v.
FMF ASSOCIATES 1990-A, LTD., ET AL.
IN THE SUPREME COURT OF
════════════
No. 03-1066
════════════
Arkoma Basin Exploration Company, Inc., et al., Petitioners,
v.
FMF Associates 1990-A, Ltd., et al., Respondents
════════════════════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fifth District of
════════════════════════════════════════════════════
Argued December 1, 2005
Justice Brister delivered the opinion of
the Court in which Chief Justice
Jefferson, Justice Hecht, Justice Wainwright, Justice Green, Justice
Justice O’Neill filed a concurring and dissenting opinion.
Eight
Based on
We granted Arkoma’s petition to
consider whether there was legally sufficient evidence of fraud under
I. Evidence of Fraud: Statement of Fact or Opinion?
Arkoma argues that its reserve
estimates are immune from any fraud claim under
The parties agree that reserve estimates do not attempt to calculate the volume of gas underground, but the volume that can be economically produced from a reservoir in the future.[5] As a result, reserve estimates inherently include analysis and assumptions about future events.
But the line between these
categories is not as clear as one might expect from these statements.
We have not, however, established a bright line test to ascertain whether false representations constitute matters of opinion or statements of fact. Rather, each case must in a large measure be adjudged upon its own facts, taking into consideration the nature of the representation and the meaning of the language used as applied to the subject matter and as interpreted by the surrounding circumstances. . . . It is not always an easy matter to determine whether a given statement is one of fact or opinion. The relative knowledge of the parties’ dealing, their intentions and all of the surrounding circumstances, which can only be gathered from the evidence, affect the interpretation which the courts put upon the representations in determining whether they be of fact or opinion.[8]
Thus, in some circumstances
Similarly, statements about future
events may constitute fraud under
Applying these principles to this case, there is no question Arkoma had superior knowledge about likely reserves, as it was hired for precisely that reason. Arkoma represented that its database was “without equal” and “unique” in its ability to combine geologic, engineering, and economic data to assess the potential value of mineral properties.
But Arkoma’s reserve estimates cannot all be treated alike because their nature and the circumstances surrounding them were very different. The reserves prepared for two partnerships — 1988-B and Lazare — concerned mineral interests in the Wilburton field, a mature field where scores of wells had been producing natural gas since 1960. Here, Arkoma estimated production from anticipated “infill” wells drilled between existing wells for which there was a long track record of production. Experts testified that these wells could reasonably be expected to produce from the same strata at similar historical rates, and that reserve estimates in this area could not reasonably vary by more than 10 or 15 percent. Yet there was clear and convincing evidence that Arkoma’s estimates assumed that infill wells would last far longer, be much more productive, and yield 200 to 300 percent more than nearby existing wells had ever produced.
By contrast, Arkoma’s reserve
estimates for the remaining six partnerships concerned mineral interests in the
South Panola field, a new field in which there had been little drilling or
production. Interests here were purchased “ahead of the play” — in areas where
minerals had not yet been found, but might be. The plaintiffs’ own expert
conceded there was less than a year of production history anywhere in this
field, and that an entirely different method of calculating reserves had to be
used because no one knew how much wells in this area might eventually produce.
Further, while he characterized drilling in the Wilburton field as “low risk,”
he characterized that in
Our conclusion that reserve estimates
in these two fields must be treated differently is supported by DeJarnette v. Thomas M. Brooks Lumber Co., in
which a seller’s estimate that standing timber would produce three million
board feet of lumber was held to be a statement of opinion rather than fact.[14] The opinion did not suggest that
estimates of natural resources must always be one or the other; to the
contrary, it turned on specific evidence in that case that the buyer knew the
seller’s estimate was not based on a detailed survey, and had made his own
inspection with an experienced “timber cruiser” before buying. By focusing on
how rough or specific the parties thought the defendant’s estimate was,
We disagree with the dissent that
Accordingly, we reject arguments
that
II. Evidence of Damages: Preservation and Legal Sufficiency
Arkoma also challenges the legal
sufficiency of the damages evidence. For the reasons stated above, we restrict
our review to the two partnerships who proved fraud.
