Opinion filed October 31, 2013

In The

Eleventh Court of Appeals __________

No. 11-11-00290-CV

__________

EAGLE OIL & GAS CO., Appellant

V.

TRO-X, L.P., Appellee

AND

TRO-X, L.P., Cross-Appellant

V.

EAGLE OIL & GAS PARTNERS, LLC, Cross-Appellee

On Appeal from the 238th District Court

Midland County, Texas

Trial Court Cause No. CV-46,196

O P I N I O N

Because TRO-X, L.P. believed that Eagle Oil & Gas Co. (Eagle Oil) 

breached an agreement that it had with TRO-X regarding the acquisition and 

disposition of oil and gas leases and other oil and gas interests, it brought a cause 

of action against Eagle Oil for that breach. TRO-X also brought other causes of 

action against Eagle Oil and, later, a third party, Eagle Oil & Gas Partners, LLC 
2

(Eagle Partners). By way of a partial summary judgment in favor of Eagle Oil, the 

trial court disposed of some of the causes of action that TRO-X brought against 

Eagle Oil. In the partial summary judgment, except for a tortious interference 

claim, the trial court also disposed of all of the causes of action that TRO-X 

brought against Eagle Partners. Other issues, including damages and attorney fees,

were presented to the jury.

The jury found that Eagle Oil had breached the agreement; that TRO-X had 

not breached the agreement; that Eagle’s breach was not excused; that TRO-X had 

not waived its right to acquire an unpromoted working interest in the acreage

covered by the agreement; that TRO-X’s total damages amounted to $7,680,000; 

and that TRO-X was entitled to total attorney fees of $571,000.

Additionally, as far as TRO-X’s claims against Eagle Partners were 

concerned, the jury found that Eagle Partners intentionally interfered with the 

agreement between TRO-X and Eagle Oil. The jury also found that Eagle Partners 

did not act in the good faith belief that (1) it was acting in the bona fide exercise of 

its own rights or (2) it had an equal or superior right in the subject matter of the 

contract as opposed to that of TRO-X. However, the jury answered “$0” when 

asked to assess damages to TRO-X that were proximately caused as a result of that 

interference.

The jury verdict was not unanimous. The trial court instructed the jury that 

it could not find that harm to TRO-X was maliciously caused by Eagle Partners 

unless its answer was unanimous, and the jury did not answer the question 

regarding malice. Because the question regarding the amount of exemplary 

damages was conditioned upon an affirmative answer to the malice question, the 

jury did not answer it.

Based upon the answers of the jury, and after the trial court denied Eagle 

Oil’s motion for judgment notwithstanding the verdict and to disregard certain jury 
3

findings, the trial court entered judgment in favor of TRO-X against Eagle Oil in 

the amount of $7,680,000. It also entered judgment that TRO-X take nothing on 

its claims against Eagle Partners. The trial court additionally awarded TRO-X a 

total of $571,000 in attorney fees. Eagle Oil and TRO-X have each perfected an 

appeal.

As a result of the discussion and analysis that follows, we reverse and render 

judgment that TRO-X take nothing from Eagle Oil on its breach of contract claims, 

but that TRO-X recover the sum of $379,788.80 from Eagle Oil, as shown by the 

court-approved accounting. We reverse the award of attorney fees to TRO-X 

related to the breach of contract claims and render judgment that TRO-X may not 

recover those attorney fees in the absence of a successful breach of contract claim. 

We also reverse the award of $35,000 in attorney fees that were conditioned upon 

an affirmative answer to the question of whether Eagle Oil breached the agreement 

by sending a letter to TRO-X. We render judgment that TRO-X cannot recover 

those fees. We affirm the take-nothing judgment against TRO-X and in favor of 

Eagle Partners.

Although the record in this case is quite voluminous, we will discuss only 

those parts of the record that are directly germane to the resolution of this appeal. 

The agreement that is the subject of this lawsuit is in writing and is 

denominated: “ACREAGE ACQUISITION AGREEMENT: NEW PROSPECTS 

AND AMENDMENT NO. 1 TO SOUTH HALEY PROSPECT AGREEMENT 

PECOS COUNTY, TEXAS.”1

 The parties to the New Prospects Agreement are 

TRO-X, L.P. and Eagle Oil & Gas Co.

 1

The parties had previously bought and sold oil and gas leases and related interests under another 

agreement (the South Haley Agreement). Except for references in the New Prospects Agreement to 

certain definitions contained in the South Haley Agreement, this lawsuit does not involve any recovery 

under the South Haley Agreement.
4

Under the terms of the New Prospects Agreement, Eagle Oil was to use 

reasonable efforts to acquire “Interests” in the New Prospects area. In the New 

Prospects Agreement, the parties refer to the definition of “Interests” as set out in 

the South Haley Agreement. There, the term “Interests” is defined to be “oil and 

gas leasehold interests, rights to acquire such interests such as by way of farmout 

and, if available, mineral and royalty interests.” The agreement also contained an 

AMI (Area of Mutual Interest) provision. All Interests acquired under the 

agreement were to be taken solely in Eagle Oil’s name.

