Aero Energy, Inc. v. Circle C Drilling Co., C-3728

Citation699 S.W.2d 821
Decision Date06 November 1985
Docket NumberNo. C-3728,C-3728
PartiesAERO ENERGY, INC. et al., Petitioners, v. CIRCLE C DRILLING COMPANY, Respondent.
CourtSupreme Court of Texas

Maurice Bresenhan, Jr., Houston, for petitioners.

Doherty & Williamson, Larry J. Doherty, Sullins & Johnston, Gail Magers, Houston, for respondent.

KILGARLIN, Justice.

This suit to recover damages for breach of contract and fraud resulted in a post-jury trial judgment for Circle C Drilling Company against Aero Energy, Inc., Aero Energy, Ltd., and Coloma Petroleum, Inc. The judgment awarded Circle C damages for breach of contract, attorney's fees, and punitive damages for fraud. Coloma settled with Circle C while the case was pending in the court of appeals. In an unpublished opinion, that court affirmed the judgment against Aero, Inc. and Aero, Ltd. We reverse the judgment as to Aero, Inc. and remand to the trial court for further proceedings. We affirm the judgments of the courts below as to Aero, Ltd.

On May 25, 1981, Coloma executed a joint exploration and development agreement with Aero, Inc., a wholly-owned subsidiary of Aero, Ltd. The purpose of the agreement was to explore and develop oil and gas deposits in an area known as the Allied Program. Coloma was to provide expertise and control of physical operations under the agreement; Aero, Inc.'s responsibility was to finance the operations.

On August 26, 1981, Coloma, pursuant to the agreement, executed a drilling contract with Circle C. The drilling contract obligated Circle C to drill several wells within the Allied Program over a period of one year. Circle C drilled two wells in the Allied Program and drilled one well outside the area for Aero, Inc. On March 4, 1982, Coloma terminated the contract with Circle C. Circle C then brought this suit.

The jury found as follows: (1) that Coloma guaranteed one year of drilling activity to Circle C; (2) that Circle C relied on this representation and leased a drilling rig from Manufacturer's Hanover Leasing Corporation; (3) that Coloma and Aero, Ltd. were joint venturers; (4) that Aero, Ltd. was the alter ego of Aero, Inc.; and (5) that at the time of signing the contract Coloma did not intend to treat the contract as a one year drilling guarantee or to pay early termination compensation per contract terms. The trial court concluded that as a matter of law, Aero, Inc. and Coloma were joint venturers.

In their first point of error, Aero, Inc. and Aero, Ltd. contend that there was no evidence to support the jury's answer to issue fourteen that a joint venture existed between Coloma and Aero, Ltd. No evidence points must be preserved through one of the following procedural steps in the trial court: (1) a motion for instructed verdict; (2) a motion for judgment notwithstanding the verdict; (3) an objection to the submission of the issue to the jury; (4) a motion to disregard the jury's answer to a vital fact issue; or, (5) a motion for new trial. City of Austin v. Daniels, 160 Tex. 628, 335 S.W.2d 753 (1960); Commercial Insurance Co. of Newark v. Puente, 535 S.W.2d 948, 950 (Tex.Civ.App.--Corpus Christi 1976, writ ref'd n.r.e.).

A review of the record reveals that neither Aero, Inc. nor Aero, Ltd. made any of the above motions. While Aero, Inc. and Aero, Ltd. did object to issue fourteen, the Aero, Ltd./Coloma joint venture inquiry, it was not a no evidence objection. The objection to issue fourteen complained that the definition of joint venture was improper, and that "the issue should not be submitted in that ... Aero Energy, Ltd. is not a party to the contract in question, and furthermore, the contract that does exist specifically disclaims any partnership relationship between Coloma Petroleum, Inc. and Aero Energy, Ltd."

A party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection. Tex.R.Civ.P. 274. We hold that the objection to issue fourteen was not sufficient to preserve a no evidence point because the objection did not distinctly point out that ground.

In oral argument, counsel for Aero, Inc. and Aero, Ltd. stated that they had properly preserved error and cited us to Litton Industrial Products, Inc. v. Gammage, 668 S.W.2d 319 (Tex.1984), and Howell v. Coca-Cola Bottling Co. of Lubbock, 599 S.W.2d 801 (Tex.1980). Both cases are, however, easily distinguished.

In Howell, this court was confronted with whether a motion for a new trial was required under Tex.R.Civ.P. 324 in a non-jury case. In refusing the application, no reversible error, we disapproved the language of the court of appeals requiring the complaining party to file a motion for a new trial as a...

To continue reading

Request your trial
125 cases
  • Texas Farmers Ins. Co. v. Soriano, 04-90-00222-CV
    • United States
    • Court of Appeals of Texas
    • November 30, 1992
    ...to a charge must point out distinctly the matter to which he objects and the grounds of his objection." Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822 (Tex.1985), citing TEX.R.CIV.P. 274. "A party is [also] confined to grounds of objection stated in the trial court, and wil......
  • S & A Restaurant Corp. v. Leal
    • United States
    • Court of Appeals of Texas
    • March 14, 1994
    ...legal sufficiency argument in any motion before the trial court, including its motion for new trial. See Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822-23 (Tex.1985); TEX.R.CIV.P....
  • Story Services, Inc. v. Ramirez, 08-92-00320-CV
    • United States
    • Court of Appeals of Texas
    • August 25, 1993
    ...raised without any procedural steps prior to the appeal, but if sustained, the case can only be remanded. In Aero Energy, Inc. v. Circle C Drilling Co., 1 699 S.W.2d 821 (Tex.1985), Justice Kilgarlin said that a no evidence point must be preserved through one of the above four steps or by f......
  • Elness Swenson Graham Architects, Inc. v. RLJ II-C Austin Air, LP, 03–14–00738–CV
    • United States
    • Court of Appeals of Texas
    • May 3, 2017
    ...error for appeal, the argument made in the trial court must comport with the argument made on appeal. See Aero Energy, Inc. v. Circle C Drilling Co. , 699 S.W.2d 821, 822 (Tex. 1985) ; Davis v. Campbell , 572 S.W.2d 660, 663 (Tex. 1978) ; Katy Springs & Mfg., Inc. v. Favalora , 476 S.W.3d 5......
  • Request a trial to view additional results
2 books & journal articles
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Texas DTPA Forms & Practice
    • March 31, 2016
    ...Co. v. Rodriguez, 780 S.W.2d 477, 481 (Tex. App.—Corpus Christi 1989, writ denied), §15.04 Aero Energy, Inc. v. Circle C Drilling Co. , 699 S.W.2d 821 (Tex. 1985), §9.20.4 Aetna Casualty & Surety Co. v. Marshall , 724 S.W.2d 770 (Tex. 1987), §11.03 Aetna Casualty & Surety Co. v. Martin Surg......
  • Trial: Part One Voir Dire to Close of Evidence
    • United States
    • James Publishing Practical Law Books Texas DTPA Forms & Practice
    • March 31, 2016
    ...party’s failure to object. Home Savings Ass’n v. Guerra , 733 S.W.2d 134, 137 (Tex. 1987); Aero Energy, Inc. v. Circle C Drilling Co. , 699 S.W.2d 821, 823 (Tex. 1985). That objection, however, may come as late as an objection to the court’s charge with a question on attorney’s fees. Stewar......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT