Second, Roquemore argues that even if he did occupy a fiduciary relationship with Ford at the outset, his offer of sale to Ford and the execution of the option contract converted the relationship to one of arms-length seller and purchaser. Roquemore's contentions have been expressly answered by the Texas Supreme Court in Schiller v. Elick, 1951, 150 Tex. 363, 240 S.W.2d 997. In that case the defendant Elick, a bank employee, had obtained a buyer for the plaintiff's farm and had aided the parties in consummating the transaction.
The existence of such a duty depends on whether there is a fiduciary or confidential relationship between the parties, which is usually a question of fact for the jury. See, e.g., Schiller v. Elick, 240 S.W.2d 997, 999 (Tex. 1951). But see Keeton, Fraud — Concealment and Non-Disclosure, 15 Tex.L.Rev. 1, 39-40 (1936) (arguing that duty to disclose should always be a question for the judge).
Thus, at the moment that Tom Allen notified Clinkenbeard that he had won a lease, the agency relationship terminated as a matter of law; all that Central agreed to do had been done. The case of Schiller v. Elick, 150 Tex. 363, 240 S.W.2d 997 (1951), is not to the contrary. In that case, the defendant argued that the execution of a sales contract by his fiduciary and him operated to terminate their fiduciary relationship as a matter of law.
With the issue squarely drawn before us, we held that whether facts existed which would create a confidential relationship was for the jury or trier of the facts to decide. In the later case of Schiller v. Elick, 150 Tex. 363, 240 S.W.2d 997, 999, we held that whether a confidential relationship existed as a predicate for imposition of a constructive trust was 'a question of fact.' It could hardly be otherwise once we recognize that confidential relationships are not confined to legal relationships but may grow out of informal social and business relations.
Id. at 559. Citing Schiller v. Elick, 150 Tex. 363, 240 S.W.2d 997, 1000 (1951); Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256, 261 (1951); MacDonald v. Follett, 142 Tex. 616, 180 S.W.2d 334, 339 (1944); Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557 (1962). The parallels between the present case and the previous cases are obvious, yet Central Garage's briefs make no attempt to distinguish them.
The owners correctly state that under Texas law, the determination of whether a fiduciary relationship exists between the parties is a question of fact for the jury. Schiller v. Elick, 240 S.W.2d 997, 999 (Tex. 1951). However, that the determination of whether a fiduciary relationship exists is a fact question did not abolish the owners' burden to come forward with specific facts demonstrating that there is a genuine issue of material fact for trial after Apache moved for summary judgment and offered evidence that no fiduciary relationship existed.
(facts of the contractual dealings illuminate the question of fiduciary duty). See, e.g., Schiller v. Elick, 240 S.W.2d 997, 1000 (Tex. 1951); Fitz Gerald v. Hull, 237 S.W.2d 256, 261 (Tex. 1951); MacDonald v. Follett, 180 S.W.2d 334, 339 (Tex. 1944); Gaines v. Hamman, 358 S.W.2d 557 (1962).See, Schiller, supra; Fitz-Gerald, supra (prospective joint venturers); Texas Bank and Trust Co. v. Moore, 595 S.W.2d 502, 507 (Tex. 1980).
Generally, whether a fiduciary or confidential relationship exists is a question of fact. See Schiller v. Elick, 240 S.W.2d 997,999 (Tex. 1951); see also Berry v. First Nat'l Bank of Olney, 894 S.W.2d 558, 560 (Tex. App.—Fort Worth 1995, no writ). Here, the facts as alleged in the amended complaint are sufficient to giver rise to an inference of a fiduciary or confidential relationship between Plaintiff and Colonial. The amended complaint contains allegations suggesting that Fagin, a senior loan officer at Colonial, played a significant role in Plaintiff's hiring of IBI as a subcontractor, had intimate discussions with Plaintiff about IBI's financial stability, assured Plaintiff that IBI's financial condition was secure, and even when he acknowledged IBI's financial distress, assured Plaintiff that Colonial and IBI would ensure completion of its project and security of its money.
The existence of a confidential relationship is usually a question of fact. See MacDonald, 142 Tex. at 623, 180 S.W.2d at 339; Schiller v. Elick, 150 Tex. 363, 240 S.W.2d 997, 1000 (1951). Although we recognize that the existence of a confidential relationship is ordinarily a question of fact, when the issue is one of no evidence, it becomes a question of law.
Even if this is the type of case not to be tried on issues of lack of capacity or undue influence, or both, as to which I express no opinion, whether these friends or relatives have entered into a confidential relationship is a question of fact, and is not, as this court holds, a question of law. Schiller v. Elick, 150 Tex. 363, 240 S.W.2d 997 (1951); MacDonald v. Follett, 142 Tex. 616, 180 S.W.2d 334 (1944); Ginther v. Taub, 570 S.W.2d 516 (Tex.Civ.App. Waco 1978, writ ref'd n. r. e.). I do not read Stephens County Museum, Inc. v. Swenson, cited by the court, as holding that there was a fiduciary relationship as a matter of law.