author: Opinion by Justice GARZA. Justice CASTILLO.

text:
    Keith HAHN, Appellant, v. WHITING PETROLEUM CORP., RK Petroleum Corp. and Tremont Energy, L.L.C., Appellees.
    No. 13-02-391-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    June 9, 2005.
    Rehearing Overruled Sept. 15, 2005.

      Troy Gilreath, Walker, Keeling & Carroll, Victoria, for appellant.
    Duane G. Crocker, Anderson, Smith, Null, Stofer & Murphree, James Stofer, Victoria, for appellees.
    Before Justices YÁÑEZ, CASTILLO, and GARZA.
   OPINION

Opinion by Justice GARZA.

By nine issues, Keith Hahn challenges a default judgment entered against him on a suit filed by Whiting Petroleum Corporation, RK Petroleum Corporation, and Tre-mont Energy, LLC. Because we conclude that Hahn satisfied Craddock’s three-prong test for a new trial following entry of a default judgment, we sustain Hahn’s seventh issue, reverse the case, and remand it to the trial court for further proceedings consistent with this opinion. See Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939).

The plaintiffs’ suit against Hahn asserted causes of action for breach of fiduciary duty and constructive fraud. In addition to the claims against Hahn, the suit also asserted causes of action against Core Exploration & Production Corporation for (1) an accounting, (2) relief under section 91.404 of the natural resources code, (3) breaches of two different contracts, (4) breach of fiduciary duty, and (5) constructive fraud. The plaintiffs also sued Del Rio Energy, LLC under a single business enterprise theory, alleging that Del Rio was jointly and severally liable for the acts and omissions on which the claims against Core were premised. The trial court entered a default judgment against all three defendants, jointly and severally, for damages in excess of $1.6 million, including $30,000 in attorney’s fees. Only Hahn has appealed.

By two issues, Hahn argues that this Court should reverse the judgment against him and render a take-nothing judgment against the plaintiffs because (1) the judgment is based on a contract theory of recovery which was not pled in the suit against Hahn and (2) the facts alleged in the plaintiffs’ petition do not support a cause of action against Hahn for breach of contract, breach of fiduciary duty, or constructive fraud. Notwithstanding Hahn’s contention to the contrary, if we were to sustain either of these issues, we would remand the case to the trial court for further proceedings — not render a take-nothing judgment against the plaintiffs. See Roberts v. Mullen, 417 S.W.2d 74, 77-79 (Tex.Civ.App.-Dallas 1967) (reversing default judgment and remanding for jury trial because judgment failed to conform to pleadings), aff'd, 428 S.W.2d 576 (Tex.1968); C & H Transp. Co. v. Wright, 396 S.W.2d 443, 446-47 (Tex.Civ.App.-Tyler 1965, writ refd n.r.e.) (reversing default judgment and remanding for jury trial because petition did not state a cause of action). Because we sustain Hahn’s seventh issue and therefore reverse the judgment and remand’ the case for further proceedings, we do not reach Hahn’s other issues, which would entitle Hahn to equal or lesser relief. See Tex.R.App. P. 47.1.

In his seventh issue, Hahn argues that the trial court erred by failing to grant his motion for new trial. Following the entry of a default judgment, a defendant may establish its entitlement to a new trial by satisfying the following three-prong test articulated by the supreme court in Craddock: (1) present facts showing that the failure to appear was not intentional or the result of conscious indifference but was due to accident or mistake, (2) set up a meritorious defense, and (3) file the motion for new trial when it would not cause delay or otherwise injure the prevailing party. Craddock, 133 S.W.2d at 126.

We begin with the first prong: the reason for Hahn’s failure to appear. See id. To meet this prong, Hahn had to prove that his failure to appear was not intentional on his or his agent’s part nor the result of his or his agent’s conscious indifference. Lowe v. Lowe, 971 S.W.2d 720, 723 (Tex.App.-Houston [14th Dist.] 1998, pet. denied). In Lowe, the Fourteenth Court explained that if (1) a lawyer has misled his client, or wholly failed to perform his professional duties, and (2) the client is free of responsibility and knowledge, the client meets the first prong of Craddock by showing his own lack of knowledge or lack of responsibility. Id. at 724.

Having reviewed the evidence adduced in support of Hahn’s motion for new trial, we conclude that the first element of the Craddock test has been established. Hahn produced uncontroverted evidence to show that his attorney failed to perform his professional duties. Therefore, Hahn needed to show only his own lack of knowledge and responsibility. See. id.

The uncontroverted evidence establishes the following facts: upon being served with the plaintiffs’ petition, Hahn forwarded the petition and citation to attorney Brian T. McLaughlin, who routinely handled Hahn’s legal matters, and asked McLaughlin to file an answer on his behalf. McLaughlin, who works for the law firm of Kerr & Ward, LLP, never filed an answer and did not inform Hahn that he would not represent him. Meanwhile, Kerr & Ward hired attorney Brad Miller, who represented the plaintiffs in the suit against Hahn. Miller continued to represent the plaintiffs against Hahn until April 17, 2002, when attorney James N. Stofer was designated lead counsel for the plaintiffs. On the same day Stofer took over the case for the plaintiffs, a default judgment was entered against Hahn.

Upon review of the Texas Rules of Professional Conduct, we conclude that McLaughlin had a professional duty to inform Hahn that he could no longer represent him because of a conflict of interest. Rule 1.06(a) states, “A lawyer shall not represent opposing parties to the same litigation.” Tex.R. PROf’l Conduct 1.06(a). Rule 1.06(e) explains that “[i]f a lawyer would be prohibited by this Rule from engaging in particular conduct, no other lawyer while a member or associated with that lawyer’s firm may engage in that conduct.” Id. 1.06(e). Given that Miller represented the plaintiffs, neither McLaughlin nor any other attorney working for Kerr & Ward could represent Hahn, as Hahn and the plaintiffs were opposing parties to the same litigation. See id. Under rule 1.15, McLaughlin had to “give reasonable notice” to Hahn that he could not continue to represent him. See id. 1.15(d). McLaughlin also had a duty to take steps to the extent reasonably practicable to protect Hahn’s interests. See id. The uncontro-verted evidence shows that Hahn was never notified that McLaughlin would no longer represent him.

Given that McLaughlin did not perform his duties under the rules of professional conduct, the Craddock analysis focuses on whether Hahn proved that his failure to appear was unintentional and not the result of conscious indifference. See Lowe, 971 S.W.2d at 724. The uncontroverted evidence shows that on March 18, 2002, the same day Hahn was served, Hahn mailed the petition and citation to his attorney, along with instructions for his attorney to file an answer on his behalf. The evidence also shows that Hahn had no knowledge of his attorney’s failure to file an answer until after the default judgment was entered against him on April 17, 2002. Based on this evidence, we conclude that Hahn satisfied the first prong of the Crad-dock test by negating the possibility of intentional or consciously indifferent conduct.

Next, we address the second prong of the Craddock test: whether Hahn set up a meritorious defense. See Craddock, 133 S.W.2d at 126. A meritorious defense is one that, if proved, would cause a different result upon retrial of the case, though it need not be a totally opposite result. Ferguson & Co. v. Roll, 776 S.W.2d 692, 698 (Tex.App.-Dallas 1989, no writ). A motion for new trial should be granted if the facts alleged in the motion and supporting affidavits set up a meritorious defense, regardless of whether those facts are controverted. Id. If the motion for new trial and affidavits raise several defenses, the second prong of the Crad-dock test will be satisfied if any one of its defenses qualifies as meritorious. Id.

The plaintiffs’ petition asserted causes of action against Hahn for breach of fiduciary duty and constructive fraud. The plaintiffs’ causes of action are both based on a fiduciary relationship between themselves and Hahn; however, Hahn’s evidence in support of his motion for new trial showed that he was not a party to any contract with the plaintiffs and owed the plaintiffs no fiduciary duties. Hahn’s evidence further showed that he had no agreements with his co-defendants, Core and Del Rio, to defraud the plaintiffs of them revenues. This evidence set up defenses that, if proved, would cause a different result upon retrial of the case. See id. Accordingly, we conclude that Hahn has met the second prong of the Craddock test.

The third prong of the Craddock test is that the defendant “file the motion for new trial when it would not cause delay or otherwise injure the prevailing party.” Craddock, 133 S.W.2d at 126. In determining this factor, courts should deal with the facts on a case-by-case basis in order to do equity. Angelo v. Champion Rest. Equip. Co., 713 S.W.2d 96, 98 (Tex.1986). That a defendant offers to reimburse the plaintiff for costs associated with the default judgment and states it is prepared for immediate trial are factors to be considered in making such a case-by-case determination. Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex.1987). Once a defendant alleges the granting of a new trial will not injure the plaintiff, the burden shifts to the plaintiff to establish proof of injury. Dir., State Employees Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 270 (Tex.1994).

Hahn’s motion stated that a new trial would not cause delay or prejudice to the plaintiffs. It also stated that Hahn is prepared for trial and is willing to reimburse the plaintiffs for reasonable attorneys’ fees and expenses incurred in obtaining the default judgment. Hahn’s affidavit made similar statements. The burden thus shifted to the plaintiffs to establish proof of injury. See id. The plaintiffs did not file any response to Hahn’s motion for new trial or produce any rebuttal evidence. At the hearing on the motion, counsel for the plaintiffs argued that they would be injured by a retrial because it would affect their standing as judgment creditors in a receivership proceeding involving Hahn’s co-defendant Core Exploration; however, Core has not appealed the judgment. Only Hahn, in his individual capacity, has appealed. The prospective injury alleged by the plaintiffs does not relate to a new trial on the claims against Hahn and thus does not prevent Hahn from meeting the third prong of the Craddock test. Consequently, we conclude that Hahn has established all three prongs of the test.

Accordingly, the judgment of the trial court is reversed, and the case is remanded for further proceedings consistent with this opinion.

Dissenting Opinion by Justice ERRLINDA CASTILLO.

Dissenting Opinion by

Justice CASTILLO.

I respectfully dissent. I write separately to explain the reasons I would affirm the default judgment.

I. RELEVANT FACTS

Appellant Keith Hahn appeals from a default judgment holding him jointly and severally liable for damages and attorney fees. The underlying suit asserted several causes of action, alleging generally that Hahn and two companies misappropriated proceeds of mineral production under joint operating agreements. The trial court denied Hahn’s motion for new trial, and this appeal ensued.

A. The Original Petition

On March 13, 2002, appellees Whiting Petroleum Corp., RK Petroleum Corp., and Tremont Energy, L.L.C. (collectively “appellees”) sued Hahn, Core Exploration & Production Corp., and Del Rio Energy, L.L.C. In their petition, appellees requested service of citation on Core by serving “its President” Hahn, and on Del Rio by serving “its representative,” also Hahn. The address for service indicated “4408 Lilac Lane, Victoria, Texas.” Appellees alleged Hahn was the owner of Core and Del Rio.

Appellees alleged they had entered into four separate joint operating agreements (“JOAs”) with Core, involving four oil and gas wells. Under the agreements, Core allegedly arranged with the purchasers of production to have 100% of the production proceeds sent to Core. According to the petition, Core then became responsible to the owners, including appellees, for the production proceeds and distribution of the revenue to them. According to appellees, when Core undertook responsibility for the care and control over appellees’ revenues, Core’s duties to the appellees were elevated to those of a fiduciary in law and in fact under the joint operating agreements. Over time, Core allegedly delayed payment of the revenues from the wells. Beginning in May 2001, Core allegedly ceased paying the revenues altogether and had not paid up to the date the lawsuit was filed. The petition also alleges that Core and Del Rio, through Hahn, conspired to deprive appellees of their working interest, royalty interests in the wells, and revenues from the wells.

Appellees sought joint and several liability and damages for: (1) breach of contract; (2) civil conspiracy; (3) statutory relief under section 91.401 of the Texas Natural Resources Code for non-payment of royalties on oil and gas produced from wells, and interest; (4) breach of express warranty; (5) negligence; (6) breach of fiduciary duty; (7) fraud; and (8) constructive fraud. Appellees also sought an accounting and attorney fees, and sought liability under the single business enterprise theory, alleging that the Core and Del Rio corporations comprised a single business enterprise.

B. Motion for Default Judgment

1. Damages

On April 17, 2002, appellees filed a motion seeking a default judgment and two filed affidavits in support of the claim for attorney fees and damages. The affidavit of John R. Hazlett, the Vice President of Land for Whiting, based on personal knowledge, recites several paragraphs contained in appellees’ original petition, stating that Core operated the wells which were the basis of the four joint operating agreements. Further, the affidavit provides:

5.As operator of all the above wells Core arranged with the purchasers of production to have 100% of all proceeds of production paid to Core. Core then was responsible to the owners of such production proceeds to distribute their revenue to them. The owners include these Plaintiffs, other working interest owners in the wells, overriding royalty interest owners, if any, and royalty owners. Core also was responsible for payment of severance and ad valorem taxes on the production revenues and the leasehold estates, respectively.
6. Beginning in May 2001 and continuing until January 1, 2002, Core ceased paying to the Plaintiffs and all other owners, except to Core and its related corporate entity and co-Defendant, Del Rio Energy, L.L.C. (“Del Rio”), their respective production revenues pursuant to the Operating Agreements governing said wells, as well as corresponding severance and ad valorem taxes, in such sums as shown on Exhibit “A”, and has not made any payments up to the time of the date of this affidavit.
7. To the best of my knowledge and belief, Keith Hahn is the owner of Core and Del Rio.
8. Whiting is now the operator of the above leases and wells and as such is responsible for collection and payment of all royalty interests, ad valorem taxes and severance taxes not paid by Defendants.
9. After allowing any and all credits and offsets, the Defendants owe the following amounts to the respective Plaintiffs:
WHITING PETROLEUM CORP— $1,468,443.00, inclusive of unpaid royalty interests and unpaid severance and ad valorem taxes;
RK PETROLEUM CORP — $59,799.00; TREMONT ENERGY, L.L.C.— $17,872.00
10. The Defendants’ conduct as described in our Original Petition was the proximate cause of the ... damage amounts as to the Plaintiffs.
FURTHER, AFFIANT SAYETH NAUGHT.
SIGNED this 17th day of April 2002.
/s/ John R. Hazlett

“Exhibit A” attached to the affidavit is a spreadsheet that states, “Core E and P Corporation Summary of Unpaid Items ... As of April 16, 2002 ... Prepared by T. Ohl.” It includes columns with the names of the four wells, 100% revenues, each of appellees’ percentage royalty interests, net revenues, 100% severance tax, 100% ad valorem tax and the total amount due.

2. Attorney Fees

The affidavit of counsel based the attorney fee amount on a review of the attorney fee records in his possession.

C. Default Judgment

The trial court granted a default judgment on April 17, 2002, in favor of appel-lees and against Hahn, Core, and Del Rio, jointly and severally, in the exact amounts set forth in Hazlett’s affidavit. No live testimony was taken on the issue of damages at that time, according to the affidavit of the court reporter which was later presented with Hahn and Del Rio’s motion for new trial. The trial court granted attorney fees in the exact amount contained in counsel’s affidavit.

D. Motion for New Trial

Core did not file a motion for new trial. Hahn and Del Rio filed a joint motion for new trial. Grounds set forth in the motion for new trial included that the parties had satisfied the requirements of Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939). Hahn and Del Rio alleged that the petition failed to articulate a claim against Hahn that supported the default judgment. The motion for new trial also urged that there was no evidence that: (1) plaintiffs and defendants were parties to a joint operating agreement; (2) defendants were in violation of the joint operating agreements; (3) Core and Del Rio operated as a single business; (4) defendants had conspired to deprive plaintiffs of revenues; (5) supported the damages award; (6) any causal nexus existed between the event sued on and the damages; and (7) appellees were billed 120 hours at the rate of $250.00, or that the attorney fee award was reasonable. Finally, appellees alleged that the affidavit tendered in support of the default judgment was conclusory, and thus not evidence, and the absence of a court reporter’s record of a hearing on a default judgment awarding unliquidated damages mandated a new trial.

After a hearing on the motion for new trial on June 14, 2002, the trial court denied the motion. This appeal ensued.

II. ISSUES PRESENTED

Hahn presents the following issues on appeal: (1) whether the trial court’s judgment is final, and if so, upon which theories; (2) if judgment is based on the contract theory, what is the appropriate measure of damages; (3) if the judgment is based on constructive fraud and fiduciary duty theories of recovery, what is the appropriate measure of damages; (4) whether the appropriate theory of damages was pled; (5) whether legally sufficient evidence exists to prove the correct theory of damages; (6) whether the judgment conformed to the pleadings; (7) whether the trial court abused its discretion by failing to grant Hahn a new trial on equitable grounds; (8) whether the absence of a reporter’s record mandates a new trial; and (9) whether the attorney-fee award is necessary or reasonable.

III.JURISDICTION

Hahn’s first issue addresses and concludes that the default judgment is a final judgment. I agree. An appeal may be taken only from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001); First Nat’l Bank v. De Villagomez, 54 S.W.3d 345, 347-48 (Tex.App.-Corpus Christi 2001, pet. denied). I note that Core did not file a motion for new trial or a notice of appeal. Although Del Rio filed a motion for new trial, it did not file a notice of appeal. With respect to appellees’ first issue, the default judgment is, thus, final and not appealable as to Core and Del Rio. This Court has jurisdiction only as it relates to Hahn.

IV.WAIVER

A motion for new trial is one of five ways to preserve error for no evidence challenges. Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex.1991). To preserve error, the motion must be sufficient to call the trial court’s attention to the matter at issue. Tex.R.App. P. 33.1(a); Wal-Mart Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex.1999) (per curiam). Additionally, the issue on appeal must correspond to the motion made at trial. See In the Matter of T.R.S., 931 S.W.2d 756, 758 (TexApp.-Waco 1996, no writ). In other words, a motion which states one legal theory cannot be used to support a different legal theory on appeal. Id.

Hahn’s motion for new trial alleged there was no evidence to support the attorney fee allegations that appellees were billed 120 hours at the rate of $250.00. In his ninth issue, he asserts the attorney fee award was not necessary or reasonable. Because the issue on appeal as to attorney fees does not correspond to the motion made to the trial court, Hahn has waived error. I would overrule his ninth issue.

Similarly, Hahn has waived error as to several additional issues raised in his appeal because he failed to make those complaints to the trial court. See Tex.R.App. P. 33.1(a)(1). I would overrule Hahn’s second, third, and fourth issues.

V.SUFFICIENCY OF THE PETITION TO SUPPORT A DEFAULT JUDGMENT

In his sixth issue, Hahn contends that the judgment did not conform to the pleadings. A default judgment proceeding can occur where no answer has been filed. Tex.R. Civ. P. 239. Failure to file an answer operates as an admission of the material facts alleged in that petition, except as to unliquidated damages. First Dallas Petroleum, Inc. v. Hawkins, 727 S.W.2d 640, 645 (Tex.App.-Dallas 1987, no writ) (later disapproved on other grounds) (citing Village Square, Ltd. v. Barton, 660 S.W.2d 556, 559 (Tex.App.-San Antonio 1983, writ refd n.r.e.)). Therefore, the defendant against whom a default judgment is rendered is precluded from raising certain issues on appeal. Id. (citing First Nat’l Bank of Irving v. Shockley, 663 S.W.2d 685, 688 (Tex.App.-Corpus Christi 1983, no writ)). In reviewing a default judgment, we may not examine the sufficiency of the evidence to support liability. Id.

However, the rule that defects in pleadings are waived when written exceptions are not made “shall not apply to any party against whom default judgment is rendered.” Tex.R. Civ. P. 90; First Dallas Petroleum, 727 S.W.2d at 645. In such circumstances, we may examine the pleadings in order to determine whether they sufficiently plead a cause of action on which to support the judgment. First Dallas Petroleum, 727 S.W.2d at 645 (citing Caruso v. Krieger, 698 S.W.2d 760, 762 (Tex.App.-Austin 1985, no writ)) (default judgment not supported by the pleadings is fundamentally erroneous); see also Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491, 494 (Tex.1988); Stoner v. Thompson, 578 S.W.2d 679, 684 (Tex.1979) (the non-answering party in a default judgment “admits” facts which are properly pled) (emphasis added). A default judgment will be held erroneous only if (1) the petition does not attempt to state a cause of action that is within the jurisdiction of the court; (2) the petition does not give fair notice to the defendant of the claim asserted; or (3) the petition affirmatively discloses the invalidity of such claim. Stoner, 578 S.W.2d at 685.

