                                                                FILED IN
                                                           st
                                                          1 COURT OF APPEALS
                                                              HOUSTON, TX
                                                               March 9, 2015
                   NO. 01-13-00347-CV                    CHRISTOPHER A. PRINE,
                                                                CLERK


        IN THE COURT OF APPEALS FOR THE
             FIRST DISTRICT OF TEXAS


            KILGORE EXPLORATION INC.,
                          Appellant.
                       v.

               APACHE CORPORATION,
                           Appellee.


            Appeal From Cause No. 2010-20264
In the 333rd Judicial District Court of Harris County, Texas

               APPELLANT’S MOTION
          FOR EN BANC RECONSIDERATION


                            DOYLE, RESTREPO, HARVIN
                                 & ROBBINS, L.L.P.
                            Kathleen Cynthia Pickett
                            State Bar No. 15980500
                            cpickett@drhrlaw.com
                            N. Kimberly Hoesl
                            State Bar No. 24040540
                            khoesl@drhrlaw.com

                            440 Louisiana Street, Suite 2300
                            Houston, Texas 77002
                            (713) 228-5100 (Tel.)
                            (713) 228-6138 (Fax)

                            Attorneys for Appellant,
                            Kilgore Exploration Inc.

                                                       March 9, 2015
      Pursuant to Texas Rule of Appellate Procedure 49.7, Appellant Kilgore

Exploration, Inc. (“Kilgore”) files this Motion for En Banc Reconsideration, and

respectfully requests that this Court correct its judgment issued February 5, 2015

(Exhibit 1), in which it affirmed the trial court’s entry of judgment for Appellee

Apache Corporation (“Apache”), and would show the following:

      1.     Kilgore filed this appeal after the trial court erred in denying Kilgore’s

motion for judgment notwithstanding the verdict despite the fact that (1) the trial

court granted judgment on a contract claim which Apache never pleaded and (2)

Apache waived its sole cause of action by failing to obtain jury findings on any

element of it.

      2.     As to the first argument, Apache brought the underlying suit for

Kilgore’s alleged failure to pay certain “JIBs,” but the only contract at issue, the

Participation Agreement, did not contain any obligation to pay “JIBs.” (CR 821-

30). A judgment must be supported by both the pleadings and the evidence. See

TEX. R. CIV. P. 301. Apache never amended its pleading to assert a cause of action

for failure to pay amounts due under the Participation Agreement, the only

agreement at issue. (CR 1650-51).

      3.     The second argument is similarly based on a clear disconnect between

the pleadings and the trial. It was Apache’s burden, as plaintiff, to obtain a finding

on each element of its breach of contract cause of action. See Ford Motor Co. v.



                                          2
Ledesma, 242 S.W.3d 32, 44 (Tex. 2007) (“There can be no question that it was

[the plaintiff’s] burden to obtain affirmative answers to jury questions as to the

necessary elements of his cause of action.”). But here, there was no finding as to

those elements, especially the first element, the existence of a valid agreement.

See Crowder v. Scheirman, 186 S.W.3d 116, 118 (Tex. App.—Houston [1st Dist.]

2005, no pet.) (listing elements of a contract claim). Specifically, Kilgore disputed

the very existence of any agreement that would obligate it to pay the disputed

charges. (CR 1042-51, at 1048-49) (CR 58-244, at 64-65, 70) (CR 991-96). In

fact, Kilgore’s argument throughout the litigation that there was never an

agreement, or a meeting of the minds, to pay the disputed charges was never

controverted. See e.g., Hallmark v. Hand, 885 S.W.2d 471, 477 (Tex. App.—El

Paso 1994, writ denied) (affirming jury’s verdict that no valid contract existed

when evidence confirmed that defendant never intended to bind himself to the

terms of the proposal).

      4.     Thus, Kilgore raised a question of contract formation. The issue of

whether an agreement was formed, i.e., whether there was a meeting of the minds,

is an issue of fact for the jury to decide. See Parker Drilling Co. v. Romfor Supply

Co., 316 S.W.3d 68, 72 (Tex. App.—Houston [14th Dist.] 2010, pet. denied);

Franco v. Ysleta Indep. Sch. Dist., 346 S.W.3d 605, 608 (Tex. App.—El Paso

2009, no pet.) (“When the ‘meeting of the minds’ element is contested, it is a



                                         3
question for the fact finder.”); Advantage Physical Therapy, Inc. v. Cruse, 165

S.W.3d 21, 24 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (“Whether the

parties reached an agreement is a question of fact.”); Live Oak Ins. Agency v.

Shoemake, 115 S.W.3d 215, 218 (Tex. App.—Corpus Christi 2003, no pet.)

(“where the existence of the agreement is disputed, the question of whether an

agreement was reached by the parties is generally a question of fact”). The trial

court did not rule on this fact issues, and Apache failed to submit this fact issue to

the jury. Apache thereby waived it. See, e.g., Southwestern Bell Tel. Co. v.

DeLanney, 809 S.W.2d 493, 495 (Tex. 1991); Kittyhawk Landing Apartments III v.

Anglin Constr. Co., 737 S.W.2d 90, 93-94 (Tex. App.—Houston [14th Dist.] 1987,

writ ref’d n.r.e.).

