*1 regard claims based With to Timberlake’s court express warranty, totally that record is devoid
noted “[t]he any express that
evidence made [Robins] warranty agree, [Timberlake].” judgment granted the summary
thus affirm this issue. Robins
V. Conclusion.
Because the record of this case demon- there is material factual
strates dispute,
issue in Robins is entitled favor judgment in its as matter summary
we court’s affirm
judgment.
AFFIRMED.
Larry HARRIS, Plaintiff, D.
v. COMPANY, INC., et TITLE
SENTRY
al., Defendants-Appellants,
v. WARD, Defendant-Appellee.
Travis 82-1108.
No. Appeals,
United Court of States
Fifth Circuit. 12,
March 1984.
Certiorari Denied June 1984.
See
Rehearing Rehearing En Banc
Denied June Tibbals, Debusk,
Vetter, Bates,
J.
Lee &
Tibbals, Dallas,
Kroemer, Michael
Albert
J.
Tex.,
defendants-appellants.
Co.,
injury
personal
Welding Mfg.
application
of the Code
&
ent with Morton
Texas
F.Supp.
(S.D.Tex.1976),
we
been
on a case
note
claims have
resolved
Manufacturing
holding
Welding
case.
&
are not bound
Morton v.
basis. See
Moreover,
persuaded
the Gar-
we are
The facts of this
fully
ease are
reported
in our
cited above. We do not
repeat
ON
FOR RECALL
them here. On the
MOTIONS
fundamental
is-
sue
by appellee
OF MANDATE
raised
asserting that we
were in error in
refusing
impress a con-
JOLLY,
Before
and
WILLIAMS
Circuit
structive trust
the proceeds
on
the
of
of
sale
*,
Judges,
Judge.
and WILL District
issue,
the tract at
the Dyckman property,
PER CURIAM:
we follow our prior
deny
decision and
the
motion
recall
Appellee
mandate.
we
In
reversed and rendered the
argues, as do amici curiae the Texas Inde-
impressing
decision of the district court
pendent
Royalty
Producers and
Owners As-
appellee,
constructive trust in favor of
Tra-
sociation and the Greater
Dallas Board
Ward,
vis
on the
proceeds from
sale of
Realtors, that we misapplied
Texas law
by Sentry
owned
Title. 715 F.2d
requiring
prior relationship
(5th Cir.1983).
Suggestion for rehear-
confidence between
parties
“long
du-
ing en banc and motion for panel rehearing
ration” before a constructive trust
could
Ward,
by appellee,
were denied
October
recognized.
In this case whatever was the
26, 1983. 5th Cir.
discussion, stated, “In between 715 F.2d County bidding. The critical Tarrant a constructive recognizing serve to is that land deal cannot County for of this case Tarrant purposes have a confidential establish from It follows there was relationship prior apart land deal. *3 is men- question.” relationship transaction There no of trust and pre-existing in Whatley Then relationship. a and length tion of such between Ward confidence state opinion at the where we to the 490 dealings began end their obtain fore County by way our in the section entitled “Conclu- holding, acre tract from Tarrant ,bid. sion”, Then, the district deal and say: “We find that the Athens land both confi- finding pre-existing inextricably court erred in a were tract deal Dyckman Ward, What- business relationship dential between with that fundamental interwoven from separate Hart to and ley, relationship, and business transactions.” Id. Dyckman parties. tract between the there conclusory 950. In that final section Dyckman on the agreement Since requirement a is no reference whatsoever to oral, it not based and since was tract was “long duration”. confidential upon pre-existing independent separate and rela- involving in recognize that the Texas parties, the Statute tions between fraud, almost control places the absence of deal, force to that applied with full Frauds upon the that ling emphasis created. trust could be and no constructive confidential pre-existing there must be original opinion, our this be As we stated in and confidence trust kind of situation the Statute very which the dealings tween before to There is a was meant control. was Frauds give trust. There rise to a constructive of discussion of the Statute this noticeable lack relationship in no such reveal, purpose its in the briefs rela of Frauds and clearly As facts case. that recognize on this issue. We appellees confidence between tionship of under Texas law turns its each case dealings Whatley began with Ward The facts were established serving as Ward’s own facts. relating Whatley to under those by the found to on the 490 acre tract owned “front” bid requisites to the establishment facts the County. Both the other real Tarrant by in Texas law were the constructive tied dealings question directly are estate They not met. into that fundamental transaction. dealings. independent separate are motion for recall of the Appellee Ward’s agreement first of these is the is enti- ground mandate on the Whatley taking up an
which Ward aided
Whatley
to
tled to certain funds advanced
Athens, Texas.
to
some land in
option
buy
purchase
of the
tract
for the
agree
is clear from the record
this
It
it
Court felt
was
GRANTED. The
quid pro quo
by
ment
Ward was
its
that those sums could
clear from
bidding
on the Tarrant
Whatley
for Ward
when the other sums
retained Ward
County land.
registry
which Ward had received
judg-
the district court's
is at issue in
of the court after
The land deal which
Whatley
in ac-
deal,
directly ment
turned over
tract
was
were
cordance with our mandate.