They argue Arkoma failed to preserve this error in the trial court because
Arkoma’s no-evidence objection (1) did not specify why the evidence was legally
insufficient, and (2) was not raised before or during trial. As these preservation
points concern procedural matters,
To assert a no-evidence complaint in this Court, a party must preserve error in both the trial court and the court of appeals.[18] The court of appeals held that Arkoma’s objections in the trial court were not “specific enough to call the trial court’s attention to the precise lack of sufficiency asserted on appeal.”[19] We disagree, for two reasons.
First, Arkoma’s post-trial motion explicitly asserted that “there is no evidence . . . to support the jury’s answers to each part of Question 4,” the damages question. Generally, a no-evidence objection directed to a single jury issue is sufficient to preserve error without further detail.[20] Thus, as Justice Calvert wrote for this Court 50 years ago, while a single such objection to all 79 jury answers is too general, the same objection addressed to each individual issue is adequate.[21] Several commentators suggest this is precisely what careful practitioners should do.[22]
Second, the cardinal rule for preserving error is that an objection must be clear enough to give the trial court an opportunity to correct it.[23] Here, the trial judge not only had that opportunity, he took it. The trial judge conducted a post-trial hearing on the sufficiency of the damages evidence, received letter briefs on the issue, and wrote a four-page single-spaced letter granting remittitur. Though damages were not reduced as much as Arkoma had hoped, there is no question the trial court was aware of its objection.
Of course, stock objections may not always preserve error. If a single jury question involves many issues, it is possible that a general objection may not tell the trial court where to start.[24] But post-trial objections will rarely be as detailed as an appellate brief because time is short, the record may not be ready, and the trial court is already familiar with the case. In that context, an objection is not necessarily inadequate because it does not specify every reason the evidence was insufficient.[25] Like all other procedural rules, those regarding the specificity of post-trial objections should be construed liberally so that the right to appeal is not lost unnecessarily.[26] We hold the court of appeals erred in holding that Arkoma’s objection was too general.
It is a closer question whether Arkoma had to object to the damages evidence during trial. It was the partnerships’ burden to prove damages by expert testimony, as the value of mineral reserves is not a matter of common knowledge.[27] Texas law requires an objection to expert testimony before or during trial if the objection “requires the court to evaluate the underlying methodology, technique, or foundational data,” but no objection is required if the complaint “is restricted to the face of the record,” as when the complaint is that an opinion was speculative or conclusory on its face,[28] or assumed facts contrary to those on the face of the record.[29] Of course, some objections will fall close to the line between these categories. But we need not categorize Arkoma’s objection, because even if no objection was necessary the expert testimony here was legally sufficient.
The 1988-B and Lazare partnerships called Michael Harper, a petroleum engineer, to calculate the amount by which reserves were fraudulently inflated. Arkoma does not object to the volumes he estimated for the exaggerated reserves; its sole challenge is that when Harper multiplied those volumes by prices, he failed to discount the total.
Arkoma’s argument assumes Harper was using the income approach to value without saying so. In that approach, estimated future income is discounted by a capitalization rate (reflecting both risk and the time value of money) to reach a present value.[30] Arkoma argues that no reasonable jury could credit testimony that a risky return of $100 in the future had a fair value of $100 now.
But Harper never purported to use the income approach. While his testimony about his calculations was cursory, a demonstrative exhibit shows that he believed the price reasonable investors would pay for mineral interests was the total dollars they expected to receive in the next eight years without any adjustment for risk, inflation, or interest rates. Although his calculations did not include an explicit discount rate, they included an implicit return for risk and interest because the wells here were expected to produce for substantially more than eight years. While failing to use an explicit discount rate might undermine expert testimony in other cases, we note that “payouts” in the oil and gas business are often calculated in precisely this manner.[31]
Arkoma is certainly correct that Harper’s testimony could have been a lot clearer; his references to “up here” and “right there” on slides and posters used at trial often make it hard to tell what he is talking about. But we cannot say on this record that his opinions were unreliable or speculative. Nor were they conclusory as a matter of law; Harper did not simply state a conclusion without any explanation,[32] or ask jurors to “take my word for it.”[33] It is true that without the foundational data in the appellate record, we cannot confirm that “cash off my runs . . . divided by mcf” yielded the $1.62, $1.41, $1.43, and $1.59 prices he calculated as the low range for damages. But experts are not required to introduce such foundational data at trial unless the opposing party or the court insists.[34]
Accordingly, we reject Arkoma’s claim that evidence of the damages suffered by the 1988-B and Lazare partnerships was legally insufficient.
