In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-22-00242-CV

___________________________

On Appeal from the 97th District Court

Archer County, Texas

Trial Court No. 2018-0090A-CV 

Before Birdwell, Bassel, and Walker, JJ.

Memorandum Opinion by Justice Birdwell

SOUTHERN ENERGY FUND 2, L.P.; WY-VEL CORPORATION; AND HIRA 

CAPITAL, Appellants

V. 

INDIO RESOURCES, LLC F/K/A INDIO MINERALS, LLC, Appellee
2

MEMORANDUM OPINION

I. Introduction

Appellee Indio Resources, LLC f/k/a Indio Minerals, LLC assigned to 

Appellant Southern Energy Fund 2, L.P. (SEF2) a one-half overriding royalty interest 

(ORRI)1 in two wells located in Archer County and assigned one-quarter ORRIs in 

these wells to Appellants HIRA Capital and Wy-Vel Corporation after Appellants 

made the winning bid on an online auction site. Appellants subsequently sued Indio

for fraudulent inducement and fraud by nondisclosure based on the materials that 

Indio had posted on the auction site. The trial court granted summary judgment to 

Indio on Appellants’ fraud claims and ordered them to pay Indio $264,018.62 in 

attorney’s fees. In two issues, Appellants challenge both rulings.2 We affirm.

II. Background

Robert Wallace, Indio’s manager, and Hunter Allen, owner of Overton Park 

Oil & Gas, L.P. f/k/a Broman Oil & Gas, L.P., were college friends in the early 

1

An ORRI is a nonparticipating interest in oil and gas produced at the surface, 

free of production expenses, carved out of a working interest under a mineral lease. 

Piranha Partners v. Neuhoff, 596 S.W.3d 740, 742 n.2 (Tex. 2020). Absent an agreement 

otherwise, an ORRI terminates when the lease terminates. Id.

2

Appellants also complain that the trial court erred by granting summary 

judgment on their negligent-misrepresentation claim, but they neither pleaded this 

claim in the trial court nor briefed it on appeal.
3

2000s.

3 Wallace and Allen partnered together in March 2013 to acquire the two

Archer County wells at issue from Rogers Drilling using EnergyNet.com, Inc.

(EnergyNet), an online auction site for the sale of oil-and-gas interests. Thus, Indio 

and Overton Park became the owners of the two wells. These were the first wells that 

Wallace and Allen bought together—one well on each unit of land. They did not have 

a geologist analyze the wells or perform any engineering or reservoir studies before 

they paid roughly $600,000 for each well, and they had no written plan or projection 

for how long they might own or operate them. When they acquired the wells, the net 

revenue interest (NRI)4 was around 76% to 80%, and royalties and overrides 

accounted for the remaining 20% to 24%.

Allen testified that “there’s 100 different factors” to look at when trying to 

acquire an oil-and-gas property; the factors include cash flow and assumption of 

liability for plugging and environmental cleanup. The Archer County wells had no 

liability and a strong cash flow.

After acquiring the wells, Wallace and Allen obtained from Rogers Drilling “a 

slice of 3-D seismic and evaluated it.” Allen described it as a one-page sheet that they 

had asked Ron Rogers about when they went to pick up the title files at Rogers 

3

Wallace graduated with a degree in economics in 2006 and then worked as a 

landman before partnering with Allen. Allen had a degree in petroleum land 

management.

4

NRI is the right to receive revenue from production; it is “the revenue side of 

the interest in [a] well.”
4

Drilling. Rogers did not mention anything to them about pressure issues or a waterboundary issue, and they did not ask him any questions about those things. According 

to Allen, they learned about the water-drive formation after they bought the wells and

thus decided not to use pump jacks because it did “not make any sense from a 

reservoir standpoint to put pump jacks on the[] wells.”

Wallace put the 3-D seismic information into ArcGIS, a mapping software, “to 

try to create a model” of the reservoir. He used the information from the well logs to 

calculate volumetrics with regard to porosity and water saturation. Wallace stated that 

the 3-D seismic information that he had looked at related to additional target zones in 

the Mississippi Lime formation, where the two wells were located. Wallace’s father, a 

reservoir engineer, advised him on how to calculate and look at volumetrics, which 

can be used to determine whether one should drill more wells or deepen a well.

In May 2013, Wallace and Allen decided to sell some of the revenue interests in 

the Archer County wells because they needed cash to acquire more properties.

Wallace stated that when they decided to sell the ORRI two months after purchasing 

the wells, the wells had been “consistent,” and there had been “[n]o issues.” They 

primarily used Rogers Drilling’s production history and marketing materials—“the 

same materials that [Indio had] used to purchase” the wells—in their own EnergyNet 

post. However, they made in the executive summary two statements upon which part 

of the litigation is based and which are italicized below:
5

Broman Oil & Gas LP and Indio Minerals LLC, propose to sell a 2% 

[ORRI] in the Friday Unit #1 and Livingston-Colgan Unit #1 wells and 

associated leasehold. The leases consist of 390.2 acres[,] and both wells 

are producing from the Mississippi Lime formation. The wells are 

located approximately three miles Northwest of Megargel, TX.

The Friday Unit #1 well was drilled by Rogers Drilling Company, 

Inc. in August 2010 to a total depth of 5144’. The well encountered the 

top of the Mississippi Lime at 5118’[,] and casing was set to 5121’ in the 

top of the pay. The well was completed by drilling out the casing shoe 

and completing the well open-hole. During the past 28 months[,] oil 

production rate and pressures have stabilized at 23 BOPD on a 4/64”

choke with 680 psig flowing tubing pressure and 720 psig casing 

pressure. The well has a cumulative production of 21.5 Mbo as of late

March 2013.

The Livingston-Colgan Unit #1 well was drilled by Rogers 

Drilling Company, Inc. in August 2010 to a total depth of 5102’. The 

well encountered the top of the Mississippi Lime at 5100’[,] and casing 

was set to 5101’ with a formation pack-off shoe in the top of the pay. 

The well was completed by drilling out the casing shoe and completing 

the well open-hole. The formation was treated with 205 gallons of 15% 

HCl. The oil production rate and pressures have stabilized at 22 BOPD 

on a 4/64” choke with 680 psig flowing tubing pressure and 700 psig 

casing pressure. The well has a cumulative production of 19.5 Mbo as of 

late March 2013.

Both wells have produced consistently over their past 26–28

months with no substantive changes in the flowing pressures. The only 

variation in production has occurred when the wells have been shut-in 

due to inability to get the oil picked up from the tank batteries.

Sellers intend to use the proceeds from the sale of this [ORRI] to fund [their] 

ongoing acquisition and development program.

