      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                               ON MOTION FOR REHEARING



                                       NO. 03-05-00275-CV



                                  Jackie Doss Smith, Appellant

                                                  v.

             Virginia Lagerstam, Emil Lagerstam, Kathryn Lagerstam Wilbeck,
             Vivian Lagerstam Savage, and Annika Lagerstam Kaye, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
        NO. GN402753, HONORABLE MARGARET COOPER, JUDGE PRESIDING



                               DISSENTING OPINION


               Mindful that we may not relax a movant’s burden in a summary judgment proceeding

so as to deprive a litigant of the right to trial by jury, I would conclude that this case turns on the

inadequacy of the Lagerstams’ motion for summary judgment and error compounded by the majority

in affirming summary judgment on grounds not raised in the motion. Because a material fact issue

exists on elements of Smith’s causes of action and the Lagerstams’ motion is entirely inadequate

with respect to Smith’s cause of action for unilateral mistake, I respectfully dissent.
                                         BACKGROUND

                Smith’s father, Clarence T. Doss—now deceased—and his sister, Virginia Lagerstam,

inherited identical mineral interests to land in Robertson County, Texas. Smith inherited her father’s

interest when he died. In 1984, Smith and Virginia Lagerstam leased their mineral interests to XTO

Energy by separate oil and gas leases. These leases were included in a pooled unit known as the

Biggs Gas Unit. Under the terms of their leases and the unit designation, Smith and Virginia were

each entitled to receive a .0009901 royalty interest on production from wells on the unit.

                From 1985 to 2002, Smith received small royalty payments on the Biggs Gas Unit,

which had one well, the Biggs #1 Well. In 2002, a second well was drilled on the unit, the Biggs #2,

and in 2003, a third well, the Biggs #12 well, was drilled. In January 2004, Smith and Virginia were

both receiving royalty payments on the three wells in the approximate amount of $350 per month.1

                In February 2004, Smith received an unsolicited offer in the mail from San Saba

Royalty to purchase her .0009901 royalty interest in the Biggs Gas Unit for $6658.99. At about the

same time, Smith learned that her disabled son needed $6000 to pay back taxes on his home. In her

affidavit in response to the summary judgment motion, Smith averred that she was a widow, had no

other source of income, and had been unable to help her son. Because the offer provided an

opportunity for her to help her son, she decided to investigate the offer further. Knowing that her

aunt Virginia had a royalty interest identical to hers, and assuming that Virginia had received the

same offer, Smith called Virginia for advice. Smith averred that she believed Virginia and her

husband Emil had greater business knowledge, particularly about matters related to royalties and oil


       1
           The January and February 2004 royalty checks were $329.90 and $353.85, respectively.

                                                  2
and gas. Smith explained her son’s tax problem and her desire to help him, and sought Virginia’s

advice. Smith averred that Virginia said she would talk to Emil and call Smith back. In her

deposition, Virginia confirmed that Smith needed the money for her son. The parties dispute other

aspects of the telephone call.

               After discussing the matter with Emil, the next day Virginia contacted Smith and

offered to purchase Smith’s royalty interest for the same price offered by San Saba. Virginia

explained that she wanted to give the interest to her three daughters. Smith averred that she told

Virginia that she was not aware she could sell her interest to someone other than the company that

had made the offer. Virginia assured her that they could buy the interest and expressed her desire

that Smith deed the interest in the wells directly and in equal portions to the daughters. Because she

considered the sale a good way to help her son and also to keep the royalty interest in the family,

Smith agreed to sell her interest to the Lagerstams and deed the interest over to the daughters.

               The Lagerstams proceeded to prepare the papers. Smith received her last royalty

check before signing over the deeds; the check dated February 20, 2004, was in the amount of

$353.85. On March 9, 2004, Virginia and Emil Lagerstam traveled to Austin and met with Smith.

Smith executed three royalty deeds prepared by the Lagerstams’ attorney and received a check from

the Lagerstams for $6660. Smith averred that she “trusted Virginia and Emil to have the deeds

prepared to reflect” their agreement. She understood that she was selling to the Lagerstams exactly

the same interest that San Saba offered to purchase—her royalty interest in the Biggs Gas Unit.

Smith sent the $6660 to her son to pay his back taxes on his home.