Careful evaluation of both the first and second provisions is vital because, even where a defendant fails to file an answer, if no liability exists against him as a matter of law on the facts alleged in the petition, then the fact that he has defaulted by failing to file an answer cannot create liability. First Dallas Petroleum, 727 S.W.2d at 645; see also U.S. Fid. & Guar. Co. v. Cascio, 723 S.W.2d 209, 211 (Tex. App.-Dallas 1986, no writ); Morales v. Dalworth Oil Co., 698 S.W.2d 772, 775 (Tex.App.-Fort Worth 1985, writ ref'd n.r.e.).

Hahn’s sixth issue on appeal contends that the underlying petition was insufficient to maintain a cause of action against him. The motion for new trial asserted that “Plaintiffs’ petition ... fails to plead any facts that prove Hahn or Del Rio owed any duties to Plaintiffs.” Accordingly, it is proper to consider whether the pleadings set forth a prima facie cause of action against Hahn individually. For the reasons set out above, I would review this issue as it relates to Hahn only.

Pleadings must give fair notice of the claim asserted. See Tex.R. Civ. P. 45, 47. Rule 45 mandates plain and concise language and provides that the fact “that an allegation be evidentiary or be of legal conclusion shall not be grounds for objection when fair notice to the opponent is given by the allegations as a whole.” Tex.R. Crv. P. 45. Rule 47 requires that an original pleading include “a short statement of the cause of action sufficient to give fair notice of the claim involved,” but it does not require that the plaintiff set out in his pleadings the evidence upon which he relies. Tex.R. Crv. P. 47; see Paramount Pipe, 749 S.W.2d at 494-95.

The petition alleges that Hahn had a duty to act for the benefit of the appellees, which he breached, and that he acted in his own self interest to the detriment of appellees. The petition further alleges that he had a duty to disclose and remit gas proceeds generated by wells in which appellees owned working interests and, by failing to do so, he committed constructive fraud.

I conclude that the petition adequately stated a cause of action within the jurisdiction of the court. Paramount Pipe, 749 S.W.2d at 494. I further conclude that the petition sufficiently alleged: (1) the breach of fiduciary duty and constructive fraud claims against Hahn; and (2) damages on both claims. I would overrule Hahn’s sixth issue.

V. MOTION FOR NEW TRIAL

In his seventh issue, Hahn argues that the trial court abused its discretion in failing to grant him a new trial on equitable grounds. Because the petition is sufficient, Hahn must satisfy the requirements to set aside a default judgment. A trial court’s discretion in determining whether to grant a new trial after a default judgment has been entered must be considered in light of the guiding rule set out in Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (1939). See Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex.1995) (per curiam); Limestone Constr., Inc. v. Summit Commercial Indus. Props., 143 S.W.3d 538, 542 (Tex.App.-Austin 2004, no pet.). The rule is:

A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.

Bank One, Texas, N.A. v. Moody, 830 S.W.2d 81, 82 (Tex.1992) (citing Craddock, 133 S.W.2d at 126).

When applying the Craddock test, the trial court looks to the knowledge and acts of the defendant as contained in the record before the court. Strackbein v. Prewitt, 671 S.W.2d 37, 38-39 (Tex.1984). Where factual allegations in a movant’s affidavits are uncontroverted, it is sufficient that the motion for new trial and accompanying affidavits set forth facts which, if true, would satisfy the Craddock test. Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex.1987); Strackbein, 671 S.W.2d at 38-39. However, conclusory allegations are insufficient. Folsom Invs., Inc. v. Troutz, 632 S.W.2d 872, 875 (Tex.App.-Fort Worth 1982, writ ref d n.r.e.).

A. Standard of Review

A motion for new trial is addressed to the trial court’s discretion and the court’s ruling on such will not be disturbed on appeal, absent a showing of an abuse of that discretion. Strackbein, 671 S.W.2d at 38; Coastal Banc SSB v. Helle, 48 S.W.3d 796, 800 (TexApp.-Corpus Christi 2001, pet. denied). In reviewing a trial court decision under an abuse of discretion standard, we must determine whether the trial court acted without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). The exercise of discretion is within the sole province of the trial court, and an appellate court may not substitute its discretion for that of the trial judge. Johnson v. Fourth Ct.App., 700 S.W.2d 916, 918 (Tex.1985). Rather, an abuse of discretion occurs only when the trial court reaches a decision that is “so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Id. at 917.

B. Failure to Answer Due to Mistake or Accident

In the affidavit accompanying his motion for new trial, Hahn stated that: (1) upon being served, he forwarded the petition and citation to Brian McLaughlin with the firm of Kerr & Ward, with instructions to file an answer on his behalf; (2) Kerr and Ward routinely handled his legal matters; (3) sometime around this period, Kerr & Ward hired an attorney named Brad Miller, who was formerly a partner with Woerdle, Strain & Miller, LLP.; (4) Miller filed the original petition on behalf of ap-pellees; (5) as a result, there was a conflict of interest with respect to McLaughlin’s representation of Hahn; (6) prior to receiving the notice of default judgment from the court, Hahn was never informed of the conflict or of any decision by McLaughlin not to proceed or file an answer on his behalf; (7) Miller remained counsel for appellees in the underlying case until April 17, 2002, the date the default judgment was taken; (8) that same day, appellees filed and the court granted their notice of designation of James Stofer as their new counsel; (9) Stofer previously represented an entity for which Hahn was the sole shareholder and director, and Stofer received confidential information in the course of that representation which may have created a conflict of interest with his representation of appellees; and (10) Hahn had no knowledge of Stofer’s representation of the appellees in this case until he received the notice of default judgment.

Appellees did not controvert Hahn’s affidavit. Where, as here, factual allegations in a movant’s affidavit are not controverted, a conscious indifference question must be determined in the same manner as a claim of meritorious defense. Strackbein, 671 S.W.2d at 38. It is sufficient that the movant’s motion and affidavits set forth facts which, if true, would negate intentional or consciously indifferent conduct. Id. at 38-39 (citing Dallas Heating Co., Inc. v. Pardee, 561 S.W.2d 16, 20 (Tex.Civ. App.-Dallas 1977, writ ref'd n.r.e.)); see also Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex.1966). Negligence, however, is not the test by which the defaulting party’s actions are measured. Pardee, 561 S.W.2d at 19 (citing Carrell, 407 S.W.2d at 214; O’Hara v. Hexter, 550 S.W.2d 379, 382 (Tex.Civ.App.-Dallas 1977, writ ref'd n.r.e.)). In determining whether there was intentional disregard or conscious indifference, we must look to the knowledge and acts of both the defendant and his agent. See Estate of Pollack v. McMurrey, 858 S.W.2d 388, 391 (Tex.1993); Strackbein, 671 S.W.2d at 39.

Hahn’s affidavit addresses his own actions and intent. It establishes (1) he forwarded the initial suit papers to McLaughlin, (2) McLaughlin routinely handled his legal matters, (3) Hahn instructed McLaughlin to file an answer on his behalf, and (4) Hahn was unaware until the default judgment was taken that McLaughlin never filed an answer to this lawsuit.

Whether Hahn’s own conduct did or did not constitute conscious indifference, his affidavit fails to address the intentions or conduct of McLaughlin or Kerr & Ward. Hahn’s affidavit reflects his intent that McLaughlin serve as his agent to prepare the answer to the suit on his behalf. See Grissom v. Watson, 704 S.W.2d 325, 326 (Tex.1986). No evidence exists to controvert that assertion.

When a party’s excuse for his failure to answer a suit is his reliance on a third-party agent or attorney to file his answer or to notify him of a trial setting, he must similarly prove that the third party’s failure was due to accident or mistake and was not intentional or the result of conscious indifference. See Estate of Pollack, 858 S.W.2d at 391 (citing Carey Crutcher, Inc. v. Mid-Coast Diesel Servs., Inc., 725 S.W.2d 500, 502 (Tex.App.-Corpus Christi 1987, no writ), overruled on other grounds, Dir., State Employees Workers’ Comp. Div. v. Evans, 889 S.W.2d 266 (Tex.1994); Wells v. S. States Lumber and Supply Co., 720 S.W.2d 227, 229 (Tex.App.-Houston [14th DistJ 1986, no writ)); see also Holt Atherton Indus., Inc. v. Heine, 885 S.W.2d 80, 83 (Tex.1992).

Here, Hahn does not address the conduct of his third party agent or attorney. Hahn fails to offer any reasonable explanation why counsel failed to file an answer in the case. Wells, 720 S.W.2d at 229. There is no attached affidavit of McLaughlin attesting to inadvertence or mistake. Without evidence as to Hahn’s agent’s state of mind and actions, Hahn cannot take advantage of the equitable remedy announced in Craddock. See Hams v. Lebow, 363 S.W.2d 184, 186 (Tex.Civ.App.-Dallas 1962, writ refd n.r.e.). I conclude that Hahn failed to satisfy the lack of conscious indifference element of Crad-dock. The trial court did not abuse its discretion in denying Hahn’s motion for new trial. See id.; Heine, 835 S.W.2d at 83.

I remain mindful of the additional requirements set forth in Craddock, including the meritorious defense and delay elements. All three components of Craddock must be satisfied in order to merit a new trial. Because Hahn has failed to satisfy the first prong, determinating whether he proved the remaining Craddock elements is not necessary. See BancTEXAS McKinney, N.A. v. Desalination Sys., Inc., 847 S.W.2d 301, 303 (Tex.App.-Dallas 1992, no writ). I would overrule Hahn’s seventh issue.

VI. THE DAMAGES AWARD

In his fifth issue, Hahn specifically attacks the damages award, asserting there is no evidence to support the default judgment in this respect. This legal-sufficiency challenge is reviewed as a no-evidence issue. Gooch v. Am. Sling Co., 902 S.W.2d 181,183-84 (Tex.App.-Fort Worth 1995, no writ). Hahn must show that the record presents no probative evidence to support the adverse finding. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983).

