*1 passing the merits opinion This is not to construed as uphold any respect. the action sole function of the case in Its ap- temporary injunction. denying the trial court refused, no error. plication for reversible writ error Opinion June delivered Gaines, Petitioner
Leon man, Respondent Blake Ham No. A-8462. Decided Rehearing 358 S.W. 2d Denied July June *2 concurring in E. ASSOCIATE JUSTICE CLYDE SMITH opinion. written WALKER, joined by
ASSOCIATE JUSTICE RUEL C. AS- SOCIATE and CULVER dissent. JUSTICES GRIFFIN Settle, Worth, petitioner. &
Settle Fort Hudson, Keltner, Jordan, Cunningham, Worth, & Smith Fort respondent. opinion of ASSOCIATE JUSTICE delivered the NORVELL the Court. Appeals summary of judgment Court Civil affirmed ren- against dered in favor of the defendant Blake Hamman and
plaintiff
Gaines,
Leon
Being
opinion,
lating summary judgment practice to the 166A, under Rule Rules of strongly Civil Procedure. Hamman asserts and main deposition tains judgment record, part summary that Gaines in his is a which, true, swore facts would defeat his asserted cause of theory action based of a constructive urged testimony vague trust.1 It is also that Gaines’ was too support judgment uncertain to theory. based said trust By express provision, constructive trusts are not affected the Texas 7425-b-2, Trust Act. Article Vernon’s Ann. Texas Stats. Fitz-Gerald 39, 237 S.W. 2d 256. holding that issues
As retried our this cause under record, purposely refrain from indicated fact are making will Other and further evidence an exhaustive statement. undoubtedly upon another received trial. necessary and are facts as are disclosed the record
Such understanding holdings to an are as follows: our geologist experience the Texas Leon is a of wide Young. acquired Pinto, Wise, counties Jack and He of Palo relating logs and other data an extensive collection of oil well exploration discovery named. activities in the counties oil appears gas lease It that from Hamman is an oil and broker. engaged in numerous Hamman and Gaines were general together. up work transactions As a rule Gaines would *3 upon geological upon particular a tract of land the information acquire a under- planned to Hamman would which lease: generally expenses deal, and take a the to write incidental the property He then interest in his own name. would lease the parties, lease and transfer the same to such third others the retaining expenses overriding royalty. After had an Hamman’s recouped, equally would divided between override been be taking title of in Hamman’s Hamman and Gaines. While thing, practice. it was the invariable the usual In name was summary judg- Hamman’s motion for counter to his affidavit ment, said: Gaines any that as lease or
“The which had was geology, developed prepared prospect which I or on working Hamman, together, attempted us of which both sell, equal prospect own an interest in the lease or we would equally in interest a and would share reserved when lease agreed It was also understood and us that was turned. between trade, making recoup Hamman would entitled to costs original agreement acquiring incurred in it. The he had which oral, repeatedly and it was was made in 1954. It was reaffirmed by myself; however, time Hamman and I from time to am respect state at this time when and with to which unable to prospect statements were made.” affidavit, years
According some four after Gaines’ made, understanding original agreement or was he and Hamman gas Young in an oil lease on some land in interested became Rogers. County H. The lease was C. held name owned employees. necessary of It was that a and one well of Gaines prevent lease’s termination. Hamman offered drilled to employee try interest therein. Gaines’ to turn the lease for half figure of the lease and a short extension in the deal ceased to working out procured by Hamman then succeeded Gaines. whereby Addyman, Cummins Jess Harwell Clarke deal A1 drilling casing point agreed pay a well to the the costs for working of the lease. return interest of 7/8 3/4 working sharing a This left Hamman and Gaines 7/8 1/4 payment equally, subject held to a oil $1900.00 necessary to vest lessor. executed the written instrument Gaines working part transaction Hamman with his interest. This parties in which was similar to numerous others had between the geology operators secured Gaines furnished the Hamman retaining lease, drill the override which was divided between parties. Rogers In the name, the case of the lease the lease was in Gaines’ usually Hamman
whereas was the holder of the record lease. Rogers
Shortly deal, after the transactions and occurrences place Logan gave took with reference to the lease rise Again to this lawsuit. we refer to affidavit. He stated that Logan portion properties open acreage became because expiration of a particular insofar as lease it covered the geological tract involved. done work tract and advisability securing discussed with Hamman the a lease open acreage early part concerned. In the of November 1958 Logan, both he and Hamman talked to L. M. the owner of the property. On November L. M. and wife executed an gas covering oil and to Hamman lease some 376.4 acres land. *4 placed This a lease in Fort Worth bank with directions that the payment lease be delivered of an attached draft. On 27, 1958, November a successful drill-stem test was made on the Rogers brought well which a about conversation between Gaines which, according and Hamman in recollection, to Gaines’ best Hamman said: get have to people (Addyman, deal for these “We Har- Cummins). They ready go and
