Booher v. Criswell

• Decision Date: 13 November 1975
• Docket Number: No. 18693,18693
• Citation: 531 S.W.2d 844
• Parties: Jim BOOHER, Individually, and d/b/a Booher and Associates, Appellant, v. Harold W. CRISWELL, d/b/a Harold W. Criswell and Associates, Appellee.
• Court: Texas Court of Appeals

Page 844

531 S.W.2d 844

Jim BOOHER, Individually, and d/b/a Booher and Associates, Appellant, v. Harold W. CRISWELL, d/b/a Harold W. Criswell and Associates, Appellee.

No. 18693.

Court of Civil Appeals of Texas Dallas.

Nov. 13, 1975.

H. Wayne Meachum, Green, Gilmore, Cruther, Rothpletz & Burke, Dallas, for appellant.

Sam C. Rodehaver, Wyrick, Rodehaver & Walker, Dallas, for appellee.

CLAUDE WILLIAMS, Chief Justice.

Harold W. Criswell, d/b/a Harold W. Criswell and Associates, brought this action against Jim Booher, 'individually and d/b/a Booher and Associates,' to recover on a sworn account. The trial court granted Criswell's motion for summary judgment, and Booher appeals. We reverse and remand.

Criswell attempted to bring suit on a sworn account in compliance with Tex.R.Civ.P. 185, to recover in the sum of $2,382.87, arising from his performance at the request of appellant, of engineering consultant services. Booher's verified answer denied liability in the capacity in which he was sued and, further, denied liability generally. Criswell moved for summary judgment and as grounds therefor alleged (1) that he had made out a prima facie case under rule 185; and (2) that Booher did not comply with rule 185 requirements for a proper denial of the sworn account; and (3) that there was no material fact issue. Booher opposed the motion for summary judgment, alleging that he was not liable, individually or d/b/a Booher and Associates, on the account since he had never contracted for or received services from Criswell in any capacity. After hearing the motion and considering the pleadings and affidavits of the parties, the trial court granted the motion and awarded judgment to Criswell for the sum of $2,382.87, together with attorney's fees of $475, interest and costs. The court filed conclusions of law that Criswell's action met the requirements for a suit on sworn account as defined in rule 185 and that Booher's answer was insufficient, as a matter of law, to controvert the petition.

Appellant Booher contends that the trial court erred in granting summary judgment against him because a material issue of fact existed as to whether appellant was liable to appellee in the capacity in which he was sued. He argues that his verified denial of liability in the capacity in which he was sued was sufficient to controvert appellee's rule 185 cause of action.

The strict requirements of denial in accordance with rule 185 do not apply to a defendant who is not liable in the capacity in which he was sued, and is thus a stranger to the transaction. In such a case, a written denial under oath as required by Tex.R.Civ.P. 93(c) is sufficient to controvert the account and to put plaintiff on proof of his claim without the aid of the presumption arising from the procedural rule 185. McCamant v. Batsell, 59 Tex. 363, 370 (1883); Hilton v. Musebeck Shoe Co., 505 S.W.2d 341, 342 (Tex.Civ.App.--Austin 1974,...