all holding that, while information disclosed during discovery is not a pleading or a defense to a pleading, such information may give rise to amendments to pleadings
How later courts described this case
- all holding that, while information disclosed during discovery is not a pleading or a defense to a pleading, such information may give rise to amendments to pleadings
Written by the judges who cited it.
The opinion
David Newbern, Judge, concurring. My concurrence in the result reached by the majority is reluctant. The majority opinion’s statement of the facts is correct except that it omits to say the motion for summary judgment was filed after the 30 days given the defendants to amend had elapsed, and no amendment had been filed. I can conceive of a rationale that no material issue of fact remained to be decided, as this failure to amend was a waiver of defenses. I decline to go that far. However, I do wish to point out where I disagree with the majority in areas I feel to be important.
First, the issue here is not whether the defendants have raised a defense of lack of consideration or an affirmative defense of breach of warranty. Rather, it is whether they have denied the correctness of the verified account filed with the complaint. This is an action on account as contemplated by Ark. Stat. Ann. § 28-202 (Repl. 1979). Lack of consideration is not a defense as it might be when the action is on a contract. See Cawood v. Pierce, 232 Ark. 721 , 339 S.W. 2d 861 (1960), and McWater v. Ebone, 234 Ark. 203 , 350 S.W. 2d 905 (1961), for cases showing the nature of this action. It is apparent the only defense, aside from affirmative defenses and set-offs which would have to be pleaded, is incorrectness of the account as stated.
I would have agreed with the granting of the summary judgment but for one discovery response (which I assume was under oath) which denied that some minor items listed in the appellee’s affidavit were actually supplied. That was just barely enough, in my view, to raise an issue of fact.
Secondly, I cannot concur, in the context of an opinion evaluating the granting of a summary judgment, in a statement that ‘ ‘justice is better served when cases are tried on their merits.” Such a statement implies we look askance at the summary judgment procedure. That is not the case. When there is no disputed fact which is material, under the applicable law, there are no merits to be tried, and it is wholly proper for a trial judge to apply the law summarily in those circumstances.
It was not improper for the trial judge to invite the defendants to amend their answer so that it either raised a defense to an action on account, which a general, unverified 1 denial is not, or to plead affirmative defenses. The defendants here are just lucky the plaintiffs asked in their interrogatory whether the defendants denied the accuracy of the account.
Judge Pilkinton joins in this opinion. McWater v. Ebone, cited, above, suggests that a verified denial might be sufficient, but the record here shows the answer to have been unverified.