ROBERT GORMAN, Appellant v. MATTHEWS, KROEMER & JOHNSON, Appellee

Affirmed and Opinion filed November 28, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-89-00320-CV
............................
ROBERT GORMAN, Appellant
V.
MATTHEWS, KROEMER & JOHNSON, Appellee
 
.................................................................
On Appeal from the County Court at Law No. 5
Dallas County, Texas
Trial Court Cause No. CC88-11591-E
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O P I N I O N
Before Justices Whitham, Stewart, and Ovard
Opinion By Justice Ovard
        Robert Gorman appeals from a summary judgment granted in favor of Matthews, Kroemer & Johnson (Matthews) to recover fees on a sworn account for legal services rendered to Gorman. In a single point of error, Gorman contends that the trial court erred because fact issues, involving who was responsible for payment of the legal fees, were raised at the summary judgment hearing. For reasons discussed below, we affirm.
        Gorman contends that the trial court erred in granting summary judgment because material fact issues were raised by proof at the summary judgment hearing. He contends that the summary judgment evidence fails to prove that he was individually responsible for the debt, rather than Gorman Financial Services Corp. He points to the invoices, attached to Matthews' petition, that include the names "Gorman Financial Corporation," "Gorman Financial Corp.," and "Gorman." He argues that his response to the motion for summary judgment and his attached affidavit raise fact issues concerning his request or acceptance of the alleged legal services. We disagree.
        Rule 185 FN:1 establishes the proper procedure for instigating a suit on a sworn account as well as the requisites for establishing a prima facie case thereof. Tex. R. Civ. P. 185. Rule 93, FN:2 concerning certain pleas which shall be verified, must be read in light of Rule 185, for Rule 93 provides that the denial of a sworn account shall be verified by affidavit. Tex. R. Civ. P. 93(10). Failure to file a sworn verified denial results in a waiver of the right to disclaim the validity of the sworn account. Vance v. Holloway, 689 S.W.2d 403, 403-04 (Tex. 1985). Further, the filing of a mere general denial, even if sworn to, fails to put in issue those matters requiring a sworn verified denial such as the denial of a sworn account. Huddleston v. Case Power & Equip. Co., 748 S.W.2d 102, 103-04 (Tex. App.--Dallas 1988, no writ); Dorsaneo, Texas Litigation Guide, § 70.132[1][a] (1984). The same sworn general denial is also insufficient to rebut the evidentiary effect of an affidavit in support of a suit on a sworn account. Huddleston, 748 S.W.2d at 103-04. However, the filing of a verified denial results only in the elimination of the prima facie evidentiary effect of a sworn account and forces the plaintiff to go forward with proof of the claim. Rizk v. Financial Guardianship Ins. Agency, Inc., 584 S.W.2d 860, 862 (Tex. 1979); Rush v. Montgomery Ward, 757 S.W.2d 521, 523 (Tex. App.--Houston [14th Dist.] 1988, writ denied).
        In the case under review, Matthews filed its first original petition, representing a suit on a sworn account, together with attached invoices and a supporting affidavit. Therefore, Matthews established a prima facie case on its suit for a sworn account. Tex. R. Civ. P. 185. Gorman then filed an unsworn general denial as his original answer. At this procedural pleading point, Vance holds that failure to file a sworn denial results in a waiver of the right to dispute the amount and ownership of the account. Vance, 689 S.W.2d at 404; Tex. R. Civ. P. 93 (10).
        Gorman argues that the affidavit in support of his response to Matthews' motion for summary judgment, together with the response itself, adequately deny the sworn account and create fact issues, thus rendering summary judgment improper. The record reflects that after Gorman filed his first original answer in the form of a general denial, Matthews filed its first amended petition and a motion for summary judgment on the same day. Gorman next filed his response to Matthews' motion for summary judgment together with an affidavit in support thereof denying the sworn account for legal fees. The hearing on the motion for summary judgment was held on November 18, 1988, the very same day that Gorman filed his first amended answer--apparently, a "last-ditch" attempt to create a fact issue as to the validity of the sworn account. Although the record is silent as to what time Gorman's first amended answer was filed, Matthews, in its brief, informs this Court that the summary judgment hearing occurred at 9:00 a.m., on the 18th day of November, and Gorman's amended answer was filed later that afternoon, without leave of court. Gorman has not challenged this statement; therefore, this Court may accept it as correct. Tex. R. App. P. 74(f). Thus, Gorman's amended answer did not raise a fact issue, because the trial court must consider the record as it appears when the motion for summary judgment is heard. Requipco, Inc. v. Am-Tex Tank & Equip., Inc., 738 S.W.2d 299, 302 (Tex. App.--Houston [14th Dist.] 1987, writ ref'd n.r.e.).
        It is well settled that in order to properly deny a sworn account it is necessary that the denial be sworn and verified by affidavit. Vance, 689 S.W.2d at 403; Tex. R. Civ. P. 93(10), 185. Further, the denial of the account must appear in a pleading of "equal dignity" to that of the plaintiff's petition, i.e. a defendant's first original answer. See, e.g., Rush, 757 S.W.2d at 523 (sworn account challenge may not be raised first time in affidavit accompanying response to creditor's motion for summary judgment); Notgrass v. Equilease Corp., FN:3 666 S.W.2d 635, 639 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.) (denial of sworn account must appear in answer); Zemaco, Inc. v. Navarro, 580 S.W.2d 616, 620 (Tex. Civ. App.--Tyler 1979, writ dism'd) (denial of sworn account must appear in document of equal dignity to that of petition). Since Gorman's sworn verified denial was first presented to the trial court in his response to Matthews' motion for summary judgment, and then again in an untimely amended answer, we hold that Gorman failed to sufficiently deny Matthews' sworn account for legal fees. Consequently, Matthews established a prima facie case with no controverted fact issues, thus rendering summary judgment proper. Accordingly, we overrule Gorman's sole point of error.
        The trial court's judgment is affirmed.
 
                                                          
                                                          JOHN OVARD
                                                          JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 90
890320F.U05
 
FN:1 All textual references to rules refer to the Texas Rules of Civil Procedure unless otherwise indicated.
 
        Rule 185 provides in pertinent part:
                
     When any action or defense is founded upon . . . personal service rendered . . . on which a systematic record has been kept, and is supported by the affidavit of the party, his agent or attorney taken before some officer authorized to administer oaths, to the effect that such claim is, within the knowledge of the affiant, just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed, the same shall be taken as prima facie evidence thereof . . .        
FN:2 Rule 93 provides in pertinent part:
 
         A pleading setting up any of the following matters, unless the truth of such matters appear of record, shall be verified by affidavit.
 
         10. A denial of an account which is the foundation of the plaintiff's action, and supported by affidavit.
FN:3 Although we note that both the Notgrass and Zemaco opinions were decided prior to the April 1, 1984 effective date of the amendments to Rules 93 and 185, we consider their holding and rationale persuasive.
File Date[11-27-89]
File Name[890320F]