                   COURT OF APPEALS
                   SECOND DISTRICT OF TEXAS
                        FORT WORTH

                      NO. 02-10-00395-CV


EASTERN EXPRESS, LP                            APPELLANT

                               V.

XTO ENERGY, INC.; PERMIAN                      APPELLEES
LAND COMPANY, A DIVISION OF
DEVONIAN ENTERPRISES, INC.;
AND FRED W. JONES,
INDIVIDUALLY AND/OR D/B/A
DEVONIAN ENTERPRISES, INC.

                               AND

                      NO. 02-10-00396-CV


VICKIE ANNE MAKEHAM; STEVEN                   APPELLANTS
D. NGUYEN, AND WIFE, Y. MINH
NGUYEN; RICK SCIVALLY, AND
WIFE, JENETH SCIVALLY; ROMEO
SUN; AND FLORDELIZA DUE

V.

XTO ENERGY, INC.; PERMIAN                      APPELLEES
LAND COMPANY, A DIVISION OF
DEVONIAN ENTERPRISES, INC.;
AND FRED W. JONES,
INDIVIDUALLY AND/OR D/B/A
DEVONIAN ENTERPRISES, INC.
                               AND
                             NO. 02-10-00397-CV


VELMA ANN MYLES                                                        APPELLANT

V.

XTO ENERGY, INC.; CHESAPEAKE                                           APPELLEES
EXPLORATION COMPANY, LLC; VANTAGE
ENERGY, LLC; TITAN OPERATING, LLC;
QUICKSILVER RESOURCES, INC.;
CARRIZO OIL & GAS, INC.; TRINITY EAST
ENERGY, LLC; PERMIAN LAND COMPANY,
A DIVISION OF DEVONIAN ENTERPRISES,
INC.; FRED W. JONES, INDIVIDUALLY
AND/OR D/B/A DEVONIAN ENTERPRISES,
INC., DALE PROPERTY SERVICES, LLC;
THE CAFFEY GROUP, LLC; FOUR SEVENS
ENERGY CO., LLC; BRYSON KUBA, LP;
LLANO OPERATING CORP.; AND CHEAHA
LAND SERVICES, LLC

                                     ----------

          FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

                                     ----------

                        MEMORANDUM OPINION1
                                     ----------

                                  I. Introduction

      Appellants, mineral owners residing in southeast Arlington, Texas, sued

Appellees   for   breach    of    contract,       promissory   estoppel,   negligent

misrepresentation, fraud, and violations of the Texas Free Enterprise and

Antitrust Act of 1983. The trial court dismissed Appellants’ antitrust claims by

      1
      See Tex. R. App. P. 47.4.


                                         2
granting Appellees’ pleas to the jurisdiction and dismissed Appellants’ remaining

claims by granting Appellees’ motions for traditional and no-evidence summary

judgment.   Appellants contend in eleven issues that the trial court erred by

granting the pleas to the jurisdiction and the motions for summary judgment. We

affirm.

                                II. Background

      These cases, consolidated for purposes of briefing and argument, involve

mineral owners in southeast Arlington.     Southeast Arlington Communities of

Texas (SEACTX) is an unincorporated association comprised of homeowners,

homeowners’ associations, and businesses that formed ―to negotiate the best

possible oil and gas leases for all participating members.‖ SEACTX negotiated

with XTO and other oil and gas companies through the spring of 2008. Linda

Razzano, a SEACTX negotiator, informed XTO that SEACTX was negotiating on

behalf of each of its members, that each member had the right to lease or not to

lease, and that SEACTX was not attempting to negotiate a ―community lease.‖

      According to Razzano’s summary judgment affidavit, SEACTX and XTO

reached an agreement by e-mail on April 24, 2008, concerning the form of the

proposed lease to be offered to individual mineral owners, and SEACTX

announced the agreement to its members. XTO then leased over 1,000 acres

(over 4,000 individual tracts) from individual mineral owners residing within

SEACTX. But gas prices dropped significantly in October 2008, and XTO was no




                                       3
longer willing to acquire additional leases on the terms discussed with SEACTX

in April 2008.

      Appellants, mineral owners who did not lease with XTO in 2008,

subsequently filed suit against Appellees alleging breach of contract, promissory

estoppel, negligent misrepresentation, antitrust violations, and other causes of

action.   Among other relief, Appellants prayed that XTO ―be ordered to

specifically perform in accordance with the contract terms and issue a check to

[Appellants] in the full amount owed for the bonus payment‖ agreed to with

SEACTX in April 2008. Appellants’ claims were dismissed following the trial

court’s orders on Appellees’ pleas to the jurisdiction and motions for traditional

and no-evidence summary judgment. This appeal followed.

