Hauglum v. Durst

• Decision Date: 30 March 1989
• Docket Number: No. 13-88-065-CV,13-88-065-CV
• Citation: 769 S.W.2d 646
• Parties: Tony HAUGLUM and Patricia Hauglum, Appellants, v. Lee A. DURST, Jr., Durst Oil Company, Barbara A. Durst, & Durst Exploration Company, Appellees.
• Court: Texas Court of Appeals

Page 646

769 S.W.2d 646

Tony HAUGLUM and Patricia Hauglum, Appellants, v. Lee A. DURST, Jr., Durst Oil Company, Barbara A. Durst, &amp Durst Exploration Company, Appellees.

No. 13-88-065-CV.

Court of Appeals of Texas Corpus Christi.

March 30, 1989.

William Robert Anderson, III, Michael E. Tomlin, Sorrell, Anderson & Lehrman, Corpus Christi, for appellants.

David A. Sibley, M.W. Meredith, Jr., Meredith, Donnell & Abernethy, Richard B. Stone, Stone & Mays, Corpus Christi, for appellees.

Before UTTER, KENNEDY and BENAVIDES, JJ.

OPINION

UTTER, Justice.

Appellants Tony Hauglum, doing business as South Texas Oil & Gas Consulting, and Patricia Hauglum brought suit against appellees Lee A. Durst, Jr., Barbara A. Durst, and their respective companies, Durst Oil Company and Durst Exploration Company, for the breach of a fiduciary duty arising from a written contract. Appellants sought an award of damages and the placement of a constructive trust against various property interests allegedly being wrongfully withheld from them. Appellees Lee A. Durst and Durst Oil Company counterclaimed, alleging assault and false imprisonment, breach of contract, and interference with contractual rights. These appellees further sought to remove cloud on title and requested actual and exemplary damages on the various claims. Appellees Barbara Durst and Durst Exploration Company counterclaimed to quiet title and sought actual and exemplary damages for "cloud on title."

After appellants rested their case, the trial court granted appellees Barbara Durst's and Durst Exploration Company's motion for instructed verdict against appellants. The remaining causes were submitted to the jury. Based on jury findings that appellees Lee Durst and Durst Oil Company did not breach any "confidential duty" owed to appellant Tony Hauglum by acquiring interests in various prospective wells, the trial court ordered that appellants take nothing by their causes against appellees Lee Durst and Durst Oil Company. Appellee Lee Durst recovered the following from appellant Tony Hauglum on his counterclaims: $5,000.00 in damages for cloud on title, $3,000.00 in compensatory damages for breach of contract, and $53,035.48 in attorney's fees arising out of and caused by appellant Tony Hauglum's breach of contract. Appellees Barbara A. Durst and Durst Exploration Company recovered $35,400.00 in actual and exemplary damages from appellant Tony Hauglum on their counterclaim for cloud on title. We affirm in part and reverse and render in part.

The record reflects the following facts. On January 23, 1982, Hauglum signed a letter agreement in which he agreed to render geological and geophysical services to Lee Durst. Basically, under the letter agreement, Hauglum evaluated and recommended oil and gas prospects designated by Lee Durst and in exchange, received a monthly retainer of $250.00. Hauglum also received additional money and interests in those oil and gas prospects which were sold to another operator or promoted to a group of investors by Durst. The agreement allowed Hauglum and Lee Durst to agree and define an "area of mutual interest" in the immediate vicinity of evaluated land recommended as an oil and gas prospect. If Hauglum and Lee Durst so defined and agreed to an "area of mutual interest," the agreement provided that Hauglum would receive an interest in any oil and gas leases acquired by Lee Durst within the "area of mutual interest." However, no "area of mutual interest" was ever defined or agreed to.

After the above agreement went into effect, Hauglum became unhappy with the amount of his compensation. Hauglum orally requested to amend their agreement and later submitted an amended letter agreement dated August 18, 1982. Durst refused to change the original agreement. Later, Hauglum picked up Durst, drove out to a deserted country road, and threatened to sue Durst, his sister, his father, his investors and everyone with whom he worked with. Durst further stated that Hauglum said that he (Hauglum) was mad enough to smash Durst's face in, but did not do so. He then drove Durst back to town but told him he had better have an amended agreement on his desk by noon the next day. A few days later, Durst wrote Hauglum a letter terminating any relationship they had together.

Hauglum subsequently brought suit against Lee Durst, Barbara Durst and their respective companies. Hauglum sought to receive an interest in various wells in the Bryan-Woodbine field based on the fact that Lee Durst had received an interest in oil and gas prospects in that field from his sister, Barbara Durst. Hauglum alleged that appellees failure to convey an interest to him as required by the letter agreement constituted an abuse of fiduciary duty based on the working relationship between Durst and Hauglum, and that Barbara Durst had, by her actions, assumed this agreement.