If the Interests in the New Prospects were acquired within one year from the 

effective date of the New Prospects Agreement, Eagle Oil was to bear “all costs of 

acquisition for leasehold bonus, purchase consideration, third party landman title 

review and acquisition costs, out-of-pocket expenses incurred by those landmen, 

and other like or similar charges incurred in the acquisition of up to 25,000 net 

acres of Interests, not to exceed total maximum expenditures of $3,000,000.” The 

parties denominated those expenses “Eagle New Prospect Expenses.” No charges 

were to be assessed by either party or its affiliates for its own efforts in the 

acquisition of Interests. However, either party was allowed to recover its “out-ofpocket third party expenditures under Section II” of the New Prospects Agreement. 

Those allowable expenses included “supplies and printing costs of prospect sales 

brochures and out-of-pocket travel expenses for mileage, meals and 

accommodations incurred in the prospect sale process.” Any such expenses 

incurred by TRO-X were denominated “TRO-X New Prospect Expenses.” Those 

types of expenses that were incurred by Eagle Oil were to be added to the “Eagle 

New Prospect Expenses” that we have described earlier.

Thus far in this opinion, we have set out the nature of the parties’ agreement 

regarding the acquisition of Interests. The real subject of the dispute in this lawsuit 

lies not in the acquisition of Interests but, rather, in the exercise of rights to retain a 
5

portion of those Interests once acquired. The dispute also involves the distribution 

of proceeds from the subsequent sale of some of the Interests.

Section II of the New Prospects Agreement is entitled “DISPOSITION OF 

INTERESTS AND DISTRIBUTION OF PROCEEDS.”2

 The heading assigned by 

the parties to Section II.A. is: “Retention of Unpromoted Working Interests.” In 

that section, Eagle Oil and TRO-X provided as follows:

 Subject to the terms of Article IV below, TRO-X may retain an 

unpromoted working interest of up to 40% (“TRO-X New Prospect 

Interest”), and Eagle may retain an unpromoted working interest of up 

to 60% (“Eagle New Prospect Interest”) in the New Prospects and 

Interests acquired therein under the terms of any exploration 

agreement and operating agreement negotiated with the working 

interest owners prior to initial drilling (“Prospect Agreements”). 

“Unpromoted” is defined in the South Haley Agreement.3

 

Unpromoted working interests shall be chosen by the Parties prior to 

the sale of all working interests to third parties on a promoted basis. 

The working interest chosen by TRO-X is the “TRO-X New Prospect 

Participation Percentage”, and the working interest chosen by Eagle is 

the “Eagle New Prospect Participation Percentage”. On the day of 

TRO-X’s selection of the TRO-X New Prospect Participation 

Percentage, it shall reimburse Eagle for Eagle New Prospect Expenses 

attributable to the TRO-X New Prospect Participation Percentage, 

plus pay Eagle an annualized rate of return, calculated from one year 

subsequent to the Effective Date of the South Haley Agreement, of 

eight percent (8%), and the Eagle New Prospect Expenses to be 

recovered under Section II.C. shall be reduced proportionately. On 

the day of Eagle’s selection of the Eagle New Prospect Participation 

Percentage, it shall reimburse TRO-X for the share of TRO-X New 

Prospect Expenses attributable to the selected interest, plus pay TROX an annualized rate of return, calculated from one (1) year 

 2

The divisions in the New Prospects Agreement are variously referred to in the Agreement as 

“Sections” as well as “Articles.” We will refer to them as “Sections.”

3

In the South Haley Agreement, the parties defined “unpromoted” to mean “that the chosen 

working interest shall bear all third party out-of-pocket costs (i) in the acquisition of Interests, (ii) for 

geological and geophysical data and analysis, (iii) for running and curing title and title opinions, and 

(iv) for costs incurred in preparing to drill, drilling, completing, equipping and pipeline costs under the 

terms of the Prospect Agreements, including operating and overhead charges provided for therein.” 
6

subsequent to the Effective Date of the South Haley Agreement, of 

eight percent (8%), and the TRO-X New Prospect Expenses to be 

recovered under Section II.C. shall be reduced proportionately.

(footnote added).

In accordance with other provisions in the New Prospects Agreement, the 

“Eagle New Prospect Interest” was amended to read “up to 65%” and the “TRO-X 

New Prospect Interest” was amended to read “up to 35%.”

