*1 situation similar to fact This is al., Appellants, Crenshaw, supra. Myers In the et v.
Myers J. M. NAFTALIS case, question asked court the motion except any special disregard all issues al., Appellees. E. RANKIN et Robert Myers case appellant No. 10. insuf- contending that this motion was was 4938. No. (now 301) under Art. Rule ficient Texas, Appeals of Civil Special Number aside Issue court set Eastland. not specifically said issue was because be set aside in the motion. designated to Sept. 1976. rejected the conten- appellant’s Rehearing Denied Nov. held that the motion was sufficient tion and all court to set aside issues the trial given same was except No. 10. This effect appellant’s renewed motion for
by us By asking at
judgment the case bar. judgment render based on
court to 1, 2, 3, appellant, 14 and
Issues effectively, unartfully still re- but
rather disregard the trial court
quested
remaining issues. point error that appellant’s failing to enter court erred
the trial appellant on the verdict
judgment for based law, properly perfect a matter of
as such, with the point of error
ed point and
argument appel- under the argument, empowered to such
lee’s answer judgment which to render that
this Court Rule court should have entered. trial Martin Commercial Stan T.R.C.P. Company, Marine Insurance Fire and
dard (Tex.Sup.1974); Perez
505 S.W.2d Bank, 512
Los Fresnos State 1974, no
(Tex.Civ.App. Corpus Christi — Co., writ); v. Fort Worth Transit Yanowski (Tex.Civ.App. Worth
204 S.W.2d — Fort n.r.e.); Wegen ref’d Lehrer hoft, (Tex.Civ.App . —Gal n.r.e.); writ ref’d Comer v.
veston
Brown, (Tex.Comm’n App.— S.W. adopted). jdgmt. ap- reconsidered all of carefully
haveWe motion for points rehearing. Its
pellee’s
rehearing is OVERRULED. *2 Fillmore, Lee, Camp, Camp
John P.
&
Worth,
appellants.
Fort
Jennings, Jennings, Montgom-
Frank L.
Dies, Graham,
appellees.
ery &
BROWN, Justice.
RALEIGH
Martin,
Naftalis,
Dr. J. M.
Dr. R. D.
Gene
Friedman,
S.
and E. Lisle
F.
sued Robert E.
Corporation
(1)
Permian
impress
a constructive trust
an undi-
vided three-fourths
oil
interest
gas
upon land
situated in
Coun-
Knox
(2)
ty;
recover the net income received
youDo
find from a
three-
to the undivided
attributable
drilling
interest;
that between the time
(3) recover from the
fourths
and Au-
the Melton lease
Corporation,
the Permian
commenced
company,
pipeline
represented
Robert Rankin
suspense.
gust
money held in
he,
Robert
any of
alleged
they and
defend-
Plaintiffs
*3
Rankin,
obtain the Orsak lease
would
ant, Rankin,
partners
mining
in a
became
plaintiffs?
the
and
himself
lease;
that Ran-
in the Melton
partnership
do’ or ‘We do not.’
‘We
Answer
ob-
to them that he would
represented
kin
We do
lease,
lease,
adjoining
the Orsak
ANSWER:
tain an
plaintiffs
at a time when
and
himself
he was a petroleum
testified that
Rankin
they
partners;
that Rankin took
approximately twenty
and had
engineer
21,1974,
name
August
in his
lease on
Orsak
He
in the oil business.
experience
years
plaintiffs;
that Ran-
the exclusion of the
negoti-
and after extended
Dr. Naftalis
met
kin,
Fiduciary,
a
breached a
to the
as
ations,
a
parties entered into contract
so, and, therefore,
doing
a con-
in
plaintiffs
on the Melton lease. After
well
one
drill
imposed
trust should
structive
well,
produc-
a
which was
of the
completion
plaintiffs.
in favor of
lease
Orsak
one-sixth
er, assignments
an undivided
Martin,
Friedman,
Dr.
partner-
denied the existence of a
was made
Rankin
interest
one-
a
Rankin retained
ship
fiduciary relationship
or that he had
Dr. Naftalis.
and
was as-
one-quarter
plaintiffs.
interest and
quarter
with the
drilled
A
well was
Lisle.
second
signed to
jury verdict,
a
en-
judgment
After
was
owners
and each
Melton lease
on the
against
plaintiffs
and in
tered
favor of
part of the
proportional
contributed
Corporation.
Rankin and the Permian
Dr.
expenses
and
in
shared income
Each
costs.
Naftalis,
Martin,
Dr.
Friedman and Lisle
interest.
respective
with his
accordance
appeal.
