Arkoma Basin Exploration Co. v. FMF Associates 1990-A, Ltd.

249 S.W.3d 380, 166 Oil & Gas Rep. 589, 51 Tex. Sup. Ct. J. 342, 2008 Tex. LEXIS 70, 2008 WL 204503
Texas Supreme Court·Decided January 25, 2008·No. 03-1066·Published·Cited by 282 cases

Opinions

Justice BRISTER

delivered the opinion of the Court

in which Chief Justice JEFFERSON, Justice HECHT, Justice WAINWRIGHT, Justice GREEN, Justice MEDINA, Justice JOHNSON, and Justice WILLETT joined.

Eight Virginia limited partnerships hired Arkoma Basin Exploration Company1 to estimate production from mineral properties in the Arkoma Basin in southeastern Oklahoma. When the properties failed to produce as predicted, they sued.

Based on Virginia law, a Texas jury found clear and convincing evidence of fraud and awarded $5.5 million in damages. The trial court signed a judgment reducing the verdict to $4.7 million, and later reduced that further by remittitur to about $2.9 million. When Arkoma appealed the judgment and the partnerships cross-appealed the remittitur, the court of appeals affirmed in all respects but one, holding part of the remittitur improper and restoring about $1.5 million of the jury’s verdict.2

We granted Arkoma’s petition to consider whether there was legally sufficient evidence of fraud under Virginia law, or of damages under Texas law. Finding that only two of the eight limited partnerships met these standards, we affirm the court of appeals’ judgment as to FMF Associates 1988-B, Ltd. and FMF Lazare, Ltd., and reverse the remainder.

I. Evidence of Fraud: Statement of Fact or Opinion?

Arkoma argues that its reserve estimates are immune from any fraud claim under Virginia law. The parties agree that Virginia law governs this issue, and requires clear and convincing evidence to establish liability.3 As this heightened standard is more substantive than procedural, we apply it in our legal sufficiency review.4

[384] 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.

Virginia law draws a line between statements of opinion and of fact: “[t]he mere expression of an opinion, however strong and positive the language may be, is no fraud.”6 Additionally, Virginia law distinguishes between statements of existing and future facts: “fraud must relate to a present or a pre-existing fact, and cannot ordinarily be predicated on unfulfilled promises or statements as to future events.”7

But the line between these categories is not as clear as one might expect from these statements. Virginia specifically eschews a bright-line test, judging each case on its facts, and considering the nature of the representation, the relative knowledge of the parties, their intentions, and all of the surrounding circumstances before deciding whether a statement could constitute fraud:

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 Virginia law allows fraud claims based on what might otherwise appear to be opinions. For example, the Virginia Supreme Court has held that a consultant who reported “nothing to indicate that wetlands are present,” but also warned that this was a matter of opinion, could nevertheless be liable for fraud when 80% of a property [385] was later designated as wetlands.9 The same court held a fraud claim could be based on a realtor’s opinion that there was no termite damage, when in fact he had in hand a report suggesting the opposite.10 And a builder’s opinion that a house was “free from structural defects” could support a fraud claim, but his opinion that “no significant work would be required” could not.11 In each of these cases, the nature of the statement, the relative knowledge of the parties, and all the surrounding circumstances were taken into account in deciding whether a statement that appeared to be an “opinion” was nevertheless actionable as fraud.

Similarly, statements about future events may constitute fraud under Virginia law in some circumstances. Thus, for example, a sales agent’s assurance that the woods behind a condominium would never be cleared constituted fraud when she knew about plans to build a playground there in the future.12 And the Fourth Circuit has held that a doctor stated a fraud claim under Virginia law by alleging his malpractice insurer falsely assured him that a settlement would not affect his future ability to obtain coverage.13 Here again, in each case the nature of the statement, the parties’ relative knowledge, and all the surrounding circumstances were considered before deciding whether a statement about future events was nevertheless actionable.

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.

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Arkoma Basin Exploration Co. v. FMF Associates 1990-A, Ltd., 249 S.W.3d 380, 166 Oil & Gas Rep. 589, 51 Tex. Sup. Ct. J. 342, 2008 Tex. LEXIS 70, 2008 WL 204503 (Tex. 2008).

249 S.W.3d 380 (Arkoma Basin Exploration Co. v. FMF Associates 1990-A, Ltd.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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