dissenting.
The majority has affirmed the trial court’s judgment awarding $160,000.00 in attorney fees to Intercontinental Pipe & Steel, Inc., (IPS). In my view, the conclusion reached by the majority is erroneous and the reasoning employed to reach this conclusion is flawed. Accordingly, I respectfully dissent.
IPS originally instituted suit against Flint & Associates, J.A. Flint, Donald Flint and Douglas Flint, d/b/a Flint & Associates (Flint) on a sworn account suit, for the sale and delivery of a quantity of oil well casing. Flint filed a verified denial to the sworn account suit, and asserted a counterclaim under the Deceptive Trade Practices Act, alleging that Flint had suffered damages by virtue of the casing being unfit for use. See Tex.Bus. & Com.Code Ann. § 17.41-17.62 (Vernon Supp.1986). At the conclusion of all the evidence, Flint stipulated to liability for the purchase price on the IPS sworn account. Flint’s DTPA counterclaim was submitted to the jury and the jury found adversely to Flint. The parties stipulated that the attorney fees issue would be submitted to the court for determination at a later date. When the parties appeared for testimony concerning attorney fees to be awarded, Flint objected to any attorney fees testimony other than that dealing with the IPS specific claim to recover on the sworn account. The IPS attorneys stipulated they were not asking for attorney fees under the DTPA and the court understood that IPS was asking for attorney fees only under Section 38.001, Tex.Civ.Prac.Rem.Code Ann. (Vernon, 1986). Testimony of both of the attorneys representing IPS during the trial was that they were unable to, and therefore did not, segregate the time that they spent preparing their sworn account case from the time that they spent defending the Flint DTPA counterclaim. There was no evidence by either attorney that effectually segregated attorney’s time with regard to prosecuting the sworn account cause of action from the time involved in defending the DTPA counterclaim. The court awarded $160,000.00 in attorney’s fees to the IPS attorneys.
On appeal Flint asserts that the trial court abused its discretion by awarding attorney fees without support in the record and argues that IPS failed to segregate the time spent in prosecuting its sworn account claim from the time spent defending the Flint DTPA counterclaim. The majority has held that the failure to segregate the time with respect to attorney’s fees by the IPS attorneys was not fatal and has affirmed the trial court’s judgment permitting IPS to recover attorney’s fees both for prosecuting it’s own claim, and defending against the Flint’s counterclaim.
Although the majority recognizes the general rule to be that in a case involving *628more than one claim, attorney’s fees can be awarded only for necessary legal services rendered in connection with the claims for which recovery is authorized, See Bray v. Curtis, 544 S.W.2d 816, 820 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n.r.e.), the majority chooses to rely on the rationale expressed by this court in Wilkins v. Bain, 615 S.W.2d 314 (Tex.Civ.App.—Dallas 1981, no writ). The majority characterizes the rationale of Wilkins as a corollary to the general rule enunciated in Bray. A corollary is defined as a proposition following so obviously from another that it requires little or no demonstration. Funk and Wag-nalls, New Comprehensive International Dictionary of the English Language (Deluxe Edition 1980). In my view, the rationale expressed in Wilkins is far from being a corollary to the rationale expressed in Bray and in fact is an exception to the general rule. As stated by the majority, Wilkins holds that services for which reasonable fees may be awarded include those rendered in connection with all claims, even if the recovery of attorney’s fees is not authorized for such claims, if they arise out of the same transaction and are so interrelated that their prosecution or defense entails proof for denial of the same facts. Wilkins, 615 S.W.2d at 316.
In my view, the majority fails to properly address what is the correct inquiry in the determination of whether the general rule set out in Bray or the exception set out in Wilkins applies to attorney fees in this case. The correct inquiry, in my opinion, is what facts were required to be proved by IPS to establish its sworn account claim against the Flints as opposed to what facts were required to be proved to defeat Flint’s DTPA counterclaim.
When a verified denial is filed in response to a sworn account petition, that denial destroys the evidentiary effect of the itemized account and forces a plaintiff to put on proof as at common law with respect to the claim. The essential elements of a common law cause of action on account are that: (1) there was a sale and delivery of the merchandise; (2) the amount of the account was just, that is, that the prices are charged in accordance with an agreement; and (3) the amount is unpaid. Nichols v. Taylor, 662 S.W.2d 396, 398 (Tex.App.—Corpus Christi 1983, no writ); Arndt v. National Supply Company, 633 S.W.2d 919, 992 (Tex.App.—Houston [14th Dist.] 1982, writ ref'd n.r.e.); Blue Bell Inc. v. Isbell, 545 S.W.2d 563, 565 (Tex.Civ.App.—El Paso 1976, no writ). These elements are subject to proof by a simple set of requests for admissions of fact or of interrogatories to the opposing party. In my opinion, the proof of these facts permitting recovery on the sworn account are totally different than those facts required for proof to defend against the Flint DTPA counterclaim.
The majority further concludes that the trial court took judicial notice of all claims that had been filed in the case in assessing its award of attorney’s fees and from the court’s knowledge of those claims, as reflected in the record, the court could determine what portion of the requested fees was reasonably attributable to services for which fees could not be recovered. In my opinion, the record is totally devoid of any evidence which would clearly differentiate fees incurred by IPS in prosecuting its sworn account claim from the fees incurred in defending against the Flint DTPA claim. Therefore, it is impossible for the trial court to properly exclude the time spent in defending against the DTPA counterclaim and in prosecuting and defending against the other parties by the procéss of taking judicial notice of the case filed and the work done. There is no evidence of any kind in the record that could bring about a rational conclusion on the segregation of the attorney’s fees; therefore, the failure to segregate is fatal to recovery of any fees by IPS and its attorneys. See International Security Life Insurance Co. v. Finck, 496 S.W.2d 544, 546-547 (Tex.1973); Wood v. Component Construction Co., 722 S.W.2d 439, 444 (Tex.App.—Fort Worth 1986, no writ).
In my view, Crow v. Central Soya Co., Inc. 651 S.W.2d 392 (Tex.App.—Fort Worth 1983, writ ref’d n.r.e.) is dispositive of the attorney fee issue in this case. I view Crow as almost exactly on all fours with *629this case. I would hold that the general rule as set forth in Bray and exemplified in Crow is applicable and that, therefore, IPS is not entitled to recover any attorney fees because of its failure to properly segregate the time. I would reform the trial court’s judgment by deleting the attorney fees in their entirety.
I am in agreement with the majority’s decision with respect to the deletion of the “non-taxable costs” in the sum of ten thousand dollars awarded by the trial court.
In conclusion, I would reform the trial court’s judgment by deleting both attorney fees and the non-taxable costs from the IPS recovery, and affirm only the trial court’s award of the IPS sworn account balance together with pre-judgment interest and post-judgment interest and costs both in the trial court and on this appeal.