We reverse and render in
and
operation continued with
This method
part.
reverse
remand in
and
in accordance with
being divided
the income
Appellants argue the
trial court erred
Melton
by each
owned
the interest
overruling
judgment
their motion for
being paid in accord-
expenses
lease
sustaining Rankin’s.
It is their contention
operated
ratio. Rankin
the same
ance with
the evidence established and the
found
invoices,
lease,
billing the in-
preparing
fiduciary duty,
a breach of
and that such
deposits.
owners,
making bank
terest
findings justified
imposition
of a con-
account,
drew a check for
he
$200
this
From
structive trust on
Orsak lease.
managing the
compensation for
a
month
met from time to time
support
argument, appellants
In
of this
lease. The
special issues one
of the Melton lease.
point
operation
to the answers to
consider
which,
three,
are:
the second well on
May
On
1.
“SPECIAL ISSUE NO.
at
time
completed,
was
which
Melton
a
of the
you
having
Do
find from
everyone
account with
joint
bank
August,
in the month
it
write checks on was estab-
authority to
Martin,
D.
M. Naf-
Richard
Jerome
was called the “Melton
The account
lished.
Lisle,
Friedman,
talis,
Tooker
Gene S.
Lease Account”.
jointly engaged
Robert Rankin
he
maps
Rankin admitted that one
operating
the Melton
the business
plaintiffs
the deal to
had circled
to sell
used
lease, sharing
expenses
ac-
income
and had
of the Orsak lease
location
in red
cording
ownership interests
to their
word,
Dr.
to it the
“location”.
printed next
such lease?
well
testified that after
second
Naftalis
do,’
‘We
or ‘We
not.’
Answer
do
lease, plaintiffs
on the Melton
drilled
We do
ANSWER:
concerning
Rankin
with
discussions
had
lease,
Orsak
and Rankin
acquisition
“SPECIAL ISSUE NO.
agreed
get
he would
“.
.
the Orsak lease for
.
distinction can be
drawn
group
owing
he
between the duties
by partners
when
found Mr. Orsak was in the
owing by joint
and those
right mood. Such discussions
adventurers.
continued af-
Duncan,
et
Thompson
al. v.
August
ter
Tex.Com.
the date Rankin
904;
App., 44
Bray,
Paddock v.
obtained the Orsak lease in his name.
419;
Tex.Civ.App.
88 S.W.
Griffin v.
testimony
Lisle confirmed the
of Dr. Naf-
al.,
242;
Reilly et
Tex.Civ.App., 275 S.W.
talis that
told the group that he
Meinhard
Salmon
N.Y.
[249
would obtain the Orsak lease for all the
545], supra.”
N.E.
parties, and
their names.
Hull,
In
Tex.
Fitz-Gerald v.
Each of the other
testified that
(1951),
court stated:
21, 1974,
August
after
when asked about
“
joint
‘The
between
adven-
lease,
would tell them
turers,
existing
part-
like that
between
*4
with,
that Mr.
to
difficult
deal
ners,
character,
fiduciary
impos-
is
he,
for them to leave Orsak alone and that
obligation
all the
participants
es
Rankin,
get
would
them.
joint
loyalty
to the
concern and of the
faith, fairness,
first
good
must
determine whether
honesty
a fidu-
utmost
ciary
dealings
relation existed.
other
their
with each
with
respect
pertaining
to matters
to the en-
parties
The
jointly considered and
terprise. This is
true of
especially
those
proper development
discussed the
transaction,
to whom the conduct of the
Melton lease. Rankin admitted that
therein,
property
or
in-
involved
is
parties
jointly engaged
in the produc
regarded
trusted.
a
will
Such
be
lease,
tion of
from
oil
the Melton
sharing
permitted
will
a trustee and
to
expenses
income and
any
in accordance
unfair
enjoy
advantage
with
because of
ownership
their
or
possession
joint
interests. The
jury
prop-
con
control of
is
erty.
firmed
facts in
The mere fact that his
such
answer to the
intrusted
first
rights of
special
with the
his coadventurers im-
issue.
poses
guarding
on him
Lorino,
in Holcombe v.
124
own,
rights equally with his
is
he.
446,
(1935),
Tex.
S.W.2d 307
79
stated:
account
to his
required
strictly
coad-
general
“.
The
.
.
rule with respect
venturers;
and if he is recreant
to his
joint
adventures is stated in 33
p.
C.J.
trust,
rights
any
they may be denied are
841, as follows:
recoverable.’ 30 Am.Jur. ‘Joint Adven-
joint
‘A
adventure has
aptly
been
defined
695,
turers,’ p.
Sec. 34.
