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March 12, 2026 Get Citation Alerts Download PDF Add Note

Evans Resources, L.P. v. Petroplex Energy, Inc.; Ryan C. Anwar; Leslie G. Anwar; Syed Javaid Anwar, as Independent Administrator for the Estate of Tahira Khaton

Texas Court of Appeals, 11th District (Eastland)

• Citations: None known
• Docket Number: 11-24-00192-CV
• Nature of Suit: Contract

• Disposition: Affirmed

• Opinion

• Authorities (33)

• Cited By (0)

• Summaries (0)

• Similar Cases (1K)

• PDF

Disposition

Affirmed

Lead Opinion

Opinion filed March 12, 2026

In The

Eleventh Court of Appeals

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No. 11-24-00192-CV

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EVANS RESOURCES, L.P., Appellant
V.
PETROPLEX ENERGY, INC.; RYAN C. ANWAR;
LESLIE G. ANWAR; AND SYED JAVAID ANWAR,
AS INDEPENDENT ADMINISTRATOR FOR THE
ESTATE OF TAHIRA KHATOON, Appellees

On Appeal from the 238th District Court
Midland County, Texas
Trial Court Cause No. CV60098

OPINION
Appellant, Evans Resources, L.P. (Evans), appeals summary judgment
granted in favor of Appellees, Petroplex Energy, Inc.; Ryan C. Anwar; Leslie G.
Anwar; and Syed Javaid Anwar, as independent administrator for the Estate of
Tahira Khatoon (collectively the Anwars), wherein the trial court ordered that Evans
take nothing from the Anwars. Evans challenges the summary judgment in two
issues on appeal. In its first issue, Evans asserts that specific terms within the
Anwars’ joint operating agreement with the operator, Diamondback, required that
delinquent royalty payments were to be made to lessors like Evans directly by the
Anwars. In its second issue, Evans alternatively contends that it has a claim for
money had and received against the Anwars because Diamondback made payments
to the Anwars that included amounts belonging to Evans.
We affirm.
I. Factual and Procedural History
A. Prior Litigation
Evans owns a mineral estate in Section 8, Block X, T-1-S, H.P. Hilliard
Survey—a 651-acre property in Midland County (the Evans property). We have
previously addressed disputes between Evans, including Evans’s affiliates, and
Diamondback, 1 an oil and gas lessee and operator. See Evans Res., L.P. v.
Diamondback E&P, LLC (Evans II), 725 S.W.3d 718 (Tex. App.—Eastland 2025,
no pet.); Evans Res., L.P. v. Diamondback E&P, LLC (Evans I), No. 11-18-00128-
CV, 2020 WL 2838529 (Tex. App.—Eastland May 29, 2020, pet. denied) (mem.
op.). In Evans I, Evans sued Diamondback on the theory that Diamondback
breached the parties’ surface agreement by failing to pay contractual damages for
horizontal wellsite locations that Diamondback did not drill on the Evans property.
2020 WL 2838529, at *3. The trial court granted summary judgment dismissing the
claim, and we affirmed. Id. at *3, *8. In Evans II, Evans complained in part that
Diamondback committed fraud by failing to fulfill an oral promise to drill horizontal

1
The Diamondback entities are Diamondback E&P, LLC and Diamondback O&G, LLC. We refer
to both as Diamondback for purposes of this opinion.

2
wellsite locations on the Evans property, there was an underpayment of royalties,
and that Evans was a cotenant and entitled to an accounting of royalties. 725 S.W.3d
at 726. We ultimately affirmed the trial court’s take-nothing judgment in favor of
Diamondback. See id. at 749.
B. Current Suit
In the present litigation, Evans sought oil and gas royalties allegedly paid by
Diamondback to the Anwars for horizontal wellsite locations on cotenancy acreage.
On the leases contributed to the joint operating agreement (JOA) by the Anwars,
they are the lessee (the Anwars property), and they have separate lease agreements
with lessors that are not parties to this litigation.
Evans entered into a 2010 lease on the Evans property with Bluestem, an oil
and gas operator (“the Lease” or “Evans lease”); the original lease was amended in
2012 and 2014. Bluestem then assigned the lease to Diamondback in September
2014.
In October 2014, Diamondback entered into the JOA with the Anwars. The
JOA between the Anwars and Diamondback was a compendium of multiple
Diamondback and Anwar leases contributed for joint operating purposes.
Diamondback was the JOA operator. Under the JOA with the Anwars, the Anwars
contributed three leases and Diamondback contributed others, including the Evans
lease. Diamondback then drilled wells on the Evans lease that included acreage over
which the lease had terminated in 2018, by the lease’s own terms. Evans claimed
that the Lease terminated in November 2018 as to “certain acreage and depths” on
the Evans property. Lease termination was apparently disputed by Diamondback
initially, but in 2022 Diamondback filed a release of the “certain acreage and depths”
in the Lease, effective November 2018. We refer to that expired lease acreage as
“cotenency acreage.” The JOA permitted Diamondback to drill the Anwars’ and its
own contributed leases, including as lessee of Evans’s mineral estate. But Evans
3
and the Anwars have no direct contractual relationship, and the JOA contributed
Diamondback leases do not overlap with the Anwars’ contributed leases.
Pursuant to the JOA, Diamondback retained all revenue generated from the
producing wells and Diamondback distributed it to each JOA party in accordance
with the JOA’s terms. The JOA was later amended to provide for horizontal drilling,
with Diamondback serving as the operator for the vertical wells on the Evans
property as well as the horizontal wells on the Anwars’ property; but with Petroplex
serving as the operator for the vertical wells on the Anwars’ property. A subsequent
amendment listed the various leases covered by the JOA as well as each party’s
interest in the wells. The Anwars had a working interest in three of the eighty-nine
leases in the contract area and owned an approximately 35% interest in production
from the horizontal wells. Diamondback owned the remaining 65% production from
horizontal wells, which included its lease with Evans.
C. Royalty Provisions
Under Article III.B of the JOA, titled “Interests of Parties in Costs and
Production,” the JOA stated:
Regardless of which party has contributed any Oil and Gas Lease
or Oil and Gas Interest on which royalty or other burdens may be
payable . . . each party shall pay or deliver, or cause to be paid or
delivered, all burdens on its share of the production from the Contract
Area up to, but not in excess of one quarter (1/4).
The article continues:
[I]f any party has contributed hereto any Lease or Interest which is
burdened with any royalty, overriding royalty, production payment or
other burden on production in excess of [one quarter], such party so
burdened shall assume and alone bear all such excess obligations.
The article contains the following disclaimer:
Nothing contained in this Article III.B shall be deemed an
assignment or cross-assignment of interests covered hereby, and in the
event two or more parties contribute to this agreement jointly owned
4
Leases, the parties’ undivided interests in said Leaseholds shall be
deemed separate leasehold interests for the purposes of this agreement.
In Article VII.A, titled “Liability of Parties,” the JOA provides:
Each party shall be responsible only for its obligations, and shall be
liable only for its proportionate share of the costs of developing and
operating the Contract Area . . . and no party shall have any liability to
third parties hereunder to satisfy the default of any other party in the
payment of any expense or obligation hereunder.
A section titled “Unleased Interests” in two amendments to the JOA state:
It is recognized that there are tracts of land, or interests in tracts of land,
within the Contract Area that are not committed to this agreement by
any party hereto. In such instances the interests of the parties . . . shall
be deemed to apply to the aggregate undivided interest in the oil and
gas mineral estate included in oil and gas leases or oil and gas interests
committed by the parties.
D. Evans’s Allegations
In its live pleading, its first amended petition, Evans brought claims against
the Anwars for declaratory relief, payment of royalty, accounting of royalty, and
accounting for profits for the cotenant wells drilled by Diamondback (also titled
“money had and received”). Under its royalty claims, Evans alleged that the Anwars
owed a duty to pay received royalties to Evans because the JOA assigned
Diamondback’s obligation to do so to the Anwars.
Under its cotenant-accounting claim, which Evans characterizes on appeal as
solely a money had and received claim, Evans alleged that it was entitled to an
accounting and the recovery of earned profits that the Anwars had been paid.
Particularly, Evans alleged that the Evans lease expired as to certain acreage and
depths, and that Evans then became cotenants with Diamondback as to that acreage.
Evans claimed that it never consented to the drilling of wells in the
unleased/cotenancy acreage and that Diamondback paid the Anwars money to which
Evans was entitled from well production since 2018.
5
E. The Anwars’ Motion for Summary Judgment
The Anwars filed a traditional motion for summary judgment, arguing that
they do not have privity of contract or estate with Evans pursuant to the JOA, that
Evans—not being a party thereto—cannot enforce the JOA’s terms, and that the JOA
specifically disclaims any assignment of interests. Further, the Anwars claimed that
they owe no duty to Evans as a cotenant and they denied receiving any revenue
attributable to Evans. The Anwars maintained that they were accurately paid
revenue attributable to their 35% interest in horizontal well production. The Anwars
supported their motion with the following exhibits: (1) the JOA and amendments;
(2) the Evans lease and later assignment to Diamondback; (3) the affidavit of David
Donnell, land manager for Petroplex; and (4) the Anwars’ leases.
In his affidavit, Donnell testified that the Anwars “have not participated in
drilling horizontal wells on the property, other than contributing to the shared costs
pursuant to the JOA as non-operators.” He further stated that, “None of the proceeds
of production from the Evans Lease have been paid to [the Anwars]” and the Anwars
“have not received any revenue attributable to [Evans]” but “have only received
revenue based on the leases they contributed to the JOA.”
Evans filed a response, arguing that: the JOA, to which Evans claimed status
as a third-party beneficiary, required the Anwars to “pay their share of royalties and
other burdens on production anywhere within the contract area;” and the Anwars
received money from the production of the cotenant wells that rightfully belonged
to Evans. Evans relied on the same evidence as the Anwars, while also attaching the
following additional exhibits: (1) the amended partial release of oil and gas leases;
(2) the expert report of Tim Smith; and (3) discovery requests and responses.
Evans complained of the Anwars’ failure to reply to certain discovery, but it
did not file a motion for continuance or to compel production regarding those
complaints. Evans also argued that it is a third-party beneficiary to the JOA, because
6
the agreement “expresses a clear intent that the parties to the JOA will bear
responsibility for royalties in proportion to their interests . . . regardless of whether
the royalty is one owed on a lease the party contributed” and that a contrary
interpretation would render the JOA “facially ambiguous.” Evans argued that its
cotenant claim is “in effect, a claim for money had and received” and that the Anwars
failed to disprove that they held money that belongs to Evans. Evans explained that
its lease with Diamondback terminated “‘on the date which is the fifth (5th)
anniversary of the date on which the primary term of [the] Lease expires’ as to any
and all acreage covered by the Lease ‘not then located within a Producing Unit,’”
which occurred on November 3, 2018. Relying on Smith’s expert report, Evans
maintained that after the 2018 expiration of lease acreage, Evans and Diamondback
became cotenants thereto, after which, “several wells have been drilled traversing
acreages and depths” to which Evans “own[ed] a working interest” and was “owed
a share of profits.” Evans alleged, but cited no evidence, that the Anwars have
“received money that belongs to [Evans].”
F. Trial Court’s Ruling
The trial court signed a final take-nothing judgment, granting the Anwars’
motion for summary judgment. This appeal followed.
II. Standard of Review
We review a trial court’s grant of summary judgment de novo. Fort Worth
Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 837 (Tex. 2018). To prevail under the
traditional summary judgment standard, the movant has the burden to establish that
there is no genuine issue of material fact and that it is entitled to judgment as a matter
of law. TEX. R. CIV. P. 166a(c); 2 ConocoPhillips Co. v. Koopmann, 547 S.W.3d