                                                  3
               After executing the deeds, Smith received three royalty checks from XTO Energy

which she understood were for production prior to the sale. On March 19, she received a check

for $510.10 as royalty on the Biggs #’s 1, 2, and 12 wells. For the first time, however, the check

included royalties for a new well known as the Biggs #7 well. On April 20, she received a check

in the amount of $1025.90 as royalties for the Biggs #1, 2, 7, and 12 wells, as well as another

new well, the Biggs #4. On May 20, she received a third check in the amount of $974.85 as royalties

on production from all five wells—Biggs #’s 1, 2, 4, 7, and 12. Because she thought that the

payments on the two additional wells were a mistake, she attempted to contact XTO Energy to

inquire about them.

               On June 10, 2004, Smith received by mail (i) a transfer order from XTO Energy

showing the transfer of her royalty interest to the Lagerstams’ daughters and (ii) a new offer to

purchase her royalty interest from San Saba—this one for $62,651.38. The transfer order listed

all five Biggs Gas Unit wells. Smith immediately contacted XTO Energy and obtained confirmation

that her interest had included five wells, rather than three. She also spoke with Hal Coons of

San Saba who reaffirmed the offer to purchase. Smith averred that she learned for the first time

through these conversations that there were five wells and that her interest in all of the wells had

been conveyed to the Lagerstams’ daughters.

               After receiving the revised San Saba offer, Smith contacted Virginia and told

her about the additional offer and the two new wells. Smith explained the mistake and asked

Virginia if they could “undo” the transaction. Virginia declined and said that it was impossible to

undo the transaction.



                                                 4
               Smith subsequently learned that the Biggs #7 well, on which she first received

royalties on approximately March 19, was completed in January 2004 and that the Biggs #4 well,

on which she first received royalties on April 20, was completed in February 2004. Thus, both wells

had been completed and were producing before Smith agreed to sell her royalty interest to the

Lagerstams, but she received no payments on the wells until after she had signed the deeds over to

the Lagerstam daughters. Smith wrote a letter to the three daughters explaining the background of

the wells and how she learned of the two new wells. She advised them: “I assumed that I was only

selling a royalty interest that would pay $200-$300 per month. I don’t know if Virginia knew about

the two new wells, but if she did, she didn’t tell me.” Smith offered to refund the purchase price and

to pay for any legal fees necessary to transfer the interests to her own children who had had a “tough

time economically” and to whom the additional income would mean a lot. She concluded, “I hope

you can find it in your heart to help me and, more important, my children.”

               In her affidavit filed in response to the summary judgment motion, Smith averred that

she did not know of the two additional wells when she signed over the deeds. According to

Virginia’s affidavit in support of the Lagerstams’ motion, neither did the Lagerstams:


       As of March 9, 2004, I had no knowledge of the status of the wells existing being
       drilled and/or being planned to be drilled. My only knowledge consisted of the
       information attached to the monthly royalty checks which would be the same
       information that Plaintiff would receive. I had no knowledge that additional wells
       were being drilled or had been drilled, or were being planned to be drilled. I made
       no representation to the Plaintiff on any of these matters because I had no knowledge
       about the wells.




                                                  5
The Lawsuit

               In two causes of action, Smith filed suit to rescind the three deeds on the grounds that

the deeds were the result of a mutual or a unilateral mistake. Specifically, she urged that the deeds

by mutual mistake conveyed more than the parties intended. In her second cause of action, she

alleged that she executed the deeds in error and that the transaction did not reflect her understanding

and agreement as to the interests being sold. She alleged that she did not fail to exercise ordinary

care under the circumstances in signing the deeds as prepared by her aunt and uncle’s attorney.

Smith asked that the deeds be reformed to convey only her interest in royalties on production from

the Biggs Gas Unit Well #’s 1, 2, and 12 or, in the alternative, that the transaction be rescinded.


Summary Judgment Motion

               In a one-and-a-half-page motion for summary judgment filed pursuant to Texas Rule

of Civil Procedure 166a(b) and (i) with no citation to authority, the Lagerstams contend that they

were entitled to summary judgment because Smith failed to adduce any evidence that the mistake

was mutual and that the Lagerstams “never said or did anything to indicate that the sale was

supposed to be a transfer only of an interest that involved a certain number of then existing wells.”