                 III. Breach of Contract and Promissory Estoppel

      Appellants argue in their second issue that there are genuine issues of

material fact concerning their status as third-party beneficiaries of the alleged

contract between XTO and SEACTX, and they assert in their eighth issue that

genuine issues of material fact remain on each element of their promissory

estoppel claim.

A. Summary Judgment Standards of Review

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding evidence contrary to the


                                        4
nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively

negates at least one essential element of a cause of action is entitled to

summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d

494, 508 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c).

      After an adequate time for discovery, the party without the burden of proof

may, without presenting evidence, move for summary judgment on the ground

that there is no evidence to support an essential element of the nonmovant’s

claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the

elements for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286

S.W.3d 306, 310 (Tex. 2009). The trial court must grant the motion unless the

nonmovant produces summary judgment evidence that raises a genuine issue of

material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d

425, 426 (Tex. 2008).

      When reviewing a no-evidence summary judgment, we examine the entire

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion. Sudan v. Sudan, 199

S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment for

evidence that would enable reasonable and fair-minded jurors to differ in their

conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168


                                        5
S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if

reasonable jurors could, and we disregard evidence contrary to the nonmovant

unless reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310 (quoting

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)).                 If the

nonmovant brings forward more than a scintilla of probative evidence that raises

a genuine issue of material fact, then a no-evidence summary judgment is not

proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc.

v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030

(2004).

B. Third-Party Beneficiary

      This court recently addressed identical arguments in a substantially similar

appeal. In that case, an unincorporated, nonprofit association called Southwest

Fort Worth Alliance (SFWA) negotiated with Vantage Energy, LLC on behalf of

mineral interest owners within SFWA. Maddox v. Vantage Energy, LLC, No. 02-

11-00210-CV, 2012 WL 407269, at *1 (Tex. App.—Fort Worth Feb. 9, 2012, no

pet. h.). In the opinion, we described the relevant facts as follows:

            Appellants assert that a written contract exists between
      Vantage and SFWA; Appellants claim the contract consists of a
      series of approximately eleven emails—and the attachments to
      those emails, including the uniform oil and gas lease form—that
      were exchanged between Vantage and an individual acting for
      SFWA. Based on the emails and the uniform oil and gas lease form,
      SFWA publicized that Vantage had ―won the bid for endorsement‖ of
      SFWA and was SFWA’s ―preferred and endorsed Natural Gas
      Developer.‖ Appellants concede in their brief that SFWA did not
      possess authority to, and did not, negotiate individual leases for
      Appellants or for anyone; instead, Appellants claim that the contract


                                         6
      between Vantage and SFWA was ―a contract for an endorsement of
      Vantage and its offer.‖

             The uniform oil and gas lease form is a template; it provides
      blanks for the date of execution of the lease, the name of the lessor,
      and for the legal description and address of the property covered by
      the lease. The uniform oil and gas lease form also states that each
      individual lessor is not obligated to sign the form lease but instead
      has the right to negotiate his or her own terms with any oil and gas
      company and individually bears the responsibility of investigating the
      lease and its terms.

             Vantage began obtaining leases from mineral owners in the
      SFWA neighborhoods. Between 4,000 and 7,500 leases were
      obtained; the record does not reflect if these lessors negotiated to
      modify the uniform oil and gas lease terms or not. Approximately
      one month later, however, as the price of natural gas fell, Vantage
      suspended its urban leasing activities. Appellants filed the instant
      suit, seeking to compel Vantage to offer them an oil and gas lease in
      accordance with the terms set forth in the uniform oil and gas lease
      form. Appellants’ petition prayed that the court ―award Plaintiffs
      specific performance and give Plaintiffs the opportunity to accept or
      reject the negotiated lease, as described herein. . . .‖

Id. (footnotes omitted). Addressing the third-party beneficiary contention in that

case, we held that the appellants lacked standing to sue for breach of contract

because the purported contract between Vantage and SFWA did not identify the

appellants in the purported contract documents in a manner sufficient to

overcome the presumption against third-party beneficiary agreements. Id. at *3–

5.