“special
as a
of two
combination
or more
adventure,
engaged
joint
‘Persons
a
persons,
specific
where
some
venture a
relationship,
or about to assume such
owe
profit
jointly sought
is
any
without
actu-
good
to each other the
faith
utmost
’
partnership
corporate
al
designation.”
scrupulous honesty.
the most
Lind v.
Webber,
623,
461,
“The
is
36 Nev.
134 P.
135 P.
rule
also defined in 25 Texas
L.R.A.,N.S., 1046,
141 P.
50
Jurisprudence, pp.
Ann.
159 and
in the
Cas.1916A, 1202.’”
language:
following
‘It is constituted by
special
persons
a
combination of
in the
special
We hold
issue one established that
a partnership
particular-
nature of
—more
parties
engaged
joint
in a
venture
special
ly,
partnership
a limited
and, therefore, a fiduciary relationship
—en-
ex
gaged
joint prosecution
partic-
in the
of a
Melton
isted as to the
lease. Fitz-Gerald v.
ular
transaction
mutual benefit of Hull, supra; Maykus
City Realty
v. First
”
profit.’
Corporation,
and Financial
897
trust,
Hull, supra;
v.
Omohun
Fitz-Gerald
lease,
such
terminated because
Matthews,
341
dro v.
Tex.
S.W.2d
disagreements
and controversies
is
con
(1960),
imposition
nor
a
during
the drill-
arose between
a violation of
trust
the Statute
structive
two wells on the lease. We
ing
Matthews, supra;
Omohundro v.
Frauds.
disagree.
Bailey,
(Tex.
S.W.2d
Dorbandt
Peckham, supra,
court in Johnson v.
e.);
writ
n.
Civ.App.-Tyler
ref.
r.
said:
Drilling Corporation,
v. Delaware
Burket
rela
persons
“When
enter into
(Tex.Civ.App.-El
Paso
law,
consents, as a matter of
tions each
dism’d).
meas
his conduct towards the other
finding argues
loyal
by the
of the finer
ured
standards
special
only
issue three
at most
equity. That
ties exacted
courts of
finding
agreement
there was an oral
should not be
sound rule and
whittled
express
convey
create an
trust
by exceptions.
If
down
the existence of
property.
interest in real
He cites Consoli-
strained relations should be suffered to
Equipment Company
dated Gas
exception,
designing
then a
fidu
work an
Thompson,
Tyra
supra;
America
bring
rela
ciary
easily
could
about such
Woodson,
Winn,
supra; Rogers
stage
sharp bargain. . ."
for a
tions
set
(Tex.Civ.App.-San
Antonio
e.);
Davis,
n. r.
and Karnei v.
writ ref.
*5
Although
may
strained
have ex-
relations
439 (Tex.Civ.App.-Corpus Christi
S.W.2d
joint
the parties,
between
the
venture
isted
1966, writ),
proposition
for
that such
the
prior August
not been terminated
had
of
agreement violates the Statute
oral
Therefore,
fiduciary relationship
the
Frauds and the Texas Trust Act. The cited
the time Rankin obtained the
existed at
distinguishable because in those
cases are
name.
Orsak lease in his
relationship
no fiduciary
there was
cases
agreement
apart
and
from the
made
before
jury
special
The
found in
issue three Ran-
of
the basis
the suit.
agreed to obtain the Orsak lease for
kin
plaintiffs
drilling be-
himself and the
after
Bolin,
(Tex.Civ.
Smith
352
S.W.2d
gan on
Melton lease and before he
the
App.-Fort
affirmed in
Worth
urge
Appellants
lease.
obtained the Orsak
part),
reversed and remanded
153 Tex.
together
finding
with the existence of
this
(1954),
271 S.W.2d
S.W.2d
relationship
fiduciary
the
creates in their
(Tex.Civ.App.-Fort
Worth
trust,
e.),
favor a constructive
and thus
avoids
r.
cited
also
ref. n.
Rankin is
distin-
Frauds,
application of the Statute
the
guishable
the
from
case at bar.
In Smith a
26.01,
Com.Code, Ann.,
fiduciary relationship may
Tex.Bus. &
existed but
Section
Act,
agreement
acquire
addi-
Art.
there was no
Texas Trust
7425b-7. We
for
properties
the benefit
all.
tional
agree.
a
jury findings
hold
establish
apply
rule that for a
Our courts
relationship (the joint venture) be
fiduciary
trust
to arise there
be a
constructive
must
agreement (to
apart from the
ob
fore and
apart
before
fiduciary
parties)
tain the Orsak
made
made
agreement
the basis
from
suit,
justify
impo
this
and thus
basis of
Bierschwale,
suit. Meadows
trust on
sition of
constructive
Equip
(Tex.1974);
Gas &
Consolidated
Frauds nor
Neither
Statute of
lease.