2
We note that the supreme court has revised Rule 166a. Although the “rewrite is not intended to
substantively change the law,” it has resulted in a renumbering of the provisions of the rule. See Final
Approval of Amendments to Rule 166a of the Texas Rules of Civil Procedure, Misc. Docket No. 26-9012

7
858, 865 (Tex. 2018). If the movant meets its summary judgment burden, the burden
shifts to the nonmovant to raise a genuine issue of material fact that would preclude
the grant of summary judgment. Amedisys, Inc. v. Kingwood Home Health Care,
LLC, 437 S.W.3d 507, 510–11 (Tex. 2014).
To determine if a genuine issue of material fact exists, we review the evidence
in the light most favorable to the nonmovant, and we indulge every reasonable
inference and resolve any doubts in the nonmovant’s favor. KMS Retail Rowlett,
LP v. City of Rowlett, 593 S.W.3d 175, 181 (Tex. 2019). We credit evidence
favorable to the nonmovant if reasonable jurors could do so, and we disregard
contrary evidence unless reasonable jurors could not. Samson Expl., LLC v. T.S.
Reed Props., Inc., 521 S.W.3d 766, 774 (Tex. 2017); Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). The evidence raises a
genuine issue of material fact if reasonable and fair-minded factfinders could differ
in their conclusions in light of all of the summary judgment evidence presented.
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).
The construction of an unambiguous contract is a question of law that we
review de novo. See Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex. 2011); Anadarko
Petrol. Corp. v. Thompson, 94 S.W.3d 550, 554 (Tex. 2002). “[T]he construction
of an unambiguous contract, including the determination of whether it is
unambiguous, depends on the language of the contract itself, construed in light of
the surrounding circumstances.” First Bank v. Brumitt, 519 S.W.3d 95, 109 (Tex.
2017); see Tawes, 340 S.W.3d at 426 (determining third-party beneficiary status by
considering “the oil and gas industry’s customary purpose for using [joint operating
agreements], and . . . the plain language of the [agreement] at issue here”); Luling

(Tex. Feb. 27, 2026). The amendments to this rule only apply to motions for summary judgment filed on
or after March 1, 2026. Because the Anwars’ motion for summary judgment in this case was filed prior to
that date, we refer to the rule in effect at the time the motion was filed. See id.
8
Oil & Gas Co. v. Humble Oil & Ref. Co., 191 S.W.2d 716, 724 (Tex. 1946) (holding
that oil and gas contract “must be construed in connection with the rules and the
customs of the industry to which the contract relates”).
“When discerning the contracting parties’ intent, courts must examine the
entire agreement and give effect to each provision so that none is rendered
meaningless.” Tawes, 340 S.W.3d at 425. “We give contract terms their plain and
ordinary meaning unless the instrument indicates the parties intended a different
meaning.” Kachina Pipeline Co., Inc. v. Lillis, 471 S.W.3d 445, 450 (Tex. 2015)
(quoting Dynegy Midstream Servs., Ltd. P’ship v. Apache Corp., 294 S.W.3d 164,
168 (Tex. 2009)). “No single provision taken alone will be given controlling effect;
rather, all the provisions must be considered with reference to the whole instrument.”
Tawes, 340 S.W.3d at 425 (quoting Coker v. Coker, 650 S.W.2d 391, 393 (Tex.
1983)).
III. Royalty Claims
In its second issue, which we address first, Evans argues that the trial court
erred in granting summary judgment on its royalty claims. Evans asserts that the
Anwars, under the JOA, “have an obligation to pay a proportionate share of royalties
owed under the Evans Lease.” Citing Article III.B of the JOA, Evans maintains that
“each party to the JOA, including [the Anwars], expressly assumed the obligation of
paying or delivering the royalty associated with the Evans Lease on that party’s share
of production . . . up to one quarter on its share of production.” Evans also maintains
that the JOA’s disclaimer language “should not be read to fully preclude a partial
assignment . . . because such interpretation would conflict with [the earlier
provision] which partially assigns an interest in the Evans lease to [the Anwars.]”
Evans argues in the alternative that the JOA is ambiguous or that Evans is a third-
party beneficiary “[b]ecause the JOA reflects a clear intent that [the Anwars] are
responsible for paying a proportionate share of [Evans’s] royalties.”
9
Relying largely on Tawes, the Anwars respond that the unambiguous JOA
creates no duty for the Anwars to pay Evans royalties either “via privity of contract,
privity of estate, or status as a third-party beneficiary.” See Tawes, 340 S.W.3d at
425–31.
A. Applicable Law
JOAs are contracts commonplace in the oil and gas industry, and their
“function is to designate an ‘operator, describe the scope of the operator’s authority,
provide for the allocation of costs and production among the parties to the
agreement, and provide for recourse among the parties if one or more default in their
obligations.’” Id. at 426 (quoting Seagull Energy E & P, Inc. v. Eland Energy, Inc.,
207 S.W.3d 342, 344 n.1 (Tex. 2006)). “JOAs govern operations involving great
financial risk and are therefore utilized for the purpose of shielding non-
operators, . . . ‘from liability for all costs or other obligations incurred in conducting
the operations.’” Id. (quoting 3 Ernest E. Smith & Jacqueline Lang Weaver, Texas
Law of Oil and Gas § 17. 1, at 377 (1996 ed.)). Liability to a lessor for payment of
royalties can arise from privity of contract or, where there has been a full assignment
of the lease, privity of estate. Tawes, 340 S.W.3d at 429 (citing Amco Tr., Inc. v.
Naylor, 317 S.W.2d 47, 50 (Tex. 1958)).
“Privity of estate arises between an assignee of a lessee’s entire interest in a
lease and the original lessor.” Id. (citing Naylor, 317 S.W.2d at 50). “An assignment
creating privity of estate occurs when a lessee executes an instrument conveying his
entire estate and interest under a lease to a subsequent lessee so that the original
lessee retains no reversionary interest in the lease whatsoever.” Id. (citing Westland
Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 905, 910–11 (Tex. 1982) (Privity
of estate existed between two parties because of their “area of mutual interest
agreement,” which was “in the nature of a contract to convey interests in oil and gas
leases.”)).
10
The payment of royalties on production to a lessor is a covenant running
with lands covered by an oil and gas lease. Therefore, when privity of
estate exists between an assignee of an oil and gas lessee’s entire
leasehold interest and the original oil and gas lessor, the assignee must
pay the lessor’s royalties as required by the oil and gas lease.
Id. (internal citations omitted).
“Privity of contract, as a necessary predicate to suit on a contract, has a long
and settled history in this State.” Interstate Contracting Corp. v. City of Dallas, 135
S.W.3d 605, 607 (Tex. 2004). “Privity is an essential element for recovery in any
action based on contract; a breach of contract action normally requires privity
between the injured party and the party sought to be held liable.” Sanders v. Total
Heat & Air, Inc., 248 S.W.3d 907, 912 (Tex. App.—Dallas 2008, no pet.). Naturally,
a non-signatory to a contract does not have privity of contract with the contract’s
signatories. See Tawes, 340 S.W.3d at 430. “Where a theory of recovery based on
third-party beneficiary status fails, so too must a privity of contract theory, no matter
how artfully constructed.” Id. at 430–31 (citing 9 Arthur Linton Corbin, Corbin on
Contracts § 47.6, at 142 (2007 ed.)).
“A third party may enforce a contract it did not sign when the parties to the
contract entered the agreement with the clear and express intention of directly
benefitting the third party.” Id. at 425 (citing MCI Telecomms. Corp. v. Tex. Util.
Elec. Co., 995 S.W.2d 647, 651 (Tex. 1999)). “When the contract confers only an
indirect, incidental benefit, a third party cannot enforce the contract.” Id. (citing
MCI, 995 S.W.2d at 651). “Traditionally, Texas courts have maintained a
presumption against third-party beneficiary agreements.” Id. (first citing Corpus
Christi Bank & Trust v. Smith, 525 S.W.2d 501, 503–04 (Tex. 1975); and then citing
Standard Accident Ins. Co. v. Knox, 184 S.W.2d 612, 615 (1945)). “Therefore, in
the absence of a clear and unequivocal expression of the contracting parties’ intent