       5.     In its February 5, 2015 judgment, however, the Court did not address

the issue of contract formation at all. Instead, the opinion is grounded in the

language of contract construction even though that was not the argument on

appeal. Moreover, the judgment posits that because there was a valid agreement of

some sort between the parties, i.e., the Participation Agreement, Apache met its

burden of proving the first element for breach of contract. But that is not Texas

law, especially when the question of contract formation has been raised.

       6.     The mere existence of the Participation Agreement is not sufficient to

satisfy the first element of a contract claim. Apache had to prove that there was a



                                          4
valid agreement containing the obligation it claimed had been breached. See

Villarreal v. Art Inst. of Houston, Inc., 20 S.W.3d 792, 797 (Tex. App.—Corpus

Christi 2000, no pet.) (“Thus, because she has not proven the existence of a valid

contract containing the terms upon which she bases her suit, the trial court was

correct in directing verdict against Villarreal on her breach of contract claims”).

The only agreement at issue, the Participation Agreement, did not contain that

obligation. Therefore, Apache failed to prove the existence of a contract obligating

Kilgore to pay these disputed charges, and it failed to obtain any finding to that

effect. Accordingly, it cannot prevail on its breach of contract claim.

       7.     There is no amount of construction that can create an agreement that

does not exist. Even Apache’s own witnesses admitted that the disputed charges

were not, and were never intended to be, part of the Final AFE which solely

defined Kilgore’s payment obligation. 1 (5 RR 20-23) (5 RR 53-54) (5 RR 63-64,

“We don’t ever include trouble costs or any weather-related costs in our AFE’s.”).

Because the evidence was uncontroverted that the Final AFE did not include the

disputed charges, Kilgore could not have breached the Participation Agreement in

connection with those charges:


1
  The Participation Agreement contains an agreement that Kilgore would pay its proportionate
share of specifically-defined expenses. Those expenses were defined by the Final AFE. (CR
821-30, at 822) (“Execution of said preliminary AFE represents a binding obligation to
participate in the drilling of the Required Well on the basis of the Final AFE (as defined in
Section 3 below)”.) (emphasis added).


                                             5
               Because the contracts unambiguously do not impose an
               obligation on Versado to compensate Apache for
               “unaccounted-for” gas that was not sold at the plant
               tailgate, contract damages for gas lost between the
               wellhead and the tailgate are not recoverable. Apache’s
               breach-of-contract claim fails as a matter of law.

Dynegy Midstream Serv. L.P. v. Apache Corp., 294 S.W.3d 164, 170 (Tex. 2009).

       8.      Apache sued Kilgore for breach of contract for failing to pay JIBs.

But Apache did not prove or obtain a finding that there was a contract obligating

the payment of JIBs. The trial court entered a final judgment that Kilgore breached

a contract by not paying the disputed charges. But Apache did not prove or obtain

a finding that there was a contract obligating Kilgore to pay those charges in the

first place.

       9.      Nonetheless, the two-justices panel 2 affirmed the final judgment,

holding that because Kilgore had agreed to pay one thing, it was somehow bound

to pay whatever additional charges Apache wanted, even when Apache admitted

that those charges were never part of the only valid agreement in the first place.

This is not Texas law. In reaching this strained conclusion, the panel completely

ignored the contract formation argument that was the primary basis of Kilgore’s

appeal.     Therefore, Kilgore files this motion, praying that the entire Court



2
  The third member of the panel did not participate in the February 5, 2015 judgment because his
term ended on December 31, 2014. Rather than appoint a third justice, the remaining two
justices issued the judgment.


                                               6
reconsider Kilgore’s appeal en banc and reconsider the formation arguments

Kilgore raised in its original briefing.

                                     Respectfully submitted,

                                     DOYLE, RESTREPO, HARVIN
                                       & ROBBINS, L.L.P.

                                     By:_ /s/ N. Kimberly Hoesl__________
                                       Kathleen Cynthia Pickett
                                       State Bar No. 15980500
                                       cpickett@drhrlaw.com

                                           N. Kimberly Hoesl
                                           State Bar No. 24040540
                                           khoesl@drhrlaw.com

                                           440 Louisiana St., Suite 2300
                                           Houston, Texas 77002
                                           (713) 228-5100 (telephone)
                                           (713) 228-6138 (facsimile)

                                           Attorneys for Appellant
                                           Kilgore Exploration, Inc.




                                             7
                        CERTIFICATE OF SERVICE

      I hereby certify that a true copy of the foregoing Appellant’s Motion for En
Banc Reconsideration was delivered to all counsel of record by the method
indicated below on March 9, 2015.

