*1 judgment plaintiffs to recover to allow the Horn, defendant, Jr., for
against the D. T. difference, sum amounts to the In all $4,197.29,and it is so ordered. the trial respects, judgment other court is affirmed. of the trial court is there- judgment part;
fore reversed and rendered formed, reformed, and as affirmed. MILLER,
Jeffrey Appellant, V. ESUNAS, Appellee. Bernard
No. 173. Appeals of Texas. Court of Civil Tyler. Jan. 1966. Rehearing On April 7, Rehearing Second Denied *2 1, 2 Paragraphs appellant in
Texas. original petition first amended 3 of his action cause of for his as the basis appellee alleges: against the
“1. forth de- hereinafter set
“At all times geolo- petroleum practising a fendant was public holding out to gist, himself expert opinions on qualified give advisability geological conditions drilling oil wells.
“2. became plaintiff
“In of 1957 the fall procuring on Sec- interested in a lease H & T C Rail- tion 39 in Block of the County, Surveys way Company in Crane Texas, Republic Bank National Dallas, Trustee, thereof but owner entering into such lease undertaking any obligations in financial therewith, plaintiff em- connection ployed investigate prop- defendant to said erty furnish him a thereon.
“3.
“Thereafter, 1 March prior to a written plaintiff furnished defendant among other data containing report, following statements: “ informa- following geological ‘The classify in order to tion was secured prospect: acreage as drillable Information: Hole “‘1. Core used Andress, Jr., Andress, Marker was Woodgate, (Yates). The Yates Wm. Condos, Dallas, appellant. contouring prospect, Richards & geological feature. sulted in a closed Brice, Barron, Jr., and Bill W. S. E. call point writer wishes to At this Lewis, Geary, Dallas, appellee. Brice & importance of Yates attention to the portion of Coun- closure in this Crane date, all structures ty, Texas. To DUNAGAN, Chief Justice. oil in an Yates closure have resulted discovery. un- by appellant gas This suit For reasons was instituted known, reflects against Miller in the 134th the Yates structure Esunas structures, regardless County, deeper District of Dallas Court Judicial following known unconformities we encoun- “Said also listed possible pay zones: tered.’ ‘“ Approx. Queens 2400' “ 2. San Andres 2475' “ 3. Glorietta 3500' *3 “ Zone 4. Tubb 4200' “ Basal 4800-5300' 5. Permian “ (possibly eroded) 6. Devonian 5400' “ Silurian-Montoya 5500' 7. “ 8. McKee Sand 6500' “ 9. Waddell 6950' “ 10. Connell 7150' “ Ellenberger 7300” zones, report reported by appellee possible pay and of said “Attached to a prepared by proceeded ad- map investigate Block 4 de- he and was a was by overlays, showing two core the Railroad Commission of Texas fendant with vised February, permits with adjacent section 40 in no had ever in the that holes feet. Such been the of 990 issued Railroad Commission elevations and for the drilling a that Texas core holes on any recommendation contained Ellenberger Section and that there a well be drilled to test the record lime, deep, at the files of approximately 7700 feet the Railroad Commission any Texas core had location of the Northeast that such a recommended quarter ever been quarter Northeast of Sec- drilled. of the Railway Company H T tion 39 of the & C orig- Paragraph of his first Appellant’s County, Surveys, 4, in Tex- Block Crane petition alleges that: inal amended as.” therefore, report, “The defendant’s peti- alleged in said Appellant further purportedly upon core hole infor- based report, he se- in reliance on such tion that mation, showing the lo- purportedly and 39 from the Section a on said cured lease false, holes, which fact cation of core Dallas, trus- Republic Bank of National the must have been known to was and Estate, that said Davis and tee of the Wirt prepared and sub- defendant when he that drilling covenant required as a lease plaintiff, know- the mitted El- plaintiff drill a well to should plaintiff rely thereon ing would that recommended lenberger lime at the location obliga- expense incur substantial and and quarter of the by appellee in the Northeast reliance, tion as result of such which That quarter of Section Northeast plaintiff did.” well, pene- pellant proceeded to drill said depth alleged lime to a trating Ellenberger petition In said also feet, acquisition lease, arrange- without se- of 7300 in the slightly excess drilling, and financing of oil and that ments for the curing showing or trace itself, expended plaintiff nor drilling there was no Yates closure encountered $102,744.73 was a total the formation total sum of plaintiff did encounter him, Connell, by the Waddell, and which was caused Sand, Glorietta loss to McKee appel- misrepresentations of the plugged fraudulent Queens. That well was lee, reasonably depth of and that such sums were hole at a dry as a abandoned necessarily expended operations, en- result failure to 7346 feet. As a of his thereof; costs and was the reasonable formations Yates counter the closure or sums, ju he to recover such It is that when our elementary is entitled transcript from the invoked, with interest thereon time of such risdiction is must expenditure. affirmatively that we have such disclose so, jurisdiction it does that if not do jury This and the case was trial duty appeal. 