                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-12-00081-CV


FAIN  FAMILY  FIRST  LIMITED                                   APPELLANTS
PARTNERSHIP AND FAIN FAMILY
MANAGEMENT CORPORATION

                                        V.

EOG RESOURCES, INC.                                               APPELLEE


                                     ----------

         FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

                                     ----------

                       MEMORANDUM OPINION1

                                     ----------

                                  I. Introduction

     In five issues, Appellants Fain Family First Limited Partnership and Fain

Family Management Corporation (collectively, FFFLP) appeal the trial court‘s




     1
      See Tex. R. App. P. 47.4.
summary judgment for Appellee EOG Resources, Inc. We affirm in part and

reverse and remand in part.

                                 II. Background

      In 2004, FFFLP and EOG entered into a ―paid–up‖ oil and gas lease and

an A.A.P.L. Form 610–Model Form Operating Agreement–1989 (JOA) to develop

minerals under FFFLP‘s property in Somervell County. Under the JOA‘s terms,

FFFLP could elect to participate in EOG‘s efforts to develop the minerals by

paying 1/8th of the development costs.

      On May 2, 2007, FFFLP agreed to participate in drilling the Fain 1H2 well,

and on November 7, 2007, it agreed to participate in the Fain 4H well. EOG

drilled the wells and sent invoices to FFFLP. When FFFLP failed to pay these

invoices, EOG filed a suit on sworn account, also alleging breach of contract. In

FFFLP‘s verified first amended answer, it defended itself against EOG‘s breach

of contract claim by claiming that the JOA had been modified by oral agreement,

denied the elements of EOG‘s sworn account claim, and counterclaimed for

breach of contract, fraud, fraud by nondisclosure, breach of fiduciary duty, breach

of the duty to act as a reasonably prudent operator, breach of the duty to

reasonably develop the lease, and negligent misrepresentation.

      EOG filed a traditional motion for partial summary judgment on its sworn

account and breach of contract claims, which the trial court granted in part after

      2
       This well is distinct from the Fain A Unit #1H well, also known as Fain 3H,
discussed below.


                                         2
reducing EOG‘s requested damages by an amount that FFFLP claimed was

erroneously and fraudulently billed. EOG then filed a combined motion for (1)

traditional summary judgment on its claims, seeking to recover the amount

denied in the prior summary judgment, and (2) no-evidence summary judgment

on FFFLP‘s counterclaims.     FFFLP subsequently filed an unverified second

amended answer containing the same defense, denial, and counterclaims

included in its first amended answer, amending its modification defense to

include payment waiver, and adding a fraudulent inducement counterclaim. The

trial court granted EOG‘s final summary judgment motion without specifying the

grounds. This appeal followed.

                           III. Summary Judgment

      In five issues,3 FFFLP complains that the trial court erred by granting

summary judgment for EOG because (1) the final summary judgment order is

based on grounds that EOG did not raise; (2) fact issues regarding EOG‘s claims

remain; (3) EOG was not entitled to summary judgment on quasi-estoppel

grounds because it took inconsistent positions as to the JOA; (4) FFFLP‘s

verified denial was sufficient to deny EOG‘s sworn account claim;4 and (5) EOG


      3
         At oral argument, we vacated our prior order denying FFFLP‘s request to
file an amended brief, agreed to treat FFFLP‘s reply brief as its amended brief,
and permitted EOG to file a supplemental appellee‘s brief. FFFLP‘s fourth and
fifth issues address EOG‘s arguments in its original appellee‘s brief.
      4
     EOG argues that we may affirm the trial court‘s judgment on the basis of
FFFLP‘s unverified second amended answer. EOG, however, failed to move for


                                       3
waived any complaint about the affidavit attached to FFFLP‘s response to EOG‘s

motion for partial summary judgment.5 We review summary judgment de novo.

Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).

A. EOG’s Motion for Partial Summary Judgment

       In a traditional summary judgment case, the issue on appeal is whether the

movant met the summary judgment burden by establishing that no genuine issue

of material fact exists and that the movant is entitled to judgment as a matter of

law.   Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v.

Fielding, 289 S.W.3d 844, 848 (Tex. 2009). A traditional summary judgment will

be affirmed only if the record establishes that the movant has conclusively

proved all essential elements of the movant‘s cause of action or defense as a




summary judgment on this ground. Because we can only affirm a summary
judgment on grounds sought by the movant, we do not address EOG‘s argument.
See Robinson v. Tex. Timberjack, Inc., 175 S.W.3d 528, 530 (Tex. App.—
Texarkana 2005, no pet.) (holding that summary judgment could not be affirmed
on the basis of the nonmovant‘s unverified denial because the movant failed to
move for summary judgment on this ground); see also Shumate v. Shumate, 310
S.W.3d 149, 152 (Tex. App.—Amarillo 2010, no pet.) (citing Casso v. Brand, 776
S.W.2d 551, 553 (Tex. 1989), and holding that all theories supporting or
opposing a summary judgment motion must be presented to the trial court).
       5
        On appeal, EOG complains that Rickey Fain‘s affidavit was insufficient to
support FFFLP‘s response to EOG‘s motion for partial summary judgment
because it did not contain an affirmation that the facts stated were ―true and
correct,‖ and it contained conclusory assertions. We need not address these
arguments, however, because we do not rely on Fain‘s affidavit in our disposition
of this appeal. See Tex. R. App. P. 47.1.