Section II.B. of the agreement is entitled “Sale of Working Interests to Third 

Parties.” In Section II.B., Eagle Oil and TRO-X provided as follows:

 All working interests in the New Prospects not acquired by 

TRO-X and Eagle under Section 2.A. [sic] above shall be sold to one 

or more third party working interest owners through joint sales efforts 

of the Parties on a promoted basis under terms acceptable to Eagle 

after consultation with TRO-X. TRO-X and some of its Affiliates, 

including Greg McCabe, Ed McCabe, Rich Masterson and Greg Hair, 

with Eagle’s assistance, shall prepare a detailed sales brochure 

including land maps, geological maps and cross-sections covering all 

prospective horizons and shall lead the sale process, all at no expense 

to Eagle other than for cost recovery as otherwise provided for herein. 

The Parties shall use their best efforts to ensure that the sale proceeds 

of the New Prospects will (i) recover the unrecovered TRO-X New 

Prospect Expenses and the unrecovered Eagle New Prospect 

Expenses, (ii) if possible, provide for a cash profit, and (iii) provide 

non-cash sale proceeds comprised of one or more of back-in working 

interests, carried working interests or overriding royalties. 

After the agreement was executed, interests were acquired in the New 

Prospects area in accordance with the agreement. There is evidence in the record 

that, after the New Prospects acreage was acquired, sales of the Interests in the 

wildcat New Prospects area were slow. However, at some point in time, Eagle Oil 

entered into negotiations with EnCap Investments for the sale of a portion of the 

New Prospects. Ultimately, Eagle Oil and EnCap struck a deal for some of the 

New Prospects area. Eagle Oil and EnCap structured their deal in this way: they 
7

formed a new entity, Eagle Oil & Gas Partners, LLC. As a part of the transaction, 

Eagle Oil was to manage Eagle Partners and was to receive a fee of $150,000 per 

month for that.

On April 2, 2007, the same day that it was formed, the new entity, Eagle 

Partners, bought a 50% working interest in a part of the New Prospects area. Eagle 

Oil continued to try to sell what was left of the New Prospects acreage.

Meanwhile, the evidence shows that the relationship between TRO-X and 

Eagle Oil began to go downhill. On October 15, 2007, Eagle Oil sent a letter to 

TRO-X in which Eagle Oil, among other things, complained of TRO-X’s 

performance under the agreement and outlined ways of going forward. TRO-X did 

not reply to that letter but, ultimately, filed this lawsuit against Eagle Oil and later 

added Eagle Partners as a defendant. Eagle Oil also filed a breach of contract 

counterclaim against TRO-X. We have already set forth the ultimate result of the 

suit.

While this lawsuit was pending in the trial court, negotiations were 

completed for the sale of 100% of a portion of the New Prospects—the Collier 

Prospect—to Chesapeake Exploration, L.L.C. Not long thereafter, Chesapeake 

also purchased from Eagle Oil and Eagle Partners an 85% interest in that portion of 

the New Prospects area known as the Balmorhea Ranch Prospect. In each sale, 

Chesapeake paid $325 per acre, and Eagle Oil argues that Eagle Oil retained, for it 

and TRO-X, an overriding royalty interest and a back-in working interest. These 

proceeds were to be divided in accordance with the New Prospects Agreement.

TRO-X never designated a New Prospect Participation Percentage. There 

was never any production on properties covered by the New Prospects Agreement, 

and the leases were not otherwise kept alive and, ultimately, expired.

Neither party claims that the New Prospects Agreement is ambiguous. 

However, each party to the contract has its own, quite different interpretation. But 
8

a mere difference in interpretation is not tantamount to an ambiguity. Providence 

Land Servs., LLC v. Jones, 353 S.W.3d 538, 541 (Tex. App.—Eastland 2011, no 

pet.). It is only when the meaning of the agreement is uncertain and doubtful or 

when it is reasonably susceptible to more than one meaning that it is ambiguous. 

Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). 

TRO-X is correct when it states that it is entitled to retain an unpromoted 

working interest of up to 35% in the New Prospects and in “Interests acquired” in 

the New Prospects “under the terms of any exploration agreement and operating 

agreement negotiated with the working interest owners prior to initial drilling 

(‘Prospect Agreements’).” The maximum 35% figure was known as the New 

Prospect Interest. The specific unpromoted interest that was actually chosen by 

each party up to the maximum amount was defined by Eagle and TRO-X as “TROX New Prospect Participation Percentage” as to TRO-X’s 35% maximum; Eagle

Oil’s like interest of 65% maximum was designated as “Eagle New Prospect 

Participation Percentage.”

TRO-X maintains that, although it was required to specifically designate its 

New Prospect Participation Percentage, it could exercise that right of designation 

prior to each sale of any working interest to third parties and, even then, only after 

Eagle had “consulted” with it first. TRO-X takes the position that the prior 

consultation requirement as contained in Section II.B. applies to its obligation to 

designate its New Prospect Participation Percentage in Section II.A. TRO-X also 

takes the position that the “consultation” requirement means that Eagle is required

to advise TRO-X of the terms of each sale so that TRO-X can “make an informed 

election between accepting its percentage of the profit, retaining a working interest, 

or some combination of the two.”

