Miller v. Esunas, 173

• Decision Date: 27 January 1966
• Docket Number: No. 173,173
• Citation: 401 S.W.2d 150
• Parties: Jeffrey V. MILLER, Appellant, v. Bernard ESUNAS, Appellee. . Tyler
• Court: Texas Court of Appeals

Page 150

401 S.W.2d 150

Jeffrey V. MILLER, Appellant, v. Bernard ESUNAS, Appellee.

No. 173.

Court of Civil Appeals of Texas Tyler.

Jan. 27, 1966.

On Rehearing March 17, 1966.

Second Rehearing Denied April 7, 1966.

Wm. Andress, Jr., Andress, Woodgate, Richards & Condos, Dallas, for appellant.

W. S. Barron, Jr., and Bill E. Brice, Geary, Brice & Lewis, Dallas, for appellee.

DUNAGAN, Chief Justice.

This suit was instituted by appellant Miller against appellee Esunas in the 134th Judicial District Court of Dallas County, Texas. The appellant in Paragraphs 1, 2 and 3 of his first amended original petition and as the basis for his cause of action against the appellee alleges:

'1.

'At all times hereinafter set forth defendant was a Practising petroleum geologist, holding himself out to the public as qualified to give expert opinions on geological conditions and the advisability of drilling oil wells.

'2.

'In the fall of 1957 plaintiff became interested in procuring a lease on Section 39 in Block 4 of the H & T C Railway Company Surveys in Crane County, Texas, from Republic National Bank of Dallas, Trustee, the owner thereof but before entering into any such lease or undertaking any financial obligations in connection therewith, the plaintiff employed defendant to investigate said property and furnish him a report thereon.

'3.

'Thereafter, prior to 1 March 1958, defendant furnished plaintiff a written report, containing among other data the following statements:

"The following geological information was secured in order to classify the acreage as a drillable prospect:

"1. Core Hole Information: (Yates). The Yates Marker was used in contouring this prospect, which resulted in a closed geological feature. At this point the writer wishes to call attention to the importance of a Yates closure in this portion of Crane County, Texas. To date, all structures with a Yates closure have resulted in an oil or gas discovery. For reasons unknown, the Yates structure reflects deeper structures, regardless of the known unconformities that we encountered.'

'Said report also listed the following as possible pay zones:

                " 1. Queens             Approx.  2400'
                  2. San Andres            "     2475'
                  3. Glorietta             "     3500'
                  4. Tubb Zone             "     4200'
                  5. Basal Permian         "     4800-5300'
                  6. Devonian              "     5400' (possibly eroded)
                  7. Silurian-Montoya      "     5500'
                  8. McKee Sand            "     6500'
                  9. Waddell               "     6950'
                 10. Connell               "     7150'
                 11. Ellenberger           "     7300"'
                

'Attached to and a part of said report was a map of Block 4 prepared by defendant with overlays, showing two core holes in the adjacent section 40 with elevations of 990 and 1003 feet. Such report contained a recommendation that a well be drilled to test the Ellenberger lime, approximately 7700 feet deep, at a recommended location of the Northeast quarter of the Northeast quarter of Section 39 of the H & T C Railway Company Surveys, Block 4, in Crane County, Texas.'

Appellant further alleged in said petition that in reliance on such report, he secured a lease on said Section 39 from the Republic National Bank of Dallas, trustee of the Wirt Davis Estate, and that said lease required as a drilling covenant that the plaintiff should drill a well to the Ellenberger lime at the location recommended by appellee in the Northeast quarter of the Northeast quarter of Section 39. That appellant proceeded to drill said well, penetrating the Ellenberger lime to a depth slightly in excess of 7300 feet, without securing any showing or trace of oil and that there was no Yates closure encountered nor did plaintiff encounter the formation of McKee Sand, Waddell, Connell, Glorietta or Queens. That the well was plugged and abandoned as a dry hole at a depth of 7346 feet. As a result of his failure to encounter the Yates closure or the formations reported by appellee as possible pay zones, he proceeded to investigate and was advised by the Railroad Commission of Texas in February, 1959, that no permits had ever been issued by the Railroad Commission of Texas for the drilling of any core holes on Section 40, and that there was no record in the files of the Railroad Commission of Texas showing that any such core holes had ever been drilled.

Appellant's Paragraph 7 of his first original amended petition alleges that:

'The defendant's report, therefore, purportedly based upon core hole information, and purportedly showing the location of core holes, was false, which fact was and must have been known to the defendant when he prepared and submitted his report to the plaintiff, knowing that the plaintiff would rely thereon and incur substantial expense and obligation as a result of such reliance, which plaintiff did.'