III. Deadlines for Appeal: From Judgment or Remittitur?
In its original judgment, the trial court reduced the jury’s damages verdict for the 1988-B partnership to $2,090,000 and for Lazare to $930,000, a matter they never appealed. But they did challenge by cross-appeal the trial court’s remittitur reducing damages further to $1,302,302 for 1988-B and $579,492.76 for Lazare. The court of appeals reversed the remittitur and reinstated the former amounts.[35] Arkoma asserts the court had no jurisdiction to reinstate anything because the partnerships’ cross-appeal was two days late.
The trial court’s original judgment was signed January 29, 2002. Arkoma’s motion for new trial extended the time for appeal to April 29th, 90 days after judgment.[36] When Arkoma filed its notice of appeal on the last possible day, the deadline for a cross-appeal was further extended an additional 14 days to May 13th.[37] The partnerships filed two days later, May 15th.
But the partnerships argue their cross-appeal was timely because the original judgment was modified by remittitur. “If a judgment is modified in any respect,” appellate deadlines do not run from the original judgment but “from the date when the modified judgment is signed.”[38] According to the partnerships, the trial court’s order granting remittitur on April 15, 2002 restarted the appellate timetables, rendering their cross-appeal filed 30 days later timely.[39]
Technically, neither trial nor appellate courts can order remittitur; they can only suggest a remittitur on condition that a new trial will be granted if it is refused.[40] We have held that if a court directly orders a reduction in damages, that order necessarily modifies the judgment even if it is incorrectly called a remittitur.[41] By contrast, we have also held that if a party files a purely voluntary remittitur (without any order or suggestion from the court), the judgment has not been modified.[42] If the latter rule were otherwise, a party could extend appellate deadlines indefinitely by remitting a dollar at a time.
We have never addressed whether an order that properly suggests remittitur modifies a judgment “in any respect,” and thus restarts appellate deadlines. But we have explained that the deadlines are restarted by “any change, whether or not material or substantial.”[43] Thus, appellate deadlines are restarted by an order that does nothing more than change the docket number or deny all relief not expressly granted.[44]
By this standard, we think a signed order suggesting remittitur must restart the appellate deadlines as well. By its very nature, such an order allows only two options: a smaller judgment or a new trial. While it may not be clear when the order is signed which option a claimant will select, it is immediately clear that the original judgment will change. In many cases, the order itself will immediately change which party, if any, should begin preparing for an appeal. Given the relative impacts of an order adding a docket number and an order suggesting remittitur, it would be anomalous if the former restarted appellate deadlines but the latter did not.
It is conceivable, of course, that a judgment might be reinstated after a suggestion of remittitur because the trial judge withdraws the latter. But that does not mean the judgment was not modified “in any respect” in the interim; a trial judge who modifies a judgment and then withdraws the modification has modified the judgment twice rather than never.
Because appellate timetables restarted when the trial court signed its remittitur order, the court of appeals had jurisdiction to consider the remittitur. Because Arkoma asserts no other objection to it, it is affirmed.
IV. Conclusion
For the reasons stated above, we
hold that two of the eight limited partnerships presented legally sufficient
evidence of fraud under
_______________________________
Justice
OPINION DELIVERED: January 25, 2008
[1] Petitioners Arkoma Basin Exploration Company, Inc., Arkoma Basin Minerals, Inc., and Mark S. Kelldorf are all referred to as “Arkoma” herein.
[2] 118 S.W.3d 445, 463.
[3] See Mortarino v. Consultant Eng’g Servs., Inc., 467 S.E.2d 778, 782 (Va. 1996); see also Amstutz v. Everett Jones Lumber Corp., 604 S.E.2d 437, 441 (Va. 2004) (noting that “clear and convincing evidence is that degree of proof which produces in the mind of the trier of facts a firm belief or conviction upon the allegations sought to be established. It is intermediate proof, more than a mere preponderance but less than proof beyond a reasonable doubt. It does not mean clear and unequivocal.”).