                                        4
matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678

(Tex. 1979).

      We examine the entire record in the light most favorable to the nonmovant,

indulging every reasonable inference and resolving any doubts against the

motion.   20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008); Sudan v.

Sudan, 199 S.W.3d 291, 292 (Tex. 2006); Provident Life & Accident Ins. Co. v.

Knott, 128 S.W.3d 211, 215 (Tex. 2003). We must consider whether reasonable

and fair-minded jurors could differ in their conclusions in light of all of the

evidence presented. See Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008);

Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006); City of Keller

v. Wilson, 168 S.W.3d 802, 822–24 (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. Mann Frankfort, 289 S.W.3d

at 848; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).

      Therefore, as stated in EOG‘s motion for partial summary judgment, to

prevail on its breach of contract claim on traditional summary judgment, EOG

had to prove (1) that the parties had a valid, enforceable contract; (2) that it

performed or tendered performance of its contractual obligations; (3) that FFFLP

breached the contract; and (4) that FFFLP‘s breach caused EOG‘s injuries. See

Shin v. Sharif, No. 02-08-00347-CV, 2009 WL 1565028, at *5 (Tex. App.—Fort

Worth June 4, 2009, no pet.) (mem. op.).




                                        5
      As also stated in its motion for partial summary judgment, to prevail in its

suit on a sworn account on traditional summary judgment, EOG had to prove (1)

that it sold and delivered merchandise or performed services; (2) that the

charges on the account were ―just and true,‖ proof of which may be shown by

express agreement or, absent an agreement, by evidence that the charges are

―usual, customary, or reasonable‖; and (3) that the amount was unpaid.6 See

Naan Props., LLC v. Affordable Power, LP, No. 01-11-00027-CV, 2012 WL

114201, at *6 (Tex. App.—Houston [1st Dist.] Jan. 12, 2012, no pet.) (mem. op.);

Melton v. Karl Klement Ford, L.P., No. 02-06-00051-CV, 2006 WL 2627380, at *5

(Tex. App.—Fort Worth Sept. 14, 2006, no pet.) (mem. op.).

      1. The Lease Term

      FFFLP argues in its second issue that a fact question remains as to

whether the lease continued past the primary term. Specifically, FFFLP claims

that the lease expired on June 22, 2007, from nonproduction and that EOG billed


      6
        EOG moved for final summary judgment on its breach of contract and
sworn account claims by incorporating its prior motion for partial summary
judgment. EOG presented no additional evidence to support its motion for final
summary judgment on these claims but asked only that the trial court grant
summary judgment on the remaining sum of money that the court withheld from
its judgment on EOG‘s partial summary judgment motion. Thus, our disposition
of EOG‘s partial summary judgment on its claims also disposes of its final
summary judgment on these same claims. Further, although FFFLP did not raise
the lease termination issue in its response to EOG‘s motion for partial summary
judgment, it did so in its response to EOG‘s final summary judgment motion.
Because EOG‘s claims against FFFLP were incorporated into its final summary
judgment motion by reference, we may consider FFFLP‘s lease termination
argument to defeat EOG‘s partial summary judgment motion.


                                        6
it for operational expenses incurred after that date. FFFLP argues that this lease

expiration question raises a genuine issue of material fact as to whether the

amounts billed by EOG are ―just and true.‖ FFFLP further argues that genuine

issues of material fact remain as to whether the parties had a valid, enforceable

contract when it agreed to participate in the Fain 4H well and when EOG incurred

the expenses it billed to FFFLP.

      EOG argues that the lease expiration date is immaterial to the validity of

FFFLP‘s debt because FFFLP‘s obligation attached before the JOA terminated

and the JOA provides that termination of the agreement does not affect

obligations that attached before JOA termination.7

            a. Lease Terms and JOA Termination

      JOA termination in this case is tied to lease expiration. Specifically, Article

XIII of the JOA provides that

      [t]his agreement shall remain in full force and effect as to the Oil and
      Gas Leases and/or Oil and Gas Interests subject hereto for the
      period of time selected below; provided, however, no party hereto
      shall ever be construed as having any right, title or interest in or to
      any Lease or Oil and Gas Interest contributed by any other party
      beyond the term of this agreement.

From the period-of-time options available under Article XIII, the parties chose the

option that states, ―So long as any of the Oil and Gas Leases subject to this

      7
        EOG moved for summary judgment based solely on the JOA and lease as
evincing the parties‘ agreement. EOG did not claim that FFFLP‘s agreement to
participate in the wells obligated FFFLP to pay for expenses incurred after JOA
termination and it did not claim that the signed agreements to participate
operated as stand-alone agreements.