In view
undertaking
purchase
related
Ward,
tell
now made
we cannot
It was
claims
County tract.
understood
Tarrant
from the record the amount
precisely
if
could ob-
parties that Ward
between the
to which Ward is entitled.
land,
What-
involved
again using
money
tain
re-
modify the mandate to
“front”,
We therefore
might help Ward in his
as a
ley
so
rather than render
concerning the mand
County
with Tarrant
dispute
precision
determine that sum with
court can
490 acre tract. One could
bidding on the
findings.
of its
This conclusion
on the basis
close knit relation-
imagine more
hardly
is also related
the modification of our
lawsuit.
court Ward. Finally, majority re-emphasized its position opinion: later in its AND REMANDED. REVERSED The dealings business WILL, Judge, dissenting: District nature, whatever their Whatley, were not intensity just- of sufficient duration or September opinion In its ify imposition of a constructive trust. matter, majority panel accepted of this The first the two to es- requirements unchallenged finding the District tablish a constructive trust was not met. below that the business be- Court [Emphasis added.] Travis Ward and Alan tween Ibid. at 949. any those two had dis- gan months before acquiring Dyck- about I September cussion so-called would not have dissented on subject-matter (1) man of this 1983 had it not been the case property, undis- Whatley, as a matter of 18. Trusts Ward and fact, relationship pri- puted law, whether or not fidu- Under acquire or their decision to relationship question exists is ciary fact, that, (2) considering this relationship fact, whether suffi- of a imposition permit, support Texas law would ciently longstanding imposi- without, majority’s question as the constructive constructive trust tion of held, an absolute opinion clearly [Emphasis law. added.] relationship prior that the requirement first however, finds, Now, majority con- “long-standing,” “long-lasting,” have been fact, that undisputed there was trary to or of “sufficient duration.” confidential relation- prior fiduciary appears to concede majority now parties: between these view the Texas law its earlier recognize that the Texas incorrect: fraud, places absence of almost con- reading careful of our reveals emphasis requirement
A trolling rely upon that we did not pre-existing there must be a confi- long duration trust and dential confi- contrary trust and confidence. To dence between the before beginning our discussion dealings which rise to a constructive give and at the end discussion of issue There was no such trust. issue, long we did to the not refer this case. *5 duration of the at all. Opinion Per Curiam at 1370. Opinion 1369. With all due Per Curiam as a fact The district court found cate-
respect, majority opinion stated that a disputed appeal was not on confiden- “long- that a gorically quoted as above fiduciary relationship tial or existed rela- standing” “long-lasting” fiduciary or Whatley prior tween Ward and to and is, law, under the first re- tionship Texas from their apart deal- quirement of a constructive trust. majority what ings. On basis now can Moreover, the headnotes for the finding, that undisputed reverse fact I do published 716 indicate opinion, F.2d not understand. majority that the so held. that, majority suggests also because 1 Headnote No. reads: acquisition re- “directly was parties’ to the prior lated” 1. Trusts 91 separate “not from those independent” reme- equitable “Constructive trust” is somehow, dealings, prior can infer relation- dy fiduciary-like not, fiduciary relationship will under Texas purpose ship within transaction for law, trust. I support constructive Ibid. justice can be im- promoting and that holding. can find no Texas so In addi- whose course of conduct posed critical, tion, ignores undisputed suggests long, preexisting period over that Ward did not discuss fact relationship of and trust confidence contemplate until acquiring subject by parties was assumed action. months after their [Emphasis added.] Moreover, the major- been established. had 17No. reads: Headnote that, current insistence order to ity’s 110 17. Trusts impose a constructive deal- Texas show constructive To have ings “separate” must been show, by prepon- law, must first plaintiff subject light transaction ironic in evidence, derance law that a construc- confidential, fiduciary or longstanding may imposed tive where subject unrelated trusting transaction is within the subject scope [Emphasis transaction. added.] Rankin parties’ prior dealings. v. Naf- talis, (Tex.1977). 944 Headnote No. reads: S.W.2d agreement I am partial with the grant
of appellee Ward’s motion to recall
mandate since it an- recognition reflects
other of errors in original opinion
which I referred in dissent. my But
basic error of the majority holding remains
uncorrected. A who admittedly man
breached his fiduciary duty is still to be
rewarded receiving appears what now $400,000
be in excess when neither
uncontested facts nor justify, the Texas law require,
much less unjust ineq- such an
uitable result.
Having apparently abandoned its earlier
effort to majori- rewrite the Texas
ty now seeks to rewrite the undisputed
facts of this case. For the reasons stated
my original herein, dissenting I opinion and
deplore and, again both efforts accordingly,
dissent. America,
UNITED STATES
Plaintiff-Appellee, HENRY,
Harold Donald
Defendant-Appellant.
No. 83-1366
Summary Calendar.
United States Court of Appeals,
Fifth Circuit.
March 1984.
Opinion Granting Rehearing En April 23,
Banc