This part of Archer [C]ounty has a significant amount of 

production from the Mississippian, Gunsight, Strawn, and Caddo 

formations[,] and the operator is currently analyzing 3D seismic and well logs to 

locate additional target zones on the 390.2 acres held by these two wells. [Emphases 

added.]
6

Wallace testified that he and Allen had added the first italicized sentence 

because they had seen other sellers state similar things on EnergyNet and in other 

marketplaces and because buyers typically questioned why a property was being sold.

Allen stated that EnergyNet had suggested including the sale’s reason. Wallace stated 

that they did not specify which properties they were planning to acquire and develop 

because the one they were looking at in Arkansas was in bankruptcy and because they 

did not know if they would be the successful bidder.5

Wallace claimed that they had added the second italicized sentence about the 

“3D seismic” because he and Allen had analyzed that information with regard to his 

volumetrics calculations. But in a mid-May 2013 email, Allen told Wallace that he had 

decided “to be vague on additional zones,” and Wallace testified that he had been in 

agreement with the vagueness because they “didn’t have a particular zone that [they]

had identified.” Allen also told Wallace in an email that he was wary of overselling, 

stating, “Since we’re pretty sure Rogers [Drilling] didn’t see much and [because] the 

nearest great offset Caddo, Strawn[,] and Gunsight are a decent ways off, I think we’re 

5

After acquiring the two Archer County wells, Wallace and Allen bought wells 

in Arkansas, Colorado, Wyoming, New Mexico, North Dakota, and Montana. Wallace 

testified that he did what he said he would do regarding the “ongoing acquisition and 

development program” sentence, stating,

I went and acquired an asset in Arkansas. I went and developed that 

asset in Arkansas. I went and acquired an asset in West Texas[] in 

Howard County. I went and worked over the wells in Howard County. I 

also acquired another asset in Yoakum County. . . . It’s exactly what I 

said I was going to do, and I did it.
7

best off dropping the hint about 3-D and doing some research without trying to 

oversell the additional potential thing.” Wallace testified that he had agreed with this 

because they “didn’t want to oversell anything to anybody” but that he did not know 

“one way or another” about whether they had been sure Rogers Drilling had not seen 

much in the area.

In emails exchanged between May 15 and May 16, 2013, Allen stated to 

Wallace, “[P]eople will likely not notice [that] we sold a 1[% ORRI] in these same 

wells five to six times.” He also stated that 2% was the perfect number: “I’m thinking 

we’ll be best off if we sell in 2% increments 2% $2k/month x 60 = $120k sweet spot. 

If it goes higher, that’s awesome, but I think we should put a reserve floor around 

$90-100k (45-50 months).” And he stated that he liked Wallace’s father’s idea “about 

selling down until people stop paying a reasonable figure.” Allen added, “If we can 

sell down to 65[%] net revenue and pull out $1 million, why not? I guess we’ll see,”

and he followed this sentence with a “smiley emoji at the end.” Wallace testified that 

the sell-down had been his idea, not his father’s, but he insisted that at that point, they 

had not tested the market and did not know whether the first ORRI would sell.

Wallace claimed that any such plans were contingent on whether the first sale 

took place because they were trying to use the money from the sale for their ongoing 

acquisition and development program. Wallace stated, “[W]e didn’t know what that 

program was going to entail, and so we didn’t have, you know, a set plan. If it didn’t 

sell, we obviously weren’t going to sell anything.” However, Allen sent an email to an 
8

EnergyNet employee in May 2013 in which he stated, “Let me know what we need to 

do next to get our land files uploaded. We’re looking at selling a 2% [ORRI] in these 

couple wells[,] three times or maybe more. So that once we have everything set up in

your system[,] we can use mostly the same sales materials.”

On May 17, 2013, Wallace executed EnergyNet’s Seller’s Agreement, and Indio

posted the ORRI interest in the two Archer County wells for sale as Lot 28134, with a 

reserve price of $90,000. Rupesh Shah, president of SEF2 and HIRA Capital,6 had 

electronically signed the buyer’s representations and warranties that incorporated 

EnergyNet’s Buyer’s Agreement by reference two days before. The Buyer’s 

Agreement included an acknowledgment and agreement that the purchase of 

properties “is subject to terms and conditions of the Seller’s Agreement and hereby 

states that BUYER has read and understands the same.” The Seller’s Agreement 

contains a reciprocal clause, stating, “SELLER acknowledges and agrees that its sale

of Properties is subject to terms and conditions of the BUYER’S AGREEMENT TO 

PURCHASE PROPERTIES, attached hereto as Exhibit ‘E,’ and hereby states that 

SELLER has read and understands the same.”7 Appellants submitted the winning bid.

After Appellants won the bid, Gregory J. Petruska, the sole managing member 

of Spectrum Resources, LLC, which later joined Appellants in the lawsuit against 

Indio, contacted Wallace to ask about buying an additional 2% ORRI, which Allen 

6

Ken Lemons, Shah’s business partner, owns Wy-Vel.

7

When applicable, we refer to both agreements collectively as the Agreement.
9

and Wallace then sold to Spectrum. Indio subsequently sold ten to twelve additional 

2% ORRIs between October 2013 and December 2014, obtaining between $113,000 

and $186,000 per sale. Allen testified that he and Wallace had started looking at 

developing the wells around the same time that they had started selling the ORRIs 

and that Wallace’s father or someone Wallace’s father knew had looked at the well

logs and had told them that there was something there but not enough to move 

forward and that the 3-D seismic information was inconclusive. Allen admitted in his 

deposition that they had never put additional capital into the two Archer County wells 

beyond paying Steven Symank, the pumper.

The price of oil crashed in November 2014, and in 2015, Indio curtailed 

production. According to Wallace, the oil price caused the production curtailment,

while Allen stated that production had showed a major drop-off in spring 2015 

because of loss in pressure and choking back production—from 550 barrels in 

January to 330 barrels in February to 34 barrels in May. They stopped selling ORRIs 

because of the low oil price and because they “didn’t want to give away [their] asset.”

Between March 2015 and June 2016, Petruska emailed and called Allen about 

production, and then Petruska called Shah and asked him if he knew that the wells’

operators “ha[d] continued to sell down 2[%] interest[s] and [that] at the same time 

they ha[d] not done any work nor do they have any intent to do any work on the 

wells.” Shah stated that he had no idea before Petruska called him. Allen stated that 

some of his phone conversations with Petruska were “pretty heated” and 
10

“accusatory” with regard to Indio’s operation of the wells, but he did not feel that way 

about Shah, stating that Shah “was really nice to work with.”