      Kenneth P. Held
      SCHIFFER ODOM HICKS AND JOHNSON PLLC
      700 Louisiana St., Suite 1200
      Houston, Texas 77002
      Phone: (713) 357-5150
      Facsimile: (713) 357-5160

      by    X Electronic filing service
            X Certified Mail, Return Receipt Requested

      Christopher Barnes
      Apache Corporation
      2000 Post Oak Blvd., Suite 100
      Houston, Texas 77056
      Phone: (713) 296-6511
      Facsimile: (713) 296-6481

      by    X Electronic filing service
            X Certified Mail, Return Receipt Requested

      Attorneys for Appellee Apache Corporation


                                               /s/ N. Kimberly Hoesl
                                               N. Kimberly Hoesl




                                        8
                      CERTIFICATE OF COMPLIANCE

       Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that
this Appellant’s Motion for En Banc Reconsideration contains 1,294 words
(excluding the caption, identity of parties and counsel, statement regarding oral
argument, table of contents, table of authorities, statement of the case, statement of
issues presented, signature, certificates of compliance and service, and appendix).
This is a computer-generated document created in Microsoft Word, using 14-point
typeface for all text, except for footnotes, which are in 12-point typeface. In
making this certificate of compliance, I am relying on the word count provided by
the software used to prepare this document.

                                                 /s/ N. Kimberly Hoesl
                                                 N. Kimberly Hoesl




                                          9
EXHIBIT 1
Opinion issued February 5, 2015




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-13-00347-CV
                           ———————————
                KILGORE EXPLORATION, INC., Appellant
                                        V.
                     APACHE CORPORATION, Appellee



                   On Appeal from the 333rd District Court
                            Harris County, Texas
                      Trial Court Case No. 2010-20264



                         MEMORANDUM OPINION

      Appellant, Kilgore Exploration, Inc. (“Kilgore”), challenges the trial court’s

judgment, entered after a jury trial, in favor of appellee, Apache Corporation

(“Apache”), in Apache’s suit against Kilgore, and Kilgore’s counterclaim against
Apache, for breach of contract. In three issues, Kilgore contends that the trial court

erred in granting judgment for Apache, denying Kilgore’s motion for judgment

notwithstanding the verdict (“JNOV”), and not awarding Kilgore attorney’s fees.

      We affirm.

                                    Background

      In 2008, Apache and Kilgore, who are engaged in the business of natural gas

exploration and production, entered into a “Participation Agreement” (the “PA”) to

govern initial exploration and any dry hole costs associated with the drilling of an

exploratory gas well (the “well”) in an offshore block in the Gulf of Mexico,

known as “Vermilion Block 141.”           And the parties executed an “Offshore

Operating Agreement” (the “OOA”) to govern in the event the well yielded gas

and went into production.

      Pursuant to the PA, the parties agreed as follows:

      1.     PROJECT CONSIDERATION
             A.    . . . [E]ach participant agrees to participate in and bear its
      respective share of costs and expenses associated with the timely[1]
      drilling of the Required Well, in the Before Prospect Payout
      Percentages,[2] set out below, to the Objective Depth.




1
      The PA required that drilling commence by December 31, 2008.
2
      “Prospect Payout,” as defined in the PA, is “that point in time when the gross
      proceeds from the sale of production from wells drilled by Participants” less
      various expenses, fees, and royalties, equals the reasonable and actual cost of
      drilling and associated expenses.

                                          2
The Before Prospect Payout Percentages assessed eighty-five percent of the costs

and expenses to Apache and fifteen percent to Kilgore.

      Section two of the PA required Kilgore, contemporaneously with the

execution of the PA, to deliver to Apache executed originals of the preliminary

Authority for Expenditure (the “Preliminary AFE”) for the well, which represented

an estimate of the costs. And execution of the preliminary AFE “represent[ed] a

binding obligation to participate in the drilling of [the well] on the basis of the

Final AFE.” Apache was to provide Kilgore, “[a]t least thirty . . . days prior to

commencement of drilling,” with a final Authority For Expenditure (the “Final

AFE”). In the Final AFE, Apache was to estimate the costs associated with

drilling the well, along with an advance billing for Kilgore’s share of the estimated

dry hole costs, as follows:

      3.     REQUIRED WELL FINAL AFE
            At least thirty (30) days prior to commencement of operations
      on the Required Well, [Apache] shall provide to [Kilgore] the [F]inal
      AFE . . . to drill [the well] together with an advance billing for [its]
      share of the estimated dry hole cost. [Kilgore] shall execute and
      return the [F]inal AFE to [Apache] together with payment of [its]
      respective share of the estimate dry hole cost within ten (10) days of
      receipt of the Final AFE. . . .

      The PA penalized any participant who, after executing the PA and

Preliminary AFE, defaulted on its obligation to participate in the well, failed to




                                         3
timely reply to the Final AFE, or failed to pay the advance billing under section

three, as follows:

      5.     DEFAULT
             A.      Required Well: A Participant who defaults on its
      obligation to participate in the [well] . . . [or] fails to reply to the Final
      AFE within the allotted time or fails to pay the advance billing for
      drilling costs in the timeframe provided for in Section 3 above . . .
      shall automatically relinquish all right, title and interest in and to the
      Leases . . . . Notwithstanding the above, the non-defaulting Participant
      reserves all claims, rights or remedies which such non-defaulting
      Participant may have either at law or equity as a result of a defaulting
      Participant’s failure to comply with the terms of this Agreement.
             B.    Default Notice: If any non-operator Participant fails to
      pay its share of an advance billing for an approved AFE, other than
      the Final AFE, as provided for in the OOA, Operator shall provide
      such Participant a default notice . . . .