11
to directly benefit a third party, courts will not confer third-party beneficiary status
by implication.” Id. (citing MCI, 995 S.W.2d at 651).
B. Analysis
Our analysis is largely controlled by Tawes. In that case, the Texas Supreme
Court addressed “an oil and gas lessor’s claim for unpaid royalties” by considering
“the construction and application of a Working Interest Unit Agreement (WIUA)
and a [JOA].” Id. at 421. The Fifth Circuit certified, in relevant part, the following
question for the Texas Supreme Court: “whether the lessor here, either as a third-
party beneficiary or through privity of estate, can enforce the WIUA and JOA to
recover unpaid royalties from an investor who consented to the drilling of two wells
on a pooled gas unit, but did not operate the wells.” Id. The court ultimately held
that a royalty owner whose lessee is a party to a JOA is not a third-party beneficiary
and does not have privity of estate with other working interest owners under a
provision of the agreement allocating royalty responsibility. See id. at 425–31.
In Tawes, Article VI.B.2 in the JOA “required the consenting parties to pay
the royalties which would have been owed to the lessors of leases contributed . . . by
the non-consenting parties had they consented to the additional operations from the
beginning.” Id. at 423. In concluding that the agreements at issue did not create a
third-party beneficiary status, the court explained, “We deduce from the oil and gas
industry’s customary purpose for using JOAs, and from the plain language of the
JOA at issue here, that neither [party to the JOA] included the JOA Royalty
Provision with the intention of directly benefitting any lessor of [the contributed]
lease.” Id. at 426. Rather, the plain language of the agreements “ma[de] clear that
[the contributor of the lease] was ultimately responsible for paying its lessor . . . the
royalties from production owed to her pursuant to the terms of the [lease].” Id. In
looking to other cost-sharing provisions of the parties’ agreements, the court
concluded, “The [agreements] demonstrate that the clear intent of the signatories
12
thereto was to allocate responsibilities for the payment of operating expenses for the
specific purpose of maintaining each [lease], not to directly benefit [the non-
signatory lessor.]” Id. at 427. Ultimately, the court stated that “the controlling factor
is the absence of any sufficiently clear and unequivocal language demonstrating an
intent to directly benefit Barnes or any other would-be beneficiary of the contract.”
Id. at 428.
In analyzing whether the parties had privity of estate in Tawes, the court noted
that the JOA provided: “Nothing contained in this [contract] shall be deemed an
assignment or cross-assignment of interest covered hereby.” Id. at 429. The court
also noted that “the period of time during which the JOA grants consenting parties
temporary ownership of non-consenting parties’ share of production . . . is limited.”
Id. at 430. The court concluded that “because [the consenting party] received no
permanent interest in the [non-consenting party’s lease], privity of estate [did] not
exist between [them].” Id.
The JOA terms in the present case, while not identical to Tawes, are largely
similar. As we described above, Article III.B allocates royalty responsibilities
between Diamondback and the Anwars, the JOA’s signatories:
Regardless of which party has contributed an oil and gas lease or
Oil and Gas Interest on which royalty or other burdens may be payable
. . . each party shall pay or deliver, or cause to be paid or delivered, all
burdens on its share of the production from the Contract Area up to, but
not in excess of one quarter (1/4). . . .
[I]f any party has contributed hereto any Lease or Interest which is
burdened with any royalty, overriding royalty, production payment or
other burden on production in excess of [one quarter], such party so
burdened shall assume and alone bear all such excess obligations.
And the article contains the following assignment disclaimer:
Nothing contained in this Article III.B shall be deemed an
assignment or cross-assignment of interests covered hereby, and in the
event two or more parties contribute to this agreement jointly owned
13
Leases, the parties’ undivided interests in said Leaseholds shall be
deemed separate leasehold interest for the purposes of this agreement.
Evans maintains that the language is distinguishable from the agreements in Tawes
because “when the burden is not in excess of one quarter, each party is responsible
for lease burdens on production from the Contract Area regardless of whether the
royalty is one owed on a lease the party contributed.” But as the supreme court
observed in Tawes, an assumption of a contractual obligation to pay royalties does
not equate to the assignment of a lessee’s interest and that assumption does not create
privity of contract, see id. at 430 (noting “that a sublessee who agreed to pay a certain
amount of rent on a certain date but did not obligate himself to pay that amount to
the lessor directly, did not assume liability for the lessor’s unpaid rents”), or privity
of estate, see id. (“What Barnes appears to describe as a new theory of privity by
assumption, we rather see as a convoluted restatement of privity of contract.”).
Recognizing that JOAs are not used for the purpose of “transfer[ring]
ownership interests in pooled oil and gas leases,” that the Anwars received no
permanent interest in the Evans lease, and that this particular JOA contains an
express disclaimer of such a purpose, we conclude that Evans does not have privity
of estate with the Anwars such that it can enforce the JOA’s royalty provisions. See
id. at 429–30.
Regarding whether Evans is a third-party beneficiary to the JOA, we note that,
unlike the JOA in Tawes, this JOA expressly disclaims third-party liability. Further,
as in Tawes, “the controlling factor is the absence of any sufficiently clear and
unequivocal language demonstrating an intent to directly benefit” Evans. Id. at 428.
We conclude that the plain language of the JOA is unambiguous and makes clear
that Diamondback, as the contributor of the Evans lease, was ultimately responsible
for paying its lessor, Evans, the royalties from production owed to it pursuant to the
lease. See id. at 426. Because the Anwars did not permanently acquire Evans’s

