Motion for Rehearing Granted in Part and Denied in Part; Affirmed in Part
and Reversed and Remanded in Part; Opinion and Concurring Opinions filed
October 16, 2012 Withdrawn, and Substitute Opinion and Substitute
Concurring Opinions filed December 28, 2012.




                                              In The
                         Fourteenth Court of Appeals

                                    NO. 14-10-00604-CV

                         2001 TRINITY FUND, LLC, Appellant

                                                 V.

                        CARRIZO OIL & GAS, INC., Appellee

                        On Appeal from the 295th District Court
                                Harris County, Texas
                          Trial Court Cause No. 2008-05053

                                                                             1
                      SUBSTITUTE OPINION
       Two oil and gas companies, an operator and a non-operator, signed an

1
  To the extent that we change the analysis and judgment regarding the attorney’s fees awarded
to Carrizo Oil & Gas, Inc. and to the extent that we affirm part of the trial court’s judgment, we
grant Carrizo’s motion for rehearing, though we do not agree with all of Carrizo’s arguments in
support of this relief; otherwise, we deny the rehearing motion. We withdraw the opinion issued
in this case on October 16, 2012, and issue this opinion in its place. This substitute opinion is the
unanimous opinion of the court as to sections IV.B., IV.C., IV.D., and IV.E (addressing issues
pertaining to the quantum-meruit claim, the promissory-estoppel claim, attorney’s fees, and the
appropriate appellate judgment). It is a plurality opinion as to section IV.A., with two justices
concurring in the judgment only as to this part.
agreement setting forth the terms and conditions of the non-operator’s participation
in certain wells being drilled or to be drilled on some of the operator’s Barnett
Shale drilling prospects. After that agreement terminated automatically, the two
companies exchanged a series of emails. The jury found that the companies agreed
in writing to continue under the terms of the terminated agreement without the
automatic-termination provision and with a new provision under which the non-
operator would receive a 1% rebate. The jury found that the non-operator’s breach
of this contract resulted in damages to the operator. The jury also answered
liability and damage questions favorable to the operator on alternative claims for
quantum meruit and promissory estoppel. The trial court rendered judgment in
favor of the plaintiff based upon the breach-of-contract claim. We conclude the
evidence is legally insufficient to support the jury’s liability findings regarding all
three claims. Based upon the form of the trial court’s judgment, we are precluded
from effectively rendering judgment or affirming the trial court’s judgment as
modified. Therefore, after affirming part of the trial court’s judgment that is not
challenged on appeal, we sever and reverse the remainder of the judgment and
remand to the trial court for rendition of a new judgment in which the non-operator
recovers a money judgment against the operator.

                  I. FACTUAL AND PROCEDURAL BACKGROUND

      Appellee/plaintiff Carrizo Oil & Gas, Inc. had various leases in the Barnett
Shale and was either drilling or planning to drill wells to keep certain of these
leases from expiring. Appellant/defendant 2001 Trinity Fund, LLC was interested
in participating in certain of Carrizo’s Barnett Shale drilling prospects. Carrizo
and Trinity entered into the “Barnett Shale Participation Agreement” on October
10, 2007 (hereinafter “Participation Agreement”).            In pertinent part, the
Participation Agreement provides as follows:

                                          2
Subject to the provisions of the Participation Agreement, Trinity has the
potential to earn a portion of Carrizo’s leasehold rights and interest in and to
various leases described in the Participation Agreement. (article 1.5).

Carrizo will drill and Trinity will commit to participate in nineteen wells
specified in article 2.2 of the Participation Agreement (“Commitment
Wells”) before the expiration date of the relevant leases, so as to prevent the
expiration of the leases. (article 2.1).

Carrizo will provide the drilling rig for the two Commitment Wells on the
Blair-Pickering Prospect. For the remaining wells, “Trinity shall provide the
drilling rig with specifications approved in advance by Carrizo’s Chief
Operations Officer.” “Carrizo reserves the right to utilize its own drilling rig
for any wells drilled hereunder in the event that the drilling rig provided by
Trinity does not meet with Carrizo’s approval.” (article 2.3).

All Commitment Wells drilled under the Participation Agreement will be on
the cost basis specified in the Participation Agreement, in which a certain
cost percentage is allocated to Trinity as to each prospect area in which the
Commitment Wells are to be drilled. (article 2.8(a)).

“[P]ayment by Trinity for its respective share of drilling and casing costs for
[the] first well on the Blair-Pickering Prospect shall be received by Carrizo
on or before October 19, 2007, or this Agreement shall automatically
terminate.” (article 2.8(b)).

“If Trinity has complied with all requirements, conditions and obligations of
this Agreement, then Trinity shall earn the following right, title and interest
in the Leases with respect to each Earning Well in a Prospect Area: [interests
specified].” (article 3.1(c)).

Within thirty days after Trinity has earned its respective working interest in
the leases attributable to a Commitment Well, Carrizo shall prepare, execute,
and deliver to Trinity an assignment of that interest. (article 3.2).

“Time is of the essence under this Agreement. Thus, all time limits shall be
strictly construed and enforced.” (article 7.3).

“If Trinity has not complied with each and all of the provisions of this
                                    3
      Agreement, then (i) Carrizo shall be relieved of its obligations to make the
      assignment(s) specified herein and (ii) Trinity shall have no further rights to
      earn additional rights hereunder or to undertake additional operations
      hereunder.” (article 7.3).

      Trinity’s failure to pay Carrizo Trinity’s respective share of drilling and
      casing costs for the first well on the Blair-Pickering Prospect on or before
      October 19, 2007, is a failure to comply with the Participation Agreement
      causing automatic termination of the agreement, but such a failure is not an
      active and material breach of the Participation Agreement. (article 9.5).

      “This instrument contains the final and entire agreement of [Carrizo and
      Trinity] with respect to the matters covered by this Agreement and
      supersedes all prior communications and agreements (written, oral or
      otherwise) in this regard.” (article 9.11).