They assert that “[t]he Affidavit evidence conclusively establishes that the Defendants, the

Purchasers of the interest, never intended for their purchase to be anything other than for the entire

interest owned by Plaintiff,” and that “[n]either law nor fact supports the Plaintiff’s attempt to set

aside the transaction on the basis of an alleged unilateral mistake on her part.” Attached to the

motion are Virginia’s affidavit; San Saba’s February 9, 2004 letters with the initial purchase offer;

the three mineral and royalty deeds conveying Smith’s interest to the three daughters; Emil


                                                  6
Lagerstam’s check payable to Smith in the amount of $6660; an offer to purchase Virginia’s interest

in the amount of $1087.50, dated March 5, 2004, from another company; and Smith’s letter to the

daughters requesting rescission, dated July 1, 2004. The Lagerstams also submitted excerpts of the

deposition transcripts of Smith, Virginia Lagerstam, and Emil Lagerstam.

               To controvert the Lagerstams’ motion, Smith filed a response to which she attached

the following evidence: Smith’s affidavit appending five exhibits showing the San Saba offers, the

conveyancing documents, and the division transfer order and XTO Energy documents showing the

additional wells; the affidavit and resume of Wayman T. Gore, Jr., a consulting petroleum engineer

who opined as to the present value of Smith’s royalty interest in the existing and additional wells;

excerpts of the depositions of Virginia and Emil Lagerstam; and Virginia’s affidavit.

               The trial court granted the Lagerstams’ motion without specifying its grounds. Smith

now appeals, claiming the trial court erred in granting summary judgment because the summary

judgment proof establishes evidence in support of the elements challenged by the motion and, in any

event, raises genuine issues of material fact.


                                            ANALYSIS

               On appeal, Smith contends that the trial court erred when it granted the Lagerstams’

motion because issues of material fact exist regarding whether the deeds should be rescinded on the

basis of a mutual or unilateral mistake. Citing only to Rule 166a(b) and (i) and relying on no case

law, the Lagerstams’ motion does not otherwise specify the type of summary judgment they seek.

Nor do they join issue on appeal as to whether their motion is a “traditional” or a no-evidence




                                                 7
motion.2 They claim that they always intended to acquire Smith’s entire royalty interest, that any

mistake alleged was not mutual, and that any unilateral mistake was the result of Smith’s

carelessness.


Standard of Review

                We review summary judgments de novo. Valence Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005). A party filing a traditional motion for summary judgment must

prove that “there is no genuine issue as to any material fact and the moving party is entitled to

judgment as a matter of law on the issues expressly set out in the motion.” Tex. R. Civ. P. 166a(c);

Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). If the movant’s motion and

summary judgment evidence establish its right to judgment as a matter of law, the burden shifts to

the nonmovant to defeat summary judgment. The nonmovant then has the burden to respond to the

motion and to present to the trial court any issues that would preclude summary judgment. City of

Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Summary judgment is

appropriate only when there are no disputed issues of material fact and the moving party is entitled

to judgment as a matter of law. Nixon, 690 S.W.2d at 548. In deciding whether there exists a


       2
           Although Smith on appeal characterized the Lagerstams’ motion for summary judgment
as a traditional motion, she nevertheless responded to both types of motions. While a party may
move for both traditional and no-evidence summary judgment in a single document, it is advisable
to use headings to separate the different claims, see Binur v. Jacobo, 135 S.W.3d 646, 651
(Tex. 2004), or, at least, because the motions are distinct and invoke different standards of review,
that the motions be set forth so that they give adequate notice of the grounds on which they are
based. A summary judgment must stand or fall on its own merits. In determining whether grounds
are expressly presented, reliance may not be placed on briefs or summary judgment evidence.
McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). For purposes of this
discussion, I have assumed that the Lagerstams asserted both traditional and no-evidence motions.

                                                 8
disputed fact issue precluding summary judgment, we treat evidence favorable to the nonmovant as

true, and we must resolve every doubt and indulge all reasonable inferences in the nonmovant’s

favor. Id. at 548-49. The Lagerstams—in their motion—had the burden to disprove as a matter of

law at least one essential element of each of Smith’s theories of recovery or to plead and

conclusively establish each element of an affirmative defense. See Centeq Realty, Inc. v. Siegler,

899 S.W.2d 195, 197 (Tex. 1995). Because they did not plead or seek to establish an affirmative

defense, they were required to disprove an element of Smith’s theories of recovery.

               The party moving for no-evidence summary judgment must assert only that there is

no evidence of one or more essential elements of a claim or defense on which the nonmovant would

have the burden of proof at trial. Tex. R. Civ. P. 166a(i). The burden then shifts to the nonmovant

to produce evidence raising a fact issue on the challenged elements. Id. In reviewing a no-evidence

motion for summary judgment, we ascertain whether the nonmovant pointed out summary judgment

evidence of probative force to raise a genuine issue of fact as to the essential elements attacked in

the no-evidence motion. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206-08 (Tex. 2002).