14
interest in the horizontal wells, and because the Anwars did not otherwise
contractually assume a duty to pay royalties accruing on production from the wells
directly to Evans, we hold that the parties do not share any privity which allows
Evans to enforce the JOA. See id. at 431.
Absent privity of contract, privity of estate, or third-party beneficiary status,
Evans cannot enforce the JOA. See id. Accordingly, the trial court did not err in
granting summary judgment on Evans’s royalty claims. See Rodriguez, 547 S.W.3d
at 837. We overrule Evans’s second issue.
IV. Money Had and Received Claim
We now address Evans’s first issue, wherein it argues that the trial court erred
in granting summary judgment on its claim for money had and received. 3 Evans
asserts that this claim does not rely on any duties created by the JOA and the Anwars
“did not submit any evidence that [the Anwars] did not receive any money belonging
to [Evans].” Specifically, Evans argues that the Anwars were required to present
evidence either showing what shares of gross production the Anwars received or
whether the Anwars received any shares belonging to Evans “because as an unleased
fee mineral owner, the percentage of proceeds . . . [Evans] was entitled to may have
exceeded the proportional share agreed upon by Diamondback and [the Anwars].”
The Anwars respond that, in essence, Evans is claiming: “that due to
Diamondback’s production of [Evans’s] minerals, the Anwars hold money that in
equity belongs to [Evans].” The Anwars maintain that this premise “is false as a
matter of both law and fact.” The Anwars explain that “there is no cotenancy
relationship between the parties that would create a duty for [them] to account or to
pay profits from their percentage of production to [Evans].” And, relying on
Donnell’s testimony and the JOA, the Anwars state that “[t]he uncontroverted

