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Barker v. Roelke3/20/2003
pacity. See Swain v. Wiley College, 74 S.W.3d 143, 146 (Tex.App. B Texarkana 2002, no pet'n). Appellant's mutual assent argument is also misplaced given the fact that the parties executed a written contract with the benefit of counsel. When an unambiguous writing has been entered into between the parties, the courts will give effect to the intention of the parties as expressed or as is apparent in the writing. City of Pinehurst v. Spooner Addition Water Company, 432 S.W.2d 515, 518 (Tex.1968). In the usual case, the instrument alone will be deemed to express the intention of the parties, for it is objective, not subjective, intent that controls. City of Pinehurst v. Spooner Addition Water Company, supra. In the case of an express contract, the parties' mutual agreement is expressly stated in the contract. Bank of El Paso v. T.O. Stanley Boot Co., Inc., 809 S.W.2d 279, 284 (Tex.App. - El Paso 1991), aff'd in part, rev'd in part on other grounds, 847 S.W.2d 218 (Tex.1992).
Appellant contends in Sub-issue No. 1b that the summary judgment evidence raised a fact question with respect to his attempt to rescind the releases. Rescission is an equitable remedy that operates to set aside a contract that is legally valid but is marred by fraud or mistake or, for some other reason, the court must set it aside to avoid unjust enrichment. See Humphrey v. Camelot Retirement Community, 893 S.W.2d 55, 59 (Tex.App. B Corpus Christi 1994, no writ). The decision whether to grant rescission lies within the trial court's sound discretion. See Texas Capital Securities, Inc. v. J.D. Sandefer, III, 58 S.W.3d 760, 774 (Tex.App. -Houston [1st Dist.] 2001, pet'n den'd); Humphrey v. Camelot Retirement Community, supra; Schenck v. Ebby Halliday Real Estate , Inc., 803 S.W.2d 361, 366 (Tex.App. B Fort Worth 1990, no writ). The right to rescind a contract may be lost by inaction and conduct showing an affirmation of the contract after a knowledge of the facts which are grounds for rescission. Guerrero v. Hagco Building Systems, Inc., 733 S.W.2d 635, 638 (Tex.App. B San Antonio 1987, no writ); Payne v. Baldock, 287 S.W.2d 507, 509 (Tex.Civ.App. B Eastland 1956, writ ref'd n.r.e.).
Appellant is seeking to rescind the releases by asserting mutual mistake of fact and fraud. As a contract, a release is subject to avoidance on these grounds. Williams v. Glash, 789 S.W.2d 261, 264 (Tex.1990). Under the doctrine of mutual mistake, an agreement may be avoided where the parties contracted under a misconception or mistake of a material fact. Williams v. Glash, supra at 264. The elements of mutual mistake are: (1) a mistake of fact; (2) held mutually by the parties; (3) which materially affects the agreed-upon exchange. See de Monet v. PERA, 877 S.W.2d 352, 357 (Tex.App. B Dallas 1994, no writ)(citing RESTATEMENT (SECOND) OF CONTRACTS ยง152 (1981)). The party seeking to avoid the contract has the burden of proof to show mutual mistake. See de Monet v. PERA, supra at 357. As noted by the court in Williams:
The question of mutual mistake is determined not by self-serving subjective statements of the parties' intent, which would necessitate trial to a jury in all such cases, but rather solely by objective circumstances surrounding execution of the release.
The doctrine of mutual mistake must not routinely be available to avoid the results of an unhappy bargain. Parties should be able to rely on the finality of freely bargained agreements. However, in narrow circumstances a party may raise a fact issue for the trier of fact to set aside a release under the doctrine of mutual mistake. Williams v. Glash, supra at 264-65.
An error in predicting a future fact known to be uncertain is not the kind of mistake wh
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