Gayne v. Dual-Air, Inc.

• Decision Date: 21 May 1980
• Docket Number: DUAL-AI,No. A2200,INC,A2200
• Citation: 600 S.W.2d 373
• Parties: David R. GAYNE, Individually and d/b/a Strawberry Apartments and also d/b/a Colony Creek Apartments, Appellant, v., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 373

600 S.W.2d 373

David R. GAYNE, Individually and d/b/a Strawberry Apartments and also d/b/a Colony Creek Apartments, Appellant, v. DUAL-AIR, INC., Appellee.

No. A2200.

Court of Civil Appeals of Texas, Houston (14th Dist.).

May 21, 1980.

Rehearing Denied June 18, 1980.

Murray L. Lieberman, Lieberman, Tratras & Markowitz, Houston, for appellant.

Charles C. Foster, Jr., Soape, Foster, Halla & Craft, Houston, for appellee.

Before BROWN, C. J., and MILLER and PAUL PRESSLER, JJ.

PAUL PRESSLER, Justice.

This is an appeal from a judgment based upon a sworn account for services and materials. We reverse and remand.

On February 24, 1977, appellee, plaintiff below, filed this cause of action seeking recovery on a sworn account and attorney's fees. Appellee's petition included an affidavit, as required by Tex.R.Civ.P. 93(k) and 185 (hereinafter referred to as Rule 93(k) and Rule 185), and several invoices detailing the services and materials supplied to appellant, defendant below. Appellant's answer denied the allegations of appellee's petition, demanded strict proof, and included a counter-affidavit. Appellant's counter-affidavit stated in part:

On this 21st day of March, 1977, personally appeared before the undersigned authority DAVID H. GAYNE a duly authorized agent of the Defendant in the above styled and numbered cause who on his oath did state that the matters contained in the Defendant's Original Answer and to the best of his knowledge, are true and correct and that the Plaintiff's charges as to each and every item is not just or true.

Though appellee contended at trial that appellant's sworn denial was equivocal and did not comply with the requirements of Rules 93(k) and 185, and so contends before this court, no special exceptions or motion for summary judgment were presented to the court. Rather, the invoices were admitted into evidence and the testimony of one of appellee's employees was adduced in support of appellee's claim. At the close of the evidence the court awarded appellee judgment for $9,634.57 principal $1,204.32 interest, and $1,500.00 attorney's fees.

Appellant first contends there is no evidence or insufficient evidence to support the judgment because the sole witness for appellee had no personal knowledge of the transactions made the basis of the suit and the invoices admitted into evidence are inadequate. He claims they are inadequate because the evidence did not establish the reasonable cost for the work in Harris County, nor did the invoices set forth a systematic record of all the charges entered in sequence. In making these contentions, appellant assumes that his sworn denial was sufficient to raise material fact questions.

Appellee argues that the phrase "to the best of my knowledge" is analogous to the phrase "to the best of my knowledge and belief," which has been held to be inadequate for purposes of a sworn denial under Rule 185. Guay v. Schneider, Bernet & Hickman, Inc., 341 S.W.2d 461 (Tex.Civ.App. Waco 1960, writ ref'd n. r. e.). Rule 185 requires that the affidavit be "to the effect that such claim is, within the knowledge of affiant, just and true . . . ." We hold that the wording used in appellant Gayne's affidavit does not satisfy the requirements of Rule 185 and does render the affidavit equivocal. The words "within my knowledge," as used in Rule 185, imply that the affiant has sufficient knowledge of the facts to verify his statement as to the truth and justness of the account. On the other hand, the words "to the best of my knowledge" do not necessarily connote a knowledge of the facts by the affiant sufficient to support the verity of such a statement. As appellant's counter-affidavit is based upon the "best of his knowledge" only, it is equivocal and inadequate.

As we have previously said, "A denial of a verified account must be in the terminology of Rule 185 and courts are extremely exacting in the nature of the language used in sworn denials of such accounts." Solar v. Petersson, 481 S.W.2d 212 (Tex.Civ.App. Houston (14th Dist.) 1972, no writ). See also Oliver Bass Lumber Company v. Kay and Herring Butane Gas Company, Inc., 524 S.W.2d 600 (Tex.Civ.App. Tyler 1975, no writ). The failure of appellant's sworn denial to conform to the requirements of Rule 185 brings appellant within the scope of the bar...