I respectfully dissent and would grant reformation of the deed.
I agree with the court's opinion that Grammer failed to establish fraud relating to the property description, and therefore did not establish a basis to prevent reformation. The alleged fraud, which was the basis of the "unclean hands" defense, admittedly had no connection with the description which was sought to be reformed. Further, the "unclean hands" defense is asserted by one with unclean hands considering Grammer admitted that he knew the property description was erroneous and failed to disclose the error before closing. Therefore, I disagree with the concurring opinion that reformation should be denied because of the application of the "unclean hands" doctrine.
The court's opinion contends on the other hand that although Davis is entitled to reformation notwithstanding the fraud findings, this relief should be denied because the points of error are not properly framed. In this respect, I disagree with the court's opinion and agree with the concurring opinion to the extent that points of error eight and nine, and their respective arguments, although not artfully drafted, are sufficiently framed to raise the issue of reformation notwithstanding the fraud findings.
TEX.R.APP.P. 74(d), among other things, provides "A point is sufficient if it directs the attention of the appellate court to the error about which complaint is made." Rule 74(p) further provides: "Briefing Rules to be ConstruedLiberally. . . . a substantial compliance with these rules will suffice in the interest of justice; . . ."
In points of error eight and nine, the complaint is that the trial court improperly overruled Davis' motion for judgmentand motion for new trial since Grammer had other adequate remedies under which to recover any damages suffered as a result of the fraud. As pointed out in the majority opinion, the motion for judgment clearly sought reformation notwithstanding the jury's answers on the fraud issues. After argument, Davis' brief contends: "Under the circumstances, this court should set aside the application of the 'unclean hands' defense and sustain points of error 8 and 9." Further, in her prayer Davis requests reformation as her initial relief.
Therefore, the points of error and arguments are sufficiently framed to raise the issue of reformation notwithstanding the fraud findings. The "unclean hands" principle is not applicable under these circumstances. Hence, reformation should be granted.