*1 652 696, Int’l, Inc., 710
useful and his acts resulted 754 S.W.2d purpose, that Petrade 1988, suffering (Tex.App. in actual writ Charlotte’s business [1st Dist.] —Houston However, damages denied); in Boring, business and loss. see Rd. also Sumners 27, 690, Question Jury jury Thompson, number found 697 v. 393 S.W.2d Inc. money fairly 1965, that a “-0-” sum of would (Tex.Civ.App. Corpus Christi writ — n.r.e.). for reasonably compensate damages Charlotte amount is ref’d The damages her business and losses actual largely jury’s within the discretion. Crowe Billy judgment 623, due to Gene’s The Co., acts. v. 716 625 Packing S.W.2d Gulf subsequently awarded her for the 1986, writ); $10.00 no (Tex.App. Corpus Christi — damages Billy suffered Gene’s acts. Circe, v. 704 S.W.2d Del Carmen Alarcon Question jury Jury The found in numbers 1986, 520, (Tex.App. Corpus 521 Christi — Billy his 35 37 Gene breached writ). The and Alar- no decisions Crowe duty after date fiduciary to Charlotte instant distinguishable are from the con petition filed and that divorce personal case. These two cases involved damage. fiduciary breach caused Charlotte jury liability injury claims where found However, jury in number 38 the found damages money for some but and awarded money fairly a “-0-” would sum damages personal injury of the ele- not all compensate for the reasonably Charlotte ments, future earnings such as loss of damage to Billy she suffered due Gene’s present expenses. The case in- medical breach. against property claims two torts volves jury only received one element where determining a fatal conflict whether damages Our for each cause of action. jury findings, is exists the test between record of the entire indicates review finding conflicting whether with one damages “-0-” jury’s award requires judgment remainder of verdict through are over- Points nine proper. four conflicting other plaintiff for while the ruled. finding of the verdict with remainder requires Lit judgment for the defendant. points remaining Discussion of the Dunn, 148 Mfg. tle Rock Furniture Co. v. unnecessary. trial court’s The error 985, (1949); 197, Tex. 991 S.W.2d is AFFIRMED. mo- Charlotte’s Bridge v. Austin
Marshbank rehearing and amend the tions 129, (Tex.App. Corpus Christi S.W.2d are DENIED. — record n.r.e.); ref’d Junkermann writ (Tex.Civ. Carruth, 1981, writ).
App. Corpus Christi — jury present answered money the amount 0—” was adequately compensate Charlotte would HAYES, Ty Sparks, M. Cecil Joe W. against Billy Dis- her Gene. tort claims Krehbiel, Meadows, and Susan questions 27 and regarding this answer in Appellants, requires claim verdict 38 for each tort However, disregarding find- Charlotte. ENTERPRISES, INC., Appellee. E.T.S. damaged her ings Billy Gene business fiduciary duty does and breached No. 07-90-0073-CV. Billy Gene. require verdict for Texas, Appeals Court of mean questions 27 and 38 jury’s answers Amarillo. fairly of cash which would that the amount Charlotte for reasonably compensate 9, May 1991. “-0-.” injuries for both claims her Rehearing June 1991. Overruled Furthermore, pro the mental determines jury cess ordinarily damages cogni
amount of appellate court. Adams v.