      There are no substantive differences between Appellants and the plaintiffs

in our Maddox case. Appellants are not named in the documents that they claim

constitute the contract with XTO, there is no list of the individual members of

SEACTX, and the map included within the documents was—by Appellants’ own


                                        7
admission—not accurate at the time XTO and SEACTX allegedly entered into the

contract on April 24, 2008.2 There is also summary judgment evidence that parts

of SEACTX had been ―heavily leased‖ by XTO’s competitors. Thus, just as we

held in Maddox, even assuming there was a contract between SEACTX and

XTO, there is no intent to directly benefit Appellants as third-party beneficiaries

clearly written into or evidenced by the alleged contract documents because

Appellants are not sufficiently identified by the alleged contract documents. See

id. at *4. In addition, Appellants are neither donee beneficiaries nor creditor

beneficiaries. As we explained in Maddox,

      [T]o date, the law recognizes only two types of third-party
      beneficiaries: donee beneficiaries and creditor beneficiaries. . . .
      Appellants are not donee beneficiaries because the performance
      allegedly promised by Vantage that Appellants seek specific
      performance of—the offer and execution of a lease in accordance
      with the terms of the uniform oil and gas lease form—will, when
      rendered, not come as a pure donation but will be made in exchange
      for the lease of Appellants’ mineral rights. Likewise, Appellants are
      not creditor beneficiaries because Vantage owed Appellants no legal
      duty, indebtedness, or contractual obligation. The alleged contract
      between Vantage and SFWA did not express an intent to confer a
      benefit on Appellants or an intent that Appellants possess the right
      to enforce the alleged contract between Vantage and SFWA.


      2
       In her summary judgment affidavit, Razzano described the map as the
―general area‖ of SEACTX. She also stated that SEACTX grew after the initial
contact with XTO and that it was still growing, even in April 2008 when SEACTX
and XTO allegedly entered into a contract. Also, on April 14, 2008, Razzano
sent XTO a list of more than forty subdivisions and homeowners’ associations
that were part of SEACTX, but her e-mail stated that she believed this was
―almost all of the subdivisions currently under our group,‖ that ―[t]here may be
more,‖ and that ―[w]e also have businesses and a number of churches as well.‖
Razzano’s affidavit also states that she told XTO even after April 24 that
SEACTX ―still had groups that were interested in joining.‖


                                        8
Id. at *5 (citations omitted). We therefore hold that Appellants are not third-party

beneficiaries to the contract, if any, between SEACTX and XTO and that they

thus lack standing to sue to enforce any such contract. See id. We overrule

Appellants’ second issue.3

C. Promissory Estoppel

      Appellants also lack standing to assert a promissory estoppel claim as an

independent cause of action. For the reasons explained in our Maddox opinion,

Appellants are not promisees who can assert promissory estoppel against

Appellees because the alleged promise was made only to SEACTX. See id. at

*7. Because Appellants do not qualify as third-party beneficiaries of the alleged

contract with XTO and do not qualify as promisees to whom XTO made any

promise, they cannot create liability for XTO or create some promise between

themselves and XTO where none exists as a matter of law. See id. We thus

hold that Appellants lack standing to assert a promissory estoppel cause of

action against XTO, and we overrule Appellants’ eighth issue.




      3
       Because we have assumed for purposes of this opinion that a valid,
written contract existed between XTO and SEACTX, we need not address
Appellants’ first, third, fourth, fifth, sixth, or seventh issues in which they contend
that there are genuine issues of material fact as to whether there was an
enforceable agreement between XTO and SEACTX, that the statute of frauds
does not apply to the alleged contract between XTO and SEACTX, and that there
are applicable exceptions to the statute of frauds if the doctrine does apply. See
Tex. R. App. P. 47.1, 47.4.


                                          9
                         IV. Negligent Misrepresentation

      In their ninth issue, Appellants contend that there are genuine issues of

material fact as to each element of their negligent misrepresentation claims.

      Appellants moved for no-evidence summary judgment on Appellants’

negligent misrepresentation claims on the ground, among others, that Appellants

had no evidence that they ―suffered compensable non-benefit-of-the-bargain

damages.‖ In their summary judgment responses, Appellants argued that they

were entitled to the difference between the value of the leases (including signing

bonuses, royalty payments, and lease language) offered by XTO before the

offers were withdrawn and the value of the subsequent, inferior lease offers.

Appellants did not argue that they expended any money in alleged reliance on

XTO’s representations.

