Cherry v. Mccall

138 S.W.3d 35 (2004)

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Nature of the Case

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Facts

P bought a home from D. P then 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. P brought a declaratory judgment action, seeking declaration that (1) D breached the contract; and (2) the walled-in room constitutes a mutual mistake justifying rescission. D asserted the 'as is' provision of the contract as an affirmative defense. D then moved for summary judgment. Eventually, after three partial summary judgments, the trial court awarded D $30,000 in attorney fees making the judgment final for D. P appealed.