Cooper v. Scott Irrigation Construction, Inc.

838 S.W.2d 743, 1992 WL 208529
CourtCourt of Appeals of Texas
DecidedAugust 26, 1992
Docket08-91-00352-CV
StatusPublished
Cited by18 cases

This text of 838 S.W.2d 743 (Cooper v. Scott Irrigation Construction, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cooper v. Scott Irrigation Construction, Inc., 838 S.W.2d 743, 1992 WL 208529 (Tex. Ct. App. 1992).

Opinions

OPINION

OSBORN, Chief Justice.

This is an appeal from an order granting summary judgment on an account in favor of Scott Irrigation Construction, Inc. (Scott), Appellee, and against Randy Cooper, d/b/a Cooper Farms (Cooper), Appellant. In a single point of error, Cooper contends that the trial court erred in granting summary judgment. We affirm.

Scott filed a petition, accompanied by an affidavit, for an amount allegedly owed to it on an account which arose from the sale and installation of an irrigation system on Cooper’s farm. Cooper in his original answer pled a general denial and certain defenses to the effect that the system was defective and he suffered damages by way of repairs and loss of cotton. These pleadings were unsworn and unsupported by affidavit. Scott then filed its motion for summary judgment attaching as proof affidavits and copies of Cooper’s account. Cooper filed an amended answer, alleging essentially the same defenses as pled in his original answer, including breach of express and implied warranties, violations of the Deceptive Trade Practices Act and negligence both by specific acts and generally under the doctrine of res ipsa loquitur. Although Cooper pled that he had suffered damages in the amount of $2,500 as a result of Scott’s wrongful acts, his pleadings were defensive in nature rather than as a counterclaim against Scott for affirmative relief. Cooper also filed a response to the motion for summary judgment. Both Cooper’s amended answer and his response were accompanied by identical affidavits in which he alleged facts in support of his defenses but failed to deny Scott’s claim. The trial court granted the motion for summary judgment, reciting in its order that it “finds that [Scott’s] suit is founded upon a Sworn Account, but that ... [Cooper] has failed to file an Answer in compliance with Rule 185, Texas Rules of Civil Procedure, and that no such Answer has been timely tendered....”

In reviewing a summary judgment appeal, the general rule is that this Court must determine whether the success[745]*745ful movant in the trial court carried its burden of showing that there is no genuine issue of a material fact issue and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548 (Tex.1985). In deciding whether or not there is a disputed fact issue precluding summary judgment, evidence favorable to the non-movant is to be taken as true, and in that connection, every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in his favor. Nixon, 690 S.W.2d at 548-49.

Within his point of error, Cooper asserts four errors on the part of the trial court which he claims mandate a reversal and remand of the case. First, he contends that the court erred in ruling that the suit was based on a sworn account because of a defective affidavit attached and filed in support of Scott’s petition. Specifically, Cooper claims that because of an omitted date in the jurat at the end of the affidavit (“SIGNED AND SWORN TO before me on March —, 1991.”), it is essentially an un-sworn statement not competent as summary judgment proof.

The lack of a specific date in the jurat of an affidavit does not render the affidavit invalid. Order of Aztecs v. Noble, 174 S.W. 623, 624 (Tex.Civ.App. — Austin 1915, no writ); 2 Tex.Jur.3d, Affidavits, § 19 (1979). The Texas Court of Criminal Appeals has cited and followed those authorities in Ex parte Davis, 586 S.W.2d 536, 537 (Tex.Crim.App.1979). Trimble v. Gulf Paint & Battery, Inc., 728 S.W.2d 887 (Tex.App. — Houston [1st Dist.] 1987, no writ), cited by Cooper in support of his contention that lack of a specific date renders an affidavit ineffective, is inapposite since that case involved a complete absence of notarization. The same may be said with respect to Reese v. State, 712 S.W.2d 131 (Tex.Crim.App.1986), another case cited by Cooper, which held only that even where the jurat of an affidavit in support of a search warrant was unsigned, it was not fatally defective since it was incorporated by reference into a properly executed warrant.

Cooper next complains that the trial court erred in ruling that he had failed to file an answer which met the requirements of Tex.R.Civ.P. 185.1 This rule provides that where a plaintiff sues for recovery on an account with verified pleadings “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,” that such allegations are to be taken as prima facie evidence of the truth of the claim. The defendant will not be permitted to deny the claim, or any item therein, unless he files a “written denial, under oath.” Tex.R.Civ.P. 93(10) requires that a defensive pleading which denies a plaintiff’s verified suit on an account must also be verified by affidavit.2

Rule 185 is a rule of procedure with regard to the establishment of a pri-ma fade right to recovery in a suit on an account. McNeil v. Pierce, 688 S.W.2d 209, 210 (Tex.App. — El Paso 1985, writ ref’d n.r.e.). A defendant who fails to file a [746]*746sworn denial which meets the requirements of Rules 185 and 93(10) is not entitled to dispute the receipt of items or services or the accuracy of the stated charges. Canter v. Easley, 787 S.W.2d 72, 73 (Tex.App. — Houston [1st Dist.] 1990, writ denied), citing, Vance v. Holloway, 689 S.W.2d 403 (Tex.1985). A correctly worded denial, properly verified as required by Rules 93(10) and 185, will destroy the pri-ma facie effect of the verified claim and will force the plaintiff to prove his claim. McNeil, 688 S.W.2d at 210. On the other hand, a sworn general denial is insufficient to remove the evidentiary presumption created by a properly worded and verified suit on an account. Huddleston v. Case Power & Equipment Co., 748 S.W.2d 102, 103 (Tex.App. — Dallas 1988, no writ). The “written denial, under oath” required by Rule 185 must also comply with Rule 93(10) which requires a special sworn denial in the defendant’s answer to put the plaintiff’s claim at issue. Huddleston, 748 S.W.2d at 103. A sworn denial in a response to a motion for summary judgment is not sufficient for this purpose. Rush v. Montgomery Ward, 757 S.W.2d 521, 523 (Tex.App.— Houston [14th Dist.] 1988, writ denied); Zemaco, Inc. v. Navarro, 580 S.W.2d 616, 620 (Tex.Civ.App. — Tyler 1979, writ dism’d). While no particular form or words are required by Rules 185 and 93(10) for a verified denial, the defendant’s sworn answer must sufficiently deny the account upon which plaintiff’s claim is founded. Canter, 787 S.W.2d at 74.

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Cooper v. Scott Irrigation Construction, Inc.
838 S.W.2d 743 (Court of Appeals of Texas, 1992)

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838 S.W.2d 743, 1992 WL 208529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cooper-v-scott-irrigation-construction-inc-texapp-1992.