OPINION
In this breach-of-contract action, Marrs and Smith Partnership and its general partner, Rickey Smith, appeal the trial court’s judgment in favor of Sombrero Oil
FACTUAL AND PROCEDURAL BACKGROUND
This case marks the fourth chapter of protracted litigation involving the mineral development of the Frying Pan Ranch, which lies in parts of Loving, Winkler, and Andrews Counties, Texas, and Lea County, New Mexico. See Pagosa Oil and Gas, L.L.C. v. Marrs and Smith P’ship,
In the third chapter of litigation, Sombrero sued Appellants for breaching an oil and gas lease (“Lease”) executed in August 1999 by D.K. Boyd Land & Cattle Company, as lessor, and D.K. Boyd Oil & Gas Co., Inc., as lessee.
(1) that- [Appellants] [were] not entitled to ... no-evidence summary judgments] on [Sombrero’s] breach of contract cause of action; (2) that ... Sombrero did not satisfy its traditional summary judgment burden regarding its claim for breach of contract; and (3) that [Appellants] were not successful in establishing any of their affirmative defenses as a matter of law.
See id. at 219-220. Accordingly, we reversed and remanded the case for trial on the merits. See id. at 220.
On remand, Sombrero filed a sеcond amended petition, in which it alleged:
16. Because of Defendants’ breach, no wells were drilled on the sections covered by the Lease during the term of the Lease, despite scientific data showing substantial oil and gas reserves under those sections. Boyd, along with other working interest owners, were financially and physically able to drill, but Defendants’ breach prevented them from doing so. Drilling on those sections has subsequently confirmed the existence of substantial oil and gas reserves in the property covered by the Lease.
Sombrero then moved for partial summary judgment on its cause of action and on Appellants’ affirmative defenses. With regard to its cause of action, Sombrero sought summary judgment as to liability, choosing to litigate “the full measure of its damages at trial.” Sombrero alleged it was entitled to summary judgment “as to liability on its breach of contract claim because it ha[d] conclusively established every element of its claim, including showing ‘a monetary injury’....” According to Sombrero, the monetary injury it suffered as a result of the breach was the sum Boyd paid in leasing bonuses to the Partnership and Black Family Partnership under the lease: $68,692.18. As evidence, Sombrero attached several documents, including Boyd’s affidavit, the Lease, copies of two deposited checks totaling $49,193.71, and the letters from the Partnership’s counsel indicating its intent to rescind the lease.
Appellants responded, asserting Sombrero was not entitled to summary judgment on its breach-of-contract claim because Boyd “did not suffer any out-of-pocket monetary injury related to the leasing bonuses[,]” since it was reimbursed for those expenses by a third-party, Rutter & Wilbanks. Appellants also asserted Sombrero failed to prove that: (1) it suffered damages; (2) they caused the purported damages; and (3) their affirmative defenses were inapplicable. In addition, Appellants raised objections to some of Sombrero’s summary judgment evidence, including Boyd’s affidavit.
In conjunction with this response, Smith moved for summary judgment on both traditional and no-evidence grounds.
The trial court granted Sombrero’s motion for partial summary judgment on the liability portion of its breach-of-contract claim and denied both of Smith’s motions. Sombrero filed a third-amended petition, and the case proceeded to a jury trial on the issue of Sombrero’s damages.
At trial, the issue was the amount of lost profits, if any, Sombrero suffered as a result of Boyd’s inability to drill a well during the duration of the Lease. Sombrero argued that but for the Partnership’s breach, Boyd would have made drilled a well and rеcovered in excess of $5 million in lost profits. The jury was not convinced, declining to award any lost profits to Sombrero. The jury, however, did award Sombrero approximately $570,000 in attorney’s fees.
SUMMARY JUDGMENT
We begin by addressing Appellants’ challenges to the trial court’s ruling on Sombrero’s and Smith’s motions for summary judgment. As mentioned above, Appellants contend the trial court erred in granting partial summary judgment for Sombrero and in awarding Sombrero damages and attorney’s fees. Smith also contends the trial court erred in denying his no-evidence motion for summary judgment. We disagree.