A contrary position is taken by Eagle Oil. It maintains that TRO-X was 

required to select its New Prospect Participation Percentage at some time prior to 
9

the time that all working interests were sold to third parties but not as to each sale. 

And Eagle Oil argues that it was not required to reveal the terms of each sale to 

third parties to TRO-X so that TRO-X could, prior to each sale, “make an 

informed election between accepting its percentage of the profit, retaining a 

working interest, or some combination of the two” as argued by TRO-X.

It is Eagle Oil’s position that the consultation provision in Section II.B. has 

nothing to do with TRO-X’s selection of its New Prospect Participation Percentage 

as provided for by the parties in Section II.A. Section II.A. deals with the selection 

and cost of retaining unpromoted working interests by each party. Section II.B. 

deals with the process and details of selling promoted working interests that remain 

to third parties. And, Eagle Oil maintains, it may sell those promoted working 

interests to third parties on terms satisfactory to it after consultation with TRO-X.

Eagle Oil’s first issue contains five parts.4

 In each part, Eagle Oil claims 

that the trial court erred when it “render[ed] judgment for TRO-X on its claim that 

Eagle breached the New Prospects Agreement by ‘depriving TRO-X of its right to 

retain an unpromoted working interest by selling to Eagle Partners on a promoted 

basis without consultation with TRO-X.”

In Issue 1(a), Eagle Oil claims that the trial court erred when it entered the 

judgment because, “as a matter of law, Eagle could not have ‘deprive[d]’ TRO-X 

of its right to retain a working interest of up to 35% because TRO-X unilaterally 

controlled its mature right or option to retain an unpromoted working interest at 

any time before the sale of all working interests to third parties” (alteration in 

original).

Issue 1(b) contains Eagle Oil’s complaint that there was no evidence to 

support “the jury’s finding that Eagle ‘deprive[d]’ TRO-X of its right to retain up 

 4

In its statement of the issues, Eagle Oil lists its issues on appeal. When it later discusses those 

issues, Eagle Oil uses a different numbering system for the issues. We will use the system used by Eagle 

Oil in the argument portion of the brief.
10

to a 35% interest because Eagle sold only an undivided 50% working interest to 

Eagle Partners, and thus a 50% working interest remained available for TRO-X to 

retain even after that sale” (alteration in original).

In Issue 1(c), Eagle Oil takes the position that the “consultation” provision 

of Section II.B. “has nothing to do with TRO-X’s right to retain an unpromoted 

working interest under section II.A of the agreement.”

We will resolve these three arguments before going on to the other 

arguments made by Eagle Oil in its appeal.

Before we can address those arguments, we must first decide what the 

parties intended as evidenced in the written agreement. In construing a written 

contract, our primary objective is to determine the true intentions of the parties as 

expressed in the writing. Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of 

Am., 341 S.W.3d 323, 333 (Tex. 2011); Coker, 650 S.W.2d at 393. We are to 

consider the entire writing “in an effort to harmonize and give effect to all the 

provisions of the contract so that none will be rendered meaningless.” Coker, 650 

S.W.2d at 393. If the written agreement is so worded that it can be assigned a 

certain or definite legal meaning or interpretation, it is not ambiguous, and a court 

will construe the agreement as a matter of law. Id. A written agreement is, 

however, ambiguous “when its meaning is uncertain and doubtful or it is 

reasonably susceptible to more than one meaning.” Id. Whether an agreement is 

ambiguous is a question for the court to decide as a matter of law. Id. at 394. In 

making that legal decision, a court examines the agreement as a whole in light of 

the circumstances attendant when the parties made the contract. Id. 

TRO-X and Eagle Oil have agreed that the New Prospects Agreement is not 

ambiguous. Although a court can decide that an agreement is ambiguous in spite 

of what the parties argue to the contrary, we agree that the New Prospects 

Agreement can be given only one reasonable meaning and that it is not, therefore, 
11

ambiguous. See id. at 393. Because the New Prospects Agreement is not 

ambiguous, we will construe it as a matter of law as it is written. Italian Cowboy, 

341 S.W.3d at 333; R & P Enters. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 

517, 518 (Tex. 1980); Martin v. Saga Petroleum Corp., 332 S.W.3d 646, 650 (Tex. 

App.—Eastland 2010, no pet.).

Against this backdrop, we will consider Eagle Oil’s complaint that, under 

the written agreement, as a matter of law, it could not deprive TRO-X of its right to 

a retained unpromoted working interest of up to 35%.

