McNeil v. Pierce , 1985 Tex. App. LEXIS 6309 ( 1985 )

OSBORN, Justice,

dissenting.

I respectfully dissent. In Sigler v. Frost Brothers, Inc., 555 S.W.2d 813 (Tex.Civ. App. — El Paso 1977, no writ), this Court was faced with the question of whether or not a strict compliance with Rule 185, Tex. R.Civ.P., is required in order for a defendant to be able to present a defense to a suit on a sworn account. We said: “A denial of the verified account must be in the terminology of the rules and if not, the Defendant will not be permitted to deny the Plaintiffs claim or any item included therein.” I see no reason to depart from that decision.

In Airborne Freight Corporation v. CRB Marketing, Inc., 566 S.W.2d 573 (Tex. 1978), the court in a per curiam opinion quoted Rule 185 and then said: “It is settled that if the defendant fails to file a written denial under oath and in the form provided, he will not be permitted to dispute receipt of the items or services or the correctness of the stated charges.”

The same results were reached in another per curiam opinion in Crystal Investments v. Manges, 596 S.W.2d 853 (Tex. 1980) where the defendant’s answer denied “that the said amount is not just and true in whole or in part, * * The court said:

We hold that the supplemental answer filed by the defendant did not meet the requirements of Rule 185 and that the court of civil appeals’ opinion is contrary to this rule. The supplemental answer does not contain language denying the validity of the claims for all items, or denying the validity of some identified item or items contained in the sworn account. To allege that an “amount is not just and true in whole or in part,” raises only a general denial, and satisfies neither the pleading requirements of Rule 185 nor the purpose for the rule. See, Rizk v. Financial Guardian Insurance Agency, Inc., 584 S.W.2d 860 (Tex. 1979). See also, Rule 93(k) Tex.R.Civ. Pro.

The cases upon which the majority relies from the Courts of Appeals in Tyler and San Antonio are “no writ” cases. They are contrary to Rule 185 as it existed at the time of trial and the holdings of the Texas Supreme Court. Also see: Brightwell v. Barlow, Gardner, Tucker & Garsek, 619 S.W.2d 249 (Tex.Civ.App. — Fort Worth 1981, no writ). I would affirm the judgment of the trial court.