      Trinity did not pay its respective share of the drilling and casing costs for the
first well on the Blair-Pickering Prospect on or before October 19, 2007. Thus,
under article 2.8(b), the Participation Agreement automatically terminated at the
end of the day on October 19, 2007. Evidence at trial indicated that one of the
reasons Trinity gave for not making this payment related to article 2.3 of the
Participation Agreement. There was evidence that Trinity expected, under this
article, to provide the rig for drilling of all the Commitment Wells to be drilled,
except for the two Commitment Wells on the Blair-Pickering Prospect. But Trinity
learned that Carrizo preferred to use its rigs to drill all of the Commitment Wells
and that Carrizo planned to not approve any Trinity rig and to invoke its right
under article 2.3 of the Participation Agreement to use Carrizo drilling rigs.
      Between October 31, 2007, and January 2, 2008, David Friedman, on behalf
of Carrizo, and Rob Arrowood, on behalf of Trinity, exchanged a series of emails
that, according to Carrizo, constituted a written agreement by Carrizo and Trinity
to continue under the terms of the Participation Agreement without a termination
date associated with the non-payment of costs for the first well on the Blair-
                                          4
Pickering Prospect and with a new provision under which Trinity would receive a
1% rebate (hereinafter “Alleged Agreement”).         Carrizo alleges that Trinity
breached this Alleged Agreement by not paying Carrizo any amount for the costs
of any of the Commitment Wells.
      Carrizo and Trinity have entered into contracts regarding various matters
other than the subject matter of the Participation Agreement. Carrizo and Trinity
entered into a participation agreement regarding various oil and gas leases in
Denton County, Texas (“Denton County Agreement”). On January 21, 2008,
Arrowood sent a letter to Carrizo in a purported attempt to resolve various disputes
that had developed between Trinity and Carrizo. These disputes were not resolved,
and one week later Carrizo filed suit in the trial court below. Eventually, Carrizo
asserted claims against Trinity for breach of contract, quantum meruit, and
promissory estoppel. Carrizo also asserted breach-of-contract and declaratory-
judgment claims against Trinity based upon the Denton County Agreement.
Trinity filed counterclaims, seeking declaratory relief regarding both the
Participation Agreement and the Denton County Agreement and seeking damages
resulting from Carrizo’s alleged breaches of the Denton County Agreement.
      The trial court denied various summary-judgment motions, including
Trinity’s motion for summary judgment as to Carrizo’s breach-of-contract and
quantum-meruit claims relating to the subject matter of the Participation
Agreement. The case proceeded to trial before a jury. The jury found that (1)
Carrizo and Trinity agreed to the Alleged Agreement and that this agreement was
in writing and signed; (2) Trinity failed to comply with the Alleged Agreement; (3)
$10,894,000 would fairly and reasonably compensate Carrizo for its damages
resulting from this failure to comply; (4) Carrizo rendered valuable services or
furnished materials for Trinity, who knowingly accepted and used these services
and materials, and Trinity should have known that Carrizo expected to be paid for
                                         5
the work; (5) the reasonable value of these services and goods was $10,894,000;
(6) Carrizo substantially relied to its detriment on Trinity’s promise concerning the
Barnett Shale Drilling Program and this reliance was foreseeable by Trinity; and
(7) $10,894,000 would fairly and reasonably compensate Carrizo for its damages
resulting from its reliance on Trinity’s promise. The jury also made findings
regarding Trinity’s claims relating to the Denton County Agreement and regarding
each party’s reasonable and necessary attorney’s fees.

      Trinity asked the trial court to disregard the jury’s findings as to Carrizo’s
claims against Trinity for money damages. Nonetheless, the trial court rendered
judgment on the jury’s verdict. The trial court concluded that Trinity was indebted
to Carrizo in the amount of $12,070,549 ($10,894,000 plus prejudgment interest).
The trial court rendered declaratory relief regarding the Denton County Agreement
consistent with the jury’s findings. Based upon the jury’s findings, the trial court
also determined that Carrizo is indebted to Trinity in the amount of $404,159.92
under the Denton County Agreement. The trial court further concluded that Trinity
was indebted to Carrizo in the amount of Carrizo’s reasonable and necessary fees
as found by the jury and that Carrizo was indebted to Trinity in the amount of
Trinity’s reasonable and necessary fees as found by the jury. After offsetting these
amounts and taking into account an offset that Carrizo had made against certain
obligations to Trinity, the trial court rendered a judgment in Carrizo’s favor for the
net amount. In its judgment, the trial court did not determine that Trinity owned
any interest in the leases covered by the Participation Agreement; however, the
court did state that “Carrizo’s obligation to pay Trinity any revenue derived from
the Wells drilled under the terms of the [Participation Agreement] . . . is controlled
by the terms of the [Participation Agreement].” The language used in the final
judgment shows that the trial court rendered judgment based upon the jury’s


                                          6
findings regarding the breach-of-contract claim rather than the quantum-meruit
claim or the promissory-estoppel claim.
                                  II. ISSUES PRESENTED
       Trinity has appealed the trial court’s judgment; Carrizo has not appealed.
Trinity presents the following issues:
(1)    The trial court erred in denying Trinity’s summary-judgment motions
       regarding Carrizo’s breach-of-contract claim.
(2)    The trial court should not have submitted the breach-of-contract claim to the
       jury.
(3)    The evidence is legally insufficient, or in the alternative factually
       insufficient, to support the jury’s verdict on Carrizo’s breach-of-contract
       claim.
(4)    The trial court erred in denying Trinity’s summary-judgment motions
       regarding Carrizo’s quantum-meruit claim.2
(5)    The trial court should not have submitted the quantum-meruit claim to the
       jury.
(6)    The evidence is legally insufficient, or in the alternative factually
       insufficient, to support the jury’s verdict on Carrizo’s quantum-meruit claim.
(7)    The trial court should not have submitted Carrizo’s promissory-estoppel
       claim to the jury.
(8)    The evidence is legally insufficient, or in the alternative factually
       insufficient, to support the jury’s verdict on Carrizo’s promissory-estoppel
       claim.
(9)    In the alternative, the damages awarded to Carrizo on its promissory-
       estoppel claim should be reduced.
(10) The evidence does not support the trial court’s award of attorney’s fees to
     Carrizo.


                               III. STANDARD OF REVIEW


2
  Trinity numbers its issues separately for each claim. For ease of reference, we have numbered
the issues from first to tenth in the order in which Trinity lists them in its brief.

                                              7
      On appeal, Trinity challenges the legal sufficiency of the evidence
supporting various jury findings. When reviewing the legal sufficiency of the
evidence, we consider the evidence in the light most favorable to the challenged
finding and indulge every reasonable inference that would support it. City of
Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). We must credit favorable
evidence if a reasonable jury could and disregard contrary evidence unless a
reasonable jury could not. See id. at 827. We must determine whether the evidence
at trial would enable reasonable and fair-minded people to find the facts at issue.
See id. The jury is the only judge of witness credibility and the weight to give to
testimony. See id. at 819.

                                    IV. ANALYSIS

A.    Is the evidence legally sufficient to support the jury’s finding that
      Carrizo and Trinity entered into the Alleged Agreement?

      Under its second issue, Trinity asserts that the trial court erred in submitting
Question 1 to the jury over Trinity’s objection that the evidence was legally
insufficient to support the submission of this question to the jury. Under its third
issue, Trinity asserts that the evidence is legally insufficient to support the jury’s
finding in response to Question 1 that Carrizo and Trinity entered into the Alleged
Agreement. Thus, in both issues Trinity challenges the legal sufficiency of the
evidence to support an affirmative answer in response to Question 1. In this
question, the trial court asked the jury whether Carrizo and Trinity “agree[d] to
continue with the [Participation Agreement] without a termination date associated
with the non-payment of costs for the first well on the Blair-Pickering prospect and
with a 1% rebate payable to Trinity.” The trial court also instructed the jury that an
agreement concerning the transfer of an interest in minerals must be in writing and
signed. Because the Participation Agreement, with the modifications stated in
                                          8
Question 1, is an agreement concerning the transfer of an interest in minerals, the
jury found that the Alleged Agreement that the parties entered into was in writing
and signed.3 Thus, the jury found that Carrizo and Trinity entered into a written
agreement to continue with the Participation Agreement without a termination date
associated with the non-payment of costs for the first well on the Blair-Pickering
prospect and with a 1% rebate payable to Trinity. At the charge conference, no
party objected to the form of Question 1; therefore, this court measures the
sufficiency of the evidence using the language of this question and the instructions
associated with it, even if they do not correctly state the law. See Osterberg v.
Peca, 12 S.W.3d 31, 55 (Tex. 2000) (holding that appellate court could not review
the sufficiency of the evidence based on a particular legal standard because that
standard was not submitted to the jury and no party objected to the charge on this
ground or requested that the jury be charged using this standard).

