*2 infоrming them Karolin Schorer and Kordula HUTSON-DUNN, Before MIRABAL and of the continued default of rental HEDGES, JJ. terminating it the lease due and that 9, 1993, agreement. September Box On OPINION possessed its container at cоst $399.51. HUTSON-DUNN, Justice. Schorer, AGI, against Box Josef (Kordula), ap- Appellant, Kordula Schorer Schorer, Kordula, and Josef Michael Karolin peals by writ of error a directed verdict Schorer, amended its AGI. When Box d/b/a granted appellee, in favor of Box Service alleged was a suit on a pleadings, it (Box). Company points In Kor- in prayed for rentals due account. It complаins legal and factual suffi- dula $4,698.91,damages for remov- amount of ciency support judg- of the evidence $399.51, and ing container at a cost of her, against complains and she ment attorney’s in not less than fees an amount attorney’s against amount of fees awarded Kordula, $3,000. represent- Both her. We reverse. Josef se, pro separately, ing answered themselves (AGI) Imports, Inc. was in- Auto German compli- verified their answers but neither Michael corporated 1982. Josef 93(10). Kordula did ance with Tex.R.Civ.P. president the director and Schorer was pretrial proceed- participate other AGI, president Karolin Schorer was the vice ings trial. A heard or the secretary, and Kordula Schorer was the Nicholson, president and chief from John 16, 1985, AGI had its treasurer. On June Bоx, cross- operating officer of and Josef failure to corporate privileges forfeited for testified, the him. After Nicholson examined noti- satisfy requirements. tax As franchise of Box the vеrdict favor Secretary court directed of State of fied parties because none of the verified their directed the verdict favor Box because 93(H)).1 required by this was a suit on a sworn account and none answers as Tex.R.Civ.P. parties their answers. How verified appeals by writ of error ever, previously the sworn account rules have relief from an this Court. order to obtain inapplicable to suits on lease been held judgment by a writ of error to the adverse *3 agreements. Murphy v. 923 S.W.2d appeals, party seeking court of the relief 663, 1996, n.w.h.); (1) petition perfected must shоw the was Serv. v. First Nat’l Great-Ness Professional judg within six months of the date of the (Tex. 916, 917 704 S.W.2d of (2) (3) ment; suit; by party a to the who did App. no trial; participate the and there is Shops, Inc. v. apparent error the face of the record. on (Tex. Ayers, Havens v. (T ex.App.—Houston writ). App. [1st Dist.] —Houston writ refd This Court case, signed the on notes that the Meineke on which Mur perfected and the writ of error was rely, рhy and was issued under a Appellant party on October was a of 185.3 Howev former version TexR.Civ.P. participate in to the suit who did not trial.2 er, the 1984 amendment to rule 185 did not Thus, only remaining the issue is whether rule; rather, substantively change the the apparent there is error on the face of the so that suits on sworn rule was rewritten record. subject ordinary to rules accounts would be pleadings рleadings practice.4 Box contends in his this was a of and Because the 1984 account, change on a the trial court amendment to the rule did not the and party asserting 93(10) such verified claim shall have 1. TexR.Civ.P. provides: right postpone pleading setting up any following the to such cause for a reason- A matters, opposite party ap- to file the of able time. When the fails unless truth such matters affidavit, record, permitted by such he shall not be to pear of shall be verified affidavit. claim, therein, any deny the or item as the case may be. the A denial of an account which is (Vernon 1976). action, TexR.Civ.P. plaintiffs sup- and foundation ported by affidavit. any upon 4.When action or defense is founded goods, open an account or other claim for answer, alоne, filing 2. We note that an does not merchandise, including any claim for ware and participating pre constitute in trial so as to liquidated money upon a based writ- demand by Bonding clude review writ of error. Bailout dealings or founded on business ten contract (Tex.App.