Achimon v. J.I. Case Credit Corp.

STEPHENS, Justice,

concurring.

Although I concur in the result reached by the majority, I disagree with the conclusion and holding that the deficiency arising from the disposition of the collateral “was not a ‘liquidated money demand’ as that term is used in rule 185.”

Rule 185 is a procedural rule and does not create a substantive cause of action. Rizk v. Financial Guardian Insurance Agency, Inc., 584 S.W.2d 860, 862 (Tex.1979). It is designed to facilitate the presentation of evidence by providing that, absent verified denial, the pleadings, if they conform to the rule and are pleadings of facts rather than mere conclusions, constitute prima facie evidence of the justness of the claim, avoiding the necessity of further proof. See Gallini v. Whelan, 625 S.W.2d 755, 760 (Tex.App.—San Antonio 1982, no writ); Edwards Advertising Agency, Inc. v. Morphey, 525 S.W.2d 56, 58-59 (Tex.Civ.App.—Tyler 1975, no writ); Vahlsing Christina Corp. v. Ryman Well Service, Inc., 512 S.W.2d 803, 809-10 (Tex. Civ.App.—Corpus Christi 1974, writ ref’d n.r.e.).

Appellee pled all of the facts of the sale, assignment, contents of the contract, failure of appellant to pay installments when due, repossession, sale, credit of the sales *77proceeds, and the remaining balance due. However, appellee failed to set forth facts regarding notice of sale or facts of a commercially reasonable sale. Appellee’s only pleading concerning these matters was that all conditions precedent as to the contract and as , to the Texas Business and Commerce Code were satisfied.

Before a party may recover a deficiency judgment after repossession and sale of collateral security, the party must show that reasonable notice was given pursuant to section 9.504(c) of the Texas Business and Commerce Code. Tanenbaum v. Economics Laboratory, Inc., 628 S.W.2d 769, 772 (Tex.1982). The secured party also bears the burden of showing that the sale was commercially reasonable. Sunjet Inc. v. Ford Motor Credit Co., 703 S.W.2d 285, 286 (Tex.App.—Dallas 1985, no writ). The question of whether a sale is commercially reasonable is a question of fact. Food City, Inc. v. Fleming, 590 S.W.2d 754, 760 (Tex.Civ.App.—San Antonio 1979, no writ); Pruske v. National Bank of San Antonio, 533 S.W.2d 931, 937 (Tex.Civ.App.—San Antonio, no writ); Christian v. First National Bank of Weatherford, 531 S.W.2d 832, 838 (Tex.Civ.App.—Fort Worth 1975, writ ref’d n.r.e.).

Although appellee pled that all conditions precedent as to the contract and the Texas Business and Commerce Code were met, the pleadings in this regard are mere conclusions. Appellee set forth no facts in its pleadings regarding notice of sale or commercial reasonableness of the sale. This failure does not render appellee’s claim for a deficiency “not a ‘liquidated money demand’ as that term is used in rule 185;” rather, the failure to plead sufficient facts results in a deficiency of proof, and accordingly, judgment cannot be awarded under rule 185.