well are well, on another be- gotten they good your cause Rogers. have geology, well on on the Rogers.” It will be same deal as According Hamman, Addyman, to Gaines he met with Har- engineer completion Rogers well and the Jacksboro, well in 29, 1958, Texas on November and geologi- “discussed detail the possibilities Logan gave prospect cal my and them inter- pretation. of geology”. its completed subsurface He thereafter
geological report around plat and Hamman delivered the first of December. paid the 1958, Addyman and his
On December associates delivered consequence, the bank draft as a above mentioned and entirely group Addyman financed the lease to Hamman. The Logan tract, casing drilling point on the of the initial well to the drilling proportionate part of the cost paid their Addyman now hold and associates thereon. second well remaining working interest. The of the 7/8 3/4 7/8 1/4 working Blake Hamman interest stands the name of now equitable impress seeks to is this interest which Gaines it working interest in and to the to the extent of 7/8 1/8 Logan lease. credited, we think reasonable If statements be Gaines’ Hamman, for a number conclude therefrom that Gaines gas engaged acquiring leases which years, had oil been jointly. leases then be “turned” to own These would were other mineral parties third and an override or transferred to equal portions, jointly retained and held right expenses. out-of-pocket subject recoup his to Hamman’s arrangement parties, con between the would Under the expenses “geology” pay Hamman in tribute the would turning procuring of the leases and the of the deal. cident dealings parties’ accepted, Undoubtedly if version of relationship parties in existed a confidential between the there Rogers Logan as the lease was concerned. The transaction sofar completed. just Hamman another deal for the had been wanted Addyman group in effect that it would be “the and said same Rogers”. according affidavit, Addyman, re deal as the strength geological reports largely upon ceived Gaines’ Logan keep venture. Hamman decided to enter the Should thereof working production upon interest after the entire of the 7/8 1/4 obtained, recipient he would of an the unjust been resulting enrichment from the breach of confidential fully supported by relationship. This conclusion is Fitz-Gerald Matthews, Omohundro S.W. v. Johnson, 2d 401 and Peckham Texas 408, affirmed, Civ. S.W. 2d 786. *5 complete a
It is not answer to Gaines’ asserted cause of action pro- say in some of Gaines-Hamman ventures the general in detail from the followed varied scheme of cedures operation outlined. Nor it essential that above was at the com- particular venture, parties mencement reiterate ver- of each agreement bally general had the terms of under which operated understanding insofar as in order to make such effective a conten- new venture was concerned. course it is Hamman’s Of separate tion that all of with and inde- his deals Gaines were understanding general pendent transactions and there was agreement most, says or that at between them. He employed work, namely provide geological piece a to do certain petroleum in- information and was to receive interests therefor money. remedy, any, stead of It asserted that lies Gaines’ assumpsit equity and not in to establish a constructive trust. theories, however, simply These issues. contentions raise fact summary judgment which, accept On version pointed out, clearly general supports theory as above of a understanding operation. Particularly as to methods of is this Rogers true with reference to the and the leases. objection theory
It is further no
of constructive
parties
that the
may
contemplated
property
have
division of
something
form of overrides or
rather
than
similar thereto
parties
money.
division of
may
form
The same
be said
general understanding
with
parties,
reference to the
pay
expenses,
Hamman
subject
right
recoup
was to
all
to his
agree
ment. It
was not essential that the
should
that losses
(unrecouped expenses)
equally.2
should be borne
We are not here
concerned
ship
question
with
partner
of the technical existence of a
joint
persons
or a
venture insofar as third
are concerned.
important
circumstance from which the law will
a con
raise
structive trust
is the
breach of
relationship
confidential
may exist, although
relationship
not meet the technical
requirements
partnership
joint
Gray,
of a
venture. Mills v.
33,
2d 985.3 If
S.W.
we consider an
regard
2. Gaines’
statement
to losses was not clear. He said that he
supposed
given
if Hamman had
him bill of half the losses on an unsuccess-
deal,
paid
gives
ful
he would have
it. He
no instance where he
done so.
Cartwright
Minton,
App.,
ref.,
3. Gf.
v.
Texas Civ.
wr.
S.W.
n.r.e. wherein it was said that:
fiduciary
impossible
“The term
is derived from the civil
law.
It
give
comprehensive enough
a definition to the term that
to cover all cases.