[4] See Restatement (Second) of Conflict of Laws § 133 (1969) (“The forum will apply its own local law in determining which party has the burden of persuading the trier of fact on a particular issue unless the primary purpose of the relevant rule of the state of the otherwise applicable law is to affect decision of the issue rather than to regulate the conduct of the trial. In that event, the rule of the state of the otherwise applicable law will be applied.”).
[5] See 17 C.F.R. § 210.4-10(a)(2) (“Proved oil and gas reserves are the estimated quantities of crude oil, natural gas, and natural gas liquids which geological and engineering data demonstrate with reasonable certainty to be recoverable in future years from known reservoirs under existing economic and operating conditions, i.e., prices and costs as of the date the estimate is made.”); Howard R. Williams & Charles J. Meyers, Manual of Oil and Gas Terms 931 (11th ed. 2000).
[6] Lambert
v. Downtown Garage, Inc., 553 S.E.2d 714, 717 (
[7] Mortarino, 467 S.E.2d at 781 (quoting Patrick v.
Summers, 369 S.E.2d 162, 164 (
[8] Id. at 781 (internal citations and quotations omitted); accord, Cohn v. Knowledge Connections, Inc., 585 S.E.2d 578, 582 (Va. 2003); McMillion v. Dryvit Sys., Inc., 552 S.E.2d 364, 369 (Va. 2001); Yuzefovsky v. St. John’s Wood Apartments, 540 S.E.2d 134, 142 (Va. 2001); Tate v. Colony House Builders, Inc., 508 S.E.2d 597, 599 (Va. 1999).
[9] Mortarino, 467 S.E.2d at 780.
[10]
Horner v. Ahern, 153 S.E.2d 216, 220 (
[11] Tate, 508 S.E.2d at 600–01.
[12]
See Boykin v. Hermitage Realty, 360 S.E.2d 177, 179
(
[13] See Merenstein v. St. Paul Fire & Marine Ins. Co., 142 Fed. App’x 136, 140 (4th Cir. 2005).
[14]
97 S.E.2d 750, 758 (
[15]
See Yuzefovsky v.
[16] See McMillion v. Dryvit Sys., Inc., 552 S.E.2d 364, 369 (Va. 2001) (“Statements which are vague and indefinite in their nature and terms, or are merely loose, conjectural or exaggerated, go for nothing, though they may not be true, for a [person] is not justified in placing reliance upon them.”); accord, Tate, 508 S.E.2d at 599; Mortarino v. Consultant Eng’g Servs., Inc., 467 S.E.2d 778, 781 (Va. 1996); Saxby v. S. Land Co., 63 S.E. 423, 424 (Va. 1909).
[17]
See Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 778 n.10 (1984) (“Under
traditional choice of law principles, the law of the forum State governs on
matters of procedure.”); California v. Copus,
309 S.W.2d 227, 230 (Tex. 1958); Restatement
(Second) of Conflict of Laws § 122 (1971) (“A court usually applies its
own local law rules prescribing how litigation shall be conducted even when it
applies the local law rules of another state to resolve other issues in the
case.”); see, e.g., In re Lumbermens Mut. Cas.
Co., 184 S.W.3d 718, 727 (
[18] See Tex. R. App. P. 53.2(f).
[19] 118 S.W.3d 445, 457.
[20]
See, e.g., Cropper v. Caterpillar Tractor Co., 754 S.W.2d
646, 648 (
[21]
See Biggers v. Cont’l
Bus Sys., Inc., 303 S.W.2d 359, 368 (
[22] See, e.g., 10 William V. Dorsaneo III, Texas Litigation Guide § 140.100[2] (2007); 10 Frank W. Elliott, West’s Texas Forms: Civil Trial & Appellate Practice § 26.1 (3d ed. 2000); Michol O’Connor, O’Connor’s Texas Rules * Civil Trials 630 (Michol O’Connor & Byron P. Davis eds., 2005); 1 State Bar of Tex., Texas Appellate Practice Manual § 6.12 (Roger Townsend et al. eds., 2d ed. 1993).