Standard of Review
A party may move for summary judgment on both traditional and no-evidence grounds, and we review the propriety of the trial court’s ruling de novo. See Tex. R.Crv.P. 166a(c), (i); Travelers Ins. Co. v. Joachim,
To prevail on a no-evidence summary judgment motion, a movant must allege that there is no evidence of an essential element of the adverse party’s claim. Tex. R.Civ.P. 166a(i). Although the non-moving party is not required to marshal its proof, it must present evidence that raises a genuine fact issue on the challenged elements. See Tex.R.Civ.P. 166a, notes and cmts. Evidence raises a genuine issue of material fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes,
To prevail on a traditional motion for summary judgment motion, a movant must establish that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Tex. R.Crv.P. 166a(c); Provident Life & Accident Ins. Co. v. Knott,
When, as here, both sides move for summary judgment on the same issues and the trial court grants one motion and denies the other, we: (1) consider the summary judgment evidence presented by both sides; (2) determine all questions
Ti'aditional Summary Judgment
We turn to the trial court’s order granting Sombrero’s motion for partial summary judgment. Because the trial court did not specify the basis or bases for its ruling, we will affirm if any of the theories presented to the trial, court and preserved for appellate review are meritorious. See Two Thirty Nine Joint Venture,
The Partnership argues Sombrero is not entitled to summary judgment because Sombrero failed to prove the Partnership’s repudiation of the Lease was the producing cause of the reliance-interest and restitution-interest damages sought by Sombrero. See Haynes & Boone v. Bowser Bouldin, Ltd.,
Here, Sombrero sought restitution damages for the leasing bonuses paid by Boyd to the Partnership and Black Family Partnership, Ltd. and retained by them. Restitution damages are a measure of damages available for breach-of-contract claims; their purpose is to restore what the plaintiff has conferred on the defendant rather than to compensate the plaintiff. Quigley v. Bennett,
We conclude the summary judgment evidence tendered by Sombrero establishes its entitlement to summary judgment on its breach-of-contract claim. The record contains Boyd’s affidavit, in which he avers that: (1) both the Partnership and the Black Family Partnership accepted bonus payments for the first year totaling $49,193.71; (2) shortly thereafter, Appellants repudiated the Lease; and (3) whereas the Black Family Partnership accepted bonus payments for the second and third years totaling-$19,498.47, the Partnership did not. The record also contains copies of the letters sent by the Partnership’s counsel repudiating the lease and the ratification and copies of the-‘checks corrеsponding to the leasing bonuses accepted by the Partnership and the Black Family Partnership for the first year. As shown by this evidence, the Partnership accepted the first year’s bonus payment but failed to reimburse Boyd for that expense after re
The Partnership raises several arguments why Boyd’s affidavit is insufficient to establish that its repudiation was the producing cause of his out-of-pocket expenses. None of the Partnership’s arguments are persuasive, however.
First, the Partnership claims Boyd “simply fails to address the existence of a direct causal link between ... [his out-of-pocket expenses] ... [its] actions ... and the injury suffered.” Howevei-, other than generally alleging that Boyd’s affidavit is deficient in that respect, the Partnership does not explain why or how. As the pаrty seeking the reversal of summary judgment, the Partnership bears the burden to present arguments and supporting authority to merit reversal. McCoy v. Rogers,
Second, the Partnership maintains that, given “the untraditional nature of oil [and] gas leases[,]” Boyd’s averments establish that the lease expired, but fail to establish “that an act or omission of [the Partnership] caused Boyd to lose the lease.” As best we can surmise, the Partnership is arguing Boyd lost his fee simple determinable interest in the lease, not because of any breach committed by the Partnership, but because the lease expired on its own terms. See Natural Gas Pipeline Co. of Am. v. Pool,
Third, the Partnership asserts, in a footnote, that “[h]ad Sombrero demonstrated the elements of its claim as a matter of law, this record would nevertheless preclude a summary judgment because [the Partnership] proffered more than a scintilla of evidence demonstrating that its conduct was not a cause of the decision to develоp interests other than those of the partnership.” The Partnership, however, does not identify what evidence it believes raises a genuine issue