Section I of the New Prospects Agreement contained the parties’ agreement 

with respect to the acquisition of “Interests” in the New Prospects. Section II.A. of 

the New Prospects Agreement is entitled “Retention of Unpromoted Working 

Interests.” In it, Eagle Oil and TRO-X provided the procedure whereby Eagle Oil 

and TRO-X could retain applicable percentages of unpromoted working interests 

in the New Prospects. As we have said, for TRO-X, the maximum allowable 

percentage was called “TRO-X New Prospect Interest.” Any percentage that was 

actually chosen by TRO-X was to be designated the “TRO-X New Prospect 

Participation Percentage,” and the percentage actually chosen by Eagle Oil was to 

be designated as the “Eagle New Prospect Participation Percentage.”

In Section II.A., the parties provided that the “[u]npromoted working 

interests” were to be “chosen by the Parties prior to the sale of all working interests 

to third parties on a promoted basis” (emphasis added). In the remainder of 

Section II.A., the parties detailed the method by which they were to compute the

price that each had to pay for its respective “New Prospect Participation 

Percentage.” Section II.A. contains no provisions pertaining to the sale of any 

“Interests” in the New Prospects, only the retention of interests by Eagle Oil and 

by TRO-X and the method of payment by each for the interests that each 

designated for retention.
12

Section II.B. contains the parties’ agreement pertaining to the sale of 

promoted working interests to third parties. The parties agreed that “[a]ll working 

interests in the New Prospects not acquired by TRO-X and Eagle under Section 

2.A. [sic] above shall be sold to one or more third party working interest owners” 

(emphasis added). The parties set forth which party was to do what in connection 

with the sales effort. The sales were to be made upon “terms acceptable to Eagle 

after consultation with TRO-X.” Additionally in Section II.B., the parties agreed 

that they would use their “best efforts to ensure that the sale proceeds of the New 

Prospects will (i) recover the unrecovered TRO-X New Prospect Expenses and the 

unrecovered Eagle New Prospect Expenses” (those expenses pertaining to the 

acquisition of interest as set out in Section I), “(ii) if possible, provide for a cash 

profit, and (iii) provide non-cash sale proceeds comprised of one or more of backin working interests, carried working interests or overriding royalties.”

In Section II.B., the part of the agreement that contains the “consultation”

provision, the parties mentioned neither acquisitions that they addressed in 

Section I nor retentions that they described in Section II.A.; the only process that 

the parties detailed in Section II.B. was that related to sales of promoted working 

interests.

Section II.C. of the New Prospects Agreement contains a formula to be used 

to compute the distribution of cash proceeds attributable to the sale of “Interests” 

in the New Prospects. The function of the formula was to arrive at “New Prospect 

Distribution Shares” for Eagle Oil and for TRO-X. Eagle Oil and TRO-X agreed 

that, after each party recovered certain expenses, plus a certain rate of return on 

each party’s New Prospect Expenses, remaining cash sale proceeds were to be 

shared according to each party’s “New Prospect Promotion Share.” “New 

Prospect Promotion Share” is defined in Section II.C. of the New Prospects 

Agreement.
13

Section II.D. of the New Prospects Agreement provides for the distribution 

of non-cash sale proceeds, such as back-in working interests, carried working interests, or overriding royalties. These interests were to be distributed to Eagle Oil 

and to TRO-X “according to their respective New Prospect Promotion Shares.”

Neither Section II.C. nor Section II.D. contains any provisions relating to the 

retention of an unpromoted working interest either by Eagle Oil or TRO-X. In 

fact, none of the distributions referred to in Section II.C. or in Section II.D. utilize 

the designation “New Prospect Participation Percentage” in relation to those 

distributions; that term is peculiar to Section II.A.

That the parties knew how to provide for the type of procedure TRO-X 

argues for here is apparent from Section III of the New Prospects Agreement, the 

AMI provision. There, within certain time constraints, if either Eagle Oil or TROX wanted to separately purchase an interest within the New Prospect AMI, then 

that party was required to notify the other party of the proposed acquisition and 

“provide all of the pertinent information concerning the acquisition to the other 

Party.” The other party would then have a period of time within which it was to 

notify the acquiring party of its intent to acquire its share of the interest being 

purchased “under the same terms under which the acquiring Party is bound.” 

“Failure to timely respond with full payment and properly executed documentation 

shall be deemed to be an election not to acquire.”

The retention provisions of Section II.A. do not provide for that type of 

disclosure or privilege. As Eagle Oil argues, to say otherwise would be to require 

us to rewrite the New Prospects Agreement to provide: “Unpromoted working 

interests shall be chosen by the Parties prior to the sale of each or any working 

interests.” We cannot rewrite the agreement to transform it into one that the parties 

did not make. Neece v. A.A.A. Realty Co., 322 S.W.2d 597, 600 n.3 (Tex. 1959); 
14

Healthcare Cable Sys., Inc. v. Good Shepherd Hosp., Inc., 180 S.W.3d 787, 791 

(Tex. App.—Tyler 2005, no pet.).