zable *2 Associates, Templeton &
Robert L. Amarillo, Ty Hayes, Sparks, M. Joe W. Canadian, appellants. Nickum, Ronald Naylor,
Nickum and D. Amarillo, appellee. C.J., REYNOLDS, equal overriding royalty BOYD the dif-
Before interest POFF, existing all JJ. ference between leasehold bur- production. dens of record and of 8/8 25% BOYD, Justice. giving appeal, rise to the action point, appellants Hayes, In one Joe W. *3 sought declaratory appellee judgment a Ty Sparks, M. Cecil Meadows and Susan Pogo’s release ineffective was because say grant- the trial court erred Krehbiel They it was the result of a mistake. fur- summary ing judgment appel- favor of a alleged Pogo’s ther even if was release disagree Enterprises, lee Inc. E.T.S. We effective, appellee a limitation had obtained judgment of trial court. and affirm gas to and estate title an oil leasehold Appellants own an undivided mineral in- Practice Reme- pursuant to Texas Civil & (W/2) (Vernon in the of Section terest west one-half dies Code Annotated 16.024 § 4, Z-l, Hemphill B Survey 1986) (three statute). Block ACH & year Appellee’s suc- 2, (the April County, Property). Texas summary judgment On cessful motion for 1982, and wife Emma Jean upon Cecil Meadows grounds. also based these Meadows, gas executed an oil and lease to Appellants summary judg- contend the Scott, Inc., covering Property. Tom L. granted ei- ment not have on should 14, 1982, conveyed May On this lease was ground. Initially, they ther contend that (Pogo). Pogo Producing Company to the any in the release mistake execution 1983, 30,
On November
the Meadows
and
part
a
one on
unilateral
conveyed
ap-
a
mineral interest to
1.5/320
or re-
support
cannot
either cancellation
pellant
a
Hayes,
say,
Joe W.
and like interest to
a
Alternatively, they
if such
scission.
11,
Ty
Sparks.
September
M.
On
appellant
to be
basis of
unilateral
1986, Hayes conveyed a
mineral
sought,
require-
.75/320
it
meet the
relief
must
(nee
appellant
interest
to
Susan Krehbiel
re-
ments of a “remedial mistake.” Those
continue,
Hayes).
exist, they
Susan
quirements
Martha
do not
be-
(a)
genuine
a
issue of
cause
there exists
20, 1985,
February
Pogo executed a
On
the execution and
material fact whether
agreement
appellee by
to
“farm out”
mistake,
in fact
filing of the release was
a
obligated
appellee
which
terms of
(b)
summary
appellee
offered no
pooled
drill a test well
a
unit which
proof
release would be
that to enforce the
Appellee
4.
com-
included all
Section
unconscionable,
genu-
(c)
and
there exists a
drilling operations upon the tract
menced
ine issue of material fact whether
1985,
April
completed
and
or about
ordinary
in the
care
execution
exercised
27, 1985.
producing well on December
filing
and
release.
14, 1985, during
course
May
On
contention,
limitation
regard
With
to the
Pogo exe-
appellee’s drilling operations,
appellee did not
appellants contend that
gas
the oil
lease.
cuted a release of
and
of title from the
prove the unbroken chain
24, 1985, by an in-
Subsequently, on June
sovereign
appellee
requisite
“Revocation
strument denominated
They
year
the three
limitation statute.
Release of Oil
Gas
and Rescission of
effect of
release
also contend that the
Leases,”
not been its
which recited
had
appellants
appellee
co-ten-
was make
lease, Pogo
gas
release its oil
intent to
ants,
question
a fact
exists as to
rescind the release.
sought to revoke and
appellants’ ti-
appellee repudiated
whether
19, 1986,
By
dated March
instrument
tle.
date
its effective
but which recited
governing
2, 1985,
it was
The rules
the decision
which recited
October
warranty
summary judgments are well
implied
appeals from
express made without
Texas
appel-
Under Rule 166a
established.
title, Pogo assigned the lease
Procedure,1
transfer, Pogo
Rules of Civil
retained an
lee.
Texas
of Civil Procedure.
Rules
specified, future reference to
1.
otherwise
Unless
contained in the
those rules
numbers are to
rule
this miss-
included. Had he known about
must establish there is
judgment movant
information,
signed
not have
ing
he would
genuine
of fact and the movant is
issue
the error
also determine how
judgment as a matter of law.
and “would
entitled to
corrected.”
MMP,
Jones,
and have the situation
60 occurred
Ltd. v.