3
Evans does not challenge the trial court’s take-nothing judgment on its “cotenant accounting”
claim but maintains it is a money had and received claim.
15
summary judgment evidence shows that the Anwars received no profits or
production attributable to [Evans].”
In its reply brief, Evans asserts that the Anwars improperly relied on a
statement in the Donnell affidavit as evidence that they did not receive money owed
to Evans. Evans argues that the statement is conclusory and not competent summary
judgment evidence “because it does not provide the underlying facts to support
Donnell’s conclusion” and “because it does not move beyond a simple denial of
[Evans’s] claim.”
A. Applicable Law
“Owners of undivided portions of oil and gas rights in and under real estate
are tenants in common, and an oil and gas lessee of a co-tenant becomes a co-tenant
with the co-tenants of his lessor.” Radcliffe v. Tidal Petroleum, Inc., 521 S.W.3d
375, 383 (Tex. App.—San Antonio 2017, pet. denied) (quoting Willson v. Superior
Oil Co., 274 S.W.2d 947, 950 (Tex. App.—Texarkana 1954, writ ref’d n.r.e.)).
“Absent an agreement, the common law permits a mineral co-tenant to extract oil
and gas but requires a producing co-tenant to account to the nonconsenting or
nonproducing co-tenant for its pro rata share of production, net of necessary and
reasonable expenses incurred in producing and marketing the same.” In re
Eagleridge Operating, LLC, 642 S.W.3d 518, 521 (Tex. 2022) (orig. proceeding);
see Cox v. Davison, 397 S.W.2d 200, 203 (Tex. 1965) (“As between the producing
cotenant and the non-joining cotenant a balance of equities has been struck. The
rule of accountability is the proportionate market value of the product less the
proportionate necessary and reasonable costs of producing and marketing.”).
“A cause of action for money had and received is not based on wrongdoing,
but, instead, looks only to the justice of the case and inquires whether the defendant
has received money which rightfully belongs to another.” Boothe v. Green, 534
S.W.3d 93, 96 (Tex. App.—Corpus Christi–Edinburg 2017, pet. denied) (quoting
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Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 860 (Tex. App.—Fort Worth 2005, no
pet.)). The claim has two elements: (1) the defendant holds money, (2) which in
equity and good conscience belongs to the plaintiff. Norhill Energy LLC v.
McDaniel, 517 S.W.3d 910, 917–18 (Tex. App.—Fort Worth 2017, pet. denied)
(citing Plains Expl. & Prod. Co. v. Torch Energy Advisors Inc., 473 S.W.3d 296,
302 n.4 (Tex. 2015)).
A “conclusory” statement is defined as “[e]xpressing a factual inference
without stating the underlying facts on which the inference is based.” See Arkoma
Basin Expl. Co. v. FMF Assocs. 1990–A, Ltd., 249 S.W.3d 380, 389 n.32 (Tex. 2008)
(citing BLACK’S LAW DICTIONARY 308 (8th ed. 2004)). Conclusory affidavits are
not sufficient to raise fact issues because they are not credible or susceptible to being
readily controverted. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996)
(per curiam). “‘Could have been readily controverted’ does not mean that the
summary judgment evidence could have been easily and conveniently rebutted, but
rather indicates that the testimony could have been effectively countered by
opposing evidence.” Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex.
1997) (quoting Casso v. Brand, 776 S.W.2d 551, 558 (Tex, 1989)). In evaluating
whether Donnell’s statements are conclusory, we must be mindful that showing
nonreceipt of royalties owed to Evans requires the Anwars to prove a negative, but
“[a]s the supreme court has observed, proving a negative is inherently difficult and
this fact should be taken into account in evaluating the quantum of proof necessary
to do so.” Harris Cent. Appraisal Dist. v. Houston Pipe Line Co LP, 706 S.W.3d
568, 578 (Tex. App.—Houston [1st Dist.] 2024, no pet.) (citing State Farm Mut.
Auto. Ins. Co. v. Matlock, 462 S.W.2d 277, 278 (Tex. 1970)).
B. Analysis
Though Evans seeks royalties that Diamondback allegedly paid to the Anwars
pursuant to the JOA for horizontal wells, claiming that those royalties should have
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been paid by Diamondback to Evans, as noted above, the Anwars’ and Evans’s
interests are in separate tracts of land. Accordingly, no duty exists for the Anwars
to pay any share of production to Evans due to a cotenancy relationship. See
Radcliffe, 521 S.W.3d at 383. Attempting to rebut this reality, Evans argues that its
claim is for “money had and received” and that “duty” is not an element of that
claim.
In their motion for summary judgment, faced with a claim by Evans that, in
the absence of a legal duty to account as a cotenant, the Anwars might nevertheless
have been paid money to which Evans was entitled, the Anwars rely on both the
language of the JOA and David Donnell’s testimony4 to establish that they did not
receive such payments. As noted by the Anwars, the JOA provides for the
distribution of “joint-development revenue in proportion to the allocated interests
agreed to by the JOA parties” and “[n]one of the Anwars’ contributed acreage [is]
co-owned by [Evans].” Donnell, in explaining the distribution of funds under the
JOA, testified as follows:
[Evans] is the lessor for a different oil and gas lease subject to the JOA,
the Evans Lease. [Diamondback] is the lessee for the Evans Lease and
contributed that lease to the JOA. [The Anwars] did not contribute the
Evans Lease to the JOA. They are not lessees for the Evans Lease.
Diamondback did not convey any interest in the Evans Lease to [the
Anwars]. None of [the Anwars] have ever been assigned the Evans
Lease in whole or in part.
[The Anwars] are not producing cotenants for the contract area.
[Diamondback] is the designated operator under the JOA. Pursuant to
that role, Diamondback has drilled horizontal wells on the contract area
and distributed proceeds from production. Thus, Diamondback is the

