On August 26, 2004, Powell Berry, as attorney-in-fact for "Hazel Berry, et al," enters into a contract to sell a tract of land in Texas to Cynthia Gail, with a reservation of all minerals, royalties, and timber interests in the land. On September 1, 2004, Powell Berry executes a warranty deed to Gail, on behalf of Hazel Berry, Evelyn Mebane, and Bernadine Wilson, that does not contain a mineral reservation. Following Mebane's death in 2006, David Cotton, the attorney for the executrix of her estate, discovers that the warranty deed to Gail does not contain the sales contract's mineral reservation. Cotton contacts Thomas W. Choate, who prepared the sales contract and warranty deed. Choate states that when he prepared the warranty deed, he used the title insurance commitment's legal description of the property, which did not contain the mineral reservation. Because he did not compare the deed and the sales contract, he did not learn of the mistake until Cotton contacts him. Cotton informs Gail of the mistake, but she refuses to revise the title. Berry, Wilson, and Mebane's executrix (Plaintiffs) then sue Gail for reformation of the deed for mutual mistake. The trial court grants Plaintiffs' motion for summary judgment. Gail appeals, arguing the trial court erred in granting summary judgment in favor of Plaintiffs because Plaintiffs did not establish that the omission of the mineral reservation from the deed was the result of mutual mistake. Held: affirmed.
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