Wallace and Allen’s partnership ended in 2015. In 2018, Spectrum joined 

Appellants in suing Indio and Overton Park. Indio secured Spectrum’s dismissal on a 

Rule 91a motion, and Spectrum was ordered to pay attorney’s fees to Indio—$14,882 

for the Rule 91a motion and then $3,000 to cover Indio’s motion to compel payment 

of the Rule 91a attorney’s fees. Overton Park subsequently settled with Appellants,

leaving Indio and Appellants as the only parties to the dispute. The trial court granted 

summary judgment on Appellants’ fraud claims, found breach of contract and 

entitlement to attorney’s fees in Indio’s favor on a Rule 166(g) motion, and entered 

judgment for $264,018.62 in Indio’s favor after a jury trial on the amount of attorney’s 

fees. This appeal followed.

III. Summary Judgment

In their first issue, Appellants complain that the trial court erred by granting 

summary judgment on their fraud claims.

A. Standard of review

We review a summary judgment de novo. Travelers Ins. v. Joachim, 315 S.W.3d 

860, 862 (Tex. 2010). We consider the evidence presented in the light most favorable 

to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors 

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

could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 
11

(Tex. 2009). We indulge every reasonable inference and resolve any doubts in the 

nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A 

defendant that conclusively negates at least one essential element of a plaintiff’s cause 

of action is entitled to summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 

315 S.W.3d 494, 508 (Tex. 2010). Once the defendant produces sufficient evidence to 

establish the right to summary judgment, the burden shifts to the plaintiff to come 

forward with competent controverting evidence that raises a fact issue. Van v. Peña, 

990 S.W.2d 751, 753 (Tex. 1999).

B. Appellants’ claims

In their lawsuit, Appellants alleged that Indio had made a variety of

misrepresentations in its EnergyNet advertising and that Appellants had submitted 

their bid in reliance on those misrepresentations. They also complained that Indio’s

scheme to deplete NRI to below 60% and Indio’s refusal to purchase pumps to 

increase production showed Indio’s failure to act as a reasonably prudent operator.

Appellants claimed that Indio had employed a scheme to sell ORRIs and capture up

front all of the units’ future values until it was uneconomical to produce oil from 

them, forcing them to be shut in and resulting in a windfall of cash to Indio.

Appellants asserted that Indio had concealed from them Indio’s knowledge 

about production issues, its lack of development plans, and its sell-down scheme—

thus creating a false impression about the leases’ value—and that Indio had omitted

material facts, including that (1) Indio had secretly planned to never develop the 
12

leases, (2) Indio had secretly planned to sell down huge interests in the leases that

would prevent it from economically operating the leases to Appellants’ detriment,

(3) Indio had known the leases were at the end of their production cycle based on 

communications from the leases’ former operator, and (4) Indio had not been actually 

examining seismic data or target zones for further production. Appellants claimed that 

they never would have purchased their interests if Indio had disclosed these material 

facts.

C. Indio’s summary-judgment motions on Appellants’ fraud claims

Indio moved for partial summary judgment on Appellants’ fraud-bynondisclosure and fraudulent-inducement claims. In its traditional and no-evidence 

motion for summary judgment on Appellants’ fraud-by-nondisclosure claim, Indio 

argued that it had no duty to disclose future production or development plans to an 

ORRI owner; that its evidence conclusively showed that it did not discover new 

information that made an earlier representation untrue or misleading and that it did 

not make a partial disclosure that created a false impression or voluntarily disclose

some information that created a duty to disclose the whole truth; and that Appellants

had no evidence that any alleged nondisclosures had caused an injury, including no

expert testimony that Indio’s operating decisions were unreasonable or violated any 

duties owed to Appellants. Specifically, Indio pointed out that there was no fact-witness 

or expert-witness testimony or other evidence (1) that it had “destroyed” the workinginterest economics by selling additional ORRIs; (2) that Indio had rendered the wells
13

“uneconomical to produce oil” based on mismanagement; or (3) that the sell-down had 

operated in any way “to the detriment of the interest owners, like [Appellants].”

In its traditional motion for summary judgment on Appellants’ fraudulentinducement claim, Indio argued, among other things, that Appellants’ reliance was 

unjustified as a matter of law. To both motions, Indio attached the Agreement, the

ORRI Assignment, and deposition excerpts.

Indio’s summary-judgment evidence showed that to participate in an 

EnergyNet online auction, a buyer had to agree to the Buyer’s Agreement’s terms and 

conditions and had to acknowledge and represent that it was a sophisticated,

accredited, and qualified investor. The first page of the Buyer’s Agreement states that 

“ANY DECISIONS BASED UPON THE INFORMATION CONTAINED IN 

THIS WEBSITE ARE THE SOLE RESPONSIBILITY OF THE USER.” By 

executing the Buyer’s Agreement to purchase the properties, the buyer acknowledged 

and represented that

A. It is primarily engaged in the business of exploring for or producing 

oil or gas or other minerals as an ongoing business;

B. By reason of this knowledge or experience, the BUYER or its 

representative will evaluate the merits and risks of the Properties to be 

purchased on the Website and will form an opinion based solely upon its 

knowledge and experience and not upon any statement, representation, 

or printed material provided or made by [EnergyNet] and its 

representatives or SELLER;

C. The BUYER, being of legal age, has sufficient financial

resources in order to bear the risk of loss attendant to the purchase of 
14

the Property. “Sufficient Financial Resources” are to be defined as 

follows . . . .

Paragraph 3 of the Buyer’s Agreement required the buyer to perform its own 

due diligence and independent evaluation, stating that

BUYER hereby acknowledges and agrees that it has the sole 

responsibility to examine all information concerning ownership and

production of the Properties placed for sale on the Website by the 

SELLER. Further, BUYER acknowledges and agrees that if it requires 

more information concerning said Properties, BUYER must contact 

[EnergyNet] or the SELLER to obtain requested information prior to 

the beginning date of the Online Auction.

BUYER further agrees that it will make an independent 

evaluation of the Property and acknowledges that SELLER and 

[EnergyNet] have made no statements or representations concerning the 

present or future value of the future income, costs[,] or profits, if any, to 

be derived from the Property.

BUYER further acknowledges that in making its BID in the

Online Auction or any subsequent negotiations, it has relied solely upon 

its independent examination of the premises and public records, and 

BUYER’S BIDS and offers are based solely on BUYER’S independent 

inspections, estimates, computations, evaluations, reports, studies[,] and 

knowledge of the Properties. Any and all information provided by 

SELLER or [EnergyNet] in the Property Information Sheet data 

packages as well as any other information provided by SELLER or 

[EnergyNet] as requested by BUYER are furnished to BUYER at 

BUYER’S sole risk. SELLER and [EnergyNet] do not warrant or

represent as to the accuracy or completeness of the data presented to the 

BUYER, and BUYER agrees to indemnify and hold [EnergyNet] and 

SELLER harmless from any reliance by BUYER on data provided by

the SELLER and/or [EnergyNet].