       In its live petition, Carrizo pleaded that the Participation Agreement
terminated when Trinity did not pay its respective share of the drilling and casing
costs for the first well on the Blair-Pickering Prospect on or before October 19,
2007. Trinity agrees with this proposition, and it is correct under the unambiguous
language of the Participation Agreement and the uncontroverted evidence that
Trinity did not make this payment. The jury was not asked to determine whether
Trinity failed to comply with the Participation Agreement; rather, the jury was
asked whether Trinity failed to comply with the Alleged Agreement. In response
to Question 1, the jury found that Carrizo and Trinity agreed to the terms of the

3
  The trial court also instructed the jury regarding the Uniform Electronic Transactions Act. See
Tex. Bus. & Com. Code Ann. § 322.001, et seq. (West 2012). The jury impliedly found that the
parties agreed to enter into the Alleged Agreement by electronic means and that Arrowood and
Friedman executed or adopted a symbol associated with their respective emails with the intent to
sign the emails. Trinity has challenged the legal sufficiency of these findings, but it is
unnecessary to address these challenges in this opinion.

                                               9
Alleged Agreement. To create an enforceable contract, there must be (1) an offer,
(2) acceptance in strict compliance with the terms of the offer, (3) a meeting of the
minds, (4) each party’s consent to the terms, and (5) execution and delivery of the
contract with the intent that it be mutual and binding. See Parker Drilling Co. v.
Romfor Supply Co., 316 S.W.3d 68, 72 (Tex. App.—Houston [14th Dist.] 2010,
pet. denied). “Meeting of the minds” describes the mutual understanding and
assent to the agreement regarding the subject matter and the essential terms of the
contract. See Potcinske v. McDonald Property Investments, Ltd., 245 S.W.3d 526,
530 (Tex. App.—Houston [1st Dist.] 2007, no pet.) Mutual assent concerning
material, essential terms is a prerequisite to formation of a binding contract. See
id.
      The only possible basis for the jury’s finding that the parties entered into the
Alleged Agreement is a series of emails exchanged by Friedman and Arrowood
between October 31, 2007, and January 2, 2008.           These emails will now be
discussed in chronological order.

      On October 31, 2007, Friedman sent an email to Arrowood (1) stating that
Brad Fisher of Carrizo was uncomfortable with using a Trinity rig to drill any
wells, (2) indicating that Carrizo was unwilling to use any of Trinity’s drilling rigs,
and (3) stating that Carrizo realized that the use of Trinity’s rigs represented a part
of the compensation Trinity expected from the parties’ agreement. In an effort to
compensate Trinity for the failure to use any of its rigs, Friedman suggested
“amending” the Participation Agreement “to provide that Carrizo pay a full 1%
more in costs on each of the wells that [Trinity] would have used [its] own rig,”
which Friedman stated were the wells on four of the seven prospects listed in the
Participation Agreement. Friedman stated that all other terms of the Participation
Agreement would remain the same.


                                          10
      On November 2, 2007, Arrowood emailed Friedman saying, “I accept in
principle but need to have this interest flow directly back to me.” Arrowood stated
that he had agreements with his investors and that he was not planning on
including them in the compensation received from the use of Trinity’s rigs.
Arrowood stated that “[t]he compensation on the rigs was going directly to me.”
Arrowood asked Friedman if he could figure out a way to have the additional
compensation go directly to him. On the same day, Friedman responded that
“[w]hat we can do is send a 1% rebate for each well directly to you.” Friedman
stated that, “[i]f you are in agreement in principle, then I’m assuming we can work
out the mechanics.” Friedman told Arrowood that Carrizo needed to know that
day whether Trinity planned to pay Carrizo and exactly when it planned to pay.
Arrowood responded that day with the following two sentences: “That will work.
I will try to call before the day is over and give you an exact time.”
      Three days later, on November 5, 2007, Friedman emailed Arrowood asking
him to provide a final answer on that day as to whether and when Trinity planned
to pay Carrizo. Friedman stated that “[a]fter today it will be out of my hands.”
Arrowood responded: “Yes, has been my final answer. I will give you the final
date asap. I am waiting on a couple more executed documents and will proceed
with all payments.” Friedman responded, “[w]e need a definitive payment date
now.” Friedman also stated that Carrizo needed to receive a wire transfer by the
next day “in order to keep this agreement alive.” Friedman reiterated that after that
day, it would be “out of his hands.”           Arrowood responded that “[i]t was just
[November 2, 2007,] that we agreed to a supplement to this agreement that you
changed last minute [sic].” Arrowood stated that if Carrizo wanted Trinity to
submit the funds, then Carrizo had to wait until Trinity had all of the executed
documents between Trinity and its investors. Arrowood asked for certain exhibits
that he said he needed to attach to Trinity’s agreement with its investors.
                                          11
      Friedman responded the next day on November 6, 2007, angrily accusing
Trinity of having had no intention to pay Carrizo all along and complaining that
Trinity was always blaming its problems on Carrizo. The next email in evidence is
dated one month later on December 7, 2007, from Arrowood to Friedman. In this
short email Arrowood claims that his “funding is finally in.” Nonetheless, no
payment was forthcoming from Trinity to Carrizo.
      On December 12, 2007, counsel retained by Carrizo sent a letter to Trinity
demanding payment of the Trinity’s respective share of the drilling and casing
costs for the first well on the Blair-Pickering Prospect under the Participation
Agreement. In this letter, counsel for Carrizo demanded that Trinity pay these
costs and other sums by December 20, 2007. Carrizo stated that if Trinity did not
pay its respective share of the drilling and casing costs for the Blair-Pickering
wells by that date, Carrizo intended to exercise all rights and remedies available to
it, including filing suit against Trinity to recover the amounts due to Carrizo under
the Participation Agreement. In the demand letter, Carrizo does not mention the
Alleged Agreement.
      On December 14, 2007, Arrowood sent an email to Friedman stating that his
attorney would have “the agreement” ready by December 18 and that once the
agreement was executed, Arrowood would “forward funds.” On December 18,
2007, Arrowood sent Friedman a draft of a document amending the Participation
Agreement, asking Friedman to review the document and advise if he wanted to
make any changes. The next day, Friedman responded that Carrizo was analyzing
Trinity’s proposed agreement and noted that the compensation specified in the
proposed agreement was “different from the compensation we agreed to with you
on 11/2/07.” The evidence indicates that, sometime between December 19, 2007,
and December 30, 2007, Carrizo sent Trinity a draft of a document amending the
Participation Agreement. This document was lost and is not in our record. On
                                         12
December 30, 2007, Carrizo sent Trinity a different draft of a “First Amendment to
Barnett Shale Participation Agreement” and asked Trinity to disregard the previous
draft. Carrizo asked that, by January 4, 2008, Trinity (1) execute the proposed
amendment to the Participation Agreement, (2) wire to Carrizo the amount
corresponding to Trinity’s respective share of the drilling and casing costs for the
Blair-Pickering wells, and (3) make secure arrangements for payment of Trinity’s
share of all other costs for the other Commitment Wells. Three days later, Carrizo
forwarded a copy of the “First Amendment to Barnett Shale Participation
Agreement” that was signed by Carrizo. Trinity never executed this document, nor
did it ever pay Carrizo any amount for the costs of any of the Commitment Wells.
      Under the unambiguous language used by Friedman and Arrowood in this
series of emails, there was no mutual understanding and assent by Carrizo and
Trinity to a written agreement to continue with the Participation Agreement
without a termination date associated with Trinity’s failure to pay the costs for the
first well on the Blair-Pickering Prospect on or before October 19, 2007. Under a
single sentence in article 2.8(b) of the Participation Agreement, the parties agreed
that Trinity’s payment of its respective share of drilling and casing costs for the
first well on the Blair-Pickering Prospect would be received by Carrizo on or
before October 19, 2007, and if payment was not received by this date, then the
Participation Agreement would automatically terminate. Because this payment
was not received, the Participation Agreement terminated at the end of the day on
October 19, 2007. Significantly, by not paying these costs by October 19, 2007,
Trinity failed to comply with a provision of the Participation Agreement.
Therefore, under the unambiguous language of article 7.3 of the agreement,
Carrizo was relieved of its obligations to assign Trinity any interest in the
Commitment Wells, and Trinity had no further ability to earn additional rights in
any lease with respect to a Commitment Well or to undertake additional operations
                                         13
under the Participation Agreement. Because Trinity had not earned or obtained
any interest in any lease related to any Commitment Well on or before October 20,
2007, Trinity’s failure to pay the costs under article 2.8(b) meant that, under the
terms of the Participation Agreement, Trinity had no such interest and was not
entitled to receive such an interest in the future. On the other hand, because the
Participation Agreement had terminated, no further obligation to pay costs could
accrue to Trinity under the Participation Agreement.