Eagle Oil argues that TRO-X unilaterally controlled its right to retain an 

unpromoted working interest of up to 35% at any time prior to the sale of all

working interests to third parties. Therefore, Eagle Oil maintains, as a matter of 

law, it could not have deprived TRO-X of its right to retain an unpromoted 

working interest of up to 35%; the right of retention was controlled strictly by 

TRO-X.

Under the plain meaning of the New Prospects Agreement, in Section II.A., 

the parties agreed that either party could choose the unpromoted working interest 

that it wanted to retain prior to the sale of all working interests on a promoted 

basis. We are to give words their plain meaning unless some different or technical

meaning is designated in the agreement. Healthcare Cable, 180 S.W.3d at 791.

The primary definition of “all” in the Merriam-Webster’s Collegiate 

Dictionary is “the whole amount, quantity, or extent of.” MERRIAM-WEBSTER’S 

COLLEGIATE DICTIONARY 31 (11th ed. 2004). In Enterprise Leasing, the court was 

concerned with the language in a vehicle rental agreement that provided that the 

renter was responsible to pay Enterprise Leasing “the retail value of replacing 

and/or repairing all losses and damages to the rented car.” Enter. Leasing Co. of 

Houston v. Barrios, 156 S.W.3d 547, 548 (Tex. 2004) (emphasis added). The 

vehicle was stolen while in the possession of the renter. Id. The renter claimed 

that he was not responsible for the theft. Id. The Supreme Court disagreed. Id. at 

549. In reversing the court of appeals’s decision in favor of the renter, the court 

wrote: “As one of the dissenting justices [in the court of appeals] succinctly stated,

“‘All losses’ means all losses.” Id.

As Eagle Oil points out, the sale to Eagle Partners did not involve a sale of 

all working interests. After the sale, a 50% interest remained, and as Eagle Oil 
15

argues, the choice remained exclusively with TRO-X to choose and to select a 

retained unpromoted working interest of up to 35% upon payment of the amounts 

set out in Section II.A. The sale was not of “the whole amount, quantity, or extent 

of” the working interest. 

TRO-X presents several scenarios in which it describes how TRO-X might 

have decided its course of action differently under those different scenarios if 

presented with the full details of each sale. We understand the difference that 

could make in its decision-making process. However, although that might have 

been a more advantageous way to draft the agreement, that is not the agreement 

that the parties made as is apparent from the writing itself. Contrarily, Eagle Oil 

argues that, under TRO-X’s suggested procedure, it would be impossible to market 

the interests because Eagle Oil would have no way of telling a prospective 

customer what it had for sale.

A plain reading of Section II.B. limits the application of the “consultation” 

provision to that to which it refers and to which it is most closely located in the 

agreement, namely, sales “under terms acceptable to Eagle [Oil].” In no other part 

of the New Prospects Agreement did Eagle Oil and TRO-X use that term.

Because Eagle Oil could not, as a matter of law, deprive TRO-X of its right 

to retain an unpromoted working interest by selling to Eagle Partners on a 

promoted basis without consultation with TRO-X, we sustain Eagle Oil’s Issue 

1(a) and 1(c).

Eagle Oil argues that there is another reason that the judgment against it 

should be reversed. It maintains that there is no evidence to support the jury’s 

answer to Question No. 1(b)—that Eagle Oil deprived TRO-X of its right to retain 

up to a 35% interest—when there remained a 50% interest after the sale to Eagle 

Partners against which TRO-X could exercise its right to retain up to a 35% 

unpromoted working interest.
16

When we review a legal sufficiency challenge to the evidence, we credit 

evidence that supports the verdict if reasonable jurors could have done so and 

disregard contrary evidence unless reasonable jurors could not have done so. Akin, 

Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 

106, 115 (Tex. 2009); City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). 

We will sustain a legal sufficiency challenge when (a) there is a complete absence 

of evidence of a vital fact, (b) the court is barred by rules of law or of evidence 

from giving weight to the only evidence offered to prove a vital fact, (c) the 

evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the 

evidence conclusively establishes the opposite of the vital fact. Merrell Dow 

Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). “Evidence does not 

exceed a scintilla if it is ‘so weak as to do no more than create a mere surmise or 

suspicion’ that the fact exists.” Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 

788, 793 (Tex. 2006) (quoting Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 

(Tex. 2004)).