3 Tex. our to dismiss jury Special submitted to the on 13 Issues. 641; Jur.2d, 383, page v. Section Needham Special in its answer to Is- found Ry. Austin Electric 127 S.W. sue No. 1 did not on or before h.; n. w. Selman represent appellant, Ross, 752, (Tex.Civ.App.) v. S.W.2d fact, two holes existed in Section 1957,n. w. h. question. 40 adjoining the lease in This Ross, supra, are The facts in Selman thereby precluded necessity of answer- the instant the facts fours on all various conditional Issues which *4 reveal case The facts case. were additionally submitted The thereon. May dated from was appealed the order find, however, did further in its an- dis- 1956; transcript did not 30, that the 8, 9, to Issues 11 that swers for motion original filing of an close the appellant employ appellee did not hire or mo- an amended trial but disclose new did report, to write compile the 11, on filed new trial was tion for June they agreed but with to each other heard 1956; was motion amended that the (cid:127) joint undertaking into for enter the drill- 1956, 19, July and notice on overruled question; of the well in such on the open court appeal given in of was was on port day. appeal bond filed by appellee The furnished same dismissing 6, August The court 1956. as joint undertaking; of the appeal because the Selman case the that same was not abandoned on it affirmatively transcript to disclose failed 1, 1958. jurisdiction had stated: jury, On the verdict of the the court filing that the “It is settled now well rendered judgment that (plaintiff original of an new trial within motion for below) nothing take his suit. by of day rendition period a ten after the complained is any judgment of or order outset, At the we are confronted with appeal an jurisdictional the is from where question the of whether by it is disclosed motion for a new overruling order the transcript jurisdiction that the this of nullity. filing trial. A is a Starr later court is invoked. Tex.Civ.App., County v. S. Guerra, 304, filing W.2d albeit such late The judgment disposing the of case trial well serve as a reminder to the very jury findings the signed on December power court of over his own minutes 2, 1964. original If an motion for a new days within after the thirty rendition trial was ever when is filed and not dis- any judgment It or order. is true by closed transcript. transcript The thirty jurisdiction court for trial retains does filing 1964, show the on December days any judg- after the rendition of an for amended motion a new This trial. aside, set it ment or order to days was more than 10 after the judgment motion for a filing without the complained by appeal. this The tran- trial, relevant this fact is not new but script shows that the amended motion was required give us requisite steps heard, considered and overruled on Febru- nonjury case such even in a jurisdiction ary 12, 1965. present, motion for a as the where appeal appeal, notice when required appearing in new trial is transcript overruling order appeal was filed March is from the 1965. The appeal distinguished bond was filed March motion for new trial 1965. * * * complained of. this court cannot ascertain whether the order
(citing possible orig- days that an after cases). It is amended motion was filed actually original filed, inal motion for new trial was motion was if one was Therefore, It sometime before filed. we are unable to deter- filed June so, or equally possible that this is not mine been amended motion has motion, original any, timely it- assignments that the if filed so that the therein self filed as late contained can be this court considered as June respect, appeal. in this so as the tran- facts far script shows, speculative. are transcript fails disclose affirma- “ * * * appeal If the be considered tively jurisdiction that we have overruling one from the order peal. trial, equal- amended motion for new it is Appeal dismissed. ly affirmative evident that there is no original that an motion was filed day period contemplated within ten APPELLANT’S MOTION ON by mandatory provisions 329- of Rule FOR REHEARING b, Subsection Texas Rules of Civil in this term we dismissed Procedure, allowance time fixing Earlier transcript appeal because the failed filing new original motions for *5 affirmatively juris that had to disclose we
trial.” supplemen Appellant diction. later filed authorities, As additional cite we Need which, transcript tal from in connection Ry. supra; ham and Co., v. Austin Electric ap original transcript, it with the now Indemnity Company Hartford Accident & Ap pears jurisdiction. that do have we Gladney, 792, (Tex.Civ.App.) v. 335 S.W.2d pellant rehearing that has moved for and 1960, refused, writ n. r. e. dismissing we set aside our former order and appeal. well taken The motion is appeal Moreover, our former order aside and the this is set it has been held in 329b, reinstated. requires state Rule an that subd. amended motion for new trial be filed appellant appellee with charges days original within 20 motion and fraud, appellee’sgeological alleging that the mandatory; the rule is and that an where report, purportedly upon core hole based motion for amended new trial is filed purportedly showing and information days original more than 20 after mo holes, false, which location core