      If, after October 19, 2007, the parties were to agree to continue forward
under the terms of the Participation Agreement without the automatic termination
due to Trinity’s failure to timely pay the costs under article 2.8(b) and without any
change to articles 3.1(c) and 7.3, then Trinity would be obligating itself to pay
millions of dollars in costs, but would have no ability to earn or receive any
interest in any lease relating to the Commitment Wells. Continuing forward with
the Participation Agreement without a termination date raises various issues, such
as: (1) whether the due date for Trinity’s cost payment regarding the Blair-
Pickering Prospect would be on October 19, 2007, and therefore be considered as
past due, (2) if the payment would still be considered past due, whether articles
3.1(c) and 7.3 should be changed so that Trinity would still have a potential ability
to earn and receive an interest in the leases related to the Commitment Wells, and
(3) whether the due date for Trinity’s cost payment regarding the Blair-Pickering
Prospect would be changed to a future date so that the payment might be made
timely by Trinity. None of these issues are addressed in writing in the series of
emails between Friedman and Arrowood.

      In Friedman’s October 31, 2007 email, he proposes a change to the
allocation of costs under the Participation Agreement, and then unambiguously
states that all other terms of the Participation Agreement would remain the same.

                                         14
Under the unambiguous terms of this proposal, the termination date in article
2.8(b) would not be removed, nor would articles 3.1(c) and 7.3 be changed so that
Trinity would still have a potential ability to earn and receive an interest in the
leases related to the Commitment Wells. In response, Arrowood says that he
accepts in principle, but needs to materially change the nature of the potential new
compensation. Thus, Arrowood shows that agreement in principle does not mean
that the parties have reached agreement on all material terms.

      Friedman then responds with a change in the potential new compensation to
Trinity. Friedman does not reiterate the full terms of his proposal. Presuming that
he is proposing the same terms as before except with the change to the method of
potential compensation, then under the unambiguous terms of this proposal, the
termination date in article 2.8(b) would not be removed, nor would articles 3.1(c)
and 7.3 be changed. Friedman says, “[i]f you are in agreement in principle, then
I’m assuming we can work out the mechanics.” Both under the plain meaning of
“agreement in principle” and as already shown by Arrowood in a prior email, an
agreement in principle is not an agreement as to all material terms.         Indeed,
Friedman specifically says that, even with an agreement in principle, “the
mechanics” still need to be “work[ed] out.”         In response to this proposal,
Arrowood said, “[t]hat will work.” Presuming that Arrowood was saying that he
agreed in principle with Friedman, the statements in these emails do not constitute
a written agreement to continue with the Participation Agreement without a
termination date associated with Trinity’s failure to pay the costs under article
2.8(b). In addition, even if Arrowood were deemed to have accepted Friedman’s
prior offer, as discussed above, that offer unambiguously stated that all other terms
of the Participation Agreement would remain the same, which would mean that
article 2.8(b) was not changed.


                                         15
      On November 5, 2007, Friedman again asked Trinity if and when it would
pay its share of the costs relating to the Blair-Pickering Prospect. Friedman did not
reach an agreement with Arrowood as to when Trinity promised to pay these costs;
rather, he simply asked when and if Trinity would pay them.             In response,
Arrowood stated “Yes, has been my final answer.” He stated that, as soon as
possible, he would tell Carrizo the date on which Trinity would make the payment.
He indicated that Trinity was waiting to execute documents with its investors and
that payment would be forthcoming after these documents were executed. In
response, Friedman stated that Trinity must wire funds to Carrizo by November 6,
2007, “in order to keep this agreement alive.” Significantly, the parties had not
agreed in writing that Trinity had to make a payment by November 6, 2007, so this
ultimatum from Carrizo also shows that there has been no agreement in writing to
the Alleged Agreement. In response, Arrowood states that on November 2, 2007,
the parties “agreed to a supplement to this agreement,” but in the context of this
series of emails, this statement appears to refer to an agreement in principle. In
any event, a conclusory statement that the Participation Agreement was
supplemented does not raise a fact issue as to whether the parties agreed to
continue with the Participation Agreement without a termination date associated
with Trinity’s failure to pay the costs under article 2.8(b). See Coastal Transport
Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004)
(stating that conclusory testimony does not raise a fact issue); Dolcefino v.
Randolph, 19 S.W.3d 906, 930 (Tex. App.—Houston [14th Dist.] 2000, pet.
denied) (explaining that conclusory statement are insufficient to raise a fact issue).
In the very next sentence, Arrowood says that he cannot forward the funds until he
has received all of the executed documents from his investors. There was no
written agreement as to when Trinity promised to make this payment.


                                         16
         After Trinity continued not to pay any costs, counsel for Carrizo sent a
demand letter to Trinity based upon the Participation Agreement and not based
upon any Alleged Agreement entered into by email. Shortly thereafter, Trinity
sent a draft of written amendment to Carrizo that did not have the same terms as
those discussed by email. In response, Carrizo sent a draft of a “First Amendment
to Barnett Shale Participation Agreement.” That draft does not refer to the parties
having agreed to a prior amendment to the Participation Agreement, and it is
drafted as if it is the first amendment to the Participation Agreement. The terms of
that amendment are different from the terms of Trinity’s proposed draft and also
contain terms not stated in the series of emails.