Generally speaking,
applies
any person
occupies
position
peculiar
it
who
integrity
fidelity.
confidence towards
another.
It
refers
contem-
It
plates
dealing
good faith,
legal obligation,
fair
rather
than
as the basis
of the transaction.
The term includes
those informal
relations which exist
party
another,
whenever
trusts
one
relies
as well as technical
fiduciary relations.”
Lesesne,
Also see
Texas Civ.
Holland
“This is suit in and that realm pre- parties judged by rules refined No can be standards. attempt and no formulate rules should be made to scribed by equity, that such of conduct courts but the measurement exacting by utmost measured conduct standards recognized. universally ex- fidelity perience We between arriving difficulty at no the conclusion narrated, facts, if found to be the true establish facts above Follett relation trust and confidence existed between that a prior top execution of the 1938 leases.” and MacDonald respondent places emphasis much In his brief the oral deposition complains petitioner’s and of Leon statements from the record because refer affidavit rather deposition. deposition than his It is asserted that the controls inconsistency over the affidavit where there is or contradiction argument deposi- them. The thrust of the is that Gaines’ between not make tion evidence does out cause of action on the but contrary plaintiff, petitioner, demonstrates as cannot re- bearing contention, chronological cover. As statement helpful. from record was filed
This suit Gaines December 1959. On Janu- deposition ary 18, party an as adverse was taken deposition pages length This Hamman. some all relationships que trust, principal as technical trustee cestui attorney client, agent, indispensable, are such informal domestic, moral, social, merely relationships, personal as ones where upon another, person and relies trusts are sufficient.” one attorney. propounded questions Hamman’s Gaines’ at- were torney attempt client or afford made to rehabilitate his him way, evidently opportunity explain as he his answers preferred to the actual trial the cause. leave this *7 May 16, 1960, summary judg- On Hamman for filed motion among largely asserting, upon petitioner’s deposition ment based things, deposition other that testified in that he had Gaines relating expressly specially with no stated contract Hamman argued deposition the It that lease. failed to show enforceable cause of action. 22, Gaines, having attorneys,
On employed June new summary judgment answered the motion for connection Beren, Addyman therewith filed affidavits executed I. B. Al and himself. July 11, 1960,
On Gaines filed an additional affidavit which quite allegations largely detailed supported and in content the petition attempted of his place in affidavit by his form earlier statement of June wherein he had sworn personally allegations petition that he all knew that the of his except were true that those were made on information and belief. given forepart statement of the facts of the case of this opinion largely taken from the last affidavit made the petitioner. summary judgment proceeding The issue in a is whether or genuine case; there is a not issue of fact and in determin ing issue, apply this applicable the rule to instructed verdict light cases in that the evidence is viewed in the most favorable to party opposing Penn, the motion. Gulbenkian v. 151 Texas Bolin, S.W. Smith v. 2d 93. 166A, Procedure, Rule Texas Rules of provides Civil that
summary judgment “shall plead- be rendered forthwith if the ings, depositions, together file, and admissions on with affi- davits, any, that, except damages, if show as to the amount of genuine any there is no issue to as material fact and that moving party judgment is entitled to a as a matter of law”. The summary judgment proceedings record of then consists of the pleading whose office it is outline the claims and defenses of respective parties, depositions and admissions on file and support opposing affidavits submitted either in of or the motion. exception pleadings With is not essential that summary judgment components possible all of the other or likened to present. on file admissions record While admissions, judicial as there pleadings and considered written giving controlling deposition compared effect to a as basis deposition fact is more an affidavit. Neither does the respects than the affidavit vest it with dominant detailed in some authority, possesses provided of course the affidavit Garcia, necessary requisites prescribed by in Tobin under wherein it was said that provisions of affidavits to be Rule 166A effective either summary judgment support oppose a motion “must be or knowledge personal competent state made affiants with given them, ments which statements be so worded evidence.” on the witness stand would be admissible as Ob holding viously mere conclusions will not suffice4 and cases so do support inconsistency conflict, in cases of the thesis deposition prevails conflicting over the If affidavit. infer *8 deposition and the ences drawn from the from affidavit presented. Fidelity party, the same a fact issue is United of States Carr, App., 224, Guaranty v. Texas 242 2d wr. Co. Civ. S.W. & ref., Anthony Pryor, App., New Hotel v. Texas Co. Civ. 132 St. 620, purpose summary judg It is the 2d wr. ref. not S.W. provide by deposition by either a trial or a trial rule to ment affidavit, provide summarily of rather to method termin clearly ating appears question law case when it of genuine present and there no issue of fact. is involved The summary judgment. does not disclose case for In view record of in the detailed discussion authorities contained this Court’s of 39, 237 2d opinions v. 150 Texas 256 and Fitz-Gerald S.W. Matthews, 367, 401, 2d further v. S.W. Omohundro unnecessary here. comment judgments the courts are of below reversed the cause proceedings the