And the parties further broadly agreed as follows:

      15.    MISCELLANEOUS
      ....
           E.  Liability: EXCEPT AS OTHERWISE PROVIDED,
      THE PARTICIPANTS . . . SHALL SEVERALLY SHARE AND
      ASSUME    THEIR     RESPECTIVE  PRORATA   SHARES,
      ACCORDING TO THEIR BEFORE OR AFTER PROSPECT
      PAYOUT PERCENTAGES, AS THE CASE MAY BE, OF ANY
      AND ALL CLAIMS, LOSSES, AND EXPENSES (INCLUDING
      WITHOUT LIMITATION ALL COSTS, DEMANDS, DAMAGES,
      SUITS, JUDGMENTS, FINES, PENALTIES, LIABILITIES,
      DEBTS, ATTORNEYS’ FEES, COSTS OF DEFENSE, AND
      CAUSES OF ACTION OF WHATSOEVER NATURE OR
      CHARACTER, WHETHER KNOWN OR UNKNOWN, AND
      INCLUDING WITHOUT LIMITATION, CLAIMS, LOSSES AND
      EXPENSES FOR PROPERTY DAMAGE . . .) DIRECTLY OR
      INDIRECTLY ARISING OUT OF OR RELATED TO
      OPERATOR’S . . . OPERATIONS . . . HEREUNDER,


                                            4
      REGARDLESS OF FAULT AND EXPRESSLY INCLUDING ANY
      NEGLIGENCE, FAULT, OR STRICT LIABILITY . . . OF THE
      OPERATOR, BUT EXPRESSLY EXCLUDING THE GROSS
      NEGLIGENCE OR WILLFUL MISCONDUCT OF THE
      OPERATOR. . . .

      Pursuant to the PA, Apache delivered to Kilgore a preliminary AFE, in

which it estimated the costs to drill the well, perform testing, and plug and abandon

it if dry, to be $2,811,785. In July 2008, Apache sent Kilgore a Final AFE and

advance billing for the estimated dry hole costs in the amount of $3,477,465, of

which Kilgore’s share was $521,620. It is undisputed that Kilgore executed the

AFEs and timely paid its share.

      Apache then commenced operations and accepted delivery of a drilling rig,

the Ocean Crusader, pursuant to its contract with Diamond Offshore.3 The rig was

towed to Vermilion Block 141, off the coast of Louisiana, and put into place on

September 6, 2008. Two days later, Hurricane Ike forced the evacuation of the rig.

When crews returned to the rig on September 16, 2008, they discovered that the

hurricane had caused the rig to move eighty feet out of place and had buried the rig

mat as much as nine feet into the seabed. The rig was returned to operational

status, and drilling began on September 24, 2008. The well was dry, and it was

plugged and abandoned on October 3, 2008.               Because the rig mat required




3
      Diamond Offshore is not a party to this appeal.

                                           5
extrication from the deep mud resulting from the hurricane, Apache was unable to

release the rig back to Diamond Offshore until October 20, 2008.

      In November 2008, Apache demanded from Kilgore a fifteen percent portion

of the expenses incurred, including standby and additional day rates on the rig,

returning the rig to operational status after the storm, and freeing the rig mat from

the seabed after the well was plugged. These additional expenses to the joint

interest totaled $3,839,061, of which Apache sought $575,859 from Kilgore.        In

December 2008, Kilgore paid Apache $91,559. When Kilgore later demanded

return of the $91,559 and refused to pay anything further, Apache filed the instant

lawsuit.

      In its amended petition, Apache alleged that Kilgore “agreed to pay . . . [its]

share of the expenses related to drilling a well” and had failed to “pay a balance of

$444,237.43,” which represents Kilgore’s “share of the costs of drilling the well

and plugging and abandoning the well.”

      Kilgore answered with a general denial, asserting numerous affirmative

defenses and counterclaiming for breach of contract. It alleged that Apache had

“failed to issue required AFEs,” “failed to provide adequate documentation of its

billing,” and charged Kilgore for expenses that were unauthorized and caused by

Apache’s “own grossly negligent conduct,” namely, taking possession of the

drilling rig in the face of Hurricane Ike.     Kilgore further sought a judgment



                                         6
declaring that its liability to Apache is “controlled entirely by the PA and . . .

limited to the amount it paid Apache under the Final AFE.” And Kilgore sought to

recoup its $91,559 “overpayment” to Apache.

      The parties then executed a number of “Stipulations of Facts,” agreeing and

admitting as follows:

      1.   The Ocean Crusader Rig (the “Rig”) . . . was evacuated due to
           Hurricane IKE from 9/08/08 through 9/16/08.
      2.   Charges billed by Apache to the joint interest while the Rig was
           evacuated due to Hurricane IKE from 9/08/08 through 09/16/08
           total $800,238.02 (“Catergory 1”). Category 1 costs are
           identified on Exhibit A attached hereto and incorporated herein.
      3.   Apache returned to the Vermilion Block 141 . . . after Hurricane
           IKE on 9/16/08 and worked to return the Rig to operational status
           until 9/21/08. Apache charged the joint interest $833,834 for
           these costs as identified in Exhibit B attached hereto and
           incorporated herein . . . (“Category 2”).
      4.   The [well] was spud on 9/24/08.
      5.   The Rig was utilized by Apache to drill the Well.
      6.   The Well was plugged and abandoned as a dry hole on October 3,
           2008.
      7.   Apache worked to free the Rig mat buried beneath the sea floor
           from 10/04/08 through 10/20/08.
      8.   Charges billed by Apache to the joint interest while working to
           free the Rig mat buried beneath the ocean floor from 10/04/08
           through 10/20/08 total $2,204,988.97 (“Category 3”). Category 3
           costs are identified on Exhibit A attached hereto and incorporated
           herein.
      9.   Total Hurricane IKE related charges for Category 1 through
           Category 3 billed by Apache to the joint interest, and which are
           the basis of its claims in this case, are $3,839,061. Kilgore’s
           fifteen percent allocation of this amount is $575,859. These