S.W.2d
absolutely
noth-
(Tex.1986);
He averred that there
City
Houston v. Clear
by Pogo by executing the
ing
gained
Authority, 589 S.W.2d
Creek Basin
existed and drill-
(Tex.1979).
view release where a farm-out
required
We are
light
ing had commenced. He characterized
evidence in the
summary judgment
A
“mistake.
signing
re
of the release
to the non-movant and
most favorable
A fluke.”
genu
clerical error.
any
solve
doubt of the existence of
against
of material fact
the mov
ine issue
summary judgment motion was also
*4
Property Management,
ant. Nixon v. Mr.
supported by the affidavit of John W. Chis-
(Tex.1985); Mont
690 S.W.2d
548-49
holm,
in
appellee’s
president
senior vice
309, Kennedy,
669 S.W.2d
gomery
gas
charge of administration of oil and
(Tex.1984).
the trial court did not
Since
leases,
marketing
op-
and well
production,
appellee’s
specify
of
theories was
which
averred that the well on
erations. He
summary judgment, it will
relied
5, 1985, and
premises
spudded April
appeal
any
if
of the theories
be affirmed on
27, 1985, with
completed on December
Rogers v. Ri
advanced are meritorious.
17,500,-
potential of
open
an
flow
absolute
Inc.,
Enterprises,
772 S.W.2d
cane
gas per day.
000 cubic feet of
Brasher,
(Tex.1989);
Carr
motion,
appellee’s
and
opposition
(Tex.1989).
contention, appel-
mistake
relevant
styled Pogo Producing
Another case
deposition testimony of
lants advanced
al., No.
Company v. Cecil Meadows et
County
taken in the Randall
Gina Gresham
32,319-A in the 47th District Court of
employee
an
case. Ms. Gresham was also
County,
facts
Randall
involved
same
Pogo.
testimony,
In that
she recounted
legal
controversy
in
in this case.
and
issues
procedures
in
detail the
followed
some
Although appellee
party
was not a
to that
releases of oil
Pogo
preparation
in the
suit,
depositions
the trial court allowed
tak
company’s endeav-
gas leases and the
and
en in that case to be used in this one.
accuracy.
said the
to ensure their
She
ors
Pogo’s
in
file
summary judgment
per-
agreement was not
As
evidence and
farm-out
the time it was checked
ground, appellee
premises
mistake
at- on the
at
tinent to its
Zella,
employee designated to
deposition
by Cathy
excerpts
tached
from the
Good,
so,
it there at the time the
employee Pogo,
an
taken
do
nor was
Kenneth
executed.
deposition,
in the instant case.
In that
release was
that, although he intended to
Good testified
Pogo’s
operating proce-
standard
Under
so, he
sign the release at the time he did
time,
the information about
dure at the
had
signed
not have
it had he known of
would
file,
in the
no release
agreement been
agreement
appellee
the farm-out
prepared. She said
would have been
drilling operations
proceed-
that well
were
error, ‘big time.’ You
release “was
ing upon
question.
the tract in
He recited
producing
on a
prepare a release
don’t
stan-
preliminary procedures
were
release
the execution of the
lease.” After
that, by
company
in his
said
dard
discovered,
she discussed the
him,
his
time a release was submitted
department,
in
“and
everyone
her
with
formality
the re-
a mere
signature was
said,
procedures.” She also
up better
built
him
cleared
those below
lease had been
like we
prepare releases
just
“We
don’t
accuracy.
responsible for its
addition,
May,
she told Bruce
to.” In
used
Pogo, that he was
employee of
only
another
this was the
time
He also stated
error,
because
responsible for
by Pogo
partly
in
had been made
such a mistake
instruments
obligation dates on these
“the
years
employment,
his
and it
the twelve
such that
(the
agreements) were
farm-out
information about
made because the
immediate action to
have taken
drilling
he should
was not
the farm-out and the well
note
files
signing
with this information. And
into
the release
when he
it,
I’m
signed
sure I made him aware
that.”
he intended to surrender
alternative,
in the
In the
interest
lease.
