1 United States Court of Appeals,

Fifth Circuit.

No. 92-2293.

R. Michael LLOYD, et al., Plaintiffs-Appellees,

v.

PENDLETON LAND & EXPLORATION, INC., Defendant-Appellant.

June 14, 1994.

Appeal from the United States District Court for the Southern

District of Texas.

Before POLITZ, Chief Judge, KING and DAVIS, Circuit Judges.

POLITZ, Chief Judge:

Pendleton Land and Exploration, I nc. appeals an adverse

judgment in its counterclaims against R. Michael Lloyd and Bob

McCormack. Because the trial court erred in declining to submit

Pendleton's breach of fiduciary claim to the jury we must vacate

and remand for a new trial.

Background

In the fall of 1985, R. Michael Lloyd, a geologist, began

consulting for Pendleton, a family-owned oil and gas exploration

company. Under an oral agreement they focused on a large section

of Kansas made up of six areas of mutual interest. These areas, or

"panels," included three identified as "Rainbow West," "Anthony,"

and "Clearwater/Wichita." Pendleton shared its extensive

geological data base with Lloyd who, with the aid of Pendleton

employees, used that information to develop a new conce pt for

marketing and sale. When asked why they freely disclosed the

company's valuable geological data to Lloyd, the Pendletons replied2

that they trusted him and considered him part of the family. Lloyd

described the relationship as a joint venture in which each player

made contributions toward a mutually beneficial goal.

Shortly after the new concept was developed Bob McCormack

joined the exploration team. He also was given access to the

Pendleton data base. McCormack initially was assigned to

investigate the entire Kansas region but it subsequently was agreed

that for marketing purposes each panel would be developed and sold

separately. In September 1986 the parties focused on "Rainbow

West" and began framing a written agreement to formalize their

relationship. In response to a draft submitted by Pendleton, Lloyd

and McCormack, for the first time, asserted that they owed no

obl igation to Pendleton with regard to areas in Kansas beyond

"Rainbow West" and "Anthony." Pendleton deemed this unacceptable

and in a draft agreement dated January 10, 1987 included a covenant

not to compete and a provision against disclosure or use of

proprietary work product. This agreement, signed by Lloyd and

McCormack on February 27, 1987, provided that compensation for the

"various oil and gas exploration projects" would be "determined on

a project by project basis" and incorporated into the contract via

appendices.

The "Rainbow West" panel was sold to Texaco in September 1987

for $1.2 million. Lloyd and McCormack recommended that they next

focus on "Clearwate r/Wichita." Pendleton chose to develop the

"Anthony" panel. While "Anthony" was being marketed, Lloyd and

McCormack began an independent pursuit of "Clearwater/Wichita."3

They assert that they informed the Pendletons of their action; the

Pendletons disavow such notice. When the "Anthony" panel sold to

Enron in March 1989, Pendleton refused to compensate Lloyd and

McCor mack and demanded that they cease their operations in

"Clearwater/Wichita." The demand was ignored; Pendleton filed an

action in federal court in Kansas. Lloyd and McCormack filed an

action in Texas shortly thereafter. The Kansas action was

transferre d to Texas and the two proceedings were consolidated.

Lloyd and McCormack were aligned as plaintiffs and Pendleton, over

its objection, was aligned as defendant in the consolidated action.

Pendleton formally raised its claim for breach of fiduciary

duty in the Joint Pretrial Order of August 26, 1991. In the

pretrial order, approved and adop ted by the court, Pendleton

asserted breach of fiduciary duty three times, twice in its

contentions and once in its list of contested iss ues. Lloyd and

McCormack did not object to the pretrial order. They acknowledge

that the pretrial order raised the issue of breach of fiduciary

duty. In its opening statement, Pendleton informed the jury that

its action involved not only breach of contract, but it also

involved fairness, trust, and the relationship between consulting

geologists and exploration companies. In proof of the latter it

elicited testimony from the Pendletons, as well as from Lloyd and

McCormack, attesting to the trust and confidence each placed in the

other in the development o f the Kansas properties. Lloyd

characterized the relationship by stating that he did not work

"for" the Pendletons but "with" them on projects designed for their1 Moreau v. Oppenheim, 663 F.2d 1300 (5th Cir.1981), cert.

denied, 458 U.S. 1107, 102 S.Ct. 3486, 73 L.Ed.2d 1368 (1982).