The Buyer’s Agreement also explicitly stated that no warranties were made as

to the property, stating,
15

Notwithstanding any provision contained in this Agreement to the

contrary, BUYER acknowledges and agrees that it is acquiring the 

Properties, wells, equipment, or other property located thereon from 

SELLER without warranty whatsoever, express, statutory, or implied as 

to description, title, condition, quality, fitness for purpose, 

merchantability, or otherwise. BUYER acknowledges and agrees that 

neither SELLER nor [EnergyNet] makes any representation or warranty 

whatsoever as to the physical condition of the Property nor any 

statements or representation concerning the present or future value of 

the anticipated income, costs, or profits, if any, to be derived from the 

Property. BUYER ACKNOWLEDGES AND AGREES THAT ALL 

PROPERTY IS SOLD ON AN “AS IS”/“WHERE IS” CONDITION.

The Buyer’s Agreement also provided that the buyer “acknowledges and agrees that 

its purchase of Properties is subject to [the] terms and conditions of the Seller’s 

Agreement and hereby states that BUYER has read and understands the same.”

The Buyer’s Agreement concluded with a merger clause providing that the 

agreement and “all attached Exhibits and the instruments delivered or required to be

delivered pursuant hereto” supersede all prior negotiations, understandings, and 

agreements between the parties “relating to the subject matter hereof and constitute 

the entire understanding and agreement between the parties with respect thereto” and 

that no alterations, modifications, amendments, or changes in the Agreement “shall 

be effective or binding unless the same shall be in writing and shall have been 

executed by BUYER and [EnergyNet].”

The ORRI Assignment specified that “[n]o obligations, express or implied, 

shall arise by reason of the assignment of the Override which shall obligate Assignors 

to maintain the Leases by any method, including payment of delay rentals, 
16

compensatory royalties, other payments, or by the drilling of any wells on the Lands

subject to the Leases.”

D. Appellants’ consolidated summary-judgment response

Appellants filed a consolidated response to Indio’s partial summary-judgment 

motions on the fraud claims. In their response, Appellants argued that their summaryjudgment evidence showed that Indio had affirmatively misled them and had withheld 

critical known information that had induced them to buy the ORRIs. Appellants

asserted that the alleged disclaimers in the Buyer’s Agreement were not effective to 

defeat their claims, they objected to some of Indio’s summary-judgment evidence,

8

and they asserted that the Forest Oil factors9 weighed in their favor.

To their consolidated summary-judgment response, Appellants attached a

8

The trial court overruled Appellants’ objections to Indio’s summary-judgment 

evidence. In an unnumbered issue, cf. Tex. R. App. P. 38.1(f), Appellants complain, 

“Appellants’ [sic] object[ed] to the unsigned Buyer’s Agreement submitted in support of 

Appellees’ MPSJ.” However, this complaint ignores Shah’s acknowledgment in his 

deposition that he executed the Buyer’s Agreement on May 15, 2013, and Appellants do

not refer us to any authority to support their argument, see Tex. R. App. P. 38.1(i), or to 

explain how they were harmed in light of Shah’s acknowledgment, see Tex. R. App. P. 

44.1.

9

In Forest Oil Corp. v. McAllen, the supreme court listed the following nonexclusive factors to consider in determining whether a disclaimer of reliance bars a 

fraudulent-inducement claim: (1) whether the contract terms were negotiated rather 

than boilerplate and whether the parties specifically discussed the disputed issue 

during negotiations; (2) whether the complaining party was represented by counsel;

(3) whether the parties dealt with each other in an arm’s-length transaction; (4) 

whether the parties were knowledgeable in business matters; and (5) whether the 

release language was clear. 268 S.W.3d 51, 60 (Tex. 2008); see Int’l Bus. Machs. Corp. v. 

Lufkin Indus., LLC, 573 S.W.3d 224, 229 (Tex. 2019).
17

redacted email between Wallace and Allen and the full depositions of Wallace, Allen, 

Shah, Petruska, and Symank. Appellants also attached Indio’s sales-pitch excerpts and 

incorporated by reference Petruska’s and Shah’s affidavits that were attached to their

summary-judgment response to Indio’s summary-judgment motion on Indio’s

counterclaim. With the exception of Shah’s deposition, none of this evidence 

addresses the reliance element of Appellants’ fraud claims.

10

Shah, who testified as SEF2’s corporate representative, had degrees in 

economics and chemical engineering. He and Lemons, Wy-Vel’s owner, had started a 

company in 2010 to acquire royalty and non-operator working interests. Before that, 

Shah had also started his own company in the oil-and-gas industry, HIRA Capital. He 

agreed that SEF2’s website explained that it had evaluated property interests to 

acquire with capital, that SEF2 was funded entirely by royalties, and that the website 

10Appellants’ evidence also did not support its fraud claim related to Indio’s 

alleged failure to act as a reasonably prudent operator. Petruska, a petroleum engineer

who had worked for Chevron before obtaining a master’s degree in business

administration, conceded in his deposition that as an ORRI owner, he could not tell 

an operator what to do and agreed that he was not rendering an expert opinion about 

whether Indio was a bad operator. Shah also agreed in his deposition that he was not 

an expert witness and was not offering any expert opinions on Indio’s alleged “failure 

to act as a reasonably prudent operator.”

In contrast, Symank, a pumper with twenty-five years’ experience in the area

who had overseen production from the two wells since their drilling in 2010 or 2011,

testified that wells in the Mississippi Lime formation were notorious for “being 

finicky” but that these two wells had been “exceptionally good.” Symank, who owned

some Archer County wells in a different formation, opined that there was nothing he 

would have done differently from Indio if the two wells had been his and that Indio 

had done a good job operating them.
18

proclaimed SEF2’s “expertise” in “acquiring royalty interests and working interests in 

currently producing wells at an excellent price yielding great returns” and “invest[ing]

in oil and gas interests that already ha[d] a positive cash flow and a well[-]established

production history.” SEF2’s website further stated, “Each well is carefully analyzed to 

determine the remaining years of production available, following which the

production analysis is integrated with a financial model to come up with a valuation 

based on targeted investment returns,” and it listed its evaluation processes as 

incorporating (but not being limited to) geology and reservoir formations, well 

maintenance, depletion scenarios, completion technology, casing type, production 

analysis, revenue-expense statements, survey plats, well test reports, and offset data.

Shah said these were just examples and agreed that “statements made by the 

operator” was not on the list. He did not recall examining offset data for Lot 28134 or 

recall if it was a water-driven reservoir.

Before the instant transaction, Shah had purchased five to ten properties on 

EnergyNet, and he understood that to make purchases on EnergyNet, a buyer had to 

be a sophisticated investor who could assume the risk of bidding. After his transaction 

with Indio, he had bid on and had won at least twenty-five other bids on EnergyNet.