                                         7
agreement remain or are continued in force as to any part of the Contract Area,

whether by production, extension, renewal or otherwise.‖              And the lease

habendum clause in this case states that the lease ―shall be for a term of three

(3) years . . . and as long thereafter as oil and gas, or either of them, is produced

in paying quantities from the Leased Premises.‖

         The lease continuous drilling clause permitted EOG to hold the lease past

the primary term without production if it was ―engaged in drilling operations‖ at

the end of the primary term or if it ―commence[d] and continue[d] a program of

continuous drilling‖ within 120 days of the end of the primary term or the

completion of the well being drilled at that time.

         Finally, the shut-in royalty clause states,

         If, after the expiration of the primary term, there is located on the
         Leased Premises a well capable of producing gas in commercial
         quantities, but the gas is not being sold due to lack of market, and
         this Lease is not being otherwise maintained in force, then the
         Lessee may pay as a shut-in royalty a sum of money equal to $5.00
         per acre for each acre in such well‘s Producing Unit . . . for the
         period commencing on the date the well is shut-in. The first amount
         will be due not later than ninety (90) days after the date the well is
         shut-in, and subsequent payments will be due annually thereafter
         . . . on the anniversary date of the period for which the prior payment
         was made. Upon proper and timely payment of shut-in royalty under
         this paragraph, it will be considered that gas is being produced from
         the well that is shut-in. [Emphasis added.]

This clause combines an optional payment with constructive production. See

Blackmon v. XTO Energy, 276 S.W.3d 600, 605–07 (Tex. App.—Waco 2008, no

pet.).




                                             8
             b. Applicable Law

      An oil and gas ―lease may be kept alive after the primary term only by

production in paying quantities, or a savings clause, such as a shut-in gas well

clause,   drilling   operations   clause,       or   continuous   operations   clause.‖

Hydrocarbon Mgmt., Inc. v. Tracker Exploration, Inc., 861 S.W.2d 427, 432 (Tex.

App.—Amarillo 1993, no writ). Courts construe shut-in royalty clauses strictly,

and the lease language determines whether a failure to pay shut-in royalties will

terminate a lease. See, e.g., Blackmon, 276 S.W.3d at 605–07. If the lease

―‗makes proper payment the constructive production, then if the payment is not

made correctly the lease terminates.‘‖ See id. at 607 (quoting Owen L. Anderson

et al., Hemingway Oil and Gas Law and Taxation § 6.5, at 278 (4th ed. 2004)).

Thus, when the shut-in royalty clause couples an optional payment with a

provision stating that ―it will be considered that gas is being produced‖ if the

payment is made, the lessee must make timely payment or the lease will

terminate. Marifarms Oil & Gas, Inc. v. Westhoff, 802 S.W.2d 123, 125–26 (Tex.

App.—Fort Worth 1991, no writ) (citing Freeman v. Magnolia Petroleum Co., 141

Tex. 274, 171 S.W.2d 339 (Tex. 1943)). Furthermore, a lessee cannot revive an

expired lease through an untimely shut-in royalty payment. See Gulf Oil Corp. v.

Reid, 161 Tex. 56, 337 S.W.2d 267, 271 (Tex. 1960).




                                            9
      Here, the shut-in royalty clause, as set out above, is the same type we

considered in Westhoff;8 therefore, failure to pay timely would result in lease

termination. See 802 S.W.2d at 126.

            c. Analysis

      The parties entered into the lease and JOA on June 22, 2004. Thus, the

lease would expire at the end of its primary term on June 22, 2007, unless (1)

there was production from the lease; (2) EOG was drilling a well; or (3) EOG had

drilled a well by October 20, 2007—within 120 days of the end of the primary

term. Once the lease expired, the JOA would terminate. See Prize Energy Res.,

L.P. v. Cliff Hoskins, Inc., 345 S.W.3d 537, 553 (Tex. App.—San Antonio 2011,

no pet.) (holding that a JOA with a term provision similar to the term provision in

this case terminated automatically when the underlying lease expired). Although

both parties agree that the lease has expired, they do not agree as to when.

      Therefore, we must review whether the record reflects that EOG held the

lease past the end of the primary term by production or had wells on the lease

that were capable of production and timely paid shut-in royalties, preventing the

JOA from terminating before FFFLP agreed to participate in the Fain 4H well and

before EOG incurred the expenses that it billed to FFFLP.


      8
       We noted in Westhoff that the shut-in royalty clause provided that ―the
lessee may pay an annual royalty equal to the amount of the delay rentals . . .
and if such payment is made, it shall be considered under all provisions of the
lease that gas is being produced in paying quantities for one year from the date
of payment.‖ 802 S.W.2d at 125.