tion, ineffective, the amended motion is to the fact was and must have been known any cannot be purpose, considered for and appellee his prepared he and submitted when nullity. Welborn, is a Erwin v. 207 S.W.2d appellant, knowing that to the 124, refused, (Tex.Civ.App.) 1947, n. writ pellant sub- rely thereon and incur would e.; Arana Gallegos, r. v. 279 S.W.2d expense obligation a result stantial h.; (Tex.Civ.App.) Valley n. w. reliance, plaintiff alleges such Lopez, Transit Inc. v. 263 S.W.2d he did. refused; (Tex.Civ.App.) Dyche writ Simmons, 208, (Tex.Civ. 264 S.W.2d sig- contention that appellant’s It is refused, App.) 1954, e.; writ n. r. Traders it is a is that core hole nificance of a Scott, & General Ins. Co. v. 189 S.W.2d establishing geological factor in geological refused, writ re- in this information Significant “high.” w. m. a well which spect obtained from also can be producer or drilled,
has been ad- hole, is the additional dry there transcript where As fails to disclose from obtained trial, vantage of the information filing original of an motion for new Perhaps might be that he found there. Ap- tests. tests, stem logs such as drill upon arriving expecting to at this address pres- point at that pellant one testified you Jones, find that is not Sam learn he at in the of core holes ence of absence him; he anything to port did mean This not be that home. would evidence there- appellee’s on conclusions based relied given or information false mis- on. leading. though Even the informant had pointed inquirer out to his where he would report is geological based expected Jones, only be to find Mr. available various information way it that could be ascertained whether wells, appellee, including logs from other or not Mr. was there reach- Jones core hole in the area and certain drilled previously given. geolo- address A appellee At the time Esunas information. gist only, can through skill, training Miller, appellant delivered and knowledge particular area, of a supply and at numerous other times both appellee thereafter, told that structures, information pinch- where passed hole had core information been outs, traps or may other contain oil him other and that geologists; gas or found, be only way but the prove he could not such ascertaining if oil or gas actually there logs give Ap- existed or him on them. byis drilling into such structures forma- pellant appellee him admitted told tions. given information had been to him Appellant’s first two Points of Error by some other geologist engineer, but read as follows: maintains that told him protect that he had to party “Point One: having Esunas admitted divulge could not the source. under Rule 169 that he showed the ex- istence the core holes on his written parties looking high were struc- geological report Miller, furnished to *6 Sand, in ture the Yates a non- shallow judicial admission, was conclusive as a producing sand which is indicative of closed and there was no evidence to sustain geological features in below oil which jury’s finding contrary to the in an- trapped. be appellee’s is It shown that the Special swer to Issue No. One. projections report as contained in such quite were accurate. in “Point The sand which Two: Esunas having admitted they hoped find under Ellenberger— to oil—the Rule 169 that he showed the ex- was encountered in the well at almost the istence of the core holes on his written depth projected. course, geological report exact Miller, as Of all furnished to oil, there structures do not contain issue fact justifying of sub- why, Special which accounts as the mission of record One asking Issue No. shows, that geo- represent there have been numerous whether Esunas did as a fact logical to successes which are failures. Miller oil that two core holes existed.” appellant’s experience With in oil busi- Appellant by his 1 2 Points and con- ness, he was aware of the obvious fact appellee’s tends that appellant’s answers to geologist guarantee that no could the find- requests request in Nos. and 4 ing appellee’s report ques- oil and in of admissions, appellee to effect that fur- purport tion did not do to so. appellant report nished a written contain- A geological analogous to one core hole information and core holes, might seeking judicial by constituted a who be whereabouts of admission appellee doing represented appel- in- and that to Sam and so receives he Jones a a home lant —as core formation that maintains holes existed. Sam Jones fad —that Texas, Street, Appellant Tyler, urges Special therefore at 1420 Oakwood that Is- ever, sue not positive No. One1 should have been sub- amount to of statements bearing mitted and that no if responsibility fact full evidence for their truth ”* * * such issue should have been heard. is assumed. Appellee, way points, by Development of counter See also L.M.S. Foster v. ample jury contends “The found that S.W.2d appellee represent n.r.e., evidence that did not held refused, it is error wherein holes a fact—that core that: certain —as existed, properly ren- the trial court “ * * * predicated is not to be Fraud appellee judgment dered favor of based represented to be expressly on statements