By their seventeenth and eighteenth points of error, appellants contend the trial court erred in failing to award judgment to Hauglum for his 1.125% interest in the Perkins Yeager, Smyth No. 1, Cheapside No. 1, Bowie, Cotton Compress, Oak Grove, Lopez, Polly Ranch No. 2, Phillips No. 1, Austin High School, Harper Westside, and Becker-Duncan Wells. Appellants argue that the overwhelming weight and preponderance of the evidence shows that appellants were entitled to said award as a matter of law.

A point in a motion for new trial is a prerequisite to a complaint on appeal that the jury finding is against the overwhelming weight and preponderance of the evidence. Friedman v. Houston Sports Assoc., 731 S.W.2d 572, 575 (Tex.App.--Houston [1st Dist.] 1987, writ ref'd n.r.e.); Tex.R.Civ.P. 324(b)(3). Appellants failed to properly raise the above points in the trial court and may not do so for the first time on appeal. Moreover, we have carefully reviewed the record and hold that the judgment was not contrary to the overwhelming weight and preponderance of the evidence. We overrule appellants' seventeenth and eighteenth points of error.

By their nineteenth point of error, appellants complain that the trial court erred in granting Durst's motion for instructed verdict because there was sufficient evidence to show Hauglum was entitled to at least a 1.125% interest in all the Bryan-Woodbine unit wells owned by Barbara Durst.

In reviewing an instructed verdict, the appellate court must determine whether there is any evidence of probative force to raise fact issues on the material questions presented. Conaway v. Roberts, 725 S.W.2d 377, 379 (Tex.App.--Corpus Christi 1987, writ denied); Sullivan v. Methodist Hospitals, 699 S.W.2d 265, 274 (Tex.App.--Corpus Christi 1985), writ ref'd n.r.e. per curiam, 714 S.W.2d 302 (Tex.1986). All of the evidence must be considered in the light most favorable to the party against whom the instructed verdict was granted, and all contrary evidence and inferences must be disregarded. C.S.R., Inc. v. Industrial Mechanical, Inc., 698 S.W.2d 213, 217 (Tex.App.--Corpus Christi 1985, writ ref'd n.r.e.); Blaeser Development Corp. v. Aldridge, 664 S.W.2d 830, 831 (Tex.App.--Corpus Christi 1984, no writ).

Hauglum entered into a letter agreement with Durst in which Hauglum was to provide geological and geophysical consulting services to Durst. Neither Barbara Durst nor her corporation, the Durst Exploration Company, were a party to that agreement. Durst subsequently acquired two leases based on Hauglum's recommendations, both of which were located in what is now called the Bryan-Woodbine unit. Barbara Durst, whose interest in the Bryan area began in the summer of 1981, was instrumental in obtaining one of these leases, the Con-Tatum, from Sanchez O'Brien. She had an employee who had worked for O'Brien at one time, and she offered to send that employee over to talk with O'Brien about a possible farmout. After her employee spoke with O'Brien, Lee Durst acquired that lease and sold it and one other, the Otis Brown, to Lyons Petroleum for $49,600.00 in May of 1982. Hauglum received a twenty-five percent interest, and Lee and Barbara Durst split the remainder. No operating or managing agreement between Lee and Barbara Durst existed in the Lyons Petroleum transaction. Rather, the only service she provided was an employee contact. Further, she was not a party to the above splits but merely received a check and statement of expenses after she went to Bryan.

Lee Durst thereafter consulted with Hauglum on further prospects in the Bryan-Woodbine field, including the Perkins-Yeager and Becker-Duncan units around May or June of 1982. It was disputed whether Hauglum was consulted regarding other units in that field.

Barbara Durst was also acquiring leases in that field after May of 1982. However, she was consulting her own geologist. All of the leases she acquired in that field were put in the name of her corporation, the Durst Exploration Company. After she began acquiring leases, however, the individual working interest owners, including herself, entered into a management agreement with Lee Durst's company, the Durst Oil Company, concerning the leases they were acquiring. Specifically, the Durst Oil Company was to receive and disburse distributions and receive joint interest billings from the individual operators and bill them out to the working interest owners. Each of the investors signed the management agreements with the Durst Oil Company. Lee Durst informed Barbara Durst that he might incur an in-house obligation for which he might need a 1.125 percent overriding royalty interest, but he did not specify who it was for or what their profession was. Further, it is undisputed that Hauglum and Barbara Durst had no direct business dealings together and that she never personally promised or agreed that Hauglum was to receive any type of mineral interest in her Bryan area acquisitions, nor personally promised to pay him any type of commission for geological services which he might render in the Bryan area....