      Relying on a 1981 Texas Supreme Court opinion, Appellants argue that

their damages are reliance damages, not benefit-of-the-bargain damages. See

Fretz Constr. Co. v. S. Nat’l Bank of Houston, 626 S.W.2d 478, 483 (Tex. 1981).

The Fretz case is inapplicable, however, because it involved only a claim for

promissory estoppel, not negligent misrepresentation.          See id. at 479, 483.

Moreover, reliance damages are the out-of-pocket expenditures made in reliance

on actions by another party. Sterling Chem., Inc. v. Texaco, Inc., 259 S.W.3d

793, 798 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). Appellants have not

identified   any   expenses   they   incurred   in   alleged   reliance   on   XTO’s

representations. Instead, they rely solely on a damage theory that would award


                                        10
them the amounts of money they would have received had they signed mineral

lease agreements with XTO. But this is a benefit-of-the-bargain theory, not a

reliance theory, and the Texas Supreme Court has unequivocally held that ―the

benefit of the bargain measure of damages is not available for a claim of

negligent misrepresentation.‖    D.S.A., Inc. v. Hillsboro Indep. Sch. Dist., 973

S.W.2d 662, 663 (Tex. 1998); see also Esty v. Beal Bank S.S.B., 298 S.W.3d

280, 302 (Tex. App.—Dallas 2009, no pet.) (―A plaintiff cannot recover benefit-of-

the bargain damages for negligent misrepresentation; a plaintiff can only recover

for out-of-pocket loss.‖).

      Because the damages Appellants seek are not recoverable for a negligent

misrepresentation claim, the trial court did not err by granting summary judgment

on Appellants’ negligent misrepresentation claim.           We therefore overrule

Appellants’ ninth issue.

                                V. Antitrust Claims

      Appellants contend in their eleventh issue that they have standing to sue

for violations of the Texas Free Enterprise and Antitrust Act and that the trial

court therefore erred by granting Appellees’ pleas to the jurisdiction on that basis.

A. Standard of Review

      A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat

a cause of action without regard to whether the claims asserted have merit.

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Whether the

trial court has subject matter jurisdiction is a question of law that we review de


                                         11
novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.

2004); Tex. Natural Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 855

(Tex. 2002).   The determination of whether a trial court has subject matter

jurisdiction begins with the pleadings. Miranda, 133 S.W.3d at 226. The plaintiff

has the burden to plead facts affirmatively showing that the trial court has

jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446

(Tex. 1993). We construe the pleadings liberally in favor of the pleader, look to

the pleader’s intent, and accept as true the factual allegations in the pleadings.

See Miranda, 133 S.W.3d at 226, 228; City of Fort Worth v. Crockett, 142 S.W.3d

550, 552 (Tex. App.—Fort Worth 2004, pet. denied) (op. on reh’g).

B. Discussion

      Appellants alleged in their pleadings that they are real property owners in

Tarrant County, that their property lies within the boundaries of SEACTX, and

that they agreed that SEACTX would negotiate with various oil and gas entities

on their behalf for the lease of their property ―on the most economically favorable

terms that SEACTX could negotiate.‖ Appellants further alleged that they are

―persons‖ as defined by the Texas Free Enterprise and Antitrust Act of 1983 and

that ―the agreement(s) between [Appellees] constitutes an agreement with the

intended purpose and effect of lessening competition in the market to lease lands

within the geographic boundaries of the Barnett Shale . . . by keeping prices for

bonus payments and royalty payments at an artificially low level.‖




                                        12
      In Maranatha Temple, Inc. v. Enterprise Products Co., 893 S.W.2d 92, 105

(Tex. App.—Houston [1st Dist.] 1994, writ denied), our sister court affirmed

summary judgment on the ground that Maranatha lacked standing to sue for

alleged antitrust violations.   Maranatha operated a church in Mont Belvieu,

Texas. Id. at 95. Due to industrial accidents at their hydrocarbon facilities, the

defendants decided to purchase residential and church properties adjacent to

their hydrocarbon facilities and announced their intention in a press release. Id.

