## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-16-00471-CV

CHAPPARAL OPERATING COMPANY APPELLANT

V. ENERGYPRO, INC. A PPELLEE

---------- FROM THE 43RD DISTRICT CO URT OF PARKER COUNTY TRIAL COURT NO. CV16-0081

---------- 

### MEMORANDUM OPINION 1

---------- This appeal arises from a dispute ov er unpaid operating costs and legal expenses associated with a Parker County oil-and-gas well. Chapparal Operating Company sued EnergyPro, Inc., a nono perator working-interest owner, for

breach of contract to collect monies allegedly due under the parties’ joint

1 See Tex. R. App. P. 47.4.2 operating agreement, claiming that En ergyPro owed Chapparal nearly $11,000. 2 Chapparal also sought to foreclose a co ntractual lien created by the JOA and to

recover its lawsuit-rela ted attorney’s fees. EnergyPro moved for summary judgment on no-evidence gr ounds, arguing generally that no evidence existed to support the essential elements of Chapparal’s breach-of-contract claim, and specifically that no evidence existed showing (1) that Chapparal had standing to sue, (2) that limitations had not expired, (3) that Chapparal had legally incurred any op erating or legal expenses on EnergyPro’s behalf, and (4) that Chapparal had pr operly served EnergyPro with its amended petition, which includ ed a lien-foreclosure notice. Chapparal also moved for summary judgment, seekin g judgment as a matter of law on its

breach-of-contract claim. The trial court denied Chapparal’s mo tion and granted En ergyPro’s motion without specifying the grounds for its rulin g; ordered that Chap paral take nothing; and assessed court costs against Chapparal. Chapparal appealed. Chapparal here challenges only th e denial of its summary-judgment motion, phrasing its sole issue as follows: “The Court erred in denying Plaintiff’s Motion for Summary Judgment and by fa iling to grant a judgment for damages

2 Chapparal’s predecessor operator had been succ essfully sued by a drilling company that recove red contract damages and legal fees from that operator. Under the JOA, Chapparal attempted to recover EnergyPro’s proportionate share of those fees, which Chappa ral claimed were over $9,000 based on Ener gyPro’s 12+% working interest.3 and attorney’s fees.” We have closely ex amined Chapparal’s br ief and do not see that Chapparal ever mentions , much less challenges, th e granting of EnergyPro’s motion, nor does Chappara l challenge or discuss an y of EnergyPro’s summaryjudgment grounds. When, as here, a party mo ves for summary judgment on multiple grounds and the trial court’s summary-judgment order does not specify the ground (or grounds) on which it is ba sed, the appellant must ne gate all possible grounds on

which the order could be based. See Star-Telegram, Inc. v. Doe , 915 S.W.2d 471, 473 (Tex. 1995); Jarvis v. Rocanville Corp. , 298 S.W.3d 305, 313 (Tex. App.—Dallas 2009, pet. denied). To accomplis h this, the law is “well-settled” that either (1) a specific assignment of error must be attributed to each ground on which a summary judgme nt could be based or (2) a general assignment that the tria l court erred by granting summary judgment must be made, which permits t he appellant to assert arguments against all gr ounds on which summary judgment could be based. Rollins v. Denton Cty. , No. 02-14-00312-CV, 2015 WL 7817357, at *2 (Tex. App.—Fort Worth Dec. 3, 2015 , no pet.) (mem. op.) (citing Malooly Bros., Inc. v. Napier , 461 S.W.2d 119, 121 (Tex. 1970)). When an appellant fa ils to challenge every ground on which the summary judgment could ha ve been based, we must affirm, regardless of the un challenged ground’s merit. Id. (citing Malooly , 461 S.W.2d at 120–21; Ramirez v. First Liberty Ins. Corp. , 458 S.W.3d 568, 572 (Tex. App.—El Paso 2014, no pet.); Strather v. Dolgencorp of Tex., Inc. , 96 S.W.3d 420, 422–23 (Tex. Ap p.—Texarkana 2002, no pet.)).4 Chapparal does not raise a general is sue or specific issues on appeal attacking the summary judgment in Energy Pro’s favor; it challenged only the

denial of its motion. When opposing parties each move for summary judgment and the court grants one mo tion and denies the other, the losing party cannot challenge only the denial of its motion; it must also challenge the granting of the other party’s motion. See Broesche v. Jacobson , 218 S.W.3d 26 7, 274 (Tex. App.—Houston [14th Dist.] 2007, pet. denied); Adams v. Parker Square Bank , 610 S.W.2d 250, 250–51 (T ex. Civ. App.—Fort Worth 19 80, no writ) (concluding that appellant could not raise by point of error the denial of his summaryjudgment motion when appella nt did not challenge by po int of error the granting of appellee’s summary-judgment motion); see also Bullacher v. First Republic

Bank , No. C14-89-00015-CV, 1990 WL 4230, at *1–2 (Tex. App.—Houston [14th Dist.] Jan. 18, 1990, writ de nied) (not designated for publication) (refusing to consider arguments regard ing denial of appellants’ summary-judgment motion because appellants did not challenge trial court’s grant of appellees’ summaryjudgment motion); cf. CU Lloyd’s of Tex. v. Feldman , 977 S.W.2d 568, 569 (Tex. 1998) (noting that summar y-judgment denial was ap pealable because appellant appealed ruling granting appelle e’s summary-judgment motion). Because Chapparal ch allenges only the trial cour t’s denial of its summaryjudgment motion without also challengin g the granting of EnergyPro’s motion, we5 must affirm regardless of the relative merits of EnergyPro’ s motion. We thus overrule Chapparal’s sole issue and affirm the trial court’s judgment. 3

/s/ Elizabeth Kerr ELIZABETH KERR JUSTICE PANEL: WALKER, MEIER, and KERR, JJ. DELIVERED: October 26, 2017

3 EnergyPro asks us to sever and remand to the trial court its attorney’s-fee claim. But EnergyPro has no such claim. EnergyPro did request attorney’s fees in its summary-judgment motion, and its attorney—in an affidavit attached to EnergyPro’s response to Chapparal’s summary-judgment motion—stated that EnergyPro was entitled to attorney’s fe es under section 37.009 of the civil practices and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 2015) (permitting a trial co urt to award reasonable and necessary attorney’s fees in a decl aratory-judgment action). Nonetheless, E nergyPro did not affirmatively plead for attorney’s fe es, and neither party sought declaratory relief in this case.