         Carrizo asserts that whether the parties agreed to the Alleged Agreement is a
fact issue for the jury’s determination. But the negotiations, alleged offers, and
alleged acceptances in the case under review are in writing and the language of
these writings is unambiguous. In this situation, whether the parties agreed to the
Alleged Agreement is a question of law. See Antonini v. Harris Cnty. Appraisal
Dist., 999 S.W.2d 608, 610–11 (Tex. App.—Houston [14th Dist.] 1999, no pet.);
Gilbert v. Pettiette, 838 S.W.2d 890, 893 (Tex. App.—Houston [1st Dist.] 1992, no
writ).

         Carrizo also relies upon Preston Farm and Ranch Supply, Inc. v. Bio-Zyme
Enterprises. See 625 S.W.2d 295, 296–98 (Tex. 1981). That case involved an
implied-in-fact contract under section 2.204 of the Uniform Commercial Code
based upon a course-of-dealing between merchants. See Tex. Bus. & Com. Code
Ann. § 1.303(b) (West 2012) (defining “course of dealing” as “a sequence of
conduct concerning previous transactions between the parties to a particular
transaction that is fairly to be regarded as establishing a common basis of
understanding for interpreting their expressions and other conduct”); id. § 2.204

                                           17
(West 2012); Preston Farm & Ranch Supply, Inc., 625 S.W.2d at 296–99. The
case under review does not involve an alleged implied-in-fact contract or an
alleged contract for the sale of goods between merchants. In addition, Carrizo has
not cited any evidence of a sequence of conduct between Carrizo and Trinity
concerning previous transactions that would fairly be regarded as establishing a
common basis of understanding for interpreting their expressions and other
conduct in the transaction at issue in the case under review. See Tex. Bus. & Com.
Code Ann. § 1.303(b); Preston Farm & Ranch Supply, Inc., 625 S.W.2d at 296–99.
The Preston Farm and Ranch Supply case is not on point.
       Carrizo cites Adams v. Abbott. See 254 S.W.2d 78, 78–79 (Tex. 1952). In
that case, the Supreme Court of Texas found a meeting of minds based upon a
series of letters. See id. Though that case involved the formation of an agreement
by a series of letters, the facts of that case are not the same as those in the case
under review, and that case does not control the disposition of Trinity’s second and
third issues. See id. Carrizo also cites DeClaire v. G&B McIntosh Family Ltd.
P’ship. See 260 S.W.3d 34, 43–44 (Tex. App.—Houston [1st Dist.] 2008, no pet.).
That case involved the acceptance of a promissory note by the payee of the note
and is not on point in the case under review. Considering the evidence in the light
most favorable to the challenged finding, indulging every reasonable inference that
would support it, crediting favorable evidence if reasonable jurors could, and
disregarding contrary evidence unless reasonable jurors could not, the trial
evidence would not enable reasonable and fair-minded people to find in response
to Question 1 that Carrizo and Trinity agreed in writing to the Alleged Agreement.4

4
  In his substitute concurring opinion, Justice Seymore cites two cases involving issues as to
whether the trial court properly submitted the interpretation of a written contract to the jury. See
Daewoo Shipbuilding & Marine Engineering, Co., v. Ikanco Inc., 376 S.W.3d 229, 233–38 (Tex.
App.—Houston [14th Dist.] 2012, pet. granted, judgm’t vacated w.r.m.); XCO Prod. Co. v.
Jamison, 194 S.W.3d 622, 627 n.2, 632 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).
                                                18
See City of Keller, 168 S.W.3d at 823, 827; Parker Drilling Co., 316 S.W.3d at
72–73; The Levin Law Group, P.C. v. Sigmon, No. 14-08-01165-CV, 2010 WL
183525, at *3–5 (Tex. App.—Houston [14th Dist.] Jan. 21, 2010, pet. denied)
(mem. op.); Antonini, 999 S.W.2d at 610–11; Lewis v. Adams, 979 S.W.2d 831,
833–34 (Tex. App.—Houston [14th Dist.] 1998, no pet.).

       Accordingly, Trinity’s second issue and the part of the third issue in which
Trinity challenges the legal sufficiency of the evidence supporting the jury’s
finding in response to Question 1 are sustained.5 Therefore, it is unnecessary to
address the remainder of the third issue in which Trinity challenges the factual
sufficiency of the evidence.

B.     Is the evidence legally sufficient to support the jury’s quantum-meruit
       finding?

       Under its fifth and sixth issues, Trinity asserts that the evidence is legally


Though the unambiguous emails are the only potential evidence that Carrizo and Trinity agreed
in writing to the Alleged Agreement, it is significant to note that Question 1 did not submit to the
jury the interpretation of any agreement. Rather, Question 1 asked the jury to determine whether
the parties agreed in writing to the Alleged Agreement. Trinity did not object to the submission
of Question 1 on the ground that the emails are unambiguous and that the trial court should not
ask the jury to interpret the emails. In addition, in the XCO Production Company case, the
appellant did not challenge the legal sufficiency of the evidence to support the jury’s
interpretation of the contract; the appellant challenged only the submission of the interpretation
issue to the jury. See XCO Prod. Co., 194 S.W.3d at 627 n.2. Trinity’s assertion that the trial
court erred in submitting Question 1 over Trinity’s objection that the evidence was legally
insufficient to support the submission of this question is an issue regarding the legal sufficiency
of the evidence to support an affirmative answer in response to Question 1. These two cases do
not suggest otherwise.
5
  It is not necessary to address Trinity’s argument that the evidence is legally insufficient to
support the jury’s finding that the parties agreed to enter into the Alleged Agreement by
electronic means and that Arrowood and Friedman executed or adopted a symbol associated with
their respective emails with the intent to sign the email. See Tex. Bus. & Com. Code Ann. §§
322.002, 322.007 (West 2012) (provisions of the Uniform Electronic Transactions Act parts of
which were submitted to the jury in Question 1). In addition, it is unnecessary to address
Trinity’s argument that the statute of frauds bars enforcement of the Alleged Agreement as a
matter of law.