(Tex.
justified believing that the defendant right rial and do not defeat their recov- would act in the mutual interest of the They argue ery. negative responses are plaintiffs and the defendant? findings no fiduciary relationship that Answer: ‘We do’ ‘We do not.’ existed between the and contend ‘We do not.’ ANSWER: that once the relationship is estab- SPECIAL ISSUE NO. 5 lished, impeached it cannot be destroyed, jury because a failed to find appellants that you preponderance Do find from a justified believing that Rankin the evidence that defendant acquiring would act the mutual benefit of the Orsak Lease himself amounted to parties or that Rankin’s acts amounted an abuse of the relationship inquired relationship. an abuse of the Special about in Issue No. 4? do,’
Answer: ‘We
issues, 4, 5, 6, 8,
‘We do not.’
responses
special
interpreted
findings
and 9 cannot be
‘We do not.’
ANSWER:
fiduciary relationship
did not exist.
SPECIAL ISSUE NO. 6
As stated
the court in
R.
C. & Trans
you
Do
find
from
Campbell,
(Tex.
port, Inc.
every
by argu-
be
it are not to
taken
constitute
upon
The absolute
disclose was
Nothing
sup-
can be
ment or inference.
’”
dealing
not
Peckham. The
.
.
intendment
.
plied by
length,
with each other at arm’s
Burleson,
early
of Burleson
In the
case
Johnson
issue
whether
relied
(1866), the rule was stated:
Tex. 383
discharge
high duty
Peckham
pais is to
estoppel
“The
an
effect
court,
inquiry. The
not a material
trial
unequivocal
the assertion
prevent
conclude,
refusing
we
not err in
did
defense,
good
preclude a
right, or
re-
jury
special
to the
issues
submit
it
be
should not
justice demands
in error
quested
defendant
Peckham.”
every
unless substantiated
enforced
added)
(Emphasis
Barb.,
ground
(12
1287.) The
particular.
justified in
appellants
Whether
estoppel proceeds
upon which
act
believing that Rankin would
constructive,
fraud,
on the
actual
failed
mutual interest or whether
sought
estopped.
person
Rankin’s actions amounted to
to find that
suggestion
of a
amount
What will
relationship between the
an abuse
truth,
falsehood,
suppression of the
or the
exist
parties material
view the
cases;
all
determine in
may be difficult to
ing fiduciary relationship. Rankin had the
turpitude,
inexcusable
some
but some
establishing the
burden of
“fairness” of
motive,
direct
wrong, that constituted the
*7
appellants.
v.
transaction
the
Allen
purchase,
outlay
the
or
is nec-
or induced
Liberty
Company,
Life Insurance
522
Great
acquiescence
or
essary
give silence
(Tex.Civ.App.-Eastland
247
S.W.2d
pais. Hence,
estoppel
an
force of
e.);
also,
County
r.
Stephens
writ ref. n.
see
of the title on
ignorance of the true state
Museum,
Swenson,
Inc.
517
257
v.
S.W.2d
part
purchaser
must concur
(Tex.1974).
misrepresentation or conceal-
with willful
responses
We hold
to these issues
person estopped.”
on
ment
judgment. They
no
nei-
furnish
basis
expressed
“The true doctrine is well
destroy
the established
rela-
ther
an.
Story’s Eq.,
apply
386. In order to
§
tionship nor establish that Rankin dis-
estoppel,
party
it is
that the
indispensable
charged
fiduciary.
his
as a
standing by
concealing
rights
his
them,
fully apprized
should be
of
pled
estoppel
found
should, by
gross neglect,
his
against
conduct or
by
appellants.
silence
Penn,
encourage
purchaser;
v.
151
or influence the
court in Gulbenkian
Tex.
rights,
(1952)
wholly ignorant
929
his
or
said:
if he be
of
252 S.W.2d
900
them,
purchaser
acts,
know
or if his
Atteberry,
v.
105 Tex.
can be
or forfeited only
such
fatal. Concord Oil
is
Co. v. Alco Oil &
as would make it
conduct
fraudulent and
Corp., Tex.Sup., 387
Gas
S.W.2d 635
against conscience to assert them.”
Dean,
(1965); Grinnan v.