Appellants
presented excerpts
posit that,
they
light
even
most
viewed
deposition testimony
May
Bruce
taken in
appellee,
testimony cre-
favorable to
Good’s
May
testimony,
other suit.
said
question
ates
fact
whether the execution
that Ms. Gresham had told him he was
filing
release was a mistake.
responsible
partially
for the execution of
Cathy
the release and that
Zella was also
Parenthetically, appellants contend
responsible
prepared
because she
the re-
specifically
testimony
in
Good’s
lease. He said that “HBP” was the code
ferentially,
testimony
em
the other
placed
by production
in files held
but it had
ployees
Pogo
should be considered
placed
question.
in the file in
judged
that of an interested witness and
That
code should have been inserted
files
Although Pogo
not a
standard.
suit,
party
where a lease had been farmed out and
party
to this
is a
to another
However,
spudded.
will,
well
May did not feel
suit
apparently,
determine
responsible
because he felt
should
effect
interests
of the release insofar
its
However,
rely exclusively upon
symbols
code
are concerned.
because of the
*5
of
similarity
files
should
with the
of
interests to those
but
consult
district
appellee,
testimony
the
of
land
to
we will consider
activity.
office
determine lease
employees
its
inter
this case
that of
response, appellants
In
their
re-
ested
Martin v. Cloth
witnesses. See
portions
deposition testimony
to
ferred
of
Texas, Inc.,
134, 135-
World
692 S.W.2d
of
of
taken in
suit
Pogo
Good
the
to which
1985,
(Tex.App.
36
writ ref’d n.r.
—Dallas
party.
portions,
was
In
those
Good said
e.);
Industries, 659
Omega
v.
Hunsucker
only person
he
signed
was the
who
releases
692,
1983,
(Tex.App.
S.W.2d
697
—Dallas
put
for Pogo. When a release
on his
writ).
desk,
independent
did not
an
he
make
in-
166a(c)
pertinent part,
provides
In
Rule
if
vestigation to
it should
determine
summary judgment
may
that
be based
given
responsi-
executed since he had
that
upon
testimony
an
wit-
the
of
interested
bility
manager
to the
of land administra-
clear,
ness,
positive and
“if the evidence is
tion.
heWhen
received releases to be exe-
direct,
credible and free from
otherwise
cuted, they
accompanied by
were
a memo-
inconsistencies, and
contradictions and
“basically explains to me
randum that
that
readily
could
controverted.”
have been
expired
the
an
lease has
and that it’s
order
the
execute
release.” Whenever Good
January
Prior to an
effective
amendment
memorandum,
received such
he assumed
1, 1978,
governing
judg
the rule
steps
that needed to have
whatever
expressly
ments did not
authorize consider
verify
been taken to
the correctness
the
in
ation of the testimonial evidence of an
At the time in
However,
release had
taken.
Supreme
terested witness.
the
question,
would have been
that verification
the
autho
Court’s construction of
rule had
Mills, Cathy
responsibility
of Sherri
evi
rized use of
interested witness’
Zella,
May.
dence,
Bruce
He also stated that
or
certain
v.
under
conditions. Gibbs
release,
signed
intended
when he
he
S.W.2d
Corporation,
General Motors
450
(Tex.1970);
do
Ins.
so.
Great American R.
Co., 391
Sup.
Pl.
Co.
San Antonio
asserting
In
is insufficient
the evidence
41,
(Tex.1965).
S.W.2d
summary judgment, appellants
support
case,
place particular reliance
Good’s testi-
In the
American
Great
mony. They argue
testimony
authorizing
indi-
out the conditions
Court set
of,
tes
upon,
cates
Good’s execution of the release
and decision
consideration
act,
timony
not mistake
Those
intentional
of an interested witness.
an
might
require
such evidence be
support
which relief
lie.
conditions
uncontradicted, clear,
out,
positive,
they
point
direct and
position,
especially
rely
tending
discredit
testimony
one
free
circumstances
upon,
that no
tricked Good
DeHaven,
1985);
Corp. v.