Even though there might be consequences to Eagle Oil as a result of Eagle 

Oil’s failure to comply with the consultation provision in connection with the 

sales of the interest, and there is evidence that it did fail,5 as opposed to the 

retention of an unpromoted working interest, Eagle Oil reminds us that we are to 

measure the sufficiency of the evidence against the court’s charge as actually 

given. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (the court’s charge 

measures the sufficiency of the evidence when the opposing party does not object 

to the charge). We note that the trial court generally instructed the jury that, “other 

than the obligation of consultation contained in II.B. of the New Prospects 

Agreement, the Agreement does not require either party to disclose specific 

 5

We do, however, agree with TRO-X that “consult” means more than “notify.” To consult means 

“to have regard to; consider; to ask the advice or opinion of; to refer to.” MERRIAM-WEBSTER’S 

COLLEGIATE DICTIONARY 268 (11th ed. 2004).
17

information to the other.” Specifically, in connection with Question No. 1, the trial 

court instructed the jury that “Eagle [Oil] did not owe a duty to offer TRO-X an 

opportunity to retain an unpromoted working interest for itself.”

There was no objection to the general instruction. TRO-X objected to 

Question No. 1 in its entirety because it was not a broad-form submission. TRO-X

also objected to the instruction contained in Question No. 1 regarding Eagle Oil’s 

lack of duty to offer TRO-X an opportunity to retain an unpromoted working 

interest for itself because the instruction constituted a comment on the weight of 

the evidence. The trial court overruled the objections. Although there were other 

objections, there were none that are relevant to this appeal.

We hold that, under the charge as given, the evidence conclusively 

establishes that, because there remained enough working interest after the sale for 

TRO-X to exercise its right of retention to an unpromoted working interest up to 

35%, Eagle Oil did not deprive TRO-X of its right to retain an unpromoted 

working interest by selling to Eagle Partners on a promoted basis without 

consulting TRO-X. Therefore, we sustain Eagle Oil’s no-evidence point contained 

in Issue 1(b).

In Question No. 1(a), the jury was asked whether Eagle Oil failed to comply 

with the agreement when it sent a certain letter to TRO-X. The letter has been 

called a “washout” letter. Eagle Oil maintains that the letter does not constitute a 

breach of the agreement as a matter of law. We have considered the letter and 

agree. Other than various complaints that Eagle Oil set out regarding TRO-X’s 

performance under the New Prospects and South Haley Agreements, a demand for 

questioned expenses, and suggested ways to go forward, Eagle Oil does little more 

than rehash the terms of the agreement as we have construed it. We sustain Eagle 

Oil’s Issue 5(a).
18

Although there was some discussion in the briefs about certain cash 

proceeds in the Chesapeake transaction, in Question No. 1(c), the trial court only 

asked the jury whether Eagle Oil failed to comply with the agreement by 

preventing TRO-X from acquiring its proportionate share of the overriding royalty 

interest and back-in working interest acquired in the sale to Chesapeake. The jury 

answered that Eagle Oil did.

Eagle Oil asserts in Issue 2(a) that there is no evidence to support a finding 

that Eagle Oil prevented TRO-X from acquiring its interest in the overriding royalty interest and in the back-in working interest because TRO-X had always held 

the equitable title to the interest, which was retained, not acquired, in the 

Chesapeake sale. Further, Eagle Oil maintains that, if TRO-X’s complaint is that 

Eagle Oil did not assign the interest to TRO-X after the Chesapeake sale, the 

evidence shows that TRO-X told Eagle Oil that TRO-X would not accept an 

assignment. This is the question that the trial court asked the jury: “Did Eagle 

[Oil] fail to comply with the Agreement . . . by preventing TRO-X from acquiring 

its proportionate share of the overriding royalty interest and working interest backin acquired in the sale to Chesapeake?” The question was not whether Eagle Oil 

failed to make an assignment of the interest to TRO-X. Because TRO-X always 

held equitable title to those interests, Eagle Oil could not, as a matter of law, 

deprive TRO-X of them. Further, for the same reason, the evidence conclusively 

establishes that Eagle Oil did not deprive TRO-X of the interests. We sustain 

Eagle Oil’s Issue 2(a).

In view of our rulings on the above issues, we need not consider any of 

Eagle Oil’s other issues regarding breach of contract, waiver, or damages in 

connection with TRO-X’s suit against Eagle Oil. We will discuss the issue of 

attorney fees later in this opinion.
19

We now consider TRO-X’s appeal of the trial court’s judgment against 

TRO-X and in favor of Eagle Partners.

After the trial court entered partial summary judgment in favor of Eagle 

Partners, the only cause of action that remained against Eagle Partners was one for 

tortious interference of the agreement between Eagle Oil and TRO-X. Before a 

claimant can recover on a tortious interference claim, “it must produce some 

evidence that the defendant knowingly induced one of the contracting parties to 

breach its obligations under a contract.” All Am. Tel., Inc. v. USLD Commc’ns, 

Inc., 291 S.W.3d 518, 532 (Tex. App.—Fort Worth 2009, pet. denied). The 

claimant must present evidence that there has been a breach of the agreement. N.Y. 