According to the press release, no home would be within 800 feet of a storage

well if all properties within the designated area were purchased. Id. Maranatha

contended that it should have but did not receive an offer to purchase its

property, and it sued the defendants for antitrust violations and several other

causes of action. Id. at 95–96. Affirming summary judgment for the defendants,

the court wrote as follows:

             Whether a plaintiff has standing to bring an antitrust claim is
      the initial inquiry in antitrust cases. See Jayco Sys., Inc. v. Savin
      Business Machs. Corp., 777 F.2d 306, 313 (5th Cir. 1985). The
      issue of standing to bring an antitrust claim is a question of law.
      Eagle v. Star–Kist Foods, Inc., 812 F.2d 538, 539 (9th Cir. 1987).

             The party bringing an antitrust claim ―must be either a
      consumer of the alleged violator’s goods or services or a competitor
      of the alleged violator‖ in the market. [Id.] at 540; accord Bell v. Dow
      Chem. Co., 847 F.2d 1179, 1183 (5th Cir. 1988) (holding that
      ―consumers and competitors . . . are the parties that have standing
      to sue‖); see Associated Gen. Contractors v. California State Council
      of Carpenters, 459 U.S. 519, 539, 103 S. Ct. 897, 909 (1983)
      (holding that plaintiff had no antitrust cause of action where it ―was
      neither a consumer nor a competitor‖ in the market). . . . Maranatha
      asserts that it was a potential seller of real estate (its own property)
      in the market; that it ―showed an intention to enter the business of
      selling real estate . . .‖

                                        13
             Maranatha’s status as a potential seller of real estate does not
      make it a competitor of the appellees. The appellees were not
      sellers of real estate. On the contrary, they were buying real estate;
      hence, Maranatha’s complaint that they did not buy Maranatha’s
      property. The appellees were not in the business of selling property.

             Because Maranatha was neither a consumer of the appellees
      nor their competitor, Maranatha lacks standing to bring an antitrust
      claim.

Id. at 105. The facts as alleged in Appellants’ pleadings in this case are very

similar to those involved in Maranatha.       Appellants are potential lessors or

―sellers‖ of their mineral rights, but they are not Appellees’ consumers or

competitors.

      Rather than attempting to distinguish Maranatha, Appellants argue that

Maranatha does not accurately reflect the law because it allegedly conflicts with

federal cases interpreting federal antitrust statutes. But Maranatha’s requirement

that an antitrust plaintiff be a consumer or competitor is consistent with numerous

federal court decisions. See, e.g., Associated Gen. Contractors, 459 U.S. at

539–40, 103 S. Ct. at 909 (holding union did not have standing because it was, in

that case, ―neither a consumer nor a competitor in the market in which trade was

restrained‖); Norris v. Hearst Trust, 500 F.3d 454, 466 (5th Cir. 2007) (holding

plaintiffs had not suffered an antitrust injury and therefore lacked standing

because they were ―neither consumers (buyers of advertising, or users of

advertising such as subscribers) nor competitors (sellers of advertising) in the

relevant market‖); Bell, 847 F.2d at 1183 (stating that Supreme Court had

―articulated the high standing threshold that plaintiffs must cross in the antitrust

                                        14
setting‖ and that ―[r]estraint in the market affects consumers and competitors in

the market; as such, they are the parties that have standing to sue‖); In re Beef

Indus. Antitrust Litig., 600 F.2d 1148, 1168 (5th Cir. 1979) (holding claimants who

alleged they made retail purchases of beef as consumers had standing to assert

antitrust claims). Maranatha has also been cited by two other Texas appellate

courts.   See Roberts v. Whitfill, 191 S.W.3d 348, 354–55 (Tex. App.—Waco

2006, no pet.); Sw. Bell Tel. Co. v. Superior Payphones, Ltd., No. 13-05-00661-

CV, 2006 WL 417423, at *7 n.4 (Tex. App.—Corpus Christi Feb. 23, 2006, pet.

dism’d) (mem. op.). Thus, we hold that the trial court did not err by granting

Appellees’ pleas to the jurisdiction, and we overrule Appellants’ eleventh issue.4

                                 VI. Conclusion

      Having overruled Appellants’ dispositive issues, we render judgment

dismissing Appellants’ breach of contract and promissory estoppel claims in each

case for lack of standing, and we affirm the remainder of the trial court’s

judgments.



                                                   ANNE GARDNER
                                                   JUSTICE

PANEL: GARDNER, MCCOY, and GABRIEL, JJ.

DELIVERED: March 29, 2012



      4
       Given our disposition of Appellants’ second, eighth, ninth, and eleventh
issues, we need not decide Appellants’ tenth issue. See Tex. R. App. P. 47.1.


                                        15