In his deposition, Shah agreed that he had understood on May 15, 2013, when 

he had executed the Buyer’s Agreement to participate in the EnergyNet marketplace,

that there were certain responsibilities and obligations attached to his buying 

properties on EnergyNet, including representations about conducting his own due 
19

diligence and not relying on representations by Allen or Wallace. Regarding the 

Buyer’s Agreement, Shah agreed that he had waived reliance on the seller’s 

representations, but he nonetheless complained that he had not known “that [Wallace 

and Allen] would be just straight up making up information,” and he stated that

Appellants would not have made the purchase if they had known the truth.

E. Indio’s summary-judgment reply and objections

Indio filed a single reply to Appellants’ consolidated summary-judgment 

response. In its reply, Indio pointed out anew that the Buyer’s Agreement expressly 

disclaimed reliance as to the accuracy or completeness of the data provided and that 

there was no evidence of reliance. Indio also objected to some of Appellants’

summary-judgment evidence, specifically portions of Shah’s and Petruska’s affidavits.

The trial court sustained Indio’s objections to portions of the Petruska and Shah 

affidavits.11

F. Analysis

Like other fraud claims, fraudulent inducement and fraud by nondisclosure 

share the element of reliance. Fraudulent inducement is a “species of common-law 

fraud” that “arises only in the context of a contract.” Int’l Bus. Machs., 573 S.W.3d at

228 (quoting Anderson v. Durant, 550 S.W.3d 605, 614 (Tex. 2018)). To establish 

fraudulent inducement, a plaintiff must show that (1) the defendant made a material 

11Because Appellants do not appeal the trial court’s rulings on these objections, 

we have not considered these portions in our review of the summary-judgment 

evidence.
20

representation; (2) the defendant knew at the time that the representation was false or 

lacked knowledge of its truth; (3) the defendant intended that the plaintiff should rely 

or act on the misrepresentation; (4) the plaintiff relied on the misrepresentation; and 

(5) the plaintiff’s reliance on the misrepresentation caused injury. Id. The plaintiff’s 

“reliance” on the false promise “induces” the plaintiff to agree to a contract to which 

he or she would not have agreed if the defendant had not made the false promise. Id.

A clause that clearly and unequivocally expresses the party’s intent to disclaim

reliance on the specific misrepresentations at issue can preclude a fraudulentinducement claim. Id. at 229 (listing the Forest Oil factors); see Italian Cowboy Partners,

Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 332 (Tex. 2011) (“[W]hen 

sophisticated parties represented by counsel disclaim reliance on representations 

about a specific matter in dispute, such a disclaimer may be binding, conclusively 

negating the element of reliance in a suit for fraudulent inducement.”); see also MercedesBenz USA, LLC v. Carduco, Inc., 583 S.W.3d 553, 563 (Tex. 2019) (holding that reliance 

was unjustified as a matter of law when the defendant’s conduct and actions upon 

which the plaintiff relied to establish its fraudulent-inducement claim were directly 

contrary to the parties’ contract’s unambiguous terms); JPMorgan Chase Bank, N.A. v. 

Orca Assets G.P., L.L.C., 546 S.W.3d 648, 660 (Tex. 2018) (noting that “no reasonable, 

sophisticated entity could read [the negation-of-warranty clause] and plausibly believe 

the [defendant’s prior representation;] they are in direct contradiction”). Not every

disclaimer is effective, and whether a party is liable in any particular case depends on 
21

the contract’s language and the totality of the surrounding circumstances. Int’l Bus. 

Machs., 573 S.W.3d at 226, 229. The question of whether an adequate disclaimer of 

reliance exists is a matter of law. SSCP Mgmt. Inc. v. Sutherland/Palumbo, LLC, No. 02-

19-00254-CV, 2020 WL 7640150, at *8 (Tex. App.—Fort Worth Dec. 23, 2020, pet. 

denied) (mem. op. on reh’g) (quoting Italian Cowboy Partners, 341 S.W.3d at 333).

Fraud by nondisclosure is a subcategory of fraud that occurs when a party has a 

duty to disclose certain information and fails to disclose it. Bombardier Aerospace Corp. v. 

SPEP Aircraft Holdings, LLC, 572 S.W.3d 213, 219 (Tex. 2019). To establish fraud by 

nondisclosure, the plaintiff must show (1) the defendant deliberately failed to disclose 

material facts; (2) the defendant had a duty to disclose such facts to the plaintiff; 

(3) the plaintiff was ignorant of the facts and did not have an equal opportunity to 

discover them; (4) the defendant intended the plaintiff to act or refrain from acting 

based on the nondisclosure; and (5) the plaintiff relied on the nondisclosure, which 

resulted in injury. Id. at 219–20. 

Although Appellants complain that the Buyer’s Agreement did not meet the 

required standard of clearly and expressly disclaiming reliance, as set out above, the 

disclaimers of reliance in the Agreement—although boilerplate12—were 

comprehensive, were clear and unambiguous, were made at arm’s length, and required 

12The Forest Oil factors do not require that every sentence in a contract be 

negotiated. Int’l Bus. Machs., 573 S.W.3d at 229 n.4.
22

the buyer to represent that it was sufficiently knowledgeable to participate in the sale.

See Forest Oil, 268 S.W.3d at 60. 

Further, Appellants’ summary-judgment evidence did not raise a fact issue 

about reliance. To the contrary, Shah’s deposition testimony established that he was a 

sophisticated, experienced oil-and-gas investor who had used EnergyNet to make 

purchases both before and after the instant transaction and that he was aware of and 

had agreed to the Buyer’s Agreement’s specific terms that he would not rely on

anything submitted by a seller. See JPMorgan Chase Bank, 546 S.W.3d at 654 (noting

that in an arm’s-length transaction, a failure to exercise reasonable diligence “is not

excused by mere confidence in the honesty and integrity of the other party”).

We conclude that the trial court did not err by granting summary judgment on 

Appellants’ fraudulent-inducement claim because, as a matter of law, their reliance 

was not justifiable. Furthermore, because their reliance was not justifiable as a matter 

of law, this same ground bars their fraud-by-nondisclosure claim. See Endeavor Energy 

Res., L.P. v. Cuevas, 593 S.W.3d 307, 312 (Tex. 2019); JPMorgan Chase Bank, 546 S.W.3d 

at 660; see also G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011) (“If the 

defendant has conclusively disproved an ultimate fact or element which is common to 

all causes of action alleged . . . the summary judgment may be affirmed.” (quoting

Timothy Patton, Summary Judgments in Texas: Practice, Procedure and Review § 3.06[3] at 3–

20 (3d ed. 2010))). We overrule Appellants’ first issue without reaching their

remaining arguments. See Tex. R. App. P. 47.1.
23

IV. Attorney’s Fees

In their second issue, Appellants complain (1) that Texas law does not allow 

the recovery of attorney’s fees on a defensive motion for summary judgment on tort 

claims; (2) that Texas law does not allow for the fee recovery pursuant to the 

Agreement’s “legal proceedings to enforce the Agreement” language because that 

language does not apply to fraud and tort claims between parties to the agreement;

and (3) that Indio was not a party to the Buyer’s Agreement and therefore could not 

rely on it to support its attorney’s-fee claim. We begin with the procedural 

background of the parties’ attorney’s-fee dispute.