                                                19
insufficient to support the jury’s quantum-meruit finding in response to Question 4.
The trial court did not render judgment based upon Carrizo’s quantum-meruit
claim. If, on original submission, the parties brief issues relating to the plaintiff’s
election of alternative theories of recovery under the Boyce Iron Works case, this
court may address these issues on original submission. See Boyce Iron Works, Inc.
v. Sw. Bell Tel. Co., 747 S.W.2d 785, 787 (Tex. 1988) (“When the jury returns
favorable findings on two or more alternative theories, the prevailing party need
not formally waive the alternative findings. That party may seek recovery under an
alternative theory if the judgment is reversed on appeal”); Hatfield v. Solomon, 316
S.W.3d 50, 60 n.3 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (stating that
Boyce Iron Works election of alternative theory of recovery may be addressed on
original submission if briefed by the parties).      We conclude that Carrizo has
briefed conditional Boyce Iron Works elections in its appellee’s brief based upon
the quantum-meruit and promissory-estoppel findings by the jury. In appellate
briefing, Trinity has asserted and briefed challenges to these jury findings.
Therefore, we will address these Boyce Iron Works elections by Carrizo. See
Hatfield, 316 S.W.3d at 60 n.3.
      In response to Question 4, the jury found that (1) Carrizo rendered valuable
services or furnished materials for Trinity, who knowingly accepted and used these
services and materials, and (2) Trinity should have known that Carrizo expected to
be paid for the work. At the charge conference, no party objected to the form of
Question 4; therefore, we measure the sufficiency of the evidence using the
language of this question and the instructions associated with it, even if they do not
correctly state the law. See Osterberg, 12 S.W.3d at 55.

      Under this question and under Texas law, to recover in quantum meruit,
Carrizo must show that it rendered valuable services or furnished materials for


                                          20
Trinity; it is not enough to show that Carrizo rendered valuable services or
furnished materials that benefitted Trinity. See Truly v. Austin, 744 S.W.2d 934,
937 (Tex. 1988); Bashara v. Baptist Mem’l Hosp. Sys., 685 S.W.2d 307, 310 (Tex.
1985). The evidence shows that Carrizo owned leasehold rights and interests in
and to oil, gas, and mineral leases relating to the prospects listed in the
Participation Agreement and that those leases were to expire in the near future
unless Carrizo began or caused to begin the drilling of a well. As discussed above,
under the unambiguous language of article 7.3 of the Participation Agreement,
Trinity’s failure to pay the costs under article 2.8(b) on or before October 19, 2007,
relieved Carrizo of any obligation to assign Trinity an interest in the Commitment
Wells. In addition, Trinity’s failure to pay these costs meant that Trinity had no
further ability to earn additional rights in any lease with respect to a Commitment
Well or to undertake additional operations under the Participation Agreement.
Because Trinity had not earned or obtained any interest in any lease related to any
Commitment Well on or before October 19, 2007, Trinity’s failure to pay the costs
under article 2.8(b) meant that, under the terms of the Participation Agreement,
Trinity had no such interest and was not entitled to receive such an interest in the
future. Because the Participation Agreement had terminated, no further obligation
to pay costs could accrue to Trinity under the Participation Agreement.
Furthermore, as discussed above there is legally insufficient evidence of the
alleged post-termination written contract.

      Carrizo points to the following language in the trial court’s judgment:
“Carrizo’s obligation to pay Trinity any revenue derived from the Wells drilled
under the terms of the [Participation Agreement] . . . is controlled by the terms of
the [Participation Agreement].” Carrizo argues that, based upon this language,
“Trinity now owns an interest in all the drilled wells.” For the reasons stated


                                         21
above, under the unambiguous language of the Participation Agreement, Trinity
owns no such interest, and in its judgment the trial court states that Trinity has
whatever interest it is entitled to under the Participation Agreement.

       In sum, drilling the Commitment Wells directly benefited the interests of
Carrizo, and Trinity had no interest in these prospects or leases that would be
benefitted by the drilling of these wells. Considering the evidence in the light most
favorable to the challenged finding, indulging every reasonable inference that
would support it, crediting favorable evidence if reasonable jurors could, and
disregarding contrary evidence unless reasonable jurors could not, we conclude
that the trial evidence would not enable reasonable and fair-minded people to find
in response to Question 4 that Carrizo rendered valuable services or furnished
materials for Trinity, who knowingly accepted and used these services and
materials. See City of Keller, 168 S.W.3d at 823, 827; Truly, 744 S.W.2d at 937;
Bashara, 685 S.W.2d at 310; Key Energy Servs., Inc. v. TBS Int’l, Inc., No. 11-05-
00153-CV, 2006 WL 2507616, at *3 (Tex. App.—Eastland Aug. 31, 2006, no pet.)
(mem. op.); Aviall Servs., Inc. v. Cooper Indus., Inc., 694 F. Supp. 2d 567, 598–99
(N.D. Tex. Feb. 5, 2010) (applying Texas law). Accordingly, we sustain Trinity’s
fifth issue and the part of the sixth issue in which Trinity challenges the legal
sufficiency of the evidence regarding the quantum-meruit claim.                         We do not
address the remainder of the sixth issue in which Trinity challenges the factual
sufficiency of the evidence.6


6
  In its first and fourth issues, Trinity challenges on appeal the trial court’s denial of its summary-
judgment motions regarding Carrizo’s breach-of-contract and quantum-meruit claims. When a
trial court’s denial of a motion for summary judgment is followed by a trial on the merits, an
appellate court cannot review the trial court’s denial of summary judgment. See Ackermann v.
Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966); Houston v. Ludwick, No. 14-09-00600-CV,
2010 WL 4132215, at *5 (Tex. App.—Houston [14th Dist.] Oct. 21, 2010, pet. denied) (mem.
op.). Therefore, we do not address Trinity’s first and fourth issues.

                                                  22
C.    Is the evidence legally sufficient to support the jury’s promissory-
      estoppel finding?

      Under its seventh and eighth issues, Trinity asserts that the evidence is
legally insufficient to support the jury’s promissory-estoppel finding in response to
Question 6.    The trial court did not render judgment based upon Carrizo’s
promissory-estoppel claim. But because the parties have briefed issues relating to
the Carrizo’s Boyce Iron Works election under this alternative theory of recovery,
this court may address these issues on original submission. See Boyce Iron Works,
Inc., 747 S.W.2d at 787; Hatfield, 316 S.W.3d at 60 n.3.
      In response to Question 6, the jury found that Carrizo substantially relied to
its detriment on Trinity’s promise concerning the Barnett Shale Drilling Program
and this reliance was foreseeable by Trinity. At the charge conference, no party
objected to the form of Question 6; therefore, we measure the sufficiency of the
evidence using the language of this question and the instructions associated with it,
even if they do not correctly state the law. See Osterberg, 12 S.W.3d at 55.

      To recover under a promissory-estoppel theory, Carrizo must show a
promise by Trinity concerning the Barnett Shale Drilling Program. As potential
promises by Trinity, Carrizo points to two statements by Arrowood prior to the
execution of the Participation Agreement: (1) “Yes, we are in.” and (2) “As I told
you before, I intend on being involved in the drilling program.”               In the
Participation Agreement, Carrizo and Trinity agreed that “[t]his instrument
contains the final and entire agreement of [Carrizo and Trinity] with respect to the
matters covered by this Agreement and supersedes all prior communications and
agreements (written, oral or otherwise) in this regard.” Evidence of these two
alleged promises is incompetent as a matter of law to show a promise under the



                                         23
parol evidence rule and the integration clause of the Participation Agreement.7 See
White Oak Operating Co., LLC v. BLR Constr. Cos., LLC, 362 S.W.3d 725, 734
(Tex. App.—Houston [14th Dist.] 2011, no pet.) (stating that that unobjected-to
parol evidence is incompetent and has no probative value to change meaning of
unambiguous written agreement); Clear Lake City Water Auth. v. Friendswood
Dev. Co., Ltd., 256 S.W.3d 735, 752 n.23 (Tex. App.—Houston [14th Dist.] 2008,
pet. dism’d) (same as White Oak Operating Co.); Gonzalez v. The United
Brotherhood of Carpenters and Joiners of America, Local 551, 93 S.W.3d 208,
211 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (holding promissory estoppel
cannot be used to circumvent the parol evidence rule); Highlands Mgmt. Co. v.
First Interstate Bank of Tex., N.A., 956 S.W.2d 749, 757 (Tex. App.—Houston
[14th Dist.] 1997, pet. denied) (same as Gonzalez.); Stavert Props., Inc. v.
Republicbank of Northern Hills, 696 S.W.2d 278, 282 (Tex. App.—San Antonio
1985, writ ref’d n.r.e.) (same as Gonzalez.).