                                         7
           charges are summarized on Table 1 attached hereto and
           incorporated herein.
      10. Apache and Kilgore stipulate and agree that these stipulations of
          fact are binding on the parties for all evidentiary purposes and
          that none of these costs must be proved at trial.

      Kilgore then filed a summary-judgment motion challenging Apache’s

breach-of-contract claim.    Kilgore asserted that the PA, and not the OOA,

governed the parties’ dispute, “the only ‘estimated’ cost in the Final AFE [was] the

cost of plugging the well,” the “Final AFE” constituted “the ‘final’ amount to be

paid for the Required Well,” Apache’s expenses attributable to Hurricane Ike were

unrelated to the cost of plugging the well, “[n]either the PA nor the AFE addressed

such costs,” and “Apache has no evidence of any agreement with Kilgore to pay

such costs.”

      Apache responded, asserting that the Final AFE clause upon which Kilgore

relies “unambiguously states” that the Final AFE is for “‘estimated’ dry hole

costs,” “the term ‘Final AFE’ simply means that the Final AFE was the last pre-

drilling AFE issued to Kilgore, not that it capped Kilgore’s liability for additional

costs,” and “the AFE itself is entitled, ‘Drilling AFE Estimate of Costs and

Authorization for Expenditures.’” Apache further asserted that “No one would

prepare an AFE with estimated costs of a hurricane, since a hurricane could not

have been predicted at the time of preparation of the AFE.” The trial court did not

rule on Kilgore’s summary-judgment motion.


                                         8
      Apache then moved for a “Rule 166[4] Pre-Trial Ruling Construing

Unambiguous Contract Provisions,” seeking “pre-trial rulings on matters of law to

aid in the disposition of the case.”      It agreed that the PA “is the governing

document,” and it asserted that the PA’s terms are “unambiguous” and should be

construed as a matter of law. Specifically, section one of the PA “makes it clear”

that Kilgore is “obligated to pay 15% of the costs of a dry hole,” and section three

of the PA and the Final AFE “clearly state” that the Final AFE is an “estimate” of

the dry hole costs.    Apache sought a ruling that it was not required to seek

supplemental authorization for the storm-related expenditures and Kilgore’s share

was “not capped at the Final AFE amount.” Kilgore responded, asserting that the

PA is ambiguous with respect to the term “Final AFE.” Apache replied, asserting

that section three makes clear that the Final AFE is an estimate and section fifteen

“reinforces that the parties share all expenses.”

      The trial court granted Apache’s motion “in its entirety,” ruling that the PA

“governs each party’s payment for its share of the costs of drilling the Required

Well,” “does not cap Kilgore’s share of costs to drill the Required Well [at]

Kilgore’s share of the Final AFE,” and Apache was not required to provide

supplemental AFEs regarding the storm-related costs. The trial court noted that the

case would be tried to a jury and it would instruct the jury accordingly. The parties


4
      See TEX. R. CIV. P. 166.

                                           9
then executed a stipulation regarding the damages calculation to be applied at trial,

including an offset for Kilgore’s prior payment of $91,559.

      At trial, Brian Ayers, a vice president of geoscience at Kilgore, testified that

Kilgore “agreed to do what the [PA] says,” but did not expect to be billed after the

Final AFE. Frank Legros, a senior drilling engineering advisor at Apache, testified

that weather-related costs are not included in AFEs because there is no way to

predict and quantify such costs. And he noted that the Final AFE in this case was

prepared and executed in July 2008, two months before Hurricane Ike. And Kirk

Kuykendall, a senior land advisor at Apache, testified that Apache advised Kilgore

in the drilling reports furnished each day about the costs being incurred.        The

parties also presented extensive testimony on the issue of Apache’s gross

negligence in taking delivery of the rig days before Hurricane Ike.

      Kilgore then moved for a directed verdict on Apache’s breach-of-contract

claim, asserting that there is no evidence that (1) either the PA or the Final AFE

included the charges for which Apache was seeking payment or (2) other charges

could be assessed after the Final AFE. The trial court denied the motion, stating

that the Final AFE was “not the final tally of any and all sums that could ever be

due.” Apache argued that because it was undisputed that Kilgore had not paid

those charges, the only matter to be submitted to the jury was whether Apache had

been grossly negligent in taking delivery of the rig.