[23] See Tex. R. Civ. P. 321 (providing that motions for new trial must “briefly refer to that part of the ruling of the court . . . to be complained of, in such a way that the objection can be clearly understood by the court”); Barron v. James, 198 S.W.2d 256, 260 (Tex. 1946) (“The primary purpose of these rules is that the particular point of objection be presented to the court in such way that it may be clearly understood.”).
[24] See Tex. R. Civ. P. 322 (“Grounds of objections couched in general terms—as that the court erred in its charge, in sustaining or overruling exceptions to the pleadings, and in excluding or admitting evidence, the verdict of the jury is contrary to law, and the like—shall not be considered by the court.”); see, e.g., Campbell v. Texas, 85 S.W.3d 176, 185 (Tex. 2002) (holding inadequate an objection that unidentified statute prohibited trial court from compelling him to do unidentified “things”).
[25] See, e.g., Edward D. Jones & Co. v. Fletcher, 975 S.W.2d 539, 543 (Tex. 1998) (holding general no-evidence point preserved objection that defendant had no duty to ascertain client’s mental capacity); Biggers, 303 S.W.2d at 368; Clarendon Land Inv. & Agency Co. v. McClelland, 23 S.W. 1100, 1103 (Tex. 1893) (“Where an assignment of error is sufficiently specific to enable the court to see that a particular ruling is complained of, it should be held good, although it should fail to state the reason why such ruling is claimed to be erroneous.”).
[26] See Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004); Garza v. Garcia, 137 S.W.3d 36, 38 (Tex. 2004); Cire v. Cummings, 134 S.W.3d 835, 844 (Tex. 2004); Verburgt v. Dorner, 959 S.W.2d 615, 616–17 (Tex. 1997); Clarendon Land Inv., 23 S.W. at 1103 (“What shall be a sufficiently special assignment of error is not susceptible of precise definition,” but “remains to be determined upon the particular circumstances of each case.”).
[27]
See Tex. R. Evid. 702; Kerr-McGee
Corp. v. Helton, 133 S.W.3d 245, 254 (
[28]
Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (
[29] See Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982) (holding opinion that physician should have warned of possible skull fracture was legally insufficient as it assumed physician was aware of fracture when there was no proof he was); see also City of Keller v. Wilson, 168 S.W.3d 802, 813 (Tex. 2005) (“[I]f an expert’s opinion is based on certain assumptions about the facts, we cannot disregard evidence showing those assumptions were unfounded.”).
[30]
[31]
See, e.g., Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 660
(
[32] See Black’s Law Dictionary 308 (8th ed. 2004) (defining “conclusory” as “[e]xpressing a factual inference without stating the underlying facts on which the inference is based.”); see, e.g., Fid. and Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 575 (Tex. 2006) (holding affidavits about lost suit papers not conclusory if “supported by some explanation from the person most likely to have seen them”); Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002) (finding expert report conclusory as it “simply opines that Barbara might have had ‘the possibility of a better outcome’ without explaining how Bowie’s conduct caused injury”); Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999) (“An expert’s simple ipse dixit is insufficient to establish a matter; rather, the expert must explain the basis of his statements to link his conclusions to the facts.”); see also Black’s at 847 (“ipse dixit. [Latin “he himself said it”] Something asserted but not proved.”).
[33]
Burrow v. Arce, 997 S.W.2d 229, 236 (
[34] See Tex. R. Evid. 705(a) (“The expert may testify in terms of opinion or inference and give the expert’s reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event disclose on direct examination, or be required to disclose on cross-examination, the underlying facts or data.”).
[35] 118 S.W.3d 445, 446.
[36] See Tex. R. App. P. 26.1(a).
[37] See id. 26.1(d).
[38] Id. 4.3(a); see also Tex. R. Civ. P. 329b(h).
[39] See Tex. R. App. P. 26.1.
[40]
See id. 46.1, 46.3; Snoke
v. Republic Underwriters Ins. Co., 770 S.W.2d 777, 777 (
[41]
See Landmark Am. Ins. Co. v. Pulse Ambulance Serv., Inc., 813 S.W.2d
497, 498–99 (
[42] See Pope v. Wedgeworth, 221 S.W. 950, 951 (Tex. Comm'n App. 1920, holding approved).
[43]
Check v. Mitchell, 758 S.W.2d 755, 756 (
[44] See id.