remanded to District Court for further not in- opinion. consistent with
Opinion 13, 1962. delivered June SMITH, concurring. ASSOCIATE JUSTICE City Worth, App., as Fort 4. Such cases Bliss v. of Texas Civ. 288 S.W. n.r.e.; Employers Co., 558, Mugrage App., Ins. v. Texas Texas wr. ref. Civ. 2d 189, dism.; Bank, wr. Farmers State Bank v. First 2d State Texas S.W. hist.; Corpus City Christi, App., no wr. Duffard of 2d Civ. hist, authority giving no wr. áre Civ. S.W. Texas deposition summary statements motion for to detailed effect dominant holdings, cases, simply support those like judgment. the well These legal recognized statements conclusions in affidavit are that mere rule issues. raise fact insufficient because, by majority only in I concur the result reached than my opinion, probative force other in there is evidence of by which has been rendered ineffective evidence genuine Act, 7425b, issue fact raises a Trust Article fiduciary relationship, a relation of as to whether confidence, Hamman. The facts existed between Gaines and my in this case meet the test contained in dissent Omohundro Therefore, Matthews, 401. case have should been determined the trier the facts granting summary the trial court erred in motion Hamman’s judgment.
Opinion delivered June dissenting. WALKER, ASSOCIATE JUSTICE respectfully I majority holding entirely dissent. The rests petitioner’s unsupported general affidavit, statement, made simply which is his conclusion as to the nature of the understanding parties. This ultimate issue to decided the trier of fact If the remand. the case had manner, petitioner’s been tried conventional statement of such a conclusion from the witness stand would be entitled to weight deposition testimony regarding face of his agreement. details of given I do not think it should be majority effect to it summary accorded judgment in this proceeding. testimony In the of a findings witness as of a general jury, always yield specific. to the deposition testimony
Petitioner’s that, contrary makes clear *9 affidavit, to the statement made in equal his he was not to own an any prepared interest in lease on he geology and which purchased by respondent. was It was understood that the lease respondent, would be taken the name of pay who would either get principal for it it or financed. The details of the following excerpts petitioner’s are disclosed deposi- from tion:
“Q. get But he it in try would take his name and then recoup money it financed where he would put he had in it getting pay well and then drilled. Yes, “A. sir.
“Q. Now, that was the basic deal?
“A. That was the deal. basic
“Q. get you an as- after that done were And then was signment he of half of what had left? Yes,
“A. sir. “Q. nothing override, up why, if with an And he ended you got of that? half
“A. Half of that. “Q. working you got up And he ended with working interest? half of the Yes,
“A. sir. — nothing “Q. up And if he ended with forgot just Why, it.” “A.
Sjí $ “Q. turn it and he if he was able to clear it where And working interest, interest or whether it was retained carried signment interest, supposed get override, you an an were as- him of half of what he left?
from Yes, sir. “A. assignment
“Q. supposed get you until weren’t But how he had left? it determined much after right, yes, words, you sir. In other stated that I “A. believe assignment give an then.” me would he
[*] [*] [*] thing, “Q. only only promise Now, fraud or broken, any, is if he has ever has broken failure that Blake assignment got you give after deal fi- ? and drilled nanced right.” Yes, sir, that’s
“A. % %
% “Q. $50,000 cash, that he turned and made Suppose *10 get part cash? you of the would understanding.” wasn’t the
“A. That ijt v # “Q. you words, getting up to it: If worked In other down tract, geology and a deal on that same if he and he took any he interest in the lease was able to turn where retained get you retained? were to half what he Yes, “A. sir.” testify in-
Petitioner that to own one-half did he was respondent, property purchased by terest in the as soon as it was expenses responsible any or that he would be for thereafter Respondent liberty incurred. at interest he desired sell persons, prices such terms as he to such proper. nothing deemed If he received all cash and retained way override, working payment interest, petitioner of an oil nothing. was to receive general
Both testified that there was no character of partnership during them. five-year between Each made deals period participate. equally which the other did not It is clear agree engage joint that did not iñ a venture. Petitioner whatsoever, agreement had no control there was that profits would share in either or losses. all of the un- When dressing removed, derbrush and window are we have a suit agreement petitioner’s enforce an geological in return for services, respondent would, buying paying after for the lease selling part parties, convey it to other petitioner one- words, half of whatever interest had been In retained. other brought action to recover an in real estate which respondent promised convey in consideration for services ren- by petitioner. dered my opinion In plainly enforcement pre- of the contract