                                        10
             (1) Production during the Primary Term

      EOG admitted in its motion for partial summary judgment and on appeal

that the wells were not productive. In its reply to FFFLP‘s response to EOG‘s

motion for final summary judgment, EOG stated that it did not know whether the

Fain 1H well was producing on November 7, 2007, when FFFLP agreed to

participate in the Fain 4H well. Indeed, the only evidence that the wells were

ever productive was a June 30, 2008 email attached to FFFLP‘s response to

EOG‘s motion for final summary judgment, in which EOG Landman Taylor Fry

told Rickey Fain, ―Yes, both wells are productive.‖ However, railroad commission

production reports also attached to FFFLP‘s response show that EOG reported

no production from either well from December 2006 to December 2011.

Furthermore, Fry‘s email was sent over eleven months after the date on which

the primary term would have expired from nonproduction, and EOG offered no

evidence that any well was productive at the end of the primary term.

      Additionally, EOG attached no evidence to its traditional summary

judgment motion to show that it was engaged in drilling operations at the end of

the primary term. The only evidence in the record regarding lease operations at

that time is invoices that FFFLP attached to its response to EOG‘s motion for

partial summary judgment. The invoices were for materials and services that

EOG used in building a location for the Fain 3H well—a well in which FFFLP was

not   participating.   The    lease‘s   continuous   drilling   provision   defines

―commencement of drilling operations‖ as the date on which the lessee ―begins


                                        11
operations such as building a location and the subsequent moving in of a drilling

rig‖ if drilling begins within sixty days from the date on which operations

commenced. Given that these invoices relate only to materials and services

provided for building the Fain 3H location, they are insufficient to show that EOG

had ―commenced drilling operations‖ on this well or any well in which FFFLP had

agreed to participate because there is nothing in the record to show that EOG

began drilling within sixty days of the date on which it began constructing a

location for the Fain 3H well. Thus, a fact question remains as to whether the

lease expired from nonproduction on June 22, 2007, or whether the wells were

capable of production as set out below.

             (2) Wells Capable of Production

      Assuming that EOG held the lease past the end of the primary term, there

is conflicting evidence as to whether any well was ever capable of production.

      A well is capable of production in paying quantities only if it would produce

in ―paying quantities‖ when ―turned ‗on,‘ . . . without additional equipment or

repair.‖ Anadarko Petroleum Corp. v. Thompson, 94 S.W.3d 550, 558–59 (Tex.

2002) (op. on reh‘g) (quoting Hydrocarbon, 861 S.W.2d at 433–34).              A well

produces in ―paying quantities‖ when it is reasonable to expect ―profitable

returns‖ from the well. Id. at 559 (quoting Clifton v. Koontz, 160 Tex. 89, 325

S.W.2d 684, 691 (Tex. 1959)). Further, a lack of ―facilities for marketing the gas‖

is sufficient to show that a well is not capable of production in ―paying quantities.‖




                                          12
Id. at 559 (noting that facilities for marketing gas do not exist when an operator

cannot justify the cost of constructing a pipeline).

      Rick Dollins of EOG confirmed in a May 1, 2008 email to Fain, which

FFFLP also attached to its response to EOG‘s motion for final summary

judgment, that the wells were not producing enough gas to justify the cost of

attaching them to an existing pipeline running across the lease property. This

implies that the wells were not capable of production because EOG had no

―facilities for marketing the gas.‖ See id. And although Fry told Fain in a June

25, 2008 email, ―EOG is currently operating under the shut-in provisions of the

lease. Shut-in payments were made towards the end of March for both wells, in

keeping with the lease provisions[,]‖ she then stated, ―We continue to be hopeful

for the future development of your ranch, and [we] are seeing some positive

results in similar situations with the new technology that has developed in the

Barnett.‖ Two days later, Fry also told Fain that ―neither well on the property has

been hooked up to pipeline,‖ making it unclear whether the wells could produce

―in paying quantities‖ when ―turned on.‖9       Thus, there appears to be a fact

question as to whether EOG ever had a well on the lease that was capable of

production.




      9
      Under the shut-in royalty provision, EOG could have held the lease
beyond the primary term if there was a well on the lease that was capable of
production and EOG timely paid shut-in royalties to FFFLP.


                                          13
            (3) Shut-In Royalty Payment

      Even assuming that there was a well on the lease that was capable of

production after the end of the primary term, EOG would have had to pay shut-in

royalties within ninety days from the date on which the well was shut in to avoid

lease expiration and JOA termination.

      The evidence in the record indicates that EOG paid shut-in royalties on

March 12, 2008. However, there is no evidence that EOG shut in a well that was

capable of production within the ninety days preceding March 12, 2008. Given

that the payments were made over five months after the end of the primary term,

and considering the conflicting evidence regarding whether EOG had a well that

was capable of production and the lack of evidence regarding shut-in dates, a

fact question remains as to whether EOG timely paid shut-in royalties.

