Gail v. Berry
343 S.W.3d 520
| Tex. App. | 2011

Background

  • Powell Berry, as attorney-in-fact for Hazel Berry et al., contracted to sell 176.52 acres in Scurry County to Gail for $80,000, reserving minerals, royalties, and timber in the contract.
  • The September 1, 2004 warranty deed to Gail did not contain the mineral reservation from the sales contract.
  • Mebane died January 7, 2006; Robinson, as independent executrix, filed probate, discovering the deed lacked the mineral reservation.
  • Choate testified he used the title commitment, did not compare deed and contract, and learned of the omission only after Cotton contacted him.
  • Gail refused to revise the deed; Berry, Wilson, and Robinson sued for reformation of the deed based on mutual mistake.
  • The trial court granted a traditional summary judgment for appellees; Gail appealed seeking reversal.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether the trial court properly granted summary judgment for reformation based on mutual mistake. Gail contends there was no mutual mistake and issues of fact remained. Appellees argue there was a mutual mistake evidenced by scrivener’s error and written contract. Yes, the trial court properly granted summary judgment for appellees.

Key Cases Cited

  • Thalman v. Martin, 635 S.W.2d 411 (Tex. 1982) (burden to show mutual mistake and original agreement)
  • Cornish v. Yarbrough, 558 S.W.2d 28 (Tex.Civ.App.-Waco 1977) (scrivener's failure to embody true agreement supports reformation)
  • Davis v. Grammer, 750 S.W.2d 766 (Tex. 1988) (unilateral mistake with knowledge equates to mutual mistake)
  • Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd's London, 327 S.W.3d 118 (Tex. 2010) (presumption of parties' intent from contract terms; merger doctrine limits)
  • Cherokee Water Co. v. Forderhause, 741 S.W.2d 377 (Tex. 1987) (scrivener's failure and mutual mistake basis for reform)
  • Commercial Bank, Unincorporated, of Mason, Tex. v. Satterwhite, 413 S.W.2d 905 (Tex. 1967) (merger doctrine exceptions when fraud, accident, or mistake present)
  • Hayes v. Rinehart, 65 S.W.3d 286 (Tex.App.-Eastland 2001) (parol evidence rule and collateral evidentiary considerations)
  • Johnson v. Driver, 198 S.W.3d 359 (Tex.App.-Tyler 2006) (parol evidence rule and how it limits extrinsic evidence contradicting written contracts)
  • Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517 (Tex. 1995) (parol evidence rule and collateral agreements)
  • Ryland Group, Inc. v. Hood, 924 S.W.2d 120 (Tex. 1996) (summary judgment evidence must be based on personal knowledge)
  • Brownlee v. Brownlee, 665 S.W.2d 111 (Tex. 1984) (affidavit mere allegations of modification insufficient for summary judgment)
  • Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd's London, 327 S.W.3d 118 (Tex.2010) (alleged contract interpretation and merger principle)
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