A. Background

The attorney’s-fee issue initially arose after Indio counterclaimed for breach of 

contract, alleging that by filing suit, Appellants had breached Paragraph 3 of the 

Buyer’s Agreement. Paragraph 3 provides, in pertinent part, that “BUYER agrees to 

indemnify and hold [EnergyNet] and SELLER harmless from any reliance by BUYER 

on data provided by the SELLER and/or [EnergyNet].” Indio complained that 

Appellants sought to effectively rewrite the Agreement and to obtain damages from 

Indio in breach of Appellants’ promise to hold Indio harmless from any reliance.

Indio sought “direct damages, including costs, attorney’s fees, and expenses[,] which 

Indio would not have incurred” but for Appellants’ “failure . . . to honor the 

agreement.”
24

1. Indio’s summary-judgment motion on its counterclaim

Indio moved for partial summary judgment on its breach-of-contract 

counterclaim, arguing that the Agreement’s indemnification paragraph allowed its 

legal expenses to be treated as the damages resulting from the breach and that by

filing suit, Appellants had judicially admitted to breaching the Agreement by failing to 

hold Indio “harmless from any reliance by [Appellants] on data provided by [Indio].”

That is, “by filing [Appellants’] lawsuit in which they judicially admit that they relied 

upon representations concerning the value of the subject property allegedly made by 

[Indio], [Appellants] have breached numerous promises contained in the Buyer’s 

Agreement, including their promise to hold [Indio] harmless from any such reliance.”

To its motion, Indio attached Appellants’ first amended petition, the ORRI

Assignment, and the Buyer’s Agreement.

2. Appellants’ summary-judgment response and Indio’s reply

Appellants responded that there could be no indemnification for Indio’s own 

torts, that Indio was not a party to the Buyer’s Agreement, that Indio had failed to 

present competent summary-judgment evidence to support its counterclaim, and that

fact issues as to Indio’s allegedly fraudulent conduct negated the counterclaim.

Indio replied that the Buyer’s and Seller’s Agreements operated together and 

incorporated each other by reference, that Indio was a third-party beneficiary of the 

Buyer’s Agreement with standing to assert breach, and that only if Appellants were 
25

able to prove—not merely allege—fraudulent inducement could they potentially 

defend against their breach of the Buyer’s Agreement.

3. Trial court’s ruling

The trial court denied Indio’s partial summary-judgment motion on its breachof-contract counterclaim.

4. Indio’s fee application

After the trial court denied Indio’s partial summary-judgment motion on its 

breach-of-contract counterclaim and granted Indio’s summary-judgment motions on 

Appellants’ fraud claims, Indio sought to recover $135,136.92 in attorney’s fees, plus 

conditional appellate attorney’s fees, under the Agreement’s prevailing-party clause.

13

Indio argued that because it had prevailed on the summary-judgment motions that 

“sought to enforce the terms, limitations, and waivers of the Buyer’s and Seller’s 

Agreements against [Appellants’] claims for fraudulent inducement and fraud by 

nondisclosure,” it should receive its “costs and reasonable attorneys’ fees incurred in 

connection with this litigation.” Indio incorporated by reference its summaryjudgment motions and reply to support its argument that it had “resort[ed] to this 

legal proceeding to enforce the terms of the Buyer’s and Seller’s Agreements as a bar 

against [Appellants’] claims.”

13Section 24.1 of the Seller’s Agreement and Section 23.1 of the Buyer’s 

Agreement—both labeled “Governing Law and Litigation Costs”—state, “In the 

event that any party to this Agreement resorts to legal proceedings to enforce this 

Agreement, the prevailing party in such proceedings shall be entitled to recover all 

costs incurred by such party, including reasonable attorney fees.”
26

5. Appellants’ response

Appellants responded by arguing that the fee claim was based on defending 

against noncontractual tort claims, not to enforce the Agreement; that Indio was not a 

party to the contract; that Indio could not recover fees on a defensive motion for 

summary judgment; and that the trial court had already denied Indio’s partial

summary-judgment motion for breach of contract in which Indio sought the recovery 

of attorney’s fees under a breach-of-contract theory.

6. Letter ruling #1

In a letter ruling, the trial court found that the provisions of the Agreement

“relating to the recovery of costs and attorneys’ fees in proceedings by a party to 

enforce the Agreement” did not authorize the recovery of attorney’s fees under these 

circumstances and that Indio’s actions in relation to Appellants’ fraud claims were 

“not proceedings to enforce the contract,” and it denied Indio’s request. Indio then 

moved to realign the parties based on the trial court’s having granted summary 

judgment on Appellants’ fraud claims, and the trial court granted that motion.

7. Indio’s new theories and Rule 166(g) motion

In its new position as plaintiff, in a motion for determination of issues of law, 

see Tex. R. Civ. P. 166(g), Indio sought attorney’s fees based on (1) its breach-ofcontract claim on Appellants’ failure to indemnify Indio and hold it harmless for the 

claims and causes of action contained in Appellants’ original and first amended 
27

petitions,

14 and (2) “pursuant to the attorney[-]fee provisions in the governing 

contracts in what is now indisputably a proceeding by Indio to affirmatively enforce 

the subject agreements.”

14An indemnity agreement “provides the indemnitee with a cause of action to 

recover against the indemnitor.” Audubon Indem. Co. v. Custom Site-Prep, Inc., 358 

S.W.3d 309, 319 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) (citing Dresser 

Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993)).

While an indemnity agreement generally does not apply to claims between the 

parties to an agreement, Nat’l City Mortg. Co. v. Adams, 310 S.W.3d 139, 144 (Tex. 