In said petition appellant also alleged that in the acquisition of the lease, the arrangements for the financing of the drilling, and the drilling itself, the plaintiff expended the total sum of $102,744.73 which was a total loss to him, and which was caused by the fraudulent misrepresentations of the appellee, and that such sums were reasonably and necessarily expended in such operations, and was the reasonable costs thereof; and that he is entitled to recover such sums, with interest thereon from the time of such expenditure.

This was a jury trial and the case was submitted to the jury on 13 Special Issues. The jury found in its answer to Special Issue No. 1 that appellee did not on or before March 1, 1958, represent to appellant, as a fact, that two core holes existed in Section 40 adjoining the lease in question. This thereby precluded the necessity of answering various conditional Special Issues which were additionally submitted thereon. The jury did further find, however, in its answers to Special Issues 8, 9, 10 and 11 that appellant did not hire or employ appellee to write and compile the geological report, but that they agreed with each other to enter into a joint undertaking for the drilling of the well in question; that such report was furnished by appellee to appellant as a part of such joint undertaking; and that same was not abandoned on or before March 1, 1958.

On the verdict of the jury, the court rendered judgment that appellant (plaintiff below) take nothing by his suit.

At the outset, we are confronted with the question of whether it is disclosed by the transcript that the jurisdiction of this court is invoked.

The judgment disposing of the case on the jury findings was signed on December 2, 1964. If an original motion for a new trial was ever filed and when is not disclosed by the transcript. The transcript does show the filing on December 31, 1964, of an amended motion for a new trial. This was more than 10 days after the judgment complained of by this appeal. The transcript shows that the amended motion was heard, considered and overruled on February 12, 1965.

The notice of appeal appearing in the transcript was filed March 11, 1965. The appeal bond was filed March 11, 1965.

It is elementary that when our jurisdiction is invoked, the transcript must disclose affirmatively that we have such jurisdiction and that if it does not do so, our duty is to dismiss the appeal. 3 Tex.Jur.2d, Section 383, page 641; Needham v. Austin Electric Ry. Co., 127 S.W. 904, (Tex.Civ.App.) 1910, n.w.h.; Selman v. Ross, 302 S.W.2d 752, (Tex.Civ.App.) 1957, n.w.h.

The facts in Selman v. Ross, supra, are on all fours with the facts in the instant case. The facts in that case reveal that the order appealed from was dated May 30, 1956; that the transcript did not disclose the filing of an original motion for new trial but did disclose an amended motion for new trial was filed on June 11, 1956; that the amended motion was heard and overruled on July 19, 1956, and notice of appeal was given in open court on the same day. The appeal bond was filed on August 6, 1956. The court in dismissing the appeal in the Selman case because the transcript failed to disclose affirmatively it had jurisdiction stated:

'It is now well settled that the filing of an original motion for new trial within a ten day period after the rendition of any judgment or order complained of is jurisdictional where the appeal is from an order overruling a motion for a new trial. A later filing is a nullity. Starr County v. Guerra, Tex.Civ.App., 282 S.W.2d 304, albeit such late filing may very well serve as a reminder to the trial court of his power over his own minutes within thirty days after the rendition of any judgment or order. It is true the trial court retains jurisdiction for thirty days after the rendition of any judgment or order to set it aside, with or without the filing of any motion for a new trial, but this fact is not relevant to the requisite steps required to give us jurisdiction even in a nonjury case such as the present, where no motion for a new trial is required for appeal, when the appeal is from the order overruling the motion for new trial as distinguished from the order complained of. * * * (citing cases). It is possible that an original motion for new trial was actually filed sometime before June 11, 1956. It is equally possible that this is not so, or that the original motion, if any, was itself filed as late as June 11, 1956. The facts in this respect, so far as the transcript shows, are speculative.

'* * * If the appeal be considered as one from the order overruling the amended motion for new trial, it is equally evident that there is no affirmative showing that an original motion was filed within the ten day period contemplated by the mandatory provisions of Rule 329--b, Subsection 1, Texas Rules of Civil Procedure, fixing the time allowance for the filing of original motions for new trial.'

As additional authorities, we cite Needham v. Austin Electric Ry. Co., supra; and Hartford Accident & Indemnity Company v. Gladney, 335 S.W.2d 792, (Tex.Civ.App.) 1960, writ refused,...