A no-evidence motion for summary judgment must be granted if the party opposing the motion does

not respond with competent summary judgment evidence that raises a genuine issue of material fact.

Tex. R. Civ. P. 166a(i).

               A no-evidence summary judgment is improper if the respondent brings forth more

than a scintilla of probative evidence to raise a genuine issue of material fact. Id.; Forbes Inc.

v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). “Less than a scintilla of evidence

exists when the evidence is ‘so weak as to do no more than create a mere surmise or suspicion’ of



                                                 9
a fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Kindred

v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). More than a scintilla of evidence exists if it

would allow reasonable and fair-minded people to differ in their conclusions. Id. As with a Rule

166a(c) summary judgment, we take as true all evidence favorable to the nonmovant, and we make

all reasonable inferences therefrom in the nonmovant’s favor, disregarding all contrary evidence and

inferences. Id.

                  A summary judgment motion under Rule 166a(b) may be combined with a Rule

166a(i) motion as it appears it was here. The fact that the Lagerstams as movants attached evidence

to the motion does not foreclose it from also asserting that there is no evidence of a particular

element. See Binur v. Jacobo, 135 S.W.3d 646, 650-51 (Tex. 2004).

                  When, as in this case, the order granting summary judgment does not specify the

grounds upon which the trial court relied, we must affirm the summary judgment if any of the

theories advanced in the motion is meritorious. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d

150, 157 (Tex. 2004).


Mutual Mistake

                  In their motion for summary judgment, the Lagerstams first contend that there is no

evidence that the Lagerstams “intended for the transaction to be limited as Plaintiff claims.”

Virginia’s affidavit, they claim, “conclusively establishes that the Defendants, the Purchasers of the

interest, never intended for their purchase to be anything other than for the entire interest owned by

the Plaintiff.” They assert that “the most basic element of this cause of action is that the mistake was




                                                  10
mutual” and there is “no evidence that the Defendants intended for the transaction to be limited as

Plaintiff claims.”

                 When parties have contracted based on misconception or ignorance of a fact, mutually

held by the parties, which materially affects the agreed-upon exchange, either party is entitled to have

the transaction set aside. Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990). The elements

of mutual mistake that must be proved by the plaintiff to prevail at trial are (i) a mistake of fact;

(ii) held mutually by the parties; (iii) which materially affects the agreed-upon exchange. Barker

v. Roelke, 105 S.W.3d 75, 84 (Tex. App.—Eastland 2003, pet. denied); de Monet v. PERA,

877 S.W.2d 352, 357 (Tex. App.—Dallas 1994, no writ) (citing Restatement (Second) of Contracts

§ 152 (1981)).

                 A motion for summary judgment must rest on the grounds expressly presented in the

motion. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339 (Tex. 1993). The motion

must state, with specificity, the grounds upon which the movant is relying. Brewer & Pritchard,

P.C., 73 S.W.3d at 204. The rationale for this requirement is to force the movant to define the issues

and give the nonmovant adequate notice for opposing the motion. McConnell, 858 S.W.2d at 343-

44. To determine if the grounds are expressly presented in the motion, neither the court nor the

movant may rely on supporting briefs or summary judgment evidence. Id. at 340-41. A summary

judgment may not be granted on grounds not raised by the movant, as the majority has done here.

                 By their motion for a traditional summary judgment, the Lagerstams were required

to show that they were entitled to judgment as a matter of law and that no genuine issue of material

fact exists. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003).



                                                  11
A summary judgment movant bears this burden only when moving for traditional summary

judgment. When the movant does not meet its burden of proof to show its entitlement to summary

judgment, the burden does not shift to the nonmovant to raise a fact issue. M. D. Anderson Hosp.

v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000).3

               In their motion, the Lagerstams first moved for summary judgment on Smith’s causes

of action, seeking to prove with summary judgment evidence that Smith has no cause of action.

They assert that there is no evidence of mutual mistake because there is no evidence that the

Lagerstams intended to purchase only Smith’s interest in the three wells on which they were

both receiving royalties. They assert as grounds for the motion that they “never intended for their

purchase to be anything other than for the entire interest owned by the Plaintiff.” But Smith is

not asserting that the deeds conveyed more than she intended to convey; rather, she asserts that

the transaction was founded on the parties’ mutually mistaken belief that, at the time of the

transaction, there were three wells on the Biggs Gas Unit, when in fact there were five. Thus, the

parties present contradictory evidence as to what was known at the time of conveyance and what was

intended to be conveyed.