App.—Fort Worth 2010, no pet.) (op. on reh’g), it may expressly include language 

indicating that it also applies to direct claims between the indemnitor and the 

indemnitee, Sam Rayburn Mun. Power Agency v. Gillis, No. 09-16-00339-CV, 2018 WL 

3580159, at *18 (Tex. App.—Beaumont July 26, 2018, pet. denied) (mem. op.). See

Ganske v. Spence, 129 S.W.3d 701, 708 (Tex. App.—Waco 2004, no pet.) (“[W]e should 

not be heard to say that an indemnity provision cannot be written such that the 

parties indemnify each other against claims they later assert against the other.”); see also

Osprin II, LLC v. TX 1111 Rusk GP LLC, No. 06-21-00085-CV, 2022 WL 2541932, at 

*10 (Tex. App.—Texarkana July 8, 2022, pets. filed) (mem. op.) (stating that plaintiff 

must show “that the indemnity agreement contains language indicating that it applies 

to claims between the parties”).

The indemnity clause here expressly addresses indemnity against the buyer’s 

reliance, stating,

SELLER and [EnergyNet] do not warrant or represent as to the 

accuracy or completeness of the data presented to the BUYER, and 

BUYER agrees to indemnify and hold [EnergyNet] and SELLER harmless from

any reliance by BUYER on data provided by the SELLER and/or [EnergyNet].

[Emphasis added.]

See, e.g., GE Oil & Gas Pressure Control, L.P. v. Carrizo Oil & Gas, Inc., No. 01-21-

00285-CV, 2023 WL 3513141, at *24 (Tex. App.—Houston [1st Dist.] May 18, 2023, 

no pet. h.) (mem. op.) (“The statement—whether asserted directly by Customer or by a third 

party—expresses an intent for Carrizo to provide GE with first-party 

indemnification.”). In his deposition, Shah replied, “Yes,” when asked whether he
28

8. Appellants’ response and Rule 166(g) motion

Appellants responded that attorney’s fees were not “damages” for breach of 

contract and that Indio had no real underlying “claim” against it because it was “really 

asserting an affirmative defense of a waiver of reliance under the guise of a ‘breach of 

contract.’” Appellants also filed their own Rule 166(g) motion, to seek dismissal of 

Indio’s attorney’s-fees claims based on the Agreement’s language with regard to “legal 

proceedings to enforce the Agreement.”

9. Indio’s response to Appellants’ Rule 166(g) motion

In its response to Appellants’ Rule 166(g) motion, Indio complained that 

Appellants had ignored the new bases that it had raised for recovering its attorney’s 

fees and costs. Indio specifically pointed out that Appellants’ Rule 166(g) motion did 

not “address the alternative arguments that Indio is entitled to an award of its 

attorneys’ fees because . . . in filing the instant litigation, [Appellants] breached their

indemnity and hold[-]harmless obligations set forth in the Contract.”

Indio then added a third alternative basis under Civil Practice and Remedies 

Code Section 38.001 against Wy-Vel. Although Indio stated that it was not reurging 

the earlier theories that it had presented based on its successful summary-judgment 

motions, Indio nonetheless also incorporated those earlier arguments by reference.

understood that the Agreement’s indemnity paragraph meant that he was responsible 

for paying Indio’s legal fees if he relied on their data.
29

Indio also incorporated by reference its own Rule 166(g) motion and requested the 

denial of Appellants’ Rule 166(g) motion.

10. Letter ruling #2

In a July 9, 2021 letter ruling, the trial court took judicial notice of all of the 

pleadings on file, denied Appellants’ Rule 166(g) motion, and found that Indio’s Rule 

166(g) motion “should be granted in all things.” The trial court also made the 

following affirmative findings:

• the subject transactions were governed by the Agreement;

• Indio was a party to the Agreement and entitled to enforce it against Appellants;

• the filing of Appellants’ claims against Indio violated the Agreement’s indemnity 

obligations and the “Governing Law and Litigation Costs provisions in Sec. 23.1 

of the Buyer’s Agreement”;

• the filing of such claims against Indio in violation of these provisions was a “direct 

cause of Indio[’s] sustaining damages in the form of attorneys’ fees and litigation 

expenses”; and 

• Indio was entitled to recover damages “in the form of attorney[’s] fees, court 

costs[,] and litigation expense[s] associated with the present lawsuit, in an amount 

to be determined at a later hearing.”

11. Subsequent proceedings

Two months after the trial court granted Indio’s Rule 166(g) motion, on 

September 3, 2021, Appellants filed a letter with the trial court in which they asserted 

that the trial court’s letter ruling had determined the legal issue of recovery of fees if

Indio prevailed on its underlying claim, and they asked for a jury trial on the issues of 
30

the alleged breach of contract and indemnity in addition to reasonableness of fees.

Four days later, Indio filed its own letter in which it complained that Appellants had 

misconstrued the letter ruling because the trial court had made specific findings that 

left only the amount of attorney’s fees, court costs, and litigation expenses to be 

determined.

On September 7, the trial court held a hearing, noting that it had received both 

parties’ letters. At the hearing, Appellants insisted that fact issues remained, arguing, 

“Even if Your Honor had found as a matter of law a breach of contract or an 

indemnification obligation, there’s still a fact issue of what’s the amount of 

indebtedness to that[,] and we would like that to be tried to the jury.” Indio’s counsel 

replied that the liability-as-to-contractual-indemnification issue had already been 

resolved in Indio’s favor. The trial court asked Indio’s counsel if, by having found that 

attorney’s fees would be recoverable on the face of the contract, it had essentially laid

to rest the underlying breach-of-contract issue, leaving before it the factual 

determination of the amount of attorney’s fees. Indio’s counsel replied affirmatively, 

stating, 

My understanding of the [c]ourt’s ruling was that in the [c]ourt[’s] 

determining that the indemnification rights would apply, . . . the [c]ourt 

found that . . . a proper claim for all fees and costs incurred could be 

properly submitted to the [c]ourt for determination on whether or not 

that satisfied the standard as set forth by the contract . . . .

Appellants’ counsel then argued that the trial court had made, “out of 

efficiency,” a ruling that “if the claim is found in the plaintiff’s favor, the fees are 
31

recoverable” and then the question became the recoverable amount. [Emphasis 

added.] Appellants’ counsel asked for a “simple one-day jury trial on those remaining 

claims and issues with the fees being a part of that if the jury finds in the plaintiff’s 

favor.” He insisted that the breach-of-contract claim was still outstanding. The trial 

court stated that its ruling had been a ruling on the law but expressed its concern

about ruling on the actual amount of attorney’s fees requested. At the conclusion of 

the hearing, the trial court ordered that Appellants were “entitled to a jury trial on the 

amount” of attorney’s fees.

Nine months later, a one-day jury trial was held. During opening statements, 

Indio’s counsel told the jury that after reviewing the contract, his legal strategy had 

been to become “a prevailing party under the contract[ and] to enforce [Indio’s] rights 

under the contract” and that the $214,000 that Wallace had incurred had been 

reasonable to defend his company and his reputation. Appellants’ counsel then told 

the jurors that their task was to decide “what is reasonable and necessary in fees in 

this case for [Indio]” and that over $200,000 was not a reasonable amount on a claim 

involving the purchase of an oil-and-gas interest for $187,000.

