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Cherry v. McCall - 138 S.W.3d 35 (Tex. App. 2004)

Rule:

A party bears the risk of mistake when the risk is allocated to him by agreement or when he knowingly treats his limited knowledge of the facts surrounding the mistake as sufficient.

Facts:

After the Cherrys bought the home from the McCalls, they discovered a walled-in room in the basement. The room was filled with trash, including rusty plumbing fixtures, bathtubs, sinks, commodes, boards, pipes, rocks, and used building materials. The trash was damp and contaminated with mold. The Cherrys brought a declaratory judgment action, seeking declaration that (1) the McCalls breached the contract; and (2) the walled-in room constitutes a mutual mistake justifying rescission. The McCalls answered by general denial. The McCalls also asserted the "as is" provision of the contract as an affirmative defense.  The McCalls moved for summary judgment, and the trial court granted the motion. The Cherrys appeal the judgment in four issues arguing that: (1) the trial court erred in granting a take-nothing partial summary judgment in favor of the McCalls; (2) the trial court abused its discretion in denying the Cherrys' request for more discovery time; (3) the trial court abused its discretion in failing to admit the corrected testimony of Mrs. Cherry; and (4) the trial court abused its discretion in striking the Cherrys' causes of action raised in an amended pleading after the partial take-nothing summary judgment was entered.

Issue:

Was there a breach of contract or mutual mistake requiring rescission of the contract?

Answer:

No

Conclusion:

The appellate court found that the trial court properly granted the McCalls' take-nothing partial summary judgment motion because the Cherrys were not entitled to a declaratory judgment as there was no breach of the contract or mutual mistake requiring rescission of the contract; the Cherrys contracted to accept the property "as is" and that provision in the contract was enforceable since it was bargained for and accepted by both parties. Also, the trial court did not abuse its discretion in denying the Cherrys’ request for additional discovery time. Additionally, because the Cherrys filed their amended petition, not on the eve of trial but after trial, and they failed to obtain leave from the trial court before filing the amended petition, the trial court did not abuse its discretion in striking the added causes of action in the Cherrys’ amended petition.

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