A. Liquidated or Unliquidated Damages

Under rules 241 and 243 of the Texas Rules of Civil Procedure, proof is required only with respect to damages which are either unliquidated or not proven by a written instrument. See Tex.R. Civ. P. 241, 243. Pentes Design, Inc. v. Perez, 840 S.W.2d 75, 79 (Tex.App.-Corpus Christi 1992, writ denied). A claim for contract damages is “unliquidated” if the damages cannot be accurately calculated by the trial court from the factual allegations in the plaintiffs petition and the written contract. Atwood v. B & R Supply & Equip. Co., Inc., 52 S.W.3d 265, 268 (Tex.App.-Corpus Christi 2001, no pet.).

The petition raised several claims, including claims for accounting, statutory relief, breach of contract, breach of fiduciary duty, fiduciary fraud, and constructive fraud. The prayer requests judgment for debts owed, as well as exemplary damages. The petition does not attach any contracts or joint operating agreements. The affidavit of John Hazlett, Vice President of Land for Whiting, filed in support of the motion for default judgment, does not articulate the specific claim underlying his calculations and does not attach the contractual agreements upon which he relies.

A trial court can properly render a default judgment for “liquidated damages” only if it can verify the damages by referring to the allegations in the petition and the written instruments. BLS Limousine Serv., Inc. v. Buslease, Inc., 680 S.W.2d 543, 547 (Tex.App.-Dallas 1984, writ refd n.r.e.). A liquidated claim is one that can be accurately calculated by the court, or under its direction, from the allegations contained in plaintiffs petition and the instrument in writing. First Nat’l Bank of Irving v. Shockley, 663 S.W.2d 685, 688 (Tex.App.-Corpus Christi 1983, no writ) (citing Freeman v. Leasing Assocs., Inc., 503 S.W.2d 406, 408 (Tex.Civ.App.-Hous-ton [14th Dist.] 1973, no writ)). Where damages cannot be accurately calculated from the factual as opposed to conclusory allegations in the petition and an instrument in writing, they are unliquidated. See Walker v. Ricks, 101 S.W.3d 740, 748 (TexApp.-Corpus Christi 2003, no pet.) (citing Pentes Design, 840 S.W.2d at 79); see also Freeman, 503 S.W.2d at 408.

The underlying petition does not provide any basis for calculating the amount due under the joint operating agreements. Accordingly, I cannot conclude that the damages awarded were liquidated damages. Shockley, 663 S.W.2d at 689.

B. Legal Sufficiency Standard of Review

In determining a legal sufficiency question, we consider only the evidence and inferences that tend to support the finding, and disregard all evidence and inferences to the contrary. Heine, 835 S.W.2d at 84. If there is more than a scintilla of evidence to support the finding, the no-evidence challenge fails. Id. The evidence is no more than a scintilla and, in legal effect, is no evidence “[w]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence.” Kindred v. Con/ Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). Conversely, more than a scintilla exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994). We reverse and render judgment when we sustain a legal-sufficiency point. Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 176, 177 (Tex.1986) (per curiam); Heritage Res., Inc. v. Hill, 104 S.W.3d 612, 619 (Tex.App.-El Paso 2003, no pet.).

C. Discussion

1.Personal Knowledge

Hazlett’s affidavit was appellees’ sole proof of damages. Hahn maintains that, because Hazlett did not attest that he was a representative of either RK or Tremont, he could not properly testify to or confirm facts as to RK or Tremont. However, in his affidavit Hazlett stated: (1) he is the vice president of Whiting; (2) he has “personal knowledge of the matters set forth herein;” (3) as operator of the well, Whiting is responsible for collection and payment of the royalty interests, ad valorem taxes, and severance taxes not paid by Hahn, Core and Del Rio; and (4) accordingly, Hazlett is in position to assert that he has personal knowledge as to the amounts owed. An affidavit is sufficient if it is based upon personal knowledge. Campbell v. Fort Worth Bank & Trust, 705 S.W.2d 400, 402 (Tex.App.-Fort Worth 1986, no writ).

2.Calculation of Damages

Hahn contends the affidavit is concluso-ry as to damages. Hazlett’s affidavit lists the amounts owed to each of the appellees. In his affidavit, Hazlett repeatedly references an attached exhibit, which details the manner in which Hazlett calculated damages based upon each appellee’s percent ownership interest in the wells, net revenues, severance taxes, and ad valorem taxes. Testimony of the total amount due under a written instrument, provided in affidavit form, is legally sufficient to support an award of that amount in a default judgment proceeding. Texas Commerce Bank, Nat’l Ass’n v. New, 3 S.W.3d 515, 517 (Tex.1999) (per curiam). Pleadings and affidavits constitute a record upon which the court may base a default judgment, where the affidavit states “the total amount due.” Barganier v. Saddlebrook Apts., 104 S.W.3d 171, 173 (Tex.App.-Waco 2003, no pet.). Hazlett’s affidavit is legally sufficient to support an award of that amount in the default proceeding.

3.Benefit of the Bargain or Out-of-Pocket Damages

Hahn asserts there is no evidence to support a damages award based upon either benefit of the bargain or out-of-pocket damages. Benefit of the bargain damages are properly recoverable if a party prevails on a common law tort cause of action, including a cause of action for deceit or fraud. Formosa Plastics Corp. v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 49 (Tex.1998). The Formosa Plastics court advised that “Texas recognizes two measures of direct damages for common-law fraud: the out-of-pocket measure and the benefit-of-the-bargain measure.... [T]he benefit-of-the-bargain measure computes the difference between the value as represented and the value received.” Id. (citing Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 817 (Tex. 1997)); see also Haase v. Glazner, 62 S.W.3d 795, 798 (Tex.2001) (economic losses may be recoverable under a fraud claim). I conclude that Hazlett’s affidavit is legally sufficient to prove benefit of bargain damages. It sets forth in sufficient detail the monies which appellees would have received but for the alleged breaches of duty and/or fraud. These monies are consistent with a theory of damages that is appropriate for the causes of action alleged. Formosa Plastics, 960 S.W.2d at 49.

4. Proof by Affidavit

Hahn next argues that these damages were not properly proven through affidavit. To the contrary, a trial court may rely on affidavits in proving unliquidated damages in default judgments. New, 3 S.W.3d at 517. Rule 802 of the Texas Rules of Evidence, the hearsay rule, will not prevent use of evidence in the form of affidavits in the context of a default judgment. New, 3 S.W.3d at 517. Affidavits are probative evidence of unliquidated damages. Id. “Testimony of the total amount due under a written instrument is legally sufficient to support an award of that amount in a default judgment proceeding.” Id. Hazlett’s affidavit included the total amounts due under the Rose and Dincans joint operating agreements, both of which were written instruments. The affidavit included an attached schedule detailing how those amounts were calculated.

5. Disposition

I conclude that the evidence of damages constituted more than a scintilla and is legally sufficient to support the amount of damages awarded. I would overrule Hahn’s fifth issue.

VII. REPORTER’S RECORD

In his eighth issue, Hahn asserts he is entitled to a new trial in the absence of a reporter’s record. Rule 243 of the Texas Rules of Civil Procedure states that if the cause of action is unliquidated or cannot be proved by an instrument in writing, the court shall hear evidence as to damages and shall render judgment therefor, unless the defendant shall demand and be entitled to a trial by jury. Tex.R. Civ. P. 243; see also Heine, 835 S.W.2d at 83. In some cases, the lack of a reporter’s record may entitle a defendant to a new trial because he will be unable to obtain some record of the evidence to be reviewed by an appellate court. Barganier, 104 S.W.3d at 174.

The motion for default judgment contained the affidavit of Whiting’s vice-president attesting to damages, and the affidavit of counsel attesting to attorney fees. The affidavits are probative evidence for purposes of an unliquidated-damages hearing pursuant to rule 243. New, 3 S.W.3d at 516. The trial court did not abuse its discretion when it considered the affidavits in rendering its default judgment. Id. at 517.

The affidavits in this case are part of the clerk’s record. I have concluded the affidavits are sufficient to support the judgment. Thus, the lack of a reporter’s record does not require reversal of the judgment. New, 3 S.W.3d at 517; see Tex.R.App. P. 44.1(a)(1), (2); Saddlebrook Apts., 104 S.W.3d at 174-75. I would overrule Hahn’s eighth issue.

VIII. CONCLUSION

Respectfully, I conclude that Hahn waived his second, third and fourth issues. I would overrule (1) his first issue, because the trial court’s judgment is final, and (2) his fifth, sixth, seventh, eighth and ninth issues. Accordingly, I would affirm the judgment of the trial court.

      . Hahn does not challenge issuance or service of citation.

      . The wells were the Rose and Sample # 1, Dincans #2, Kolle #1, and Tucker # 1. Along with the other claims, Whiting sued Core for breach of the Rose JOA dated February 23, 1994 (which governed, the Rose and Sample # 1 wells) and for breach of the Din-cans JOA dated September 15, 1999 (which governed operations of the Dincans # 2, Kolle # 1, and Tucker # 1 wells).

      . A Rule 239a notice of default judgment is in the appellate record. See Tex.R. Civ. P. 239a.

      . These are, respectively: the appropriate measure of damages if based on a contract theory of recovery; the appropriate measure of damages if the trial court’s judgment were based on the constructive fraud and fiduciary duty theories of recovery; and whether the appropriate theory of damages was pled.

      . Thus, deciding the sufficiency of the petition on the conspiracy claim is not necessary. See Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491, 494 (Tex.1988) (a default judgment will be held erroneous only if the petition does not attempt to state a cause of action within the jurisdiction of the court).

      . Miller was referred to as both “Brian” and "Brad” throughout the record.