               In the first instance, the Lagerstams did not establish that they were entitled to

summary judgment as a matter of law. By merely disputing that the mistake was mutual, they did

not carry their burden to disprove at least one element of the plaintiff’s theory of recovery. At most,




       3
         A movant must establish its entitlement to summary judgment, the motion must stand on
its own merit, and even a nonmovant’s failure to respond cannot supply by default the summary
judgment proof necessary to establish the movant’s right. City of Houston v. Clear Creek Basin
Auth., 589 S.W.2d 671, 678 (Tex. 1979).

                                                  12
they created a fact issue. In a traditional summary judgment motion, evidence and reasonable

inferences are viewed in the light most favorable to the nonmovant, Smith, and we must indulge

every reasonable inference and resolve all doubts in Smith’s favor. See Nixon, 690 S.W.2d at 549.

The burden did not shift to Smith until the Lagerstams conclusively established their entitlement to

summary judgment. See M. D. Anderson Hosp., 28 S.W.3d at 23. Even then, Smith’s summary

judgment response did not have to establish a fact as a matter of law. Rather, Smith had only to raise

an issue of fact material to the outcome of the case. See Tex. R. Civ. P. 166a(c); Centeq Realty, Inc.,

899 S.W.2d at 197.

               Accordingly, after reviewing the evidence, I would hold that a fact question exists as

to the only ground asserted for summary judgment: whether any mistake of fact was mutual. In light

of the conclusory nature of the motion and the questions of Smith’s and Virginia’s intent, state of

mind, and credibility on the issues in the case, these issues pose classic questions of fact

for resolution by a jury. The majority missteps into the shoes of the fact finder and resolves these

issues without reference to the requirement that we resolve such doubts and inferences in the

nonmovant’s favor.

               Moreover, by urging that Smith “is put to the burden of proving the essential

elements” of her causes of action and that there is “no evidence that the Defendants intended for the

transaction to be as limited as Plaintiff claims,” the Lagerstams in effect are asserting a no-evidence

motion rather than a traditional motion. And the only ground asserted in the motion is that the

mistake was not mutual because the belief was not also held by the Lagerstams.




                                                  13
                The mistake of fact alleged by Smith is the number of producing wells on the Biggs

Gas Unit at the time of the sale. Smith’s affidavit and Virginia’s affidavit agree that neither knew

any more about the number of wells on the unit than the information provided on their check stub

from XTO Energy. According to the check stubs they were receiving prior to the sale, there were

three producing wells on the gas unit, paying royalties to Smith of approximately $350 per month.

The summary judgment evidence is undisputed that neither of the parties knew anything about the

two additional producing wells at the time of the sale. Smith was only required to produce more than

a scintilla of evidence to defeat summary judgment. This evidence alone raises a fact issue that there

was a mistake of fact held mutually by the parties. The Lagerstams did not show their entitlement

to summary judgment and, in any event, Smith raised questions of material fact to defeat the motion.


Unilateral Mistake

                Even assuming the Lagerstams carried their burden as to Smith’s mutual mistake

theory, their motion was deficient with respect to their second ground, which attacked in one

sentence Smith’s second cause of action. In their second ground for summary judgment, the

Lagerstams refer to Smith’s allegation of unilateral mistake. The entirety of their motion as to

unilateral mistake states: “Neither law nor fact supports the Plaintiff’s attempt to set aside the

transaction on the basis of an alleged unilateral mistake on her part.” They cite no authority and,

except for a reference to Virginia’s affidavit, they fail to point to relevant facts. This declaration is

deficient and fails to satisfy the Lagerstams’ summary judgment burden under either traditional or

no-evidence summary judgment requirements.




                                                   14
                A party is entitled to set aside a transaction for unilateral mistake if (i) the mistake

relates to a material feature of the contract, (ii) the mistake is so great that to enforce the contract

would be unconscionable, (iii) the mistake was not the result of a lack of ordinary care, and

(iv) rescission does not result in prejudice to the other party, other than the loss of his bargain.