The jury awarded to Indio $264,018.62 in attorney’s fees in a nonunanimous 

verdict upon considering the sole issue of the amount of attorney’s fees.

15 The 

judgment recites that after the summary judgments on Appellants’ fraud claims, “the 

15We note that $50,000 of that amount was requested as conditional appellate 

attorney’s fees but that the jury verdict and the judgment merely state a lump sum.
32

only claim remaining” was the claim that Appellants had “violated the Buyer’s 

Agreement and the Governing Law and Litigation Costs provisions in Section 23.1 by 

wrongfully filing claims against [Indio]” and that “[o]n July 9, 2021[,] the [c]ourt ruled as 

a matter of law that [Appellants] were in direct violation of the contractual provisions 

referenced and directly caused [Indio] to sustain damages in the form of attorneys’ fees, 

court costs, and litigation expense[s] associated with the present lawsuit.”

B. Analysis

In their second issue, Appellants complain that Indio cannot recover attorney’s 

fees on a defensive motion for summary judgment on tort claims or under the 

Agreement’s “legal proceedings to enforce the Agreement” language based on tort 

claims and that Indio was not a party to the Buyer’s Agreement and therefore cannot

rely on it to support its attorney’s-fee claim. We begin with Appellants’ last argument, 

as it is the only portion of the trial court’s Rule 166(g) ruling that they expressly 

challenge.

Separate contracts may be part of a “single, unified instrument” if each 

instrument is a necessary part of the same transaction, even if the parties executed the 

instruments at different times. See Rieder v. Woods, 603 S.W.3d 86, 94–95 (Tex. 2020). 

Here, the transaction could not have occurred without the parties’ execution and 

compliance with the Buyer’s and Seller’s Agreements, which incorporated each other. 

Further, the Buyer’s Agreement contains specific acknowledgments of the Buyer’s 

duties and representations to the Seller, as well as the Buyer’s acknowledgment of 
33

choice of law and venue for any action by the Buyer or the Seller arising under the 

Agreement. Both the Buyer’s and Seller’s Agreements included a merger clause that 

acknowledged that each agreement and the attached exhibits (which included the

reciprocal incorporated agreements) constituted “the entire understanding and 

agreement between the parties.” Under the plain language of these documents,16 we 

conclude that the Buyer’s and Seller’s Agreements were a single, unified instrument,

see id., and we overrule this portion of Appellants’ second issue.

The record reflects that the parties brought competing Rule 166(g) motions 

with regard to Indio’s right to attorney’s fees. Rule 166(g) authorizes a trial court to 

decide matters that, although ordinarily fact questions, have become questions of law 

because reasonable minds cannot differ on the outcome. JPMorgan Chase Bank, 546 

S.W.3d at 653. When a Rule 166(g) order disposes of claims in this fashion, the order 

is akin to a summary judgment or directed verdict, and review is de novo. Id.; cf. Soefje 

v. Jones, 270 S.W.3d 617, 625 (Tex. App.—San Antonio 2008, no pet.) (noting that 

summary judgment is the preferred method for pretrial disposal of a case in its 

entirety); Unitrust, Inc. v. Jet Fleet Corp., 673 S.W.2d 619, 623 (Tex. App.—Dallas 1984, 

no writ) (noting that when issues are disputed, “the appropriate procedure for 

16Under traditional contract-construction principles, a contract’s plain language 

controls, its words must be construed in context, and the entire writing must be

examined and considered in an effort to harmonize and give effect to all of the 

contractual provisions so that none will be rendered meaningless. In re Whataburger 

Rests. LLC, 645 S.W.3d 188, 194–95 (Tex. 2022) (orig. proceeding). Contract 

construction’s primary goal is to effectuate the parties’ intent as expressed in the 

contract. Monroe Guar. Ins. v. BITCO Gen. Ins., 640 S.W.3d 195, 198–99 (Tex. 2022).
34

summarily disposing of a case is by a summary[-]judgment hearing . . . in which both 

parties have the opportunity to present affidavits, admissions, and depositions[] and to 

fully present their claims”).

As pointed out by Indio, Appellants do not challenge the actual ground—

breach of the Agreement’s indemnity clause—upon which the trial court awarded the 

“prevailing party” fees in its Rule 166(g) order and in its final judgment. Appellants

likewise do not challenge the trial court’s affirmative findings in the Rule 166(g) order

that support Indio’s breach-of-contract claim or raise any arguments about the 

procedure used to secure the ruling. See Tex. R. Civ. P. 166(g) (stating that to assist in 

the case’s disposition without undue expense or burden to the parties, the court may

in its discretion direct the parties to appear for a conference to consider “[t]he 

identification of legal matters to be ruled on or decided by the court”); Provident Life & 

Accident Ins. Co. v. Hazlitt, 216 S.W.2d 805, 807 (Tex. 1949) (noting that although 

controverted fact issues could not be adjudicated under Rule 166(g), “orders could be 

entered disposing of issues [that] are founded upon admitted or undisputed facts”).

Appellants do not challenge the trial court’s recitation in the judgment that Indio’s 

breach-of-contract claim was resolved in its Rule 166(g) order on July 9, 2021, and 

they do not challenge the sufficiency of the evidence to support the jury’s fee award.

Because a Rule 166(g) disposition is treated like a summary judgment for

purposes of appeal, JPMorgan Chase Bank, 546 S.W.3d at 653, we will apply the rule that

“[w]hen an argument is not made challenging every ground on which the summary 
35

judgment could be based, we are required to affirm the summary judgment, regardless 

of the merits of the unchallenged ground.” Rollins v. Denton Cnty., No. 02-14-00312-CV, 

2015 WL 7817357, at *2 (Tex. App.—Fort Worth Dec. 3, 2015, no pet.) (mem. op.); see 

also Cano v. N. Tex. Nephrology Assocs., P.A., 99 S.W.3d 330, 339 (Tex. App.—Fort Worth 

2003, no pet.) (stating that the appellate court must affirm a directed verdict even 

though the trial court’s rationale was erroneous if the directed verdict can be supported 

on another basis). Because Appellants have not challenged the basis or procedure for 

the trial court’s Rule 166(g) ruling and most of its findings in that order, as well as in the 

judgment, we overrule their second issue without reaching their remaining arguments. 

See Tex. R. App. P. 47.1; Rollins, 2015 WL 7817357, at *2.

V. Conclusion

Having overruled both of Appellants’ issues, we affirm the trial court’s

judgment.

/s/ Wade Birdwell

Wade Birdwell

Justice

Delivered: June 29, 2023