Allied
impeach,
readily
controverted.
Chemical
or
155,
(Tex.App.
157-58
S.W.2d
American R.
Antonio 752
Great
Ins. Co. San
—Hous
denied).
writ
ton
Sup.
P
l.
The rule nel KGBT v. sufficiency of testimony (Tex.1988) upheld inter admissibility of the of an when “go beyond far summary proof, forward the same similar witness and carries ested objective ex mind to establish an previously ex state of qualifications and conditions mistake.” also Re planation for the See by decisions. v. plicated court See Lofton Schindler, 384, Leasing Corp. v. public 386 Nat. Corp., 777 Texas Brine S.W.2d (Tex.1986); 606, America 607 (Tex.1989); 717 S.W.2d Enterprise Beaumont & Jour Motel, Johnson, 143 (Tex. 610 S.W.2d 729, na Inc. v. Smith, 687 S.W.2d 730 nal v. 658 they
(Tex.1980); pellants’ v. of what denom- American R. Ins. invocation Great Co. Co., mistake.” supra; Pl. Ameri inate the rule of “remedial Sup. Antonio San invocation, Concomitantly appel- Ipock, 730 with that Quality Roofing, can Inc. v. 470, argue was exe- (Tex.App. 472 lants even if release S.W.2d Worth —Fort Lain, mistake, 1987, writ); appellee is no v. 725 cuted unilateral Amara S.W.2d 734, 1986, (Tex.App. no relief it has not satis- 736 Worth entitled to because —Fort writ); requirements rule. Siding Mas fied Metro Distributors v. Inc., 455, (Tex. Shield, 717 457 ter S.W.2d position appellee support of their n.r.e.); 1986, App. Worth writ ref’d —Fort relief, place appellants not entitled 471, 474 Horning, Duncan v. 587 S.W.2d primary upon reliance case Roland 1979, writ); Lon (Tex.Civ.App. —Dallas (Tex.Civ. McCullough, 561 S.W.2d Texaco, 332, Inc., goria v. 335- n.r.e.). App. ref’d Antonio writ —San 1983, no (Tex.App. Corpus Christi — purchased a 200- In that Roland had writ). appeal The McCullough. from acre tract granting summary judgment arose from a proposition support of their McCullough recovery promissory on two mis- evidence was insufficient to establish of a deed of *7 testimony of an interested ment that “[t]he ease, court held to this the Relevant raise fact more than a witness does equitable entitled to that Roland was not at 107. issue.” Id. ground of unilateral mistake. relief on the statement, in a general applied court, That relief, said the be entitled to such To only is summary proceeding not judgment (1) the mistake is of so party must show: a derogation express provision in the to enforce the con great consequence above, in 166a(c) unconscionable; (2) but is also Rule set out tract made would be prior established law derogation of the well a material feature mistake relates to the provision in Rule contract; (3) of the have the inclusion the mistake must to the such, con- regardless the case cannot be of the exercise 166a. As made (4) point. care; parties can be authority ordinary on that Paren- the sidered sense, only equity is Texas in quo the in status the thetically, placed the Ladd case which, prejudice pe- i.e., not result in party even rescission must by either case cited his party except the loss of of an the other with a release oil ripherally, deals bargain. at 213. mistake Id. of a unilateral gas lease because sufficiently analogous that case doc- assuming applicability In the in decision. helpful our to be case, argue appellants instant trine the is insuffi- summary judgment evidence evidence unconscionability of en- to show the admitted cient establish Good’s sufficient to and to show that forcing the release result of a was the of the release execution regardless determination, made would have been Having made mistake. ordinary care. viability ap- exercise of of the must next consider we