James T. Taylor & Son, Inc. v. Arlington Indep. Sch. Dist., 335 S.W.2d 371, 373 (Tex. 1960). A

contract cannot be avoided for unilateral mistake where a party’s “ignorance of the facts was the

result of carelessness, indifference, or inattention.” Roland v. McCullough, 561 S.W.2d 207, 213

(Tex. Civ. App.—San Antonio 1978, writ ref’d n.r.e.).

                Regardless of whether we view the Lagerstams’ motion as to unilateral mistake as

a traditional or no-evidence motion, it is defective and insufficient. A summary judgment motion

must clearly set forth its grounds and meet the rule’s requirements. Binur, 135 S.W.3d at 651.

Consisting of only a single sentence, the Lagerstams’ motion cites to no authority and refers to no

evidentiary facts. Because it fails to show any entitlement to summary judgment, it fails to satisfy

the requirements of a traditional summary judgment motion. The Lagerstams’ single sentence did

not shift the rule 166a(c) summary judgment burden from the Lagerstams, the movants, to Smith,

the nonmovant. See M. D. Anderson Hosp., 28 S.W.3d at 23.

                In addition, the declaration that “neither law nor facts supports plaintiff’s attempt to

set aside the transaction on the basis of” unilateral mistake is deficient to qualify as a 166a(i) motion

because the motion fails to specify either the elements of the cause of action or the elements

challenged as lacking evidence to support them. Although the mere filing of a proper no-evidence

motion shifts the burden to the nonmovant, and the motion need not be detailed, it must still meet



                                                   15
certain requirements. It must first state the elements for which there is no evidence. Tex. R. Civ.

P. 166a(i); Southwest Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). A defendant’s

motion must state the elements of the plaintiff’s cause of action and specifically challenge the

evidentiary support for an element of that claim. Tex. R. Civ. P. 166a(i) cmt.; Lampasas v. Spring

Ctr., Inc., 988 S.W.2d 428, 436 (Tex. App.—Houston [14th Dist.] 1999, no pet.).

               Second, the motion cannot be conclusory or generally allege that there is no evidence

to support the claims. Id. A motion, as here, that merely states that there is no evidence to support

the other party’s claim is insufficient. See, e.g., David Hittner and Lynne Liberato, Summary

Judgments in Texas, 47 S. Tex. L. Rev. 409, 416 (2006) (citing Abraham v. Ryland Mortgage Co.,

995 S.W.2d 890, 892 (Tex. App.—El Paso 1999, no pet.) and Lampasas, 988 S.W.2d at 436). The

Lagerstams fail both to specify the elements of Smith’s claim and to state which elements lacked

evidentiary support.

               In any event, assuming arguendo that the Lagerstams’ motion was sufficient in any

respect, Smith was required to produce more than a scintilla of evidence in response to the

Lagerstams’ 166a(i) motion. This she did. Smith produced ample evidence on each element of this

cause of action; the Lagerstams did not reply to Smith’s response.

               The mistake alleged by Smith—her understanding that there were three producing

wells on the Biggs Gas Unit—relates to a material feature of the agreement. The facts as adduced

by Smith at least raise a fact issue as to whether Smith showed such carelessness, indifference,

inattention or lack of good faith to deny her equitable relief. The Lagerstams do not dispute that

Smith had no knowledge about mineral interests. Virginia disputes that Smith called the Lagerstams

for advice because they had superior knowledge of the business of royalty interests and oil and gas,

                                                 16
but Virginia avers that they did not investigate the status of the Biggs Gas Unit any more than Smith

did before agreeing to the transaction. Although the Lagerstams argue on appeal that Smith should

have known that her royalty interest involved multiple wells and that the number of wells on the unit

was increasing, in her affidavit Virginia averred that “I had no knowledge of the status of the wells

existing being drilled and/or being planned to be drilled.” Smith averred as to how she came to learn

after the transaction that two new wells were drilled on the property just prior to the conveyance.

This evidence alone raises a fact issue that there was a material mistake of fact that was not the result

of a lack of ordinary care. Moreover, the evidence shows—and is undisputed—that the magnitude

of the mistake was considerable and that rescission would not result in prejudice to the other party

other than the loss of the bargain. The Lagerstams failed to carry their summary judgment burden.


                                           CONCLUSION

                I would hold that the Lagerstams did not carry their burden to demonstrate their

entitlement to summary judgment, that Smith demonstrated that genuine issues of material fact exist

on elements of her causes of action, and that the district court erred in rendering summary judgment

in favor of the Lagerstams.




                                                __________________________________________

                                                Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Filed: July 19, 2007



                                                   17