       After the Participation Agreement terminated, as discussed above, Arrowood
sent emails to Friedman stating “[t]hat will work” and “[y]es, has been my final
answer.” We conclude that either alone or together these statements are too vague
and indefinite to constitute a promise that would support a finding of promissory



7
 In arguing to the contrary, Carrizo cites to Italian Cowboy Partners, Ltd. v. Prudential Ins. Co.
of America. See 341 S.W.3d 323, 331–36 (Tex. 2011). In that case, the Supreme Court of Texas
held that language in a commercial lease, as a matter of law, did not constitute a clear and
unequivocal expression of the tenant’s intent to disclaim reliance so as to negate the reliance
element of a fraudulent-inducement claim asserted by one of the parties. See id. The appeal
under review does not involve a fraudulent-inducement claim or any alleged disclaimer of
reliance regarding a fraud claim. In addition, the parol evidence rule does not apply to evidence
of fraudulent inducement, but there is no exception to the parol evidence rule for promissory-
estoppel claims. See id. at 331; Gonzalez v. The United Brotherhood of Carpenters and Joiners
of America, Local 551, 93 S.W.3d 208, 211 (Tex. App.—Houston [14th Dist.] 2002, no pet.).
Thus, the Italian Cowboy Partners case is not on point.

                                               24
estoppel.8 See Ellen v. F.H. Partners, No. 03-09-00310-CV, 2010 WL 4909973, at
*6 (Tex. App.—Austin Dec. 1, 2010, no pet.) (concluding that statement was too
vague and indefinite as a matter of law to be enforced in a claim for promissory
estoppel) (mem. op.); Gilmartin v. KVTV–Channel 13, 985 S.W.2d 553, 558–59
(Tex. App.—San Antonio 1998, no pet.) (same as Ellen); Gillum v. Republic
Health Corp., 778 S.W.2d 558, 568–70 (Tex. App.—Dallas 1989, no writ)
(holding that promises to upgrade hospital facilities and level of patient care were
too vague and indefinite as a matter of law to be enforced in a claim for promissory
estoppel).

       Considering the evidence in the light most favorable to the challenged
finding, indulging every reasonable inference that would support it, crediting
favorable evidence if reasonable jurors could, and disregarding contrary evidence
unless reasonable jurors could not, we conclude that the trial evidence would not
enable reasonable and fair-minded people to find in response to Question 6 that
Carrizo substantially relied to its detriment on Trinity’s promise concerning the
Barnett Shale Drilling Program and this reliance was foreseeable by Trinity. See
City of Keller, 168 S.W.3d at 823, 827; Ellen, 2010 WL 4909973, at *6; Gilmartin,
985 S.W.2d at 558–59; Gonzalez, 93 S.W.3d at 211; Highlands Mgmt. Co., 956
S.W.2d at 757; Gillum, 778 S.W.2d at 569–70. Accordingly, we sustain Trinity’s
seventh issue and the part of the eighth issue in which Trinity challenges the legal
sufficiency of the evidence regarding the promissory-estoppel claim. We do not
address the remainder of the eighth issue in which Trinity challenges the factual
sufficiency of the evidence or the ninth issue. In addition, we need not address


8
  Even if, notwithstanding the parol evidence rule and the integration clause of the Participation
Agreement, we could consider the two statements made before the parties signed the
Participation Agreement, we would conclude that these two statements were too vague and
indefinite to constitute a promise that would support a finding of promissory estoppel.

                                               25
Trinity’s argument that the statute of frauds bars enforcement of Carrizo’s
promissory-estoppel claim as a matter of law.

D.    Is the evidence insufficient to support the trial court’s award of
      attorney’s fees in favor of Carrizo?
      In its tenth issue, Trinity asserts that the evidence does not support the award
of attorney’s fees to Carrizo relating to the Participation Agreement claims. But, in
its judgment, the trial court made a general award of attorney’s fees to Carrizo,
without limiting the fees to the Participation Agreement claims and without
specifying the statutory basis for the award. In its live pleading, Carrizo sought
declaratory relief regarding various matters relating to the Denton County
Agreement and cited the Texas Declaratory Judgments Act generally. But Carrizo
did not specifically cite Texas Civil Practice and Remedies Code section 37.009.
See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 2012) (stating that “[i]n
any proceeding under this chapter, the court may award costs and reasonable and
necessary attorney’s fees as are equitable and just”). Nonetheless, in its petition
Carrizo sought to recover its “reasonable and necessary attorney’s fees as are
equitable and just.” Based upon the facts and allegations pleaded in its petition, we
conclude Carrizo requested attorney’s fees under the Texas Declaratory Judgments
Act. See id.; Gottfried v. Gottfried, No. 14-10-00645-CV, 2011 WL 5042483, at
*4, n.7 (Tex. App.—Houston [14th Dist.] Oct. 25, 2011, pet. denied) (mem. op.).

      In its final judgment, the trial court rendered various declarations relating to
the Denton County Agreement. To show that the trial court erred in awarding
attorney’s fees to Carrizo, Trinity must show that this award was improper under
Texas Civil Practice and Remedies Code section 37.009. See Tex. Civ. Prac. &
Rem. Code Ann. § 37.009; Gottfried, 2011 WL 5042483, at *4, n.7; Morrell
Masonry Supply, Inc. v. Scott Griffin & Assocs., Inc., No. 01-09-01147-CV, 2011

                                         26
WL 2089677, at *8–9 (Tex. App.—Houston [1st Dist.] May 19, 2011, no pet.)
(mem. op.); Cap Rock Elec. Cooperative, Inc v. Texas Util. Elec. Co., 874 S.W.2d
92, 102 (Tex. App.—El Paso 1994, no writ).