                                          10
      Kilgore submitted proposed jury questions on the issues of whether it had

agreed in the PA to pay fifteen percent of the stipulated Hurricane-Ike related

charges and had failed to comply with the PA; whether any such failure to comply

was excused by a prior breach by Apache; and whether Apache had breached the

PA. The trial court rejected Kilgore’s proposed questions and submitted only a

question on the issue of whether Apache was grossly negligent in taking delivery

of the rig. And the jury found that Apache was not grossly negligent in taking

delivery of the rig.

      Kilgore then filed its motion for JNOV, arguing that because Apache had not

submitted any issues to the jury on its breach-of-contract claim, it therefore had

“waived its sole cause of action.” And it asserted that Apache’s claim was not

supported by the pleadings or the evidence.

      The trial court denied Kilgore’s motion for JNOV, and it entered a judgment

that, “[b]ased on the jury’s findings, the evidence presented at trial, and the

stipulation between the parties as to the calculation of damages,” Apache recover

from Kilgore actual damages in the amount of $444,237 on its breach-of-contract

claim. And it ordered that Kilgore take nothing on its claims.

                                    Pleadings

      In its first issue, Kilgore argues that the trial court erred in denying its

motion for JNOV and granting judgment for Apache because the judgment is not



                                        11
supported by the pleadings. Kilgore asserts that “Apache’s sole pleaded cause of

action was for breach of contract based on Kilgore’s alleged failure to pay certain

JIBs [joint interest billings]”; “[t]here is simply no procedure in the [PA] for the

issuance of additional billings nor any requirement for payment of such”; and the

trial court’s judgment is based on the PA, “which does not obligate Kilgore to pay

JIBS.”

      A trial court’s judgment must “conform to the pleadings, the nature of the

case proved and the verdict, if any, and shall be so framed as to give the party all

the relief to which [it] may be entitled either in law or equity.” TEX. R. CIV. P.

301. A trial court may not grant relief on a theory of recovery not sufficiently

stated in the party’s pleadings or tried by consent. Stoner v. Thompson, 578

S.W.2d 679, 682–83 (Tex. 1979); Eun Bok Lee v. Ho Chang Lee, 411 S.W.3d 95,

106 (Tex. App.—Houston [1st Dist.] 2013, no pet.).

      In its first amended petition, Apache alleges, in pertinent part, as follows:

      IV.   Claims for Relief

            A.     Breach of Agreement

                   10.    . . . . Kilgore agreed to pay Apache for Kilgore’s
                          share of the expenses related to drilling a well on
                          the block. These expenses are known as joint
                          interest billings. Kilgore owes Apache joint
                          interest billings in the amount of $444,237.43 for
                          Kilgore’s share of the drilling of the well, which
                          have remained unpaid.



                                         12
Apache asserts that “[f]rom the outset of this case, Kilgore has understood that

Apache’s claims were based on the [PA].” Apache notes that Kilgore, in its

summary-judgment motion, asserted, “Although Apache does not specify which

agreement, the PA is the only agreement that applies to the costs for which Apache

is suing.” Apache explains that the term “‘joint interest billings’ simply means

‘expenses’ incurred in a joint project; it is not a term of art or limited to the billings

under the OOA.”       Indeed, the term “joint interest billing” is a “term commonly

used in the oil and gas industry to refer to a statement periodically submitted by the

operator to the working interest owners to obtain payment of their proportionate

share of a lease’s operating expenses.” C.K. Oil Props., Inc. v. Hrubetz Operating

Co., No. 11-99-00066-CV, 2002 WL 32344609, at *14 (Tex. App.—Eastland Apr.

25, 2002, no pet.) (not designated for publication).

      Here, the PA provides, in its preliminary recitals and section one, that

Kilgore and Apache each “agree[d] to participate in and bear its respective share of

costs and expenses” associated with the drilling of the well and “drilling

operations.” And section fifteen provides that the parties broadly agreed to “share

and assume their respective prorata shares, . . . of any and all claims, losses, and

expenses (including without limitation all costs, demands, damages, suits,

judgments, fines, penalties, liabilities, debts, attorneys’ fees, costs of defense, and

causes of action of whatsoever nature or character, whether known or unknown,



                                           13
and including without limitation, claims, losses and expenses for property

damage . . .) directly or indirectly arising out of or related to [Apache’s] . . .

operations . . . hereunder.” (Emphasis added.) The parties also stipulated that the

expenses at issue constitute “charges billed by Apache to the joint interest.”

(Emphasis added.)

      Kilgore asserts that Apache “pleaded a cause of action for damages that

exist, if at all, only via the OOA,” which the parties agreed does not apply. It

asserts the PA itself “recognizes that any billing beyond the Final AFE would be

covered under the OOA” in the “Default Notice” provision at section 5, as follows:

      If any non-operator Participant fails to pay its share of an advance
      billing for an approved AFE, other than the Final AFE, as provided
      for in the OOA, Operator shall provide such Participant a default
      notice . . .

(Emphasis added.) Nothing in the emphasized language, however, restricts any

and all billings beyond the Final AFE to the OOA. The Final AFE itself states that

it is an “Estimate of Costs.”

      We conclude that Apache’s pleading stated a breach-of-contract claim under

the PA. Accordingly, we hold that the trial court did not err in denying Kilgore’s

motion for JNOV and granting judgment for Apache on this point.

      We overrule Kilgore’s first issue.




