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

> Court of Appeals of Texas · August 21, 2003 · 118 S.W.3d 445

URL: https://www.frixlaw.com/law-library/cases/5104329

## Case

- **Full name:** ARKOMA BASIN EXPLORATION COMPANY, INC., Arkoma Basin Minerals, Inc., and Mark S. Kelldorf v. FMF ASSOCIATES 1990-A, LTD., FMF Associates 1988-B, Ltd., FMF Lazare, Ltd., FMF HMY, Ltd., FMF Kahn, Ltd., FMF Friedman, Ltd., FMF Greenwald, Ltd., and FMF Smallwood, Ltd.
- **Court:** Court of Appeals of Texas
- **Decided:** August 21, 2003
- **Citations:** 118 S.W.3d 445; 2003 Tex. App. LEXIS 7162; 2003 WL 21983201
- **Precedential status:** Published
- **Opinion:** Dissent by Morris
- **Judges:** Fitzgerald, James, Morris
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5104329

## Opinion text

*464 Dissenting Opinion by
Justice MORRIS.
Although I disagree -with the majority’s analysis of several issues presented in this appeal, it is unnecessary for me to address all of them because I believe appellant’s first issue is dispositive. In appellant’s first issue, the central question is whether an opinion based on information known to be inaccurate is a misrepresentation of an existing material fact actionable as a claim for fraud under Virginia law. Unlike the majority, I conclude it is not. For an “opinion” to be actionable under Virginia law, it must be tantamount to an assertion of an existing material fact. See Mortarino v. Consultant Eng’g Servs., Inc., 251 Va. 289 , 467 S.E.2d 778, 781-82 (1996); Horner v. Ahern, 207 Va. 860 , 153 S.E.2d 216, 220 (1967).
The representations appellants made about the gas reserves do not rise to the level of an affirmative assertion of an existing fact even though the opinions expressed may have been completely spurious. See Saxby v. Southern Land Co., 109 Va. 196 , 68 S.E. 423, 424 (1909) (the mere expression of an opinion, however strong and positive the language may be, is no fraud). Moreover, any statements appellants made about the “database” used to calculate the reserves were either true or commendatory, and thus not actionable. See Tate v. Colony House Builders, Inc., 257 Va. 78 , 508 S.E.2d 597, 600 (1999). The majority states that appellants’ opinions are “subject to a claim for fraud because they are opinions which were supposed to be based on particular data and calculations using the data.” In other words, the majority suggests that the opinions in this case are actionable because appellants falsely represented that the database underlying the reserve opinion would be used in a certain way and appellants then used a different process to formulate their opinion about the gas reserves. Such a representation, however, does not change the reality that appellants’ ultimate opinion about the gas reserves was not an assertion that the reserves existed as a matter of fact.
Distilled to its essence, the majority opinion says that if one states an opinion without an objective, justifiable basis, then it is actionable as fraud under Virginia law. Such reasoning would contort every opinion made in bad faith into a misrepresentation of an existing fact. Virginia law does not allow such legal gymnastics, but instead firmly states that opinions are not actionable in fraud unless they assert and misrepresent material facts. See DeJarnette v . Thomas M. Brooks Lumber Co., Inc., 199 Va. 18 , 97 S.E.2d 750, 757 (1957).
Because no evidence supports the finding of a material misrepresentation of an existing fact in this case, I would sustain the first part of appellants’ first issue, reverse the trial court’s judgment, and render judgment that appellees take nothing by their fraud claims.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5104329. Public record. Not legal advice.