            (4) EOG’s Invoices

      Nonetheless, EOG argues on appeal that the lease termination date is

immaterial because FFFLP‘s liability attached in 2007. Indeed, EOG claimed in

its motion for partial summary judgment that ―[a]ll of the invoices at issue were

dated in 2007.‖

      In support of its motion for partial summary judgment, EOG attached

copies of the invoices dated July 2007 through December 2010 that it sent to

FFFLP. EOG also attached the affidavit of EOG‘s Accounting and Administrative

Manager Kathy Donaldson, in which Donaldson stated that the invoices




                                        14
represent the amounts FFFLP owed to EOG under the JOA and that the

amounts were ―just and true.‖

      The invoices for July, August, and September 2007, however, contain only

charges and credits relating to the Fain A Unit #1H well—a well in which FFFLP

did not participate. Charges for the Fain 1H and Fain 4H wells in which FFFLP

agreed to participate first appear in the November 2007 invoice and continue

through the December 2010 invoice.

      Considering the questions above concerning whether the lease expired at

the end of the primary term on June 22, 2007, a genuine issue of material fact

remains as to whether the parties were operating under a valid JOA when EOG

incurred the expenses represented in the invoices.10

      Further, although EOG claimed in its motion for partial summary judgment

that only the 2007 invoices were at issue, EOG also claimed that FFFLP owed a

principal debt of $449,643.54. Yet the December 2007 invoice shows a balance

due of $292,311.60, and EOG offered no evidence to explain this discrepancy.

This raises an additional fact question as to the actual amount of EOG‘s sworn

account.




      10
        The JOA does not state whether a nonoperator‘s obligation to pay its
share of development costs accrues when it agrees to participate or when the
costs in question are incurred, and the parties did not argue this issue in the trial
court or present it for our review here.


                                         15
      2. Conclusion

      In light of the questions surrounding whether EOG held the lease past the

end of the primary term by production, whether EOG had wells on the lease that

were capable of production, and whether EOG timely paid shut-in royalties,

genuine issues of material fact remain as to whether the JOA terminated before

FFFLP agreed to participate in the Fain 4H well and before EOG incurred the

expenses that it billed to FFFLP. Thus, as to its breach of contract claim, EOG

has failed to carry its summary judgment burden of proof that the parties had a

valid, enforceable JOA when it incurred the expenses that it billed to FFFLP.

See Tex. R. Civ. P. 166a(c).

      In its motion for partial summary judgment, EOG also asserted as part of

its breach of contract claim that the JOA audit provision barred FFFLP from

disputing the charges that EOG sought to recover. EOG also made this same

assertion as part of its no-evidence summary judgment motion on FFFLP‘s

breach of contract claim. EOG argued that FFFLP was contractually barred from

challenging the validity of EOG‘s invoices because it failed to contest the invoices

within the twenty-four month window provided by the JOA audit provision.

Because this assertion is based on the JOA audit provision, it is predicated on

whether the JOA was applicable at the time the charges were incurred. Given

that genuine issues of material fact exist as to whether the parties had a valid

JOA at the time the charges were incurred, we hold that EOG failed to carry its




                                        16
summary judgment burden of proof that the JOA audit provision barred FFFLP

from disputing the invoices.11 See id.

      Further, EOG offered no evidence that the amounts it billed to FFFLP were

―usual, customary, or reasonable.‖ See Naan, 2012 WL 114201, at *6. To prove

that the amounts billed to FFFLP were ―just and true,‖ EOG offered only the JOA,

lease, invoices, and Donaldson‘s affidavit. Because a genuine issue of material

fact exists as to the validity of the lease and JOA at the time EOG incurred the

expenses reflected in the invoices, however, a genuine issue of material fact

remains as to whether the amounts EOG charged FFFLP were ―just and true.‖

See Garrison Contractors, Inc. v. Liberty Mut. Ins. Co., 927 S.W.2d 296, 303–04

(Tex. App.—El Paso 1996) (holding that the plaintiff suing on sworn account

failed to carry its burden of proof that the amount was just when it offered no

evidence beyond the agreement and the defendant raised a fact issue as to the

validity of the agreement), aff’d, 966 S.W.2d 482 (Tex. 1998). Thus, as to its suit

on sworn account, EOG failed to carry its summary judgment burden of proof that

the amounts billed were ―just and true.‖ See Tex. R. Civ. P. 166a(c). Because

EOG failed to prove all essential elements of its suit on sworn account and its


      11
         EOG also leverages FFFLP‘s agreement to the JOA audit provision in
the quasi-estoppel defense it moved upon in its traditional motion for final
summary judgment. EOG argued that FFFLP was estopped from taking a
position inconsistent with the JOA audit provision by challenging EOG‘s invoices
via its counterclaims. EOG has failed to carry its summary judgment burden on
this defense for the same reasons discussed above. See Tex. R. Civ. P.
166a(c).


                                         17
breach of contract claim as a matter of law, we sustain this portion of FFFLP‘s

second issue. See id.; City of Houston, 589 S.W.2d at 678.