cluded 31, the statute Coffield, of frauds. Sorrells Sawtelle, 187 S.W. 2d Tolle v. Texas Civ. (wr. ref.). facts quite Sorrells case are plaintiff similar to those testified, involved here. The there jury found, purchased land was in the name of and paid pursuant agreement previous the defendant to a part and when as ficient to minerals thereunder were sold suf- therefor, repay remaining him land, any, jointly by plaintiff would be owned and defendant. holding In was unenforceable under the statute frauds, pointed jury’s out finding that the was that plaintiff would invested equitable become with his title as mineral interests and when were sold sufficient to reimburse *11 agreement precisely is which That effect of the defendant. attempting present to case. petitioner is enforce According testimony, petitioiner’s to no to he entitled was respondent specific property unless and until recoup him disposed part to a on such terms as enabled only expenses. the interest then could Then investment petitioner Then and was to receive be determined. which obligated convey petitioner. respondent to to an interest then was cash, petitioner respondent property was sold the entire If petitioner nothing. then that was How can it be said entitled to equitable at a time when the nature and title invested with unascertained extent of the interest would receive was respondent parties, of the unascertainable ? Under the legal property necessarily equitable owner of the became purchased. promise it convey that he would there- when was His petitioner an in consideration after nothing nor less than a contract This is more latter’s services. of real estate. sale phrase magic a that “constructive trust” is not The term go away It does it uttered. the statute of frauds when makes relationship, legal equitable, a refer to substantive not to a equity use decide courts of when remedial device which holding convey compel person to an- property title to ground unjustly would be enriched other on the that the former Judge Cardozo, In it “is permitted to retain it. the words of through equity finds ex- the formula pression. conscience acquired property has in such circumstances been When legal good the holder of the title not conscience that interest, equity him into a trustee”. retain converts the beneficial Co., 380, Guggenheim Exploration Beatty N.Y. See compelled property convey “He not because N.E. 378. compelled trustee; it is he can be a constructive because he is Trusts, convey it that he constructive trustee.” Scott to me, therefore, IV, p. It ed. Vol. 3103. seems 2nd Sec. compel conveyance courts should be somewhat slow Legislature has declared that defendant situations where convey. Bogert says compelled to that when the shall not be obligation obligation fiduciary happens to identical with the by writing statute, the fact required manifested under to be obligation fiduciary exempt it from obed- it is a should not nonfiduciary more than if it were a con- to the statute ience Trustees, Bogert, p. 1960 ed. Trusts Sec. tract. situation, promise on the “con- enforcement of In theory” does not render of frauds in- the statute structive saying polite way the court will applicable; simply it is the statute. abide say compelling performance It is no answer to holdings present merely contract in case is extension of the Omohun- Fitz-Gerald *12 Matthews, 401; Gray, dro 2d Mills v. 341 S.W. Follett, and McDonald v. McDonald 2d 334. Omohundro and were 180 S.W. “reacquisition” cases. The in Fitz-Gerald had entered opera- joint acquisition, development into a venture for gas lease, tion an oil and and the in defendant took the lease agreement. his own name violation of such In all three of compelled convey these cases the defendants were interests wrongfully acquired fiduciary had in breach of a owing duty plaintiffs. pure them to the Mills awas restitu- predicated tion case in which the constructive trust was on a way dependent upon confidential relation that was in no agreement sought to be enforced. These four decisions should homogenized justify requiring per- not now be so as to a decree promise convey formance of an oral where there is no rela- tionship apart of trust and confidence from the made acquisition by of the suit and no basis the defendant of an duty owing by interest in the land in breach of a him to the plaintiff. person petitioner’s position
A who has made a contract entitled, under unenforceable the statute of frauds is course, Ellison, restitution. Alworth v. Texas Civ. (wr. ref.). give peti- But restitution could not tioner an in land never owned. It would entitle Respondent him to the reasonable value services rendered. breaching acquired fiduciary no interest land duty owing by obligation petitioner. him to His convey was to petitioner of whatever one-half remained after the By enforcing obligation, had been sold to others. lease gives petitioner the full benefit of a contract which the declares shall statute of frauds not be enforced. If this trend indefinitely, finally meaningless. continues the statute will become my opinion present opens It is case avenue which sought closed. should remain Petitioner has not restitution of entitled, he is I to which and would judgments affirm the courts below. join JUSTICES GRIFFIN and ASSOCIATE CULVER this dissent.
Opinion June delivered