      . In his affidavit, Hahn does make allegations that his attorney had a conflict of interest which, presumably, led him not to answer the suit. I pause to address the situation in Lowe v. Lowe, 971 S.W.2d 720 (Tex.App.-Houston [14th DistJ Houston 1998, no pet.). In that case, the attorney affirmatively misled his client by failing to advise her of the date of trial and by telling her that his motion for continuance had been granted. The attorney agent appeared in court on the date of trial to announce "not ready” and present his motion for continuance, which was denied. He then failed to reappear later that morning for trial. Because his client was unaware a trial was scheduled for that date, she similarly failed to appear and a default judgment was entered. Our sister court held:
      ... [W]here (1) the lawyer has misled the client, or wholly failed to perform his or her professional duties, and (2) the client is free of responsibility and knowledge, the client meets the first prong of Craddock by showing her own lack of knowledge or lack of responsibility. For example, in this case, Mrs. Lowe’s lawyer told her the July 15 trial was continued and he gave her a timetable which supported that statement. To her knowledge, the trial was continued, and we are not going to hold her responsible for her lawyer's apparent fraudulent actions .... The exception to this rule is that the agent's knowledge is not imputed to the principal when the agent engages in fraudulent conduct.

        Lowe, 971 S.W.2d at 723-24. In this case, the facts alleged as to Hahn’s attorney’s conduct do not reach the level of fraud. I respectfully note that Hahn is not entirely "free of responsibility or knowledge” that an answer to the lawsuit was required, and so he would not meet the narrow exception recognized in Lowe.

      . Because the affidavit provides the detail on how the monies owing were calculated, this Court does not face the situation encountered in Lefton v. Griffith, 136 S.W.3d 271, 277 (Tex.App.-San Antonio 2004, no pet.) (holding Griffith’s allegations failed to provide a factual basis to support her conclusions).


source: Caselaw Access Project

author: KEM THOMPSON FROST, Justice.

license: Public Domain

text:
    SAN SABA ENERGY, L.P., R.L. Zinn, Ltd., Gilbert Goldstein, Nanzin and Family Limited Partnership, Appellants, v. Marshall H. CRAWFORD, II d/b/a Pursuit Exploration Company, Appellee.
    No. 14-03-00980-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 21, 2005.
    Rehearing Overruled Aug. 25, 2005.

      Michael T. Trefny, Houston, TX, for appellants.
    Kimberly R. Phillips, Geoffrey H. Bracken, Houston, TX, for appellees.
    Panel consists of Justices ANDERSON, HUDSON, and FROST.

      . On appeal, the Interest Owners do not challenge the first three grounds stated above.

   OPINION

KEM THOMPSON FROST, Justice.

This case involves various claims by appellants/plaintiffs San Saba Energy, L.P., R.L. Zinn, Ltd., Gilbert Goldstein, and Nanzin Family Limited Partnership (hereinafter collectively “Interest Owners”) against their fellow working interest owner in certain oil and gas leases, appellee/de-fendant Marshall H. Crawford, II d/b/a Pursuit Exploration Company. After Crawford moved for summary judgment on the Interest Owners’ contract and tort claims, the trial court struck most of the Interest Owners’ summary-judgment response, sustained all of Crawford’s objections to their summary-judgment evidence, and granted Crawford’s motion for summary judgment. Concluding that the trial court erred in striking the Interest Owners’ summary-judgment response, we consider the response in evaluating the propriety of the summary judgment. Because we conclude the trial court erred in granting summary judgment as to one of San Saba’s contract claims against Crawford under the Operating Agreement, we reverse the trial court’s summary judgment as to that claim, and we remand it to the trial court for further proceedings consistent with this opinion. We affirm the judgment in all other respects.

I. Factual and PROCEDURAL Background

The Interest Owners, Crawford, and others were working interest owners in oil and gas leases in Jim Hogg County, Texas. These owners entered into an Operating Agreement dated November 5, 1997 (hereinafter “Operating Agreement”). The Operating Agreement created an area of mutual interest (hereinafter “AMI”) and required the parties thereto to immediately give written notice, with all pertinent details and information, to the other parties upon acquiring an oil and gas interest affecting any lands in the AMI or upon acquiring the right to acquire any such interest. Under the Operating Agreement, after such notice is given, each receiving party has either twenty days, exclusive of weekends and legal holidays, or forty-eight hours, exclusive of weekends and legal holidays, to evidence in writing an election to acquire a proportionate interest by paying a proportionate share of the acquisition costs. The twenty-day period applies unless a well is being drilled in the AMI when the notice is given, in which case the forty-eight-hour notice period applies. If a receiving party fails to timely give notice of its election, then it is deemed to have elected not to acquire.

Crawford testified at his deposition that by August 15, 1998, he had a deal worked out for him to buy a term assignment of an oil and gas lease as to a tract of approximately 605 acres of land, part of which was in the AMI. On August 20,1998, O’Sullivan Oil and Gas Company, Inc. and Crawford executed this Term Assignment (hereinafter “Term Assignment”). On August 24, 1998, Crawford had the Term Assignment recorded in the official records of Jim Hogg County. Crawford testified that on August 25, 1998, he received a report showing that a well had been spudded in the AMI on August 24,1998. On Wednesday, August 26, 1998, Crawford sent out his notice, attempting to comply with his obligations under the Operating Agreement. Because a well was being drilled in the AMI when the notice was given, the Interest Owners had forty-eight hours to give written notice of their election to acquire a proportionate interest by paying a proportionate share of the acquisition costs. The Interest Owners never gave notice of an election to acquire a proportionate interest.

Irrespective of any election to acquire a proportionate interest in the Term Assignment, it is undisputed that the Operating Agreement, by its own terms, provided that Blacklake, L.L.C., San Saba’s predecessor-in-interest, was entitled to share with Crawford an overriding royalty interest in the lands covered by the oil and gas lease that was the subject of the Term Assignment (hereinafter “Lease”). Crawford, however, testified that he conveyed this interest to David and Sandra Doughtie because David Doughtie told Crawford that Blacklake had agreed in a settlement agreement that this overriding royalty interest should be conveyed to him.

The Interest Owners brought suit against Crawford and others. They alleged, among other things, that Crawford breached the Operating Agreement by failing to give them immediate written notice of his right to acquire the Term Assignment and of his acquisition of the Term Assignment and by failing to include in his notice all pertinent details and information. The Interest Owners allege that if Crawford had provided timely notice, then they would have had twenty days to respond. They also assert that if Crawford had provided all pertinent details and information, then they would have used the twenty-day period to investigate the Term Assignment and would have elected to acquire a proportionate interest. The Interest Owners assert that as a result of this alleged breach of the Operating Agreement, they suffered substantial damages. San Saba also asserts that it suffered substantial damages as a result of Crawford’s breach of the Operating Agreement by failing to convey to San Saba’s predecessor-in-interest an overriding royalty interest in the lands covered by the Lease (hereinafter “Overriding Royalty”). Contrary to Crawford’s assertions, San Saba asserts that the settlement agreement in question does not affect San Saba’s entitlement to this Overriding Royalty.

The Interest Owners asserted the following claims, among others, against Crawford:

• Crawford breached his fiduciary and contractual duties relating to a letter agreement of February 12,1997.
• Crawford breached the Operating Agreement by failing to give immediate and adequate notice to the Interest Owners regarding his right to acquire the Term Assignment and regarding his acquisition of the Term Assignment. Crawford’s notice was inadequate under the Operating Agreement because it did not include all pertinent details and information.
• Crawford breached the Operating Agreement by failing to convey to San Saba’s predecessor-in-interest, Black-lake, the Overriding Royalty to which Blacklake was entitled under the Operating Agreement.
• Crawford tortiously interfered with San Saba’s rights under its settlement agreement with Doughtie and breached his fiduciary duty to hold these interests for San Saba.

The trial court granted Crawford a partial summary judgment, ruling that the Interest Owners take nothing regarding the February 12, 1997 letter agreement because it is invalid. Crawford then filed a single instrument in the trial court entitled “Special Exceptions and Motion for Final Summary Judgment on all Remaining Claims.” Despite this title and Crawford’s citation to Texas Rule of Civil Procedure 91, entitled, “Special Exceptions,” this motion does not point out with particularity any alleged defect or other insufficiency in the allegations in the Interest Owners’ petition. Crawford’s motion, however, does assert the following summary-judgment grounds:

(1) Crawford asserts various challenges against the Interest Owners’ claims based on alleged contractual and fiduciary duties arising from the February 12,1997 letter agreement.
(2) There is no evidence showing that Crawford owed the Interest Owners a fiduciary duty.
(3) There is no evidence of various essential elements of any claims for tortious interference and conversion asserted by the Interest Owners.
(4) Crawford’s August 26, 1998 notice to the Interest Owners was timely as a matter of law under the Operating Agreement, and there is no evidence that this notice was untimely under the Operating Agreement.
(5) There is no evidence of damages to the Interest Owners relating to Crawford’s alleged failure to give timely notice under the Operating Agreement.
(6) As a matter of law, Crawford’s August 26, 1998 notice contained all pertinent information concerning the Term Assignment.
(7) By failing to respond to a January 27, 1999 letter from Crawford, the Interest Owners waived any interest in the Lease, and Crawford is not obligated to convey any such interest to the Interest Owners.
(8) Crawford did not breach the Operating Agreement by failing to convey the Overriding Royalty to Blacklake because Blacklake previously had assigned this interest to David Doughtie under a December 2, 1997 settlement agreement and because San Saba specifically agreed to this conveyance in an assignment executed on April 13,1999.
(9) Because Blacklake previously had assigned the Overriding Royalty to Doughtie, there is no evidence the Interest Owners suffered damages as a result of Crawford’s conveyance of this interest to Doughtie.

The Interest Owners timely filed a twenty-four page summary-judgment response in opposition, along with excerpts from three depositions and affidavits from Jonathan Preston and Robert Zinn. Crawford responded by filing objections and a motion to strike some of the Interest Owners’ summary-judgment evidence. In this same document, Crawford asked the trial court to strike most of the Interest Owners’ summary-judgment response. The trial court sustained all of Crawford’s objections to the summary-judgment evidence, struck pages two through twenty-one of the Interest Owners’ summary-judgment response, granted Crawford’s motion for summary judgment without specifying the grounds, and ordered that the Interest Owners take nothing against Crawford. After the trial court severed the Interest Owners’ claims against other defendants and after other claims were nonsuited, the trial court’s judgment became final. The Interest Owners appeal, asserting the trial court erred in striking their summary-judgment evidence and most of their summary-judgment response and in granting summary judgment as to their claims for breach of the Operating Agreement and their claim for fraud.