B. EOG’s Motion for No-Evidence Summary Judgment

      In its motion for final summary judgment, EOG moved for a no-evidence

summary judgment on FFFLP‘s counterclaims for fraud, fraud by nondisclosure,

negligent misrepresentation, and breach of contract.      The trial court granted

EOG‘s motion and dismissed all of FFFLP‘s counterclaims.

      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., 286 S.W.3d at 310.

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, 249 S.W.3d at 426. 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).

      When, as here, a trial court‘s order granting summary judgment does not

specify the ground or grounds relied on for its ruling, summary judgment will be

affirmed on appeal if any of the theories presented to the trial court and


                                        18
preserved for appellate review are meritorious. Knott, 128 S.W.3d at 216; Star-

Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). When the trial court‘s

judgment rests upon more than one independent ground or defense, the

aggrieved party must assign error to each ground, or the judgment will be

affirmed on the ground to which no complaint is made. Scott v. Galusha, 890

S.W.2d 945, 948 (Tex. App.—Fort Worth 1994, writ denied).

      FFFLP complains in its second issue that the trial court erred by granting

EOG‘s motion for final summary judgment because genuine issues of material

fact remain on its counterclaims and in its first issue that the final summary

judgment grants more relief than EOG requested.

      1. FFFLP’s Negligent Misrepresentation Claim

      Because FFFLP does not appeal the trial court‘s judgment on its negligent

misrepresentation claim, we affirm the trial court‘s judgment on this claim. See

id.

      2. FFFLP’s Fraudulent Inducement Claim

      FFFLP claims on appeal that a fact issue remains regarding whether EOG

fraudulently induced FFFLP to participate in the Fain 4H well.12 Specifically,


      12
        FFFLP pleaded fraud and fraud by nondisclosure in both its first and
second amended answers and added a claim for fraudulent inducement in its
second amended answer. However, in its motion for final summary judgment,
filed before FFFLP‘s second amended answer, EOG addressed only the fraud
claims included in FFFLP‘s first amended answer. Although we must generally
reverse a judgment when a movant fails to amend or supplement its pending
motion for summary judgment to address newly added claims and avoid granting


                                      19
FFFLP argues that EOG allegedly represented to FFFLP that it would drill one

well at a time based on production but that it drilled the Fain 4H well—in which

FFFLP had agreed to participate—even though it never obtained production from

the Fain 1H well.    FFFLP claims that this action, in conjunction with EOG‘s

conflicting representations regarding the Fain 1H well production, raises a fact

question as to whether EOG fraudulently misrepresented lease production to

induce FFFLP to participate in the Fain 4H well. FFFLP, however, has failed to

address on appeal all of the grounds on which the trial court could have granted

the summary judgment on this claim, namely, EOG‘s assertion that FFFLP had

no evidence that it intended to induce FFFLP or that it made the alleged

misrepresentations knowing they were false or with reckless disregard for their

falsity.13 Therefore, we overrule this portion of FFFLP‘s second issue. See id.




more relief than requested, we need not do so when the movant has proved that
it is entitled to summary judgment on an addressed claim from which the
unaddressed claim is derived. See West v. Northstar Fin. Corp., No. 02-08-
00447-CV, 2010 WL 851415, at *5 (Tex. App.—Fort Worth Mar. 11, 2010, pet.
denied) (mem. op.). Because FFFLP‘s fraudulent inducement claim is derived
from its fraud and fraud by nondisclosure claims that EOG addressed, we may
address this claim. See id.
      13
         A party commits fraud by making a false, material misrepresentation that
the party either knows to be false or asserts recklessly without knowledge of its
truth with the intent that the misrepresentation be acted upon, and the person to
whom the misrepresentation is made acts in reliance upon it and is injured as a
result. All Am. Tel., Inc. v. USLD Comm’cns, Inc., 291 S.W.3d 518, 527 (Tex.
App.—Fort Worth 2009, pet. denied). EOG moved for summary judgment on the
grounds that FFFLP had no competent evidence that (1) it made any ―false
material representations‖; (2) it ―made material representations knowing that they


                                       20
      3. FFFLP’s Breach of Contract Claim

      FFFLP also asserts on appeal that a fact issue remains as to whether

EOG breached the JOA as modified by the parties. Specifically, FFFLP claims

that the parties modified the JOA via an email in which Dollins told Fain that

―[s]ubsequent wells would not be drilled until we have seen some production‖ and

that EOG breached the modified JOA by drilling the Fain 4H well before the Fain

1H well was productive. In its final summary judgment motion, one of EOG‘s

grounds was that FFFLP could produce no evidence that the parties had

modified the JOA; EOG argues on appeal that FFFLP has produced no evidence

of additional consideration to support its modification claim. FFFLP argues that

its agreement to participate in the Fain 4H well is evidence of additional

consideration.

      Contract modifications require new consideration and the same mutuality

of consent found in the original contract. See Williams v. L.M.S.C., Inc., No. 01-

03-00924-CV, 2005 WL 2469876, at *6 (Tex. App.—Houston [1st Dist.] Oct. 6,

2005, pet. denied) (mem. op.) (op. on reh‘g); Hill v. Heritage Res., Inc., 964

S.W.2d 89, 113 (Tex. App.—El Paso 1997, pet. denied).           Consideration is a

―present exchange bargained for in return for a promise.‖ Citizens Nat’l Bank v.