                                           14
                                     Jury Issues

      In its second issue, Kilgore argues that the trial court erred in granting

judgment for Apache because it “waived its sole pleaded cause of action by failing

to submit jury issues on any element of its breach of contract claim.”

      It is well-settled that “[a]ll independent grounds of recovery . . . not

conclusively established under the evidence and no element of which is submitted

or requested are waived.” TEX. R. CIV. P. 279. If the evidence conclusively

establishes the elements of a claim, it is established as a matter of law and may be

part of the judgment, “even if no jury question on the claim was submitted.” Bank

of Tex. v. VR Elec., Inc., 276 S.W.3d 671, 677 (Tex. App.—Houston [1st Dist.]

2008, pet. denied) (citing City of Keller v. Wilson, 168 S.W.3d 802, 814–15 (Tex.

2005) (noting “[j]urors are not free to reach a verdict contrary to [the] evidence”)).

      The elements of a breach-of-contract claim are (1) the existence of a valid

contract; (2) performance or tendered performance by the plaintiff; (3) breach by

the defendant; and (4) damages as a result of breach. Id. In construing a written

contract, the primary concern is to ascertain and give effect to the parties’

intentions as expressed in the document. Frost Nat’l Bank v. L & F Distribs., Ltd.,

165 S.W.3d 310, 311–12 (Tex. 2005). We consider the entire writing and attempt

to harmonize and give effect to all the provisions of the contract by analyzing the

provisions with reference to the whole agreement. Id. at 312. No single provision



                                          15
is given controlling effect. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229

(Tex. 2003).

      If, after the pertinent rules of construction are applied, the contract can be

given a definite or certain legal meaning, it is unambiguous, and we construe it as a

matter of law. Frost Nat’l Bank, 165 S.W.3d at 312. However, if the meaning of

the contract remains uncertain or is susceptible to more than one reasonable

interpretation, it is ambiguous. Nat’l Union Fire Ins. Co. v. CBI Indus., Inc., 907

S.W.2d 517, 520 (Tex. 1995); Coker v. Coker, 650 S.W.2d 391, 393–94 (Tex.

1983). Whether a contract is ambiguous is a question of law to be determined “by

looking at the contract as a whole in light of the circumstances present when the

contract was entered.” Coker, 650 S.W.2d at 394. A court may conclude that a

contract is ambiguous even in the absence of such a pleading by either party. Sage

St. Assocs. v. Northdale Constr. Co., 863 S.W.2d 438, 445 (Tex. 1993). A simple

lack of clarity or disagreement between parties does not render a term ambiguous.

See DeWitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999).

      Here, the parties do not dispute that the PA is a valid contract. See Bank of

Tex., 276 S.W.3d at 677. Rather, they dispute whether the terms of the PA require

Kilgore to pay fifteen percent of the storm-related expenses.       The PA, in its

preliminary recitals and section one, provides that Apache and Kilgore agreed to

“conduct drilling operations of the [well] pursuant to the terms and conditions set



                                         16
forth” and each would “participate in and bear its respective share of costs and

expenses associated with the timely drilling of the [well].” And the PA assesses

fifteen percent of the costs and expenses to Kilgore. Thus, Kilgore expressly

agreed to bear fifteen percent of the costs and expenses associated with the drilling

of the well and drilling operations.       See Coker, 650 S.W.2d at 394 (“In

harmonizing . . . provisions, terms stated earlier in an agreement must be favored

over subsequent terms.”).

      Pursuant to section three of the PA, the parties agreed that, “prior to

commencement of operations,” Apache was to provide Kilgore with a Final AFE

and “an advance billing for [Kilgore’s] share of the estimated dry hole cost.” In

interpreting a contract, we give common words their plain meaning unless the

context indicates the words were used in another sense. Lesikar v. Moon, 237

S.W.3d 361, 367 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).              An

“estimate” is “an approximate judgment” or “calculation.”         OXFORD ENGLISH

DICTIONARY, 867 (Oxford Univ. Press, 6th ed., 2007). Thus, prior to drilling,

Apache provided Kilgore with an approximation of the costs to be incurred.

Nothing in the terms “advance” and “estimate” suggests that Apache intended to

waive any and all further expenses. See Frost Nat’l Bank, 165 S.W.3d at 312

(noting we construe contracts “from a utilitarian standpoint bearing in mind the




                                         17
particular business activity sought to be served” and “will avoid when possible . . .

a construction which is unreasonable, inequitable, and oppressive”).

      Finally, in section fifteen of the PA, the parties agreed that each would be

bear its respective share of “any and all . . . expenses (including without limitation

all costs . . . whether known or unknown . . .) directly or indirectly arising out of or

related to [Apache’s] . . . operations,” absent gross negligence by Apache.

(Emphasis added.) See id. at 311–12 (noting entire writing must be considered in

attempting to harmonize and give effect to all provisions of contract).