Life Ins. Co. v. Miller, 114 S.W.3d 114, 125 (Tex. App.—Austin 2003, no pet.). 

As we have held, as a matter of law, Eagle Oil did not breach the agreement when 

it sent the letter, did not deprive TRO-X of its right of retention by selling to Eagle 

Partners on a promoted basis without first consulting with TRO-X, and did not

prevent TRO-X from acquiring its proportionate share of the overriding royalty 

interest and back-in working interest acquired in the sale to Chesapeake. We have 

also sustained Eagle Oil’s no-evidence issue and have found that, because a 50% 

interest remained after the sale to Eagle Partners, the evidence conclusively 

established that Eagle Oil did not deprive TRO-X of its right of retention in the 

Eagle Partners transaction. Without a finding that Eagle breached the New 

Prospects Agreement, TRO-X cannot recover against Eagle Partners in TRO-X’s 

tortious interference claim.

In TRO-X’s appeal of the judgment against TRO-X and in favor of Eagle

Partners, TRO-X argues, in its first issue, that the trial court erred when it granted 

partial summary judgment in favor of Eagle Oil on several of TRO-X’s claims 

against Eagle Oil for breach of contract. The erroneous partial summary judgment, 

TRO-X maintains, affected TRO-X’s ability to recover against Eagle Partners on 
20

the tortious interference claim because the trial court limited the duties owed by 

Eagle Oil in connection with the consultation provision of the agreement, such as 

the duty to disclose specific information about third-party sales. However, as 

Eagle Partners points out in a cross-point, TRO-X asserts no issue on appeal 

challenging the summary judgment against TRO-X and in favor of Eagle Oil.

Because there is no sustainable finding of breach of the New Prospects 

Agreement, TRO-X cannot recover on its tortious interference claim against Eagle 

Partners. Further, the jury found that any alleged interference did not proximately 

cause any damage to TRO-X. The cross-point is sustained, and TRO-X’s first 

issue is overruled.

We have held that there was no sustainable finding of breach of the New 

Prospects Agreement against Eagle Oil. We have also held that, in the absence of 

such a finding, TRO-X cannot recover from Eagle Partners on TRO-X’s claim of 

tortious interference. Therefore, we need not address Issues II, III, and IV raised 

by TRO-X in its appeal from the take-nothing judgment in favor of Eagle Partners.

We now address the award of attorney fees. In Question No. 7, the jury was 

asked to assess the amount of attorney fees to be awarded as damages up to 

December 5, 2007. The jury found those fees to be $35,000. The trial court 

instructed the jury not to answer the question unless it had found that Eagle Oil 

breached the agreement when it mailed the letter of October 15, 2007. We have 

held that Eagle Oil did not, as a matter of law, breach the agreement by sending the 

letter. Further, there is no evidence that Eagle Oil damaged TRO-X when it sent 

the letter. Nor was inquiry made of the jury of any such damages except for 

attorney fees. In the absence of either a breach or damages caused by that breach, 

the award of attorney fees of $35,000 cannot stand as this case was submitted to 

the jury. We sustain Eagle Oil’s fifth issue.
21

In Question No. 10, the trial court asked the jury to find the “reasonable fee 

for the necessary services of TRO-X’s attorneys for pursuing the breach of contract 

claims” against Eagle Oil in connection with the Eagle Partners transaction and the 

Chesapeake transaction. Because we have held that, as a matter of law, Eagle Oil 

did not breach the agreement as submitted to the jury and that there was no evidence to support a finding that Eagle Oil breached the agreement by selling a 50% 

promoted working interest to Eagle Partners without consulting with TRO-X, the

part of the judgment awarding these attorney fees must be reversed. We sustain 

Eagle Oil’s fourth issue.

We have considered all issues necessary to the disposition of this appeal. 

We reverse that portion of the trial court’s judgment wherein it held that Eagle Oil 

had breached the New Prospects Agreement as found by the jury in Question

Nos. 1(a), 1(b), and 1(c). We render judgment that TRO-X take nothing in that 

regard from Eagle Oil. We affirm the judgment that TRO-X take nothing from 

Eagle Partners because there could be no interference without a breach of the 

agreement by Eagle Oil. The trial court approved the findings in the court-ordered 

accounting. We render judgment that TRO-X recover the sum of $379,788.80 

($1,064,789.45 due to TRO-X less $685,000.65 in expenses due to Eagle Oil) as 

shown by the accounting. We reverse the award of attorney fees and render 

judgment that TRO-X take nothing in this appeal for attorney fees.

October 31, 2013 TERRY McCALL

Panel consists of: Wright, C.J., JUSTICE

McCall, J., and Hill.6

Willson, J., not participating.

 6

John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting 

by assignment.