Allen Rae Invs., Inc., 142 S.W.3d 459, 474 (Tex. App.—Fort Worth 2004, no pet.)




were false or recklessly, without knowledge of their truth‖; and (3) it intended any
―alleged non-disclosure to induce [FFFLP] to action or inaction.‖


                                        21
(quoting Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 496 (Tex. 1991)).

―The [promisee‘s] detriment must induce the making of the promise, and the

promise must induce the incurring of the [promisee‘s] detriment.‖ Roark, 813

S.W.2d at 496. ―A contract that lacks consideration, lacks mutuality of obligation

and is unenforceable.‖ Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 409 (Tex.

1997), superseded by statute on other grounds as stated in Tex. Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004); see also City of The

Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d 699, 725 (Tex. App.—Fort Worth

2008, pet. dism‘d).

      The record reflects that FFFLP produced no evidence that its alleged

detriment—agreeing to participate in the Fain 4H well—was consideration for

EOG‘s alleged promise to drill one well at a time. See Fed. Sign, 951 S.W.2d at

409. Further, after the email exchange in question, FFFLP agreed to participate

in both wells and pay 1/8th of the development costs under the terms of the

written JOA. In the proposal letters attached to the participation agreements that

Fain signed, EOG specifically stated that the proposals were offered ―[p]ursuant

to the terms of that certain Joint Operating Agreement (‗JOA‘) dated June 22,

2004.‖ Thus, the proposal letters demonstrate that there was no mutuality of




                                       22
consent to modify the JOA, see Hill, 964 S.W.2d at 113, and FFFLP does not

claim that EOG breached the written JOA by drilling the Fain 4H well.14

      Thus, FFFLP has produced less than a scintilla of evidence to show that

the parties modified the JOA and that EOG breached the modified JOA when it

drilled the Fain 4H well.    See Smith, 288 S.W.3d at 424.        We overrule this

remaining portion of FFFLP‘s second issue.

      4. FFFLP’s Unaddressed Counterclaims

      As noted above, FFFLP argues in its first issue that the trial court granted

more relief than EOG requested because EOG‘s motion for final summary

judgment did not address FFFLP‘s defenses of contract modification and waiver,

or its counterclaims for rescission, breach of informal fiduciary duty, breach of the

duty to act as a reasonably prudent operator, and breach of the duty to

reasonably develop the lease.15 EOG argues that it moved on all of FFFLP‘s

counterclaims in its motion for final summary judgment by asking the trial court to

dismiss ―Defendants‘ counterclaims on either traditional or no-evidence grounds.‖

      14
       FFFLP claimed in its second amended answer that EOG breached the
JOA as written by failing to answer lease operation questions in a reasonable
time. However, FFFLP did not raise this issue on appeal. See Tex. R. App. P.
38.1.
      15
        Rescission is an equitable remedy to set aside an otherwise legal
contract for fraud, mistake, or other reasons and is generally used when
monetary damages would be inadequate. See City of The Colony, 272 S.W.3d
at 732. Although FFFLP does not state its basis for seeking rescission in its
second amended answer, fraud is the only ground pleaded by FFFLP that would
support rescission, and EOG addressed this ground in its motion for final
summary judgment.


                                         23
      ―Granting a summary judgment on a claim not addressed in the summary

judgment motion . . . is, as a general rule, reversible error.‖ See G & H Towing

Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011).           To obtain reversal of a

judgment based upon an error in the trial court, the appellant must show that the

error occurred and that it probably caused rendition of an improper judgment or

probably prevented the appellant from properly presenting the case to this court.

Tex. R. App. P. 44.1(a); Romero v. KPH Consolidation, Inc., 166 S.W.3d 212,

225 (Tex. 2005).

      At the outset, we hold that EOG‘s general motion to dismiss FFFLP‘s

claims on ―either traditional or no-evidence grounds‖ is insufficient to meet the

requirements of rule 166a(c) of the rules of civil procedure requiring the movant

to specifically state the grounds moved upon, see Tex. R. Civ. P. 166a(c);

Cunningham v. Blue Cross Blue Shield of Tex., No. 02-06-00363-CV, 2008 WL

467399, at *3 (Tex. App.—Fort Worth Feb. 21, 2008, pet. denied) (mem. op.) (op.

on reh‘g), and rule 166a(i) requiring the movant to specifically state the elements

for which there is no evidence, see Tex. R. Civ. P. 166a(i); LaRue v. Chief Oil &

Gas, L.L.C., 167 S.W.3d 866, 873 (Tex. App.—Fort Worth 2005, no pet.). Thus,

we will review FFFLP‘s complaint in light of the grounds upon which EOG

specifically moved. See G & H Towing Co., 347 S.W.3d at 297.

            a. FFFLP’s Breach of the Duty to Reasonably Develop Claim

      FFFLP counterclaimed that EOG breached its duty to it as a royalty

interest owner to reasonably develop the lease. Despite providing a detailed


                                        24
response to FFFLP‘s counterclaims for fraud, fraud by nondisclosure, negligent

misrepresentation, and breach of contract in the no-evidence portion of its motion

for summary judgment, EOG did not state a ground on FFFLP‘s counterclaim for

breach of the duty to reasonably develop the lease.