      When, as here, after the pertinent rules of construction are applied, an

agreement can be given a definite or certain legal meaning, it is unambiguous, and

we construe it as a matter of law. See Frost Nat’l Bank, 165 S.W.3d at 312; see

also Coker, 650 S.W.2d at 394 (noting determination of whether contract is

ambiguous is question of law). We conclude that the PA is not ambiguous and

obligates Kilgore to pay its share of “any and all” costs and expenses associated

with the drilling of the well and drilling operations, including the storm-related

expenses. Because the evidence conclusively establishes this element, submission

of a jury question on this issue was not required. See City of Keller, 168 S.W.3d at

814–15; Bank of Tex., 276 S.W.3d at 677.

      Also, determining whether a party has breached a contract is a question of

law for a trial court, rather than a question of fact for a jury, when the facts of the



                                          18
parties’ conduct are undisputed or conclusively established. Grohman v. Kahlig,

318 S.W.3d 882, 887 (Tex. 2010); May v. Ticor Title Ins., 422 S.W.3d 93, 100

(Tex. App.—Houston [14th Dist.] 2014, no pet.); Lafarge Corp. v. Wolff, Inc., 977

S.W.2d 181, 186 (Tex. App.—Austin 1998, pet. denied) (“Where the evidence is

undisputed regarding a party’s conduct under a contract, the judge alone must

determine whether it shows performance or breach of its contract obligation.”).

Here, it is undisputed that Kilgore did not tender payment under the PA for its

fifteen percent share of the storm-related expenses.

      Further, the parties stipulated to the total expenses that Apache billed to “the

joint interest” and how damages were to be calculated at trial. The parties agreed

that the total amount incurred by the joint interest was $7,049,440, of which

$3,839,061 was for storm-related expenses.         And the parties stipulated that

Kilgore’s share of the storm-related expenses was $575,859, as billed, less an

offset of $91,559 for its prior payment. “A stipulation serves as proof on an issue

that otherwise would be tried,” is “conclusive on the issue addressed,” and estops

the parties from claiming to the contrary. Houston Lighting & Power Co. v. City of

Wharton, 101 S.W.3d 633, 641 (Tex. App.—Houston [1st Dist.] 2003, pet.

denied).

      Finally, although the parties disputed whether Apache performed under the

PA, in that Kilgore asserted that Apache was grossly negligent in taking possession



                                         19
of the drilling rig in the face of Hurricane Ike, the matter was tried to the jury, who

returned a verdict in favor of Apache. See Bank of Tex., 276 S.W.3d at 677. And

Kilgore does not challenge the jury’s gross-negligence finding.

      Thus, Apache conclusively proved the elements of its breach-of-contract

claim, subject to whether it acted with gross negligence in its performance, which

the jury answered in favor of Apache. See id. There being no further factual

disputes, we hold that Apache was not required to submit questions on these

elements to the jury to support its breach-of-contract claim. See City of Keller, 168

S.W.3d at 814–15; Bank of Tex., 276 S.W.3d at 677.

      We overrule Kilgore’s second issue.

                                  Attorney’s Fees

      In its third issue, Kilgore argues that the trial court erred in not awarding it

attorney’s fees because it “is the prevailing party and is entitled to recover its

attorneys’ fees under both the [PA] and under Section 37.009 of the Civil Practice

and Remedies Code.” See TEX. CIV. PRAC. & REM. CODE ANN. § 37.009 (Vernon

2008). Kilgore asserts that recovery of its $402,599.81 in attorneys’ fees and

expenses “would be equitable and just in this case.”

      Having concluded above, however, that Apache did not, as Kilgore asserts,

waive its breach-of-contract claim, Kilgore did not prevail and is not entitled to




                                          20
attorney’s fees. Thus, the trial court did not err in not awarding Kilgore attorneys’

fees under the PA.

      In regard to section 37.009, a trial court, in a declaratory judgment action,

“may award costs and reasonable and necessary attorney’s fees as are equitable

and just.” Id. In its amended answer, Kilgore sought a judgment declaring that its

liability to Apache is “controlled entirely by the PA and [was] limited to the

amount it paid Apache under the Final AFE.” Kilgore asserts that “one of its

arguments in [its] motion for summary judgment was that the [PA] was the only

contract governing this dispute.”      Kilgore further argues that because Apache

“conceded” in its motion that the PA controls Kilgore’s payment obligations to

Apache, Kilgore prevailed on this issue and is entitled to attorney’s fees.

      The statute provides that a trial court “may award costs and reasonable

attorney’s fees as are equitable and just.” Id. (emphasis added). Thus, it was

within the trial court’s discretion as to whether to award attorney’s fees to Kilgore.

It is undisputed, however, that the trial court did not rule on Kilgore’s summary-

judgment motion.     Moreover, in its response to Kilgore’s summary-judgment

motion, Apache itself quoted the PA in support of its argument. Thus, Kilgore has

not demonstrated that this was a contested issue. Accordingly, we hold that the

trial court acted within its discretion in not awarding Kilgore attorney’s fees on its

declaratory-judgment action. See id.



                                          21
      We overrule Kilgore’s third issue.

                                     Conclusion

      We affirm the judgment of the trial court.




                                                Terry Jennings
                                                Justice

Panel consists of Justices Jennings and Higley. 5




5
      The Honorable Jim Sharp, former Justice of this Court, was a member of the panel
      and present for argument when this case was submitted. Because his term expired
      on December 31, 2014, he did not participate in the decision of the case. See TEX.
      R. APP. P. 41.1(b).

                                           22