659 cause, course, think set in ments. does not We do not the elements out This case, particularly suing the one re- a party the Roland arise from a suit in which quiring showing that the mistake would seeking relief such a party another from regardless have occurred of the exercise of negotiated contract. Indeed, care, ordinary applicable are here. instance, think rule proper In this we in Taylor, Arlington T. Ind. James Etc. v. apply in v. is that stated Armbruster Dist., supra, had School the Court occa- (Okl. 476 Corp., Thetis P.2d Energy length at sion to discuss some effect of case, sought App.1983). In that lessee part negligence eq- on the claiming of one gas release of cancellation of a an oil relief for his own mistake. After uitable by the lessee the mis lease executed under cases, surveying relevant contract expired. In taken belief that the lease had concluded, authorities, Court “We think the situation, court lessee such a held the juris- both from this state and from other cancellation the release was entitled to dictions, clearly indicate that cases of (1) unless the cancellation would offend (contract cases) ordinary negli- this kind rights purchaser of an innocent for value gence necessarily granting will bar (2) good party another faith and equitable Taylor, relief.” James T. Etc. reliance, i.e., innocent reliance without no Dist., v. Arlington Ind. School knowledge tice or of facts would at 375. suggest probability invalid re explication In additional the Court stated lease, position had made a alteration that only negligence
that it is
when
amounts to
significant
could not be reversed without
good
such carelessness or lack of
faith as
prejudice.
478. See
Id. at
also Mobil Oil
to a
positive duty
amount
violation of a
Corp.
Co.,
P.2d
Flag-Redfern
Oil
equitable
supplicat-
will
relief
denied the
(Okl.App.1973).
ing party.
Id. En
route to
conclu-
sion,
quoted
approval
the Court
with
they
appellants
admit
our
Trinity
statement
&
Edwards
B. V.
did not learn of the existence of the release
Ry.
Tex.Civ.App.
“In fact released. the instant a mistake of has was occurred, simple deposed file ployees which was human error. also that the failure to principle The of this to equity can allow be failure note in a assignment, the rectified, Flag-Redfern the production defendant was drilling activity lease or file damaged by Oil Co. was such mistake departure Pogo’s operat- standard advantage if great receive a the would ing procedure. results were otherwise.” That summation that, opines majority The the whether case, particularly applicable to this since due, the properly release whether negligence, any, preparing if in the of preparation of the was the result release executing the release was that of third operating proce- in a breakdown standard appellee. party and not of procedures in those dures and what defect appellee is Since we have held that enti- signed, mat- caused release to be are the the tled to its basis discussed proof dis- susceptible objective of ters above, sup- of its and since one theories agree, I how proof. I do not fail to see ports judgment, necessity the the dis- Hayes objectively have dis- et al. could cussing appellee’s theory limitation is obvi- Pogo’s employees proved knowledge what Appellants’ point of is over- ated. error preparation possessed at time of judgment is ruled and the trial court af- release, any manner nor do I envision firmed. Hayes in recreate the status could lease at the the Meadows file as existed J., POFF, dissents. prepa- The basis for the question. time Justice,
POFF, dissenting. ration the release and facts solely lies actions were taken which these I the affirm- respectfully dissent from actors, the knowledge of the within the summary judg- granting ance of the falsity witnesses. The truth or interested majority’s agree ment. I cannot with the solely on Inc.’s evidence stands E.T.S. determination the evidence offered credibility of the interested witnesses. Pogo readily contro- employees An an interested witness affidavit agree Pogo employ- I vertible. do no witnesses, the adversaries have Pogo, matter which ees are interested knowledge or real means confirmation overriding royalty of an owner fact. than an issue of lease, does more raise direct interest Meadows has a Blanton, Bank If the contested re- Lewisville State outcome of suit. 696, (Tex.1975). release, Pogo will S.W.2d lease is held to be a valid overriding royalty interest. lose its at the being present Not at office majority that the agree I with the of the release and preparation time of the question is not the knowl- resolved knowl- having access facts and to what Good, signator of edge intent of Mr. Pogo’s employees edge possessed by release, question to be but rather release, Hayes had they prepared the when employer “did an mis- resolved