2 644 S.W.2d 707 (Tex.1982).

4 mutual benefit.

The magistrate judge, sitting by cons ent under 28 U.S.C. §

636(c), ruled that the issue of breach of fiduciary duty should not

be submitted to the jury and that, as a matter of law, Lloyd and

McCormack's alleged breach of contract did not excuse Pendleton's

obligation t o pay their compensation. The magistrate judge

instructed the jury that Pendleton o wed Lloyd and McCormack the

compensation claimed. The jury, limited in its consideration to

the parties' contractual claims, returned a ver dict in favor of

Lloyd and McCormack. Pendleton's Motion for Judgment as a Matter

of Law or New Trial was denied. Pendleton timely appealed.

Analysis

Pendleton advances four assignments of error on appeal; one

has merit. It first challenges the trial judge's refusal to

realign it as a party plaintiff. Alignment of the parties lies in

the sound discretion of the court; 1 we perceive no abuse of that

discretion.

Pendleton next contends that the trial court erred in ruling

as a matter of law that the alleged breach of contract by Lloyd and

McCormack did not excuse the obl igation of Pendleton on their

compensation. This argument is foreclosed by H anks v. GAB Business

Services, Inc. 2 As the Texas Supreme Court has held, the critical

issue is whether the obliga tion avoided was dependent upon or3 Hanks, 644 S.W.2d at 708 (quoting World Broadcasting

System, Inc. v. Eagle Broadcasting Co., 162 S.W.2d 463, 465

(Tex.Civ.App.—San Antonio 1942)).

5 correlative to the obligation allegedly breached. " "[W]hen a

covenant goes only to part of the consideration on both sides and

a breach may be compensated for in damages, it is to be regarded as

an independent covenant, unless this is contrary to the expressed

intent of the parties.' " 3 The instant case is indistinguishable

from the facts in Hanks where the contract covered numerous items

and contained no express language indicative of dependency. The

trial court properly determined that Pendleton's obligation to

compensate Lloyd and McCormack was independent of their obligation

to refrain from unfair co mpetition and the improper use of

proprietary information.

Pendleton then challen ges the jury instruction that it owed

Lloy d and McCormack the compensation. Pendleton judicially

admitted, however, that it owed Lloyd and McCormack the money,

"su bject to certain legal defenses." The "legal defenses"

apparentl y was Pendleton's affirmative claim that Lloyd and

McCormack breached the noncompetition and proprietary rights

clauses. The trial court ruled that the obligations were

independent. There was no error in this instruction.

Finally, Pendleton challenges the trial court's failure to

instruct on the issue of breach of fiduciary duty. We conclude and

hold that this constituted error. The issue was raised in the

court-approved Joint Pretrial Order which supplanted all previous4 Fed.R.Civ.P. 16(e); United States v. Shanbaum, 10 F.3d 305

(5th Cir.1994); Syrie v. Knoll Int'l, 748 F.2d 304 (5th

Cir.1984).

5 Fed.R.Civ.P. 50(a)(1); see also Kirby Lumber Corp. v.

White, 288 F.2d 566, 573 (5th Cir.1961).

6 See Omnitech Int'l, Inc. v. Clorox Co., 11 F.3d 1316 (5th

Cir.1994); see also, Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d

557 (1962) (reversing summary judgment on facts similar to those

presented in this case).

6 pleadings and controlled all subsequent action in the litigation. 4

The e vidence adduced at trial suggested both a fiduciary

relationship a nd a breach. While we are mindful that the issue

before the trial court was not an easy one, the seventh amendment

preserves the right of parties to a jury trial unless there is "no

legally sufficient evidentiary basis for a reasonable jury to find

for [the] party on th[e] issue." 5 Viewing the evidence in the

light most favorable to Pendleton, and drawing all in ferences in

its fav or, we must conclude that the evidence did not point so

s trongly and overwhelmingly in favor of Lloyd and McCormack t hat

reasonable jurors could not find a breach of fiduciary duty under

Texas law. 6 We further conclude that the failure to instruct the

jury with regard to the fiduciary duty issue may have tainted its

answers to the questions posed. We therefore must VACATE the

judgment of the trial court and REMAND for a new trial on all

issues.