Tex.R.Civ.P. 166a(c). Moreover, although summary judgment may, in an appropriate case, be granted in an equitable action, Elias v. Manis, 292 S.W.2d 836(Tex.Civ.App. 1956, writ ref'd), we think it appropriate to express a cautionary note. Summary judgment in a case governed by equitable principles presents even more potential difficulties than in the usual summary judgment case.
Further, the Act is remedial in nature and is to be liberally construed to afford protection to the investing public. Casali v. Shultz, 292 S.W.2d 836, 837 (Ark. 1987). It is clear to this court that the reporting provisions of the Colorado and Arkansas securities acts are intended to protect the investing public from the perpetration of fraudulent securities schemes such as the one alleged in the instant case.
Certainly it has not been followed and, on the contrary, has been widely criticized. Booth v. Barber Transportation Co., 8 Cir. 1958, 256 F.2d 927; Thickman v. Schunk, 1964, Wyo., 391 P.2d 939; Elias v. Manis, 1956, Tex.Civ.App., 292 S.W.2d 836; 6 Moores Federal Practice, §§ 56.01[1], 56.05; 10 Wright Miller Federal Practice and Procedure, §§ 2711, 2731, 2734. In the work last cited it is said [§ 2731, pp. 601-602]:
Nonetheless, the use of equity at the summary judgment stage may be appropriate where the facts are fully developed and clearly established. See Elias v. Manis, 292 S.W.2d 836, 838 (Tex.Civ.App. — Beaumont 1956, writ ref'd). In the present case, all material facts were stipulated by the parties, rendering consideration of equitable principles appropriate at the summary judgment stage.
The trial court, in its discretion, may grant summary judgment in an equitable action where the summary judgment evidence affirmatively shows that there is no genuine issue as to a material fact. See TEX.R.CIV.P. 166a(c); Fleetwood v. Med Center Bank, 786 S.W.2d 550, 556 (Tex.App. — Austin 1990, writ denied); Elias v. Manis, 292 S.W.2d 836 (Tex.Civ.App. — Beaumont 1956, writ ref'd). TFIC argues that this case is controlled by Bashara v. Baptist Mem'l Hosp. Sys., 685 S.W.2d 307 (Tex. 1985).
In our view, Reynolds-Penland's position places form above substance and would be an unwarranted waste of judicial time. In Elias v. Manis, 292 S.W.2d 836, 838 (Tex.Civ.App. Beaumont 1956, writ ref'd), that court held, in a well-reasoned opinion, that summary judgment may be granted upon the application of equitable principles to undisputed facts. Consequently, even assuming such a rule as enunciated in F. B. Fountain to be the rule in Texas, we would, nevertheless, hold that the trial court did not abuse its discretion in declining to grant relief. Whether an unconscionable hardship will result or whether the failure to exercise the option was the result of an "honest and justifiable mistake" so as to justify the interposition of equity are matters within the sound discretion of the trial court, subject, of course, to an abuse of discretion standard of review.
"* * * this is another of those all too numerous instances of the misuse of the summary judgment procedure to cut a trial short; that here, as so often before, it has served only to prove that short cutting of trials is not an end in itself but a means to an end, and that in the conduct of trials, as in other endeavors, it is quite often true that the longest way around is the shortest way through." The Federal decisions are pertinent in construing Rule 166 — A because our rule was adopted from and is substantially worded as is the Federal Rule 56. Elias v. Manis, 292 S.W.2d 836, 839 (Beaumont Tex.Civ.App., 1956, error ref.). Our Supreme Court in In re Price's Estate, 375 S.W.2d 900, 904 (Tex.Sup., 1964), spoke against undue haste in an attempt to dispose of cases under Rule 166 — A, saying: