Wednesday, December 19, 2007

Drafting error excused in indemnity contract

Court of Appeals remands case to district court with instruction to grant reformation remedy to correct "scrivener's" error.

Holding: Reformation is a proper remedy when the parties have reached a definite and explicit agreement, understood in the same sense by both, but, by their mutual or common mistake, the written contract fails to express this agreement. Champlin Oil & Ref. Co. v. Chastain, 403 S.W.2d 376, 377 (Tex. 1965). Because the agreement embodies the parties’ intent to apply the express negligence doctrine, but, due to a scrivener’s error, leaves out a few words in the indemnity trigger, the matter must be remanded to the trial court to reform the written contract to conform to the terms of the agreement.

We reverse the trial court’s judgment and remand the cause for the trial court to reform the indemnity trigger in the agreement.

Reece-Albert v. Contractor's Service Co. (Tex.App.- Houston [1st Dist.] Dec. 13, 2007)(Hanks)

In this contractual indemnity case, Reece Albert, Inc. (“Reece”) and Contractor’s Service Company (“CSC”) filed cross-motions for summary judgment. In two issues, Reece appeals the trial court’s grant of CSC’s motion and contends that (1) the trial court erred in ruling that the parties’ indemnity agreement is ambiguous, and, thus, unenforceable, and (2) the words omitted from the “trigger” portion of the indemnity agreement were the result of a scrivener’s error, which can be corrected through the doctrine of reformation. We reverse.

Reece-Albert v. Contractor's Service Co. (Tex.App.- Houston [1st Dist.] Dec. 13, 2007)(Hanks) (indemnity, reformation of contract, mutual mistake)
Opinion by Justice George C. Hanks, Jr.
Before Justices Taft, Hanks and Higley01-06-00700-CV
Reece-Albert, Inc. v. Contractor's Service Company, Contractor's Service, Ltd., and Contractor's Service, Ltd. f/k/a Contractor's Service Company
Appeal from 133rd District Court of Harris County (Hon. Lamar McCorkle)

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