II. STANDARDS OF REVIEW

In reviewing a traditional motion for summary judgment, we take as true all evidence favorable to the nonmovant, and we make all reasonable inferences in the nonmovant’s favor. Dolcefino v. Randolph, 19 S.W.3d 906, 916 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). If the movant’s motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment. Id.

In reviewing a no-evidence motion for summary judgment, we ascertain whether the nonmovant pointed out summary-judgment evidence of probative force to raise a genuine issue of fact as to the essential elements attacked in the no-evidence motion. Id.; Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206-08 (Tex.2002). We take as true all evidence favorable to the nonmovant, and we make all reasonable inferences therefrom in the nonmov-ant’s favor. Dolcefino, 19 S.W.3d at 916. A no-evidence motion for summary judgment must be granted if the party opposing the motion does not respond with competent summary-judgment evidence that raises a genuine issue of material fact. Id. at 917. Because the trial court did not specify the grounds for its ruling, we will affirm if any of the grounds advanced in the motion has merit. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

III. Analysis

A. Did the trial court err in striking most of the Interest Owners’ timely-filed summary-judgment response?

As part of their first issue, the Interest Owners assert that the trial court erred in granting Crawford’s motion to strike pages two through twenty-one of their twenty-four-page summary-judgment response. Both in the trial court and on appeal, Crawford has asserted that the trial court acted properly in striking substantially all of the Interest Owners’ summary-judgment response because this response purportedly did not direct the trial court to any specific evidence on the particular elements of their claims that allegedly raises a fact issue. Crawford asserts that the Interest Owners simply attached voluminous summary-judgment evidence and then summarized it in the response, without indicating how the evidence raises a genuine issue of material fact.

Striking a timely-filed summary-judgment response is a severe and unusual remedy. If a trial court could properly strike a nonmovant’s timely summary-judgment response, then it would be free to ignore that response in granting summary judgment, and an appellate court reviewing the trial court’s summary judgment would not be allowed to consider the response on appeal. Crawford has not cited, and this court has not found, any rule or case law that would allow a trial court to strike a timely summary-judgment response because of some perceived or actual substantive inadequacy. Even if the Interest Owners had failed to respond with summary-judgment evidence raising a fact issue on some of their claims and even if they had attached voluminous evidence without in any way explaining how the evidence raised a fact issue, these failures would be reasons for granting summary judgment or for not reviewing the voluminous evidence; they would not be reasons for striking substantially all of the Interest Owners’ summary-judgment response. If a nonmovant’s response fails to set forth valid reasons why summary judgment should not be granted and if the motion and summary-judgment evidence show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law on the grounds asserted in the motion, then the trial court should simply grant summary judgment. It is improper to go further and also strike the nonmovant’s timely-filed summary-judgment response.

Crawford did not assert special exceptions alleging that the Interest Owners’ summary-judgment response was unclear, ambiguous, or confusing, a procedural solution suggested by four justices on the Texas Supreme Court to complain about deficiencies in summary-judgment responses. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex.1993) (plurality op.) (suggesting, in plurality opinion, that a movant who is confused by alleged ambiguity in the nonmovants’ response may assert special exceptions against the response); Toubaniaris v. American Bureau of Shipping, 916 S.W.2d 21, 24 n. 3 (Tex.App.-Houston [1st Dist.] 1995, no writ) (noting that the part of the McConnell opinion discussing special exceptions practice was not a binding opinion of the Texas Supreme Court but rather the opinion of Justices Hightower, Dog-gett, Gammage, and Spector). Neither the Texas Supreme Court nor this court appears to have addressed this issue in a binding precedent, and we need not decide today the role, if any, of special exceptions against a nonmovant’s summary-judgment response. Nonetheless, it is important to note in this case that Crawford’s motion to strike was not based on any recognized ground that might support the requested relief. Not only did Crawford’s motion to strike fail to assert that the response was unclear, ambiguous, or confusing, but the Interest Owners were not given any opportunity to replead or amend their response — something they should have been given if such special exceptions had been asserted and sustained.

It is possible that, under certain unusual circumstances, a trial court might properly strike portions of a timely-filed summary-judgment response. Cf. Herndon v. Campbell, 86 Tex. 168, 23 S.W. 980, 981 (1893) (holding that, if a pleading contains impertinent or scandalous language, the trial court may expunge or strike the offensive language but should not strike the parts of the pleading that assert valid claims); Sabine & E.T. Ry. Co. v. Brous-sard, 69 Tex. 617, 7 S.W. 374, 377 (1888) (stating that trial court should have sustained an exception to a portion of the petition containing allegations that could have no bearing on the claims between the parties to the suit). However, we have found no authority to support the trial court’s striking of substantially all of the Interest Owners’ timely-filed summary-judgment response based on its purported inadequacy in briefing the alleged fact issues. Accordingly, we hold the trial court abused its discretion by sustaining Crawford’s objections one through four and by striking pages two through twenty-one of the Interest Owners’ summary-judgment response. We sustain the first issue to this extent, and on appeal, we shall consider the Interest Owners’ entire summary-judgment response.

B. Did the trial court err in granting a no-evidence summary judgment as to the damages element of the Interest Owners’ claim for breach of contract based on Crawford’s alleged failure to give timely notice under the Operating Agreement?

In their second issue, the Interest Owners assert the trial court erred in granting summary judgment on Crawford’s no-evidence ground challenging the damages element of their contract claim based on Crawford’s alleged failure to give timely notice under the Operating Agreement regarding his acquisition or right to acquire the Term Assignment (hereinafter “Term Assignment Claim”). In response to a no-evidence ground for summary judgment, the nonmovants need not marshal their proof; however, their summary-judgment response needs to point out evidence that raises a genuine issue of fact as to the challenged elements. See Brewer & Pritchard, P.C., 73 S.W.3d at 206-08; Hintz v. Lowe, Nos. 14-03-00979-CV, 14-03-00983-CV, 2004 WL 2359260, at *2 (Tex.App.-Houston [14th Dist.] Oct. 21, 2004) (mem.op.).

The Interest Owners’ response in opposition to Crawford’s motion for summary judgment addresses only the legal standard for traditional motions for summary judgment. Although the response describes much of the evidence filed in response to Crawford’s motion, it does not state that any of this evidence raises a fact issue as to damages regarding the Interest Owners’ Term Assignment Claim. The response does not state any method of calculating damages or any amount of losses allegedly resulting from Crawford’s alleged breach in the Term Assignment Claim. Indeed, the response does not use the word “damage” or “damages” a single time. The Interest Owners do state that they “have affirmatively established each of the elements of their claims against Crawford with the evidence presented in response to Crawford’s motion.” They also state that they “have affirmatively established some evidence of each element of all of their claims against [Crawford], thereby precluding summary judgment.” The Interest Owners also incorporate by reference into their summary-judgment response five affidavits and excerpts from three depositions. Their summary-judgment evidence exceeds six hundred fifty pages in length. Normally, it should not take much for a summary-judgment response to point out evidence that raises a genuine issue of fact as to elements challenged by no-evidence grounds. See Brewer & Pritchard> P.C., 73 S.W.3d at 206-08 (acknowledging that case was a close call but holding that response met minimum requirements of Rule 166a(i) and pointed out evidence allegedly raising a fact issue on the challenged elements). In Brewer & Pritchard, P.C., the Texas Supreme Court held that a response with the following characteristics adequately pointed out evidence allegedly raising a fact issue as to the plaintiffs conspiracy claim:

• The response detailed evidence allegedly indicating that one alleged co-conspirator benefitted from the fee agreement of the other alleged co-conspirator, and after identifying this evidence, the response stated that “these facts clearly evidence a ... scheme to funnel half of the referral funds through [one alleged co-conspirator] and then, back to [the other alleged co-conspirator].”
• The response stated that the plaintiffs conspiracy claim was based on one alleged co-conspirator’s breach of a fiduciary duty owed to the plaintiff, and then the response set forth argument and authorities regarding the alleged fiduciary duty, including a statement that third parties may be liable for aiding and abetting a breach of fiduciary duty. The response then pointed to facts that allegedly showed a breach of fiduciary duty by one of the alleged co-conspirators.

Id.

The Interest Owners’ response is more deficient as to the damages element of the Term Assignment Claim than was the plaintiffs response in the Brewer & Pritchard, P.C. case. The Interest Owners state generally that the summary-judgment evidence raises fact issues as to all of the elements of all of their claims, and they incorporate by reference more than six hundred fifty pages of evidence. On appeal, the Interest Owners assert that an affidavit from Jonathan Preston raises a fact issue as to the challenged damage element; however, they never made this assertion in their summary-judgment response. We conclude that the response in this case is similar to the one this court found deficient in the Hintz case. See Hintz, 2004 WL 2359260, at *2-5. If we were to determine that the summary-judgment response in this case were sufficient under Rule 166a(i), then we would be holding that a nonmovant can avoid summary-judgment by filing voluminous and complicated summary-judgment evidence along with a response that states generally that a genuine fact issue has been raised as to each element. In that event, the trial court would have the onerous task of searching the summary-judgment evidence to see if a genuine issue of fact had been raised as to each challenged element. Such a holding would place an unreasonable burden on the trial court and would violate the requirement of Rule 166a(i) that the response must point out evidence that raises a genuine issue of fact as to each challenged element. See Hintz, 2004 WL 2359260, at *2-3; see also U.S. Rentals, Inc. v. Mundy Serv. Corp., 901 S.W.2d 789, 793-94 (Tex.App.-Houston [14th Dist.] 1995, writ denied). Therefore, we conclude that the trial court did not err in granting summary judgment as to the Term Assignment Claim because the Interest Owners’ response does not point out evidence that allegedly raises a genuine issue of fact as to the damages element of this claim. Accordingly, we overrule the Interest Owners’ second issue.