4
As to his qualifications, Donnell testified in his affidavit: “I am currently Land Manager for
Petroplex Energy, Inc. I have worked at Petroplex since 2012. In my capacity as Land Manager, I am
knowledgeable about the Joint Operating Agreement dated October 1, 2014 (“JOA”) and its subsequent
amendments in 2017 and 2022. I also have personal knowledge regarding the relationships and roles of the
signatories to the Joint Operating Agreements, related operations on the contract area, and the management
of the oil and gas leases governed by the JOA.”
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producing cotenant. [The Anwars] have not participated in drilling
horizontal wells on the property, other than contributing to the shared
costs pursuant to the JOA as non-operators.
As part of its role as operator, all revenue from wells producing in the
contract area goes to Diamondback, who then disperses revenue based
on the various interests determined by each contributed lease. None of
the proceeds of production from the Evans Lease have been paid to [the
Anwars]. [The Anwars] have not received any revenue attributable to
[Evans. The Anwars] have only received revenue based on the leases
they contributed to the JOA.
Contrary to Evans’s assertion, these statements are not conclusory because they are
based on underlying facts—the terms of the JOA and Donnell’s personal knowledge
of the drilling operations. See Arkoma Basin, 249 S.W.3d at 389 n.32. And
Donnell’s statements can be readily controverted because they can be countered by
opposing evidence. See Montiel, 949 S.W.2d at 310. Evans readily admits this point
in its brief: “The summary judgment record contains leases and agreements between
the various parties, but it does not contain any evidence relating to actual production,
proceeds, amount of money, or gross share of production [the Anwars] received.”
Evans had equal access to this missing evidence through discovery 5 such that it
could have included it in its response to the Anwars’ motion, yet it did move to
compel its production or to continue the summary judgment hearing. See TEX. R.
CIV. P. 166a(g); Rodriguez v. Acad., Ltd., 694 S.W.3d 780, 784 (Tex. App.—
Houston [14th Dist.] 2024, pet. denied) (“When a party contends that it has not had
an adequate opportunity for discovery before a summary-judgment hearing, it must
file either an affidavit explaining the need for further discovery or a verified motion
for continuance.”).

Why further discovery was not pursued through subpoena duces tecum and/or deposition of the
5

JOA operator, Diamondback, or of Petroplex is not explained by Evans.
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Acknowledging the difficulty in proving a negative, we conclude that the
Anwars presented sufficient evidence to establish as a matter of law that they did not
hold money which belongs to Evans, and, in its response, Evans produced no
evidence raising a genuine issue of material fact in this regard. See Koopmann, 547
S.W.3d at 865; Amedisys, 437 S.W.3d at 510–11; Harris, 706 S.W.3d at 578;
Norhill, 517 S.W.3d at 917–18. Accordingly, the trial court did not err in granting
summary judgment on Evans’s claim for money had and received. See Rodriguez,
547 S.W.3d at 837. We overrule Evans’s first issue.
V. This Court’s Ruling
We affirm the trial court’s judgment.

W. BRUCE WILLIAMS
JUSTICE

March 12, 2026
Panel consists of: Bailey, C.J., and Williams, J.
Trotter, J., not participating.6

6
At the time of submission on oral argument, Jim R. Wright, Senior Chief Justice (Retired), Court
of Appeals, 11th District of Texas at Eastland, sat on the panel by assignment. Unfortunately, he passed
away before issuance of this opinion.

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