      This duty becomes active only after production is secured, see Grayson v.

Crescendo Res., L.P., 104 S.W.3d 736, 739 (Tex. App.—Amarillo 2003, pet.

denied), and may be expressed or implied in the lease, see Amoco Prod. Co. v.

Alexander, 622 S.W.2d 563, 567 (Tex. 1981) (recognizing an implied covenant to

develop in the absence of an express covenant).          Indeed, the lease here

expressly stated that ―[i]f oil or gas is discovered on the land covered by this

Lease, Lessee agrees to further develop said land covered by this Lease as a

reasonably prudent operator.‖ Because a fact question remains as to whether

there was ever production from the lease, this claim is not precluded as a matter

of law and is not subject to the harmless error exception. See G & H Towing Co.,

347 S.W.3d at 297. Because EOG failed to move on this counterclaim, the trial

court erred by dismissing it, see id., and we sustain FFFLP‘s first issue with

respect to this claim.

             b. FFFLP’s Remaining Claims

      FFFLP argues that EOG did not move for summary judgment on its JOA

modification and payment waiver defenses. However, EOG moved on FFFLP‘s

modification defense by expressly denying that the parties modified the JOA.




                                       25
Further, FFFLP brought forth less than a scintilla of evidence that the parties

modified the JOA, nullifying its payment waiver argument as well.16

      FFFLP also argues on appeal that EOG failed to address its claim that

EOG breached informal fiduciary duties, including the duty to act as a reasonably

prudent operator and the duty of good faith and fair dealing.         In its second

amended answer, FFFLP claimed that operator EOG owed a fiduciary duty to

―non-operator investor[]‖ FFFLP and that EOG had a fiduciary duty to act as a

reasonably prudent operator and owed FFFLP a duty of good faith and fair

dealing.

      In its final summary judgment motion, EOG denied owing any fiduciary

duties to FFFLP under the lease or the JOA. In fact, EOG correctly noted that

the JOA expressly denied any fiduciary duties between the parties.17 EOG also

asserted in its final summary judgment motion that it would not address FFFLP‘s

allegation that it breached the duty of good faith and fair dealing because the

relationship between a lessor and a lessee in an oil and gas lease is not the type

      16
      FFFLP‘s payment waiver defense falls under its modification defense
because it claimed that the parties‘ modifications included a waiver of the
payment provisions detailed in the written JOA accounting procedure.
      17
         EOG cited Crim Truck & Tractor Co. v. Navistar Int’l Transp. Co. for the
proposition that courts are unlikely to find an informal fiduciary relationship
between oil and gas lessors and lessees because each party is motivated by
profit and there is no element of trust. See 823 S.W.2d 591, 594 (Tex. 1992),
(holding that contracting business parties do not share the kind of trust necessary
to create a confidential relationship giving rise to informal fiduciary duties),
superseded by statute on other grounds as stated in Subaru of Am., Inc. v. David
McDavid Nissan, Inc., 84 S.W.3d 212, 225–26 (Tex. 2002).


                                        26
of special relationship giving rise to such a duty.     Thus, we hold that EOG

sufficiently raised grounds as to these claims.

      FFFLP responded to EOG‘s claim that it owed no fiduciary duties to FFFLP

by claiming that EOG owed a fiduciary duty to disclose information to its partner

FFFLP.     However, the JOA expressly disclaimed any special relationship

between the parties, including partnership. FFFLP also responded to EOG‘s

claim that it owed no duty of good faith and fair dealing by correctly pointing out

that, although it may not owe the duty as lessee, it did owe the duty under the

JOA. On appeal, however, FFFLP complains only that EOG failed to move on

these grounds in its motion for final summary judgment. Having held that EOG

moved on these grounds, we overrule the remainder of FFFLP‘s first issue. See

Scott, 890 S.W.2d at 948.




                                        27
                                 IV. Conclusion

      Having sustained FFFLP‘s second issue as to EOG‘s claims, we reverse

this portion of the trial court‘s judgment and remand those claims to the trial

court. Having sustained part of FFFLP‘s first issue regarding its claim that EOG

breached its duty to reasonably develop the lease, we also reverse the portion of

the trial court‘s judgment on this claim and remand it to the trial court. Having

overruled the remainder of FFFLP‘s dispositive issues, we affirm the remainder

of the trial court‘s judgment.




                                                  BOB MCCOY
                                                  JUSTICE

PANEL: GARDNER, MCCOY, and GABRIEL, JJ.

DELIVERED: April 18, 2013




                                       28