       Trinity’s main appellate argument regarding this attorney’s fees award is
that (1) Carrizo was not entitled to recover attorney’s fees as to all of its claims; (2)
Carrizo was required to segregate its attorney’s fees so that there was evidence of
reasonable and necessary fees only as to the claim for which Carrizo was entitled
to recover attorney’s fees; and (3) the evidence is insufficient to support the
attorney’s fees award because there was no evidence of reasonable and necessary
fees as to the claim for which Carrizo was entitled to recover attorney’s fees. But,
in Question 14, the trial court asked the jury to find reasonable fees for the
necessary services of Carrizo’s attorneys, without limiting the fees to any claim
and without requiring segregation of attorney’s fees. No party objected to this
question at the charge conference. Because Trinity did not object to the lack of
any requirement in the jury charge that the attorney’s fee be segregated, Trinity
waived this complaint.9 See Green Intern., Inc. v. Solis, 951 S.W.2d 384, 389
(Tex. 1997) (holding that parties waived error regarding failure to segregate
attorney’s fees because they did not object when the court’s charge failed to
require segregation); Bencon Management & General Contracting, Inc. v. Boyer,
Inc., 178 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (same
as Green Intern., Inc.). Therefore, we reject Trinity’s argument based on failure to
segregate attorney’s fees.10

9
  Question 15 likewise asked the jury to find a reasonable fee for the necessary services of
Trinity’s attorneys, without limiting the fees to any claim and without requiring segregation. The
trial court awarded to Trinity the fees found by the jury in response to this question.
10
  Trinity does not assert that the evidence is insufficient to support the jury’s answer to Question
14, which did not require segregation of attorney’s fees.

                                                27
          Trinity also argues that this court must reverse the trial court’s award of fees
to Carrizo if this court reverses the trial court’s judgment as to Carrizo’s breach-of-
contract, quantum-meruit, and promissory-estoppel claims. We disagree. In its
final judgment, the trial court made various declarations relating to the Denton
County Agreement that Trinity has not challenged on appeal (“Denton County
Declarations”). As discussed above, to show that the trial court erred in awarding
attorney’s fees to Carrizo, Trinity must establish that this award was improper
under Texas Civil Practice and Remedies Code section 37.009. But, on appeal,
Trinity has not asserted that the award is improper under this statute, nor has
Trinity cited to any legal authorities that would demonstrate that this award of
attorney’s fees to Carrizo is unwarranted or impermissible under this statute.
          On rehearing, Trinity asserts that it won at trial regarding the Denton County
issues. But Trinity has not asserted that the award was improper under Texas Civil
Practice and Remedies Code section 37.009. It is not apparent from the face of the
Denton County Declarations which of them favor Trinity and which favor Carrizo.
It appears that one or more of the declarations in the trial court’s judgment are in
favor of Carrizo. In any event, the award of attorney’s fees in a declaratory-
judgment action is within the trial court’s discretion and is not dependent upon a
finding that a party substantially prevailed. See Barshop v. Medina, 925 S.W.2d
618, 637–38 (Tex. 1996); Chase Home Fin., L.L.C., v. Cal West. Reconveyance
Corp., 309 S.W.3d 619, 634 (Tex. App.—Houston [14th Dist.] 2010, no pet.).
Trinity has not argued, and this court has not concluded, that the trial court erred in
granting any of the Denton County Declarations.

          Concluding that the arguments asserted by Trinity under its tenth issue lack
merit, we overrule that issue.11

11
     Trinity asserts that this court cannot affirm the attorney’s fees award in favor of Carrizo based
                                                   28
E.     What is the appropriate judgment in this appeal?

       The evidence is legally insufficient to support at least one of the essential
elements of Carrizo’s breach-of-contract, quantum-meruit, and promissory-
estoppel claims (“Carrizo’s Claims”). Therefore, the trial court erred in rendering
judgment that Trinity is indebted in to Carrizo in any amount based upon Carrizo’s
Claims, and rendition of such a judgment is not appropriate in response to
Carrizo’s conditional Boyce Iron Works elections.               In this situation, a proper
appellate judgment ordinarily would be one in which this court modifies the part of
the trial court’s judgment dealing with Carrizo’s Claims to delete all monetary
awards in Carrizo’s favor and to render the judgment the trial court should have
rendered, and then affirms the judgment as modified. Or, a proper appellate
judgment also might be one in which this court reverses the trial court’s judgment
in part and renders the judgment the trial court should have rendered.
       Before rendering a money judgment in favor of Carrizo, the trial court gave
Trinity credit for an offset in the amount of $816,210.64 that Carrizo had applied
to various amounts owed by Carrizo to Trinity. Under the language of the trial
court’s judgment, it appears that some of this offset amount may be attributable to
“the sale of production attributable to an undivided two percent (2%) of 8/8ths of
seventy percent (70%) overriding royalty interest (to the extent of Trinity’s
ownership interest in a respective unit) on a well by well basis through the point of
first sale of oil and gas in and to the Leases and Lands in the Barnett Shale Drilling
Program, from the end of trial to the present.” To the extent that the offset amount

upon the part of the judgment regarding the Denton County Agreement because Carrizo did not
make this argument in its appellee’s brief on original submission. Even if Carrizo failed to make
this argument on original submission, Carrizo, as appellee, was not required to make this
argument. Rather, Trinity was required on original submission to show the impropriety of the
attorney’s fees award under Texas Civil Practice and Remedies Code section 37.009.

                                               29
is based on the sale of production that is or would be attributable to an interest in
one of the Commitment Wells referenced in the Participation Agreement, the offset
amount should not be added to the sum of the amounts of indebtedness of Carrizo
to Trinity to arrive at the principal amount of the judgment to be rendered in
Trinity’s favor. To the extent that the offset amount is based on the sale of
production attributable to an interest in a well in Denton County, Texas, the offset
amount should be added to the sum of these amounts to arrive at the principal
amount of the judgment to be rendered in Trinity’s favor. But we are not able to
tell from the judgment or the record the extent, if any, to which this offset amount
is based on the sale of production that is or would be attributable to an interest in
one of the Commitment Wells referenced in the Participation Agreement. Thus,
based upon the form of the trial court’s judgment, we are not able to effectively
render judgment or affirm the trial court’s judgment as modified, and a remand is
necessary for further proceedings. See Tex. R. App. P. 43.3.
                                 V. CONCLUSION
      Under the applicable standard of review, the trial evidence is legally
insufficient to support the jury’s findings in response to Questions 1, 4, and 6. The
trial court erred in rendering judgment that Trinity is indebted in any amount to
Carrizo based upon Carrizo’s Claims.          Rendition of such a judgment is not
appropriate in response to Carrizo’s conditional Boyce Iron Works elections.
Ordinarily, this court either would affirm the trial court’s judgment as modified or
would reverse the trial court’s judgment in part and render the judgment the trial
court should have rendered.      But, based upon the form of the trial court’s
judgment, this court is not able to effectively render judgment or affirm the trial
court’s judgment as modified.
      We affirm the part of the trial court’s judgment in which the trial court
makes the Denton County Declarations, which Trinity has not challenged on

                                         30
appeal. As described in more detail in our judgment, we sever and reverse the
remainder of the trial court’s judgment, and remand this part of the judgment to the
trial court for the limited purpose of (1) further proceedings necessary to determine
the amount, if any, of the $816,210.64 offset in the trial court’s 2010 judgment that
is not based on the sale of production that is or would be attributable to an interest
in a well referenced in article 2.2 of the Participation Agreement and (2) rendition
of a new, final judgment in accordance with the instructions contained in this
court’s judgment on appeal.



                                       /s/    Kem Thompson Frost
                                              Justice


Panel consists of Justices Frost, Seymore, and Jamison. (Seymore, J., concurring)
(Jamison, J., concurring).




                                         31