C. Is the fourth issue on appeal, relating to the Overriding Royalty claim, moot?

In the fourth issue on appeal, San Saba asserts that the trial court erred in granting summary judgment as to its claim under the Operating Agreement regarding Crawford’s failure to convey the Overriding Royalty to Blacklake (hereinafter “Overriding Royalty Claim”). Before we address this issue, we first address Crawford’s assertion that this part of the appeal is moot as a result of San Saba’s alleged execution of a release with David Dought-ie, Sandra Doughtie, and Doughtie Exploration Company (hereinafter the “Dought-ie Release”) and also as a result of San Saba’s alleged execution of an Assignment of Overriding Royalty Interest. San Saba allegedly executed both of these documents in May of 2003, after the trial court granted Crawford’s motion for summary judgment. The clerk’s record does not contain these documents. Accordingly, we cannot consider these matters unless they deprive this court of jurisdiction.

Crawford asserts that San Saba’s execution of these documents deprives this court of jurisdiction as to the fourth issue by rendering it moot. Crawford urges that these two documents moot this issue because they operate to fully compensate San Saba for any alleged damages under the Overriding Royalty Claim. Crawford also contends that, by executing these documents, San Saba is estopped by its actions from asserting the Overriding Royalty Claim.

Even if we presume for the sake of argument that these documents have the effect alleged by Crawford, we conclude that this would not moot the fourth issue. There is still a live controversy between San Saba and Crawford as to whether the trial court properly granted summary judgment on San Saba’s Overriding Royalty Claim, as well as whether San Saba’s execution of the Doughtie Release and the Assignment of Overriding Royalty Interest prejudiced this claim. Generally, an appeal is moot when the court’s action on the merits cannot affect the rights of the parties. VE Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex.1993). In the Overriding Royalty Claim, San Saba seeks a money judgment. Even if Crawford’s arguments are correct concerning these two documents, on remand the trial court still can grant relief by rendering a take-nothing judgment. If the trial court disagrees with Crawford and finds in favor of San Saba on this claim, it still can render a money judgment in San Saba’s favor. The cases cited by Crawford regarding the “one satisfaction rule” do not support the proposition that the Doughtie Release and the Assignment of Overriding Royalty Interest moot the fourth issue under the facts in this case. In the cited cases, the application of the “one satisfaction rule” resulted in a settlement credit which mitigated some or all of the plaintiffs damages against the nonsettling defendant. See, e.g., Buccaneer Homes of Ala., Inc. v. Pelis, 43 S.W.3d 586, 590-91 (Tex.App.-Houston [1st Dist.] 2001, no pet.) (applying “one satisfaction rule” to negate all of plaintiffs damages against nonsettling defendant). The application of this rule does not moot any issue in the case. See, e.g., id. (reversing judgment and rendering take-nothing judgment based on “one satisfaction rule” rather than dismissing case as moot). Accordingly, we reject Crawford’s mootness argument and deny his motion to dismiss.

D. Did the trial court err in granting summary judgment as to San Saba’s claim regarding the Overriding Royalty?

In the fourth issue, San Saba asserts that the trial court erred in granting summary judgment as to its Overriding Royalty Claim. Under the Term Assignment, Crawford acquired an interest in the Lease, which is “a lease interest ... affecting lands within the AMI” as stated in the Operating Agreement. Therefore, regardless of any election to purchase a proportionate interest, the Operating Agreement required Crawford to convey to Blacklake the Overriding Royalty. Crawford does not dispute this obligation; however, in the trial court and on appeal, Crawford has asserted that he did not have to comply with his obligation under the Operating Agreement to convey the Overriding Royalty to Blacklake because Blacklake agreed in a settlement agreement among other parties to convey this same interest to David Doughtie. At his deposition, Crawford testified that he conveyed this Overriding Royalty to Doughtie because Doughtie asked him to do so. Crawford testified that he relied on representations by Doughtie and Doughtie’s counsel that Doughtie was entitled to receive this interest under the settlement agreement signed by Doughtie and Blacklake. Crawford was not a party to this settlement agreement. Crawford did not ask for or receive a copy of this settlement agreement, nor did he make an independent investigation to determine whether Doughtie was entitled to this interest.

We must determine whether Crawford has shown that the December 2, 1997 settlement agreement among Blacklake, Doughtie, and others (hereinafter “Settlement Agreement”) negates San Saba’s Overriding Royalty Claim as a matter of law. The Settlement Agreement reads in material part as follows:

Blacklake ... will assign, upon receipt of further interests in the properties described in Exhibit “A” and Schedule 3 attached hereto and incorporated herein by reference, an overriding royalty interested [sic] based upon the sliding scale attached hereto as Exhibit “B,” proportionately reduced to the net percentage of the 8/8ths acquired and retained by Blacklake....
Anything to the contrary notwithstanding, this Agreement shall not be construed as releasing, altering or impeding the rights and obligations of the Parties under the ... [Operating Agreement] ....
The schedules and exhibits attached hereto are used herein to merely reflect the properties and Doughtie’s interest therein. It is understood that Blacklake ... [has] other overriding royalty and working interests not reflected thereon.

In his affidavit attached to Crawford’s motion, David Doughtie testified as follows:

In 1999, [Crawford] transferred to me an overriding royalty interest, which [Blacklake] would normally have been entitled to under the terms of the [Joint Operating Agreement] in the amounts set out in the three schedules attached to and made a part of my settlement agreement with [Blacklake] and others. Previously, Blacklake had assigned its interest in that overriding royalty interest to me pursuant to the settlement agreement ... The overriding royalty interest transferred to me was exactly the amount under the Settlement Agreement, assigned to Doughtie by Black-lake. Rather than having two conveyances, being one from [Crawford] to [Blacklake] and subsequently another to me, it was determined to make the conveyance directly from Crawford to me. [Crawford] did not transfer any other overriding royalty interest in the 605 acre tract to David [sic] or my wife, Sandra Doughtie.

Doughtie’s affidavit simply states that Blacklake assigned the Overriding Royalty to Doughtie in the Settlement Agreement, without explaining how the Settlement Agreement covers the Lease. These con-clusory statements by Doughtie constitute no evidence that could support the trial court’s summary judgment. See Coastal Transport Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex.2004). In both his motion in the trial court and his brief on appeal, Crawford merely concludes that the Settlement Agreement constitutes an assignment by Blacklake of the Overriding Royalty to Doughtie. Crawford does not demonstrate how the Settlement Agreement covers the Lease. In the only section that could possibly apply to these facts, the Settlement Agreement states that Doughtie shall receive overriding royalty interests upon Black-lake’s “receipt of further interests in the properties described in Exhibit ‘A’ and Schedule 3.... ” The undisputed summary-judgment evidence shows the following: .

• Except for referring to various leases on Exhibit “A” of the Settlement Agreement (hereinafter “Exhibit A”), Schedule 3 does not describe any properties.
• The recording information is listed for all of the leases on Exhibit A, and none of that information matches the recording information for the Lease.
• The acreage is listed for all of the leases on Exhibit A, and none of the acreage amounts equals the acreage of the Lease.
• The Lessee listed for all of the leases on Exhibit A is Pursuit Exploration Company. There is no evidence in the record showing that Crawford or Pursuit had any interest in the Lease before August 15, 1998; whereas the Settlement Agreement was effective as of December 2,1997.
• Only one of the leases on Exhibit A— Lease #TX 100-08 — has the same lessor information as the Lease.

At oral argument, Crawford’s counsel stated that Crawford bases his argument on the fact that the acreage for Lease # TX 100-08 listed on Exhibit A is part of the acreage covered by the Lease. In his motion for summary judgment and in his appellate brief, Crawford does not cite any summary-judgment evidence that supports this assertion. In his motion to dismiss for mootness filed after oral argument, Crawford asserts for the first time that his affidavit establishes that the approximately 605 acres covered by the Lease includes the 80 acres covered by Lease # TX 100-08 on Exhibit A. The relevant part of Crawford’s affidavit states the following:

I have acquired oil and gas leasehold interests covered by the [Operating Agreement] at two times in my lifetime. The first occasion was the interests I had secured prior to October 16, 1997, which are described in a Stipulation of Interest and Cross-Conveyance, which was signed by all of the Plaintiffs in this lawsuit on October 6 and 8, 1997....

Even if we presume that “covered by the [Operating Agreement]” is the same as “within the AMI,” Crawford states that he secured interests in the AMI before October 16, 1997, and that these interests are described in the Stipulation of Interest and Cross-Conveyance (hereinafter “Stipulation of Interest”). The Stipulation of Interest does not describe any interests secured by Crawford; rather, it recites that the present owners of various oil and gas interests, including Crawford, wish to resolve inconsistencies among their interests to achieve the ownership interests reflected in the Stipulation of Interest. Crawford does not state in his affidavit that the approximately 605 acres covered by the Lease includes the 80 acres covered by Lease # TX 100-08 on Exhibit A of the Settlement Agreement. Crawford does not testify that any of the leases listed on Exhibit A are in the AMI.

After reviewing this traditional-summary-judgment ground, we conclude that Crawford’s motion and summary-judgment evidence do not facially establish his right to summary judgment by showing that, as a matter of law, the Settlement Agreement negates liability and damages as to San Saba’s Overriding Royalty Claim. See Dolcefino, 19 S.W.3d at 916. The Lease is not listed in Exhibit A. The summary-judgment evidence does not prove, as a matter of law, that any of the leases listed on Exhibit A are within the AMI. Crawford’s motion and the summary-judgment evidence do not prove as a matter of law that Blacklake’s receipt of the Overriding Royalty would have been the receipt of “further interests in the properties described in [Exhibit A].” Furthermore, section 7 of the Settlement Agreement states that, notwithstanding anything to the contrary in the Settlement Agreement, that agreement shall not be construed as releasing, altering, or impeding the rights and obligations of the parties under the Operating Agreement. Crawford’s construction of the Settlement Agreement would release, alter, or impede Blacklake’s right under the Operating Agreement to receive the Overriding Royalty. Crawford did not prove as a matter of law that the Settlement Agreement relieves him of his contractual obligation under the Operating Agreement to convey the Overriding Royalty to Blacklake. Therefore, the trial court erred in granting summary judgment on Crawford’s grounds based on the Settlement Agreement.