thereon;” “Appellee’s that answers to ” * * * merely made on information. pellant’s request pursuant for admissions fully dis- appellee to Rule show that appellee says: his brief closed to without he was “Actually issue of ultimate knowledge the actual existence as to core appellee represented the existence holes, properly core and the trial court by possibly as a established fact is misrepresentation to submitted the issue of in favor matter of law evidence as jury.” This contention we sustain. appellee appellant.” rather than position up appellant’s is based issue may, that as it was submitted Be assumption ques on the erroneous that the adversely to jury answered to the and was requests propounded by tions him in his appellant. issue 3 and 4 embrace ultimate Nos. appellee as to whether by issue submitted to and determined one a fact misrepresentation made to whether “On or appellant’s case which defendant, Esunas, represented formed Bernard carry upon him it Jeffrey Miller, fact, on which devolved as a two V. objection made no Appellant the burden. adjoining the holes existed in Section 40 by the 1 as submitted No. question.” Issue There is a considerable lease court, to form or substance. trial either as came (some amount of evidence ulti properly trial submitted re The court appellant himself) issue, doing observed mate and in so he peatedly appellant in told connection Rules of Civil Texas mandate Rule that the core information hole Procedure, the con shall submit that “he told something which he had been necessity of trolling issue without the prove could [s]” others that he *7 dif phases submitting various “other and must This evidence such core holes existed. Neither shades issue.” ferent the same answering in the ultimate be considered objected issue. party to such repre appellee issue of made the sentation, fact. as a Appellee deny furnished that he does report inquired about written the on settled law This is in accordance with 4, appellant’s 3 and requests in the Nos. subject. in 25 the As stated Tex.Jur.2d position trial. contrary at did he nor take a 675, 39: Section is, however, in- point that the matters not, or- “An action fraud quired ultimate about do not embrace the dinarily, that are be based statements whether, in this under the issue evidence n merely to expressly declared be made case, particular representation was the may, how- statements information. Such appellant’s Appellee’s fact made. answer to preponderance you of the Do find adjoining core boles in Section 40 existed 1958, 1, on or before March evidence that question? the lease in Esunas, represent defendant, Bernard the Answer “Yes” or “No.” Jeffrey Miller, two to V. as a fact that Nq_ ANSWER: request clearly appellee up No. 5 shows that the cluttering record with irrelevant in- fully knowledge disclosed lack of to carefully his We have considered struments. pellant. Appellant’s Points 1 2 with- and are these Points and under record in the case, merit out and are overruled. we believe them to without merit be
and each are overruled. haveWe likewise appellant’s considered Points Error Nos. Appellant con his Point No. 3 8 and 9 and the same having are overruled for lack tends that “Miller contracted of merit. wells, landowner to drill costs he seeks to recover from Esunas Appellant day had his in court before a damages misrepresentation, for fraudulent against which found him on the facts no financing the source of his constitutes testimony ample hold we to Esunas, defense to and evidence available support jury findings. prejudicial.” thereof was inadmissible and jury’s response Special finding jury finding response representa Issue Issue preclude No. was no No. alone is there sufficient to recovery represented damages by tion a fact that under pleadings core holes in Sec two existed in this evidence case. adjoining question, tion 40 ren the lease in record, no Finding reversible error point ders this In of this immaterial. view judgment trial court is affirmed. finding jury, error, error, if it is suit, it is not material to the outcome of the 434, T.R.C.P.,
and under Rule no furnishes proper basis judgment. for a reversal of the Pride,
Pride v. 318 S.W.2d (Tex.Civ. App.) 1958, history. ad writ Error in
mitting excluding im becomes evidence material where the case does not turn on TEXAS & BELTING MILL SUPPLY is, evidence, excluded or admitted COMPANY, Appellant, where it is not material and does not affect judgment the verdict and rendered. Flores DANIELS, INC., Appellee.
v. Missouri-Kansas-Texas Railroad Com C. R. pany, 365 S.W.2d No. 14754. refused, e.; Ry. writ n. r. Gross v. Dallas Appeals Court Civil of Texas. & Terminal (Tex.Civ. 131 S.W.2d Houston. App.) dismissed, judgment writ cor rect. This Point is overruled. 4, 5,
Appellant by com- his Points and 7 plains required plain- that the trial court give
tiff to defendant the benefit of self-serving additions the answer for admissions; quest permit would not *8 plaintiff testify that the on the was material upon them; not and that he relied would plaintiff explain meaning permit the concluding portion technical exhibit geological report permitting while so; permit defendant to and would do plaintiff exact memory to refresh his figures years five without