Smith 426 S.W.2d party claiming “A estoppel an must have (Tex.1968) 834 as follows: diligence due used ascertain the truth can estoppel “There be no party when the matters which he relies in claiming estoppel ‘conducts himself acting Champlin to his detriment. Oil & with careless indifference to means of Refining Chastain, Tex.Sup., Co. v. 403 reasonably information at or ig- hand (1965); 376 S.W.2d Houston T. C. R. & highly suspicious nores circumstances Milling (Tex.Civ.App., v. Paris Co. Co. should which warn him of danger loss.’ or 1922), 240 S.W. no writ. One of the 71b, 435; Estoppel page C.J.S. City § requirements estoppel party is that Tyler 1954), Bruck (Tex.Civ.App., claiming estoppel was without knowl- writ ref. S.W.2d n. r. e.” edge, acquiring or the means knowl- edge, of the party facts which the to be Appellants urge there that is no evidence is estopped alleged represented to have support essential elements of the defen- acts, theory. Richey conduct silence. agree. sive Miller, 142 Tex. Company Concord Oil Arnim, Page (1867); (1944); 29 Tex. Aleo Oil and Gas Corporation, 387 S.W.2d (Tex.Civ. v. W. Life Hunt O. W. Ins. Soc. (Tex.1965), following: included the 1941), App., “ writ refused. burden proving ‘The an estoppel, and ‘[Wjhere the real facts were known to a thereof, the essential on elements open for person or were his convenient party asserting it.’ 31 Estoppel C.J.S. ascertainment, justified was not he 160a, p. 765. § representation pertaining on relying ‘Estoppel ordinarily regarded as af- effectively say and he cannot thereto matter; firmative and under rule repre- deceived such was misled or he he who has the affirmative of the 71b, Estoppel 31 C.J.S. § sentations.’ has proof, issue the burden of Dean, also Grinnan v. page See asserts, claims, invokes, who or who (Tex.Civ. (1884); Logan v. Aiken Tex. on, an alleges estoppel relies has 1939), App., dis- it, establishing or all of burden missed, judgment correct.” necessary or elements con- the facts it, or it grounds stitute which showing There is fraud or any any rests, prove and the failure to one misrepresentation by appellants which constituting of the elements more prevent knowing the would Rankin from has been fatal. estoppel declared obtaining effect legal of his *8 opponent relying The of during rela existence required estoppel to show the an tionship parties. between the Rankin could ele- any component of of its absence appellants made of to their inquiry as have pp. Idem 765-767.” ments.’ individually obtaining acquiescence his v. Howard M. Barfield to lease. The record fails show the Orsak Amarillo, Company supra, said: Smith appellants prevented which any act Ran estoppel, knowing can be the basis an truth about their kin from “Silence speak. is a Burnett acquiescence. where there fiduciary relationship pleaded Plaintiffs Rankin, having showing the burden of and the defendant estoppel between them elements are existed the essential that abused any defendant representation must show that and present Lease for himself. by the Orsak appel- acquiring a material fact or concealment knowledge or the his lants was without to the issues referred to answers The knowledge such fact. acquiring means of finding did not defendant constitute showing. such a has failed make plaintiffs. I relationship with abuse rehearing sustaining grant the motion Ran- would erred The trial court judgment. disregard special issues one affirm the kin’s motion findings in re- jury’s and three thereto, failing judg- to enter a
sponse trust in favor imposing a constructive
ment the extent of an undivided appellants in the lease. interest Orsak
three-fourths is reversed and rendered judgment Naftalis, Martin, and Lisle Friedman undivided three-fourths in- title pro- Appellants’ lease. in the Orsak
terest ownership in the Orsak
portionate respective owner- be the same their
shall lease.
ship in Melton cross-point urges that if By CHAMBERS, Independent Execu- John T. an interest in the appellants be awarded Chambers, N. the Estate of Carl tor of lease, recovery be re their should Sr., Deceased, Appellant, proportionate by duced their share acquiring, Rankin in drill costs incurred ing, developing, operating and equipping, Peggy (Noblin) et CHAMBERS producing Appellants such lease. in their al., Appellees. expressed willingness pay pleadings may No. such sums as be determined 18997. equitable. unable to are Texas, Appeals Civil determine those costs with exactness from Dallas. We, therefore, reverse and re
the record. proportionate mand for determination Sept. 1976. Naftalis, share of costs to be borne Mar Rehearing Denied Oct. tin, Friedman and Lisle. Rule T.R.
C.P.;
Life and Accident Insurance
National
Blagg,
(Tex.
Company
1969). judgment is reversed rendered in part. and remanded in
part and reversed FOR REHEARING
ON MOTION
WALTER, (dissenting). Justice respectively
I dissent. Issues 6,5, jury’s
Number copied majority opinion are
answers is made to them.
and reference