue of material fact. We overrule this contention.

Assuming without deciding that the allegations contained in defendant’s plea of privilege constitute an answer on the merits of this case, we hold that the denial was not within the purview of Rule 185. Rule 185 provides that when a plaintiff, by properly verified pleadings, seeks recovery on an account, the allegations in plaintiff’s petition shall be taken as true unless the defendant files a sworn denial “stating that each and every item is not just or true, or that some specified item or items are not just and true . . . .” Tex.R.Civ.P. 185. Since the denial did not challenge any particular item in plaintiff’s account, the plea was not effective as a partial denial. Although the answer purported to deny the entire claim it was also ineffective as a denial of the whole account. In order to effectively deny an entire account both the justness and the truth of each item in an account must be denied. See Edinburg Meat Products Co. v. Vernon Co., 535 S.W.2d 432, 436 (Tex.Civ.App.—Corpus Christi 1976, no writ). ' Defendant’s denial that each and every item is not just and true does not unequivocally assert the absence of both justness and truth. See Hill v. Floating Decks of America, Inc., 590 S.W.2d 723 at 725 (Tex.Civ.App.—San Antonio, Oct. 17, 1979).

Defendant next complains of the error of the trial court in rendering summary judgment because the account attached to plaintiff’s .amended petition was illegible and did not state with clarity the nature of the items sold, the dates, nor the reasonable charges for each item. We overrule this contention. Rule 166—A(e) of the Texas Rules of Civil Procedure provides that defects in the form of attachments are not “grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend.” Tex.R.Civ.P. 166-A(e); see Walkoviak v. Hilton Hotels Corp., 580 S.W.2d 623, 626—27 (Tex.Civ.App.—Houston [14th Dist.] 1979, writ ref’d n.r.e.) (policy of rule is to give movant an opportunity to correct formal defects prior to decision on summary judgment motion by trial court). The alleged defects in the attachments were matters of form that could have been cured had they been pointed out to the trial court before summary judgment was rendered. Cf. Life Insurance Co. v. Gar-Dal, Inc., 570 S.W.2d 378, 381 (Tex.1978) (improperly authenticated attachment alleged for first time in motion for new trial). Furthermore, the defendant waived his right to complain of the alleged defects in Comm-tron’s pleadings because he did not point out the alleged defects to the trial court in writing. See, e. g., M. E. Morgan Co. v. Boise Cascade Corp., Building Materials & Service Division, 583 S.W.2d 436, 437—38 (Tex.Civ.App.—Texarkana 1979, no writ); Larcon Petroleum, Inc. v. Autotronic Systems, Inc., 576 S.W.2d 873, 877 (Tex.Civ.App.—Houston [14th Dist.] 1979, no writ); Jones v. McSpedden, 560 S.W.2d 177, 179 (Tex.Civ.App.—Dallas 1977, no writ); Tex.R.Civ.P. 90.

The judgment of the trial court is affirmed.