Crawford also asserts that an Assignment of Overriding Royalty Interest dated April 13, 1999 (hereinafter “Assignment”) constitutes a specific agreement by San Saba that Crawford could convey the Overriding Royalty to David Doughtie. Based on the unambiguous language of this document, we conclude otherwise. The only evidence upon which Crawford relies for this argument is the Assignment itself. Crawford claims that the Assignment states that the Overriding Royalty is owned by Doughtie. We find no such statement in the Assignment. In the Assignment, Burlington Resources Oil & Gas Company conveys an overriding royalty interest in and to the lands covered by four different groups of leases, none of which includes the Lease. Crawford has not shown that the overriding royalty conveyed in the Assignment has any connection with the overriding royalty he is required to convey to Blacklake in the Lease. Crawford has not shown that the leases listed in the Assignment cover the same acreage as the Lease, nor has he shown how San Saba’s signing of the Assignment and acceptance of these overriding royalty interests constitutes an agreement by San Saba that it was proper for Crawford to have conveyed the Overriding Royalty to Doughtie instead of Blacklake or San Saba. Further, the language of the Assignment does not release or negate San Saba’s contract claim under the Operating Agreement regarding Crawford’s failure to convey the Overriding Royalty to Black-lake. Therefore, the trial court erred to the extent it granted summary judgment on this claim based on the Assignment.

Crawford also asserts that there is no evidence of damages under San Saba’s Overriding Royalty Claim because Black-lake previously had assigned the Overriding Royalty to Doughtie. Because this ground is also dependent upon Crawford’s arguments under the Settlement Agreement and the Assignment, we conclude that the trial court, erred in granting summary judgment on this ground for the same reasons mentioned above. Accordingly, we sustain the fourth issue and reverse and remand as to San Saba’s contract claim under the Operating Agreement regarding Crawford’s failure to convey the Overriding Royalty to San Saba’s predecessor, Blacklake.

E. Did the trial court err in granting summary judgment as to the Interest Owners’ fraud claims?

In their third issue, the Interest Owners argue the trial court erred in granting summary judgment as to their fraud claims. The Interest Owners assert that in their live petition they pleaded fraud claims against Crawford and that Crawford’s motion for summary judgment did not address their fraud claims. Crawford asserts that the Interest Owners’ live petition did not contain any fraud claim against Crawford. The trial court previously had sustained a special exception and required the Interest Owners to replead without alleging an ostensible claim for conspiracy to breach a contract. The Interest Owners complied. Because our record shows that the trial court sustained no special exceptions as to any fraud claims or as to any alleged failure to plead claims with particularity, we review the Interest Owners’ petition liberally in their favor to determine if they pleaded any fraud claims. See Boyles v. Kerr, 855 S.W.2d 593, 600-01 (Tex.1993).

In liberally construing the Interest Owners’ Eighth Amended Petition, we must find that the petition contains any claims that reasonably may be inferred from the specific language used in the petition, even if the petition fails to state all of the elements of that claim. Smith-Kline Beecham Corp. v. Doe, 903 S.W.2d 347, 354-55 (Tex.1995); Boyles, 855 S.W.2d at 600-01. Nonetheless, we cannot use a liberal construction of the petition as a license to read into the petition a claim that it does not contain. See Toles v. Toles, 113 S.W.3d 899, 911 (Tex.App.-Dallas 2003, no pet.). The petition must give Crawford fair notice of the claims being asserted, and, if we cannot reasonably infer that the petition contains a fraud claim, then we must conclude the petition did not contain this claim, even under our liberal construction. See SmithKline Beecham Corp., 903 S.W.2d at 354-55; Boyles, 855 S.W.2d at 600-01. The Eighth Amended Petition does not allege any material misrepresentation by Crawford. The petition alleges that the Interest Owners suffered damages as a result of Crawford’s breach of the Operating Agreement by failing to give notice immediately and with all pertinent details and information regarding the Term Assignment. In the midst of lengthy factual allegations, the petition states the following:

Crawford’s offer of the 605 acre lease to the Working Interest Group was a fraudulent and sham transaction designed by Crawford and McCord, and perhaps others, to induce Plaintiffs into not immediately electing to participate in the offering, so that Crawford could retain greater interests in the 605 acre tract and secretly share them with [O’Sullivan Oil and Gas Company], [Scully Oil & Gas Co.] and other members of their Program, or alternatively, which he was secretly obliged to share with them. Crawford and McCord enjoyed a close business and sometimes personal relationship with Chris O’Sullivan and Chris Scully and their actions with respect to the 605 acre lease were part of their plan and scheme to allow O’Sullivan and Scully to benefit from the mineral development in the AMI, and constituted an illegal agreement, or conspiracy between them for the purpose of defrauding Plaintiffs.

The Interest Owners claim that this paragraph is sufficient to plead fraud against Crawford. Although this petition names McCord as a defendant, it does not name O’Sullivan Oil and Gas Company, Scully Oil & Gas Co., O’Sullivan, or Chris Scully as defendants. And though this paragraph does characterize Crawford’s August 26, 1998 notice under the Operating Agreement as “a fraudulent and sham transaction,” it does not assert that this notice was a material misrepresentation. Later in the petition, the Interest Owners assert that Crawford’s notice breached the Operating Agreement, and they seek to recover lost profits allegedly resulting from this alleged breach. In the subsequent “causes of action,” section of the petition, the Interest Owners allege breach of contract and various torts, including breach of fiduciary duty, against Crawford. They do not allege any fraud claim against Crawford in this section. In the same section, the Interest Owners assert a fraud claim against McCord. In alleging their entitlement to punitive damages against McCord, the Interest Owners assert that “[McCord’s] actions were fraudulent, wilful[,] and malicious.” In contrast, in alleging their entitlement to punitive damages against Crawford, the Interest Owners merely state that “Crawford’s actions were wilful and malicious,” with no mention of fraud. In the context of the allegations in the Eighth Amended Petition, it cannot reasonably be inferred that this petition contains a fraud claim against Crawford, even under a liberal construction. See SmithKline Beeeham Corp., 903 S.W.2d at 354-55 (holding that, even under a liberal construction, the pleading did not allege misrepresentation); Boyles, 855 S.W.2d at 600-01 (holding that, even under a liberal construction, the pleading did not allege grossly negligent infliction of emotional distress); Toles, 113 S.W.3d at 911 (holding that, even under a liberal construction, the pleading did not allege fraud). Accordingly, we overrule the Interest Owners’ third issue.

F. Have the Interest Owners sufficiently briefed their fifth issue relating to alleged error by the trial court in granting summary judgment on “other grounds”?

In their fifth issue, the Interest Owners assert the trial court erred in granting summary judgment on “other grounds.” In their one-paragraph argument under this issue, the Interest Owners state that they believe there are other grounds which would support reversal of the trial court’s judgment in addition to those made the subject of their first four issues, and they ask this court to reverse this judgment on any applicable grounds at law or in equity. The Interest Owners cite one case for the proposition that summary judgment is not intended to deprive litigants of their right to a full hearing on the merits of any real fact issue. The Interest Owners state that their claims are not patently unmeritorious, and that, if this judgment is not reversed for trial, manifest injustice would result to the Interest Owners. The Interest Owners then “pray for equitable relief and a reversal of the [trial court’s judgment] in full.” The Interest Owners do not cite to any part of the record.

An appellant’s brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. Tex.R.App. P. 38.1(h). We must interpret this requirement reasonably and liberally. Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex.2004). Nonetheless, parties asserting error on appeal still must put forth some specific argument and analysis showing that the record and the law supports their contentions. See Tex.R.App. P. 38.1(h); Deutsch v. Hoover, Bax & Slovacek, L.L.P, 97 S.W.3d 179, 198-99 (Tex.App.-Houston [14th Dist.] 2002, no pet.). The Interest Owners cite no part of the record and make no specific argument under their fifth issue. They assert only that there are additional grounds to reverse the trial court’s judgment and that the entire summary judgment should be reversed to avoid injustice. Even under a liberal construction, this contention is not sufficient to articulate a clear and concise argument as to why we should reverse the trial court’s judgment. Further, the Interest Owners have not cited to any part of the record. See Deutsch, 97 S.W.3d at 198-99. Because it is inadequately briefed, we overrule the fifth issue.

IV. Conclusion

San Saba’s alleged execution of the Doughtie Release and the Assignment of Overriding Royalty Interest does not moot the appellate issue as to whether the trial court erred in granting summary judgment as to San Saba’s claim under the Operating Agreement regarding Crawford’s failure to convey the Overriding Royalty to Blacklake. The trial court did not err in granting summary judgment as to the Term Assignment Claim because the Interest Owners did not point out in their summary-judgment response any evidence allegedly raising a genuine fact issue as to the challenged element of damages. The trial court did not err in granting summary judgment as to the Interest Owners’ alleged fraud claims against Crawford because, even under a liberal construction, their live pleading did not contain any such claims. The Interest Owners have inadequately briefed their fifth issue in which they assert that the trial court erred in granting summary judgment on “other grounds.” The trial court abused its discretion by striking substantially all of the Interest Owners’ timely-filed summary-judgment response based upon its determination that the response was substantively inadequate. Because the trial court erred in granting summary judgment as to San Saba’s Overriding Royalty Claim, we reverse the trial court’s judgment to this extent, and we sever and remand this part of the trial court’s judgment for further proceedings consistent with this opinion. We affirm the remainder of the judgment.

      . Crawford also filed a motion to exclude the expert testimony of Jonathan Preston. The trial court, however, did not grant this motion, and the issues raised by it are not before us.

      . The Interest Owners also have challenged the trial court’s sustaining of Crawford’s objections five through fifteen to various pieces of summary-judgment evidence. However, these rulings do not affect our disposition of the issues on appeal, so we do not address the remainder of the first issue, which challenges the trial court's rulings on these objections.

      . Crawford also argues that handwritten changes to Schedules 1, 2, and 3 of the Settlement Agreement further support his position that the Settlement Agreement covers the Lease. However, this does not follow because these schedules simply apply as to the leases listed in Exhibit A; they do not affect what is described in Exhibit A.

      . We note that we have not ruled on the effect of San Saba’s alleged execution, in May of 2003, of the Doughtie Release and the Assignment of Overriding Royalty Interest, other than holding that these documents do not moot the fourth issue in this appeal. We do not take any position on the effect, if any, of these documents on the substance of San Saba’s Overriding Royalty Claim.