— Co. v. parties, personal between the or is for service 'd). Dallas writ ref rendered, or labor done or labor or materials furnished, any upon systematic 3. When action or defense is founded on which a record has open kept, supported by an account or other claim for been and the affidavit of is merchandise, including any attorney party, agent ware for before and claim the his or taken oaths, liquidated money a writ- some officer authorized to administer to is, dealings ten contract or founded on business the effect that such claim within the knowl- true, due, affiant, parties, edge just personal and that it is and between the or is for service of offsets, rendered, just and lawful and or lаbor done or labor or materials that all allowed, furnished, systematic the same shall be on which a record has credits have been thereof, by prima kept, supported taken faсie evidence unless been and is the affidavit of as claim, agent attorney party resisting party, the such shall file a writ- his or taken before oaths, denial, [Change begins here.] to to ten under oath. some officer authorized administer is, party resisting a com- that within the knowl- A such sworn claim shall the effect such claim affiant, true, due, required edge just ply as are and that it is and with the rules of of offsеts, suit, provided, just any that all and lawful and other kind that of allowed, denial, timely be he does a written under credits have been same shall file thereof, oath, deny prima permitted evidence unlеss he shall not be taken as facie claim, claim, therein, shall, party resisting case be. before an or item as the such cause, ready particularization description No or the nаture announcement of said of denial, oath, parts stating component the account or claim file a written under that of is of true, spe- eveiy just necessary item is not or that unless the trial court sustains each and or exceptions pleadings. specified are not and cial to the some item or items 1995) (written true; (Vernon as provided, that when such counter-affida- TexR.Civ.P. 1984) addеd). (emphasis day of the trial the amended in vit shall be involving the transfer contract the rule on a written application of rule substantive charges and goods; amendment, is unaffected Meinekе kept; and the claim was payments had been holding. rely on its and we continue money demand. The for a posture on is to look for enough, Our review holds, ty that this is record. Because the jfurther еrror on the face relying that add the on eases1 qualify errone a sworn ac- quirements trial court directed a verdict on the that count, must involve: that this suit involved a sworn a claim ous basis account, there error on the face we hold sale; purchase the record. personal property passing title to party one to another. portion reverse the We case *4 case, and the relies on the Great-Ness for a trial on the dula and remand the case case; case relies on the Meineke Great-Ness merits. stops majority prematurеly important point is that the Mei- there. The
MIRABAL, Justice, concurring. Biskamp, v. 159 neke case relies on Meaders (1958), agree I court erred when it that the trial 78 and cases Tex. Meineke, 635 against appellant, a' on Meaders. directed verdict relied ap Meaders case reversed S.W.2d at 138. The 1958 therefore the rules; plied the “common law sworn account” appellant. as to and the case remanded then, scope of rule 185 has been since this conclusion because think the reach beyond con expanded by amendment arguments appellant аre makes her brief law sworn account. See tour’s of the common “concurring opinion,” This is a meritorious. Tex.Litigation Dorsaneo, William V. 1 disagree because with § See also Vance 11.05[2] Guidе ty’s majority analysis. The relies on an ar- (Tex.1985) Holloway, 404 that, reason, gument good was not ad- (rule suit in action 185 sworn account by appellant. vanced developer operating by oil wеll to recover of a This case involves a lease boxcar-sized owner); working costs from interest Seisdata container, calling regular monthly Compagnie Geophysique, De 598 Generate payments. plaintiff The sued recover (Tex.Civ.App. S.W.2d delinquent monthly rental total amount of n.r.e.) (suit writ ref'd [14th Dist.] repossessing contain- costs of interpreting refraction recover for servicе er, attorneys’ plaintiff fees. gas properly field lines in offshore oil and account, complying the suit as a sworn with account). brought on sworn Accord as suit requirements of Tex.R.Civ.P. progeny longеr are no and its Meaders my opinion, a valid suit on a controlling. sworn account. that, accurately states Professor Dorsaneo difficulty arriving at have had “The courts that, majority this is a holds bеcause scope interpretation of the a consistent agreement, on a lease the sworn account Tex.Litigation Guide, Sec. Rule 185.” inapplicable. disagree. rules arе (1995). Hopefully, pp. 11-39 11.05[2] “any action ... founded Rule 185 covers Supreme fit to set us Texas Court see mer- upon a ... claim for wares and longer. much straight before too chandise, including any claim for a money written contract has been
... on which a plaintiff
kept.” present In the sued Shops, Inc. v. relies S.W.2d n.w.h.); Serv. v. First (Tex.App. S.W.2d Professional - Houston Nat’l writ ref'd (Tex.App. - Houston notes against Kor- the trial court that was directed