Coker v. Weatheread

• Decision Date: 05 May 1993
• Docket Number: No. 12-91-00194-CV,12-91-00194-CV
• Citation: 852 S.W.2d 764
• Parties: Kathy COKER v. Olen R. WEATHEREAD.
• Court: Texas Court of Appeals

Page 764

852 S.W.2d 764

Kathy COKER v. Olen R. WEATHEREAD.

No. 12-91-00194-CV.

Court of Appeals of Texas Tyler.

May 5, 1993.

Bill H. Yarborough, Bedford, for appellant.

Leonard Craig, Tyler, for appellee.

Before BILL BASS, HOLCOMB and COLLEY, J. (Retired). ¹

BILL BASS, Justice.

This is an appeal from a summary judgment granted on a sworn account. The trial court granted the summary judgment on the ground that Appellant failed to file a properly verified denial of Appellee's claim. We will affirm the judgment of the trial court.

The Appellant, Kathy Coker, hired the Appellee, Olen R. Weatheread, to build a carport and a fence for the agreed price of $5,500. According to his pleadings, Weatheread finished the job but Coker only partially paid him for the work and left a $3,500 balance due. Weatheread sued Coker on a sworn account and demanded the $3,500 balance, plus $1,166 attorney fees. Coker, in a pleading executed by both she and her husband, who was neither a licensed attorney nor a party to the suit, answered by way of an unverified general denial.

Weatheread thereafter filed his motion for summary judgment on the ground that Coker's answer failed to comply with Rule 185 of the TEXAS RULES OF CIVIL PROCEDURE, which requires a verified denial to suits on sworn accounts. Coker later filed a second original answer, executed only by Coker's husband, which contained Coker's sworn denial of Weatheread's claim. In response to Weatheread's motion for summary judgment, Coker filed "Defendant's Response to Plaintiff's Motion for Summary Judgment," signed only by Coker's husband. The response contained an attached affidavit, again with sworn denials of Weatheread's claim, signed by Coker and her husband. The court granted Weatheread's motion and concluded that, since the only answer filed and executed by the defendant was an unverified denial of the sworn account, there remained no contested fact issues to be resolved by a trier of fact.

The only issue raised by Coker's three points of error is whether the trial court properly refused to give effect to Coker's second answer since it was only signed by her husband, who was neither an attorney nor a party to the suit. In W.C. Turnbow Petroleum Corp. v. Fulton, 145 Tex. 56, 194 S.W.2d 256 (1946), the Supreme Court held that a motion for new trial should not have been treated as a nullity "merely because counsel failed to sign their names to it." Id. 194 S.W.2d at 257. At the end of the motion were two blank lines, under which appeared the words, "Attorneys for Deft. W.C. Turnbow Petroleum Corporation." The court reasoned that a signature to a pleading is a formal requisite and that failure to comply with the requirement is not fatal to the pleading. Id.

Recently, we held that a party's signature on a pleading, instead of his attorney's who had signed all previous pleadings, would not render that pleading a nullity. Brown v. Mulanax, 808 S.W.2d 718, 720 (Tex.App.--Tyler 1991, no writ). Like the Supreme Court in Fulton, we concluded that the signature was a formality in that instance; and a party's execution of the pleading instead of his counsel of record was not a fatal flaw.

The case before us now, however, is distinguishable from those cited above. In Mulanax, the pleading was in fact signed by the party to the suit in compliance with the TEXAS RULES OF CIVIL PROCEDURE, which requires that all pleadings be signed by either the party or his attorney. TEX.R.CIV.P. 45. In contrast, Coker's second original answer was not signed by her or an attorney. In Fulton, the party's attorneys inadvertently failed to sign their names on the signature line, under which appeared the designation, "Attorneys for Deft. W.C. Turnbow Petroleum Corporation." Coker's husband, on...