This post is the fifth in a seven-part series written to explain how verified denials are used in answering a lawsuit. Other topics in this series are listed below.
Post 1: The Basics of Drafting an Answer
Post 2: Dilatory Pleas
Post 3: Special Exceptions
Post 4: The General Denial
Post 5: Verified Denials
Post 6: Affirmative Defenses
Post 7: Counterclaims, Cross Claims, and Third-Party Claims
Unlike a general denial, verified denials must be specifically pleaded and substantiated by affidavit. If the defendant does not provide verification of a claim, then the plaintiff is released from the burden of proof. The specific defenses in Texas that must be verified include the following. (Tex. R. Civ. P. 93 and Tex. R. Civ. P. 185)
• Tex. R. Civ. P. 93 (1) Legal Capacity: “That the plaintiff has not legal capacity to sue or that the defendant has not legal capacity to be sued.”
• Tex. R. Civ. P. 93 (2) Recovery/Liability Capacity: “That the plaintiff is not entitled to recover in the capacity in which he sues, or that the defendant is not liable in the capacity in which he is sued.”
• Tex. R. Civ. P. 93 (3) Concurrent Jurisdiction/First-Filed Situation: “That there is another suit pending in this State between the same parties involving the same claim.”
• Tex. R. Civ. P. 93 (4) Defective Parties: “That there is a defect of parties, plaintiff or defendant.”
• Tex. R. Civ. P. 93 (5) Denial of the Existence of a Partnership: “A denial of partnership as alleged in any pleading as to any party to the suit.”
• Tex. R. Civ. P. 93 (6) Denial of the Existence of a Corporation: “That any party alleged in any pleading to be a corporation is not incorporated as alleged.”
• Tex. R. Civ. P. 93 (7) Denial of the Legitimacy/Authority/Validity of a Signature: “Denial of the execution by himself or by his authority of any instrument in writing, upon which any pleading is founded, in whole or in part and charged to have been executed by him or by his authority, and not alleged to be lost or destroyed. Where such instrument in writing is charged to have been executed by a person then deceased, the affidavit shall be sufficient if it states that the affiant has reason to believe and does believe that such instrument was not executed by the decedent or by his authority. In the absence of such a sworn plea, the instrument shall be received in evidence as fully proved.”
• Tex. R. Civ. P. 93 (8) Denial of the Legitimacy/Authority/Validity of an Endorsing or Assignment Signature: “A denial of the genuineness of the indorsement or assignment of a written instrument upon which suit is brought by an indorsee or assignee and in the absence of such a sworn plea, the indorsement or assignment thereof shall be held as fully proved. The denial required by this subdivision of the rule may be made upon information and belief.”
• Tex. R. Civ. P. 93 (9) Lack or Failure of Consideration: “That a written instrument upon which a pleading is founded is without consideration, or that the consideration of the same has failed in whole or in part.”
• Tex. R. Civ. P. 93 (10) Suit on Sworn Account Denial: “A denial of an account which is the foundation of the plaintiff's action, and supported by affidavit.”
• Tex. R. Civ. P. 93 (11) Usurious Contract: “That a contract sued upon is usurious. Unless such plea is filed, no evidence of usurious interest as a defense shall be received.”
• Tex. R. Civ. P. 93 (12) Lack of the Provision of Notice or Proof of Loss: “That notice and proof of loss or claim for damage has not been given as alleged. Unless such plea is filed such notice and proof shall be presumed and no evidence to the contrary shall be admitted. A denial of such notice or such proof shall be made specifically and with particularity.”
• Tex. R. Civ. P. 93 (13) Industrial Accident Board Appeals: “In the trial of any case appealed to the court from the Industrial Accident Board the following, if pleaded, shall be presumed to be true as pleaded and have been done and filed in legal time and manner, unless denied by verified pleadings: (a) Notice of injury; (b) Claim for compensation; (c) Award of the Board; (d) Notice of intention not to abide by the award of the Board; (e) Filing of suit to set aside the award; (f) That the insurance company alleged to have been the carrier of the workers' compensation insurance at the time of the alleged injury was in fact the carrier thereof; (g) That there was good cause for not filing claim with the Industrial Accident Board within the one year period provided by statute; (h) Wage rate. ...”
• Tex. R. Civ. P. 93 (14) Assumed Name/Trade Name Denial: “That a party plaintiff or defendant is not doing business under an assumed name or trade name as alleged.”
• Tex. R. Civ. P. 93 (15) Auto-Insurance Company Defendant Denial of Plaintiff's Compliance with Conditions Precedent: “In the trial of any case brought against an automobile insurance company by an insured under the provisions of an insurance policy in force providing protection against uninsured motorists, an allegation that the insured has complied with all the terms of the policy as a condition precedent to bringing the suit shall be presumed to be true unless denied by verified pleadings which may be upon information and belief.”
• Tex. R. Civ. P. 93 (16) Statutory Catchall: “Any other matter required by statute to be pleaded under oath.”
• Tex. R. Civ. P. 185 Denial of Suit on Sworn Account: “[a claim supported by affidavit as described in Rule 185] shall be taken as prima facie evidence thereof, unless the party resisting such claim shall file a written denial, under oath.”
Fully understanding a verified denial requires someone familiar with all the complexities of litigation. Failing to properly plead verified denials can have catastrophic effects on a defendant’s ability to prevail in a lawsuit. A lawyer with such expertise will correctly use verified denials to help a defendant successfully defend litigation in Texas.
All information provided on Silblawfirm.com (hereinafter "website") is provided for informational purposes only, and is not intended to be used for legal advice. Users of this website should not take any actions or refrain from taking any actions based upon content or information on this website. Users of this site should contact a licensed Texas attorney for a full and complete review of their legal issues.