is story. dispute upon which to their no basis inadvertently prepare the re- takenly and Pogo employees. are only eyewitnesses disagree I signature.” lease for Good’s documentary physical or evidence All susceptible objective question Pogo. control of under the exclusive *9 proof disproof. or inde- case, I can no outside envision Hayes mustered could have pendent source preparing for explaining the basis Pogo’s explanation for to controvert release, in their Pogo’s employees stated facts The of the release. preparation file Meadows lease did depositions that the not Pogo’s employees were by presented assignment to E.T.S. contain nor objective verification subject to outside any nor the file contain Enterprises, did offer upon which to a basis was there concerning the commencement information testimony. I envision expert opinion or The sum drilling on the lease. Meadows filing only option to have been Hayes’ that the Meadows Pogo’s evidence was disputing E.T.S. lease, a affidavit counter lease file a dormant indicated agree that the evi- Such I therefore cannot Inc.’s evidence. a counter affidavit by the assump- on dence offered interested witnesses would have at best been based evidence which to conjecture and at worst it would was sufficient tions summary I perjurious. grant judgment. therefore have opinion. join majority in the cannot summary majority The finds E.T.S.’s summary to that judgment evidence similar proof
judgment
offered
Channel
(Tex.
Briggs,
KGBT
1988), goes and concludes that the evidence beyond
far state mind to establish
objective explanation mistake. suit, Supreme
Briggs, which was libel procedures for Court found the technical BREEDING, Lynn Appellant, Leslie (such proce production telecast being claimed to be the dures Channel mistake) technical sub basis to be Texas, Appellee. The STATE ject investigation. process The technical No. 07-89-0414-CR. (by alleged spe which Channel the news political tape over file cial dubbed Texas, Appeals of Court of Briggs’ image from which had not been Amarillo. erased) completely could was such disputed by parties testify have been third May 1991. ing Briggs' behalf.
I do find the actions of em-
ployees allegedly failing note to file or assignment, E.T.S. to be technical subject investigation, possible
disproof extraneous sources. I find the explanation to more
mistake and the T.
similar the mistake made James
Taylor, v. Arlington Etc. Ind. School
Dist.,
(1960);
160 Tex.
wherein a contractor incorrect,
that his bid failure due his carry adding his properly digit while preparing Taylor’s em-
cost his bid.
ployee’s setting affidavit out the mistake summary held not to be sufficient proof. opined the affi-
judgment court par- from an interested
davit evidence readily
ty which could not be controverted cases, credibility In such
if untrue. presented is
the witness resting improper. is Evidence
solely credibility on the of the interested effectively tested in court
witness more a sum- trial sterile affidavits at
at than
mary judgment hearing. The trier of fact the de- uniquely qualified to observe *10 of the as well as his
meanor witnesses credibility of the
responses, and to test the
witnesses. notes well foreclosure law, appellants place as a matter of take tract. trust the 200-acre reliance Ladd Petrole- considerable Corp. Eagle um Oil & Gas apparent- purchased Roland land (Tex.App. Worth S.W.2d highway had ly —Fort no access to interstate n.r.e.). case, as relevant ref d In that writ (IH 10) by. Roland contended close here, considering a the court conten- although him there McCullough did not tell testimony of Ladd’s witness- tion him he not tell access to IH did trial, es, jury in a was sufficient estab- He con- no such access. there was lish as a matter of law that the release him with McCullough furnished tended that gas the oil and lease involved there it could be map of the land respect, In that admitted- filed mistake. existed; and, at reasonably access inferred dictum, jury in the ly in the court said the originally inspected the time Roland weigh testimony of case was entitled to construc- property, while IH 10 under state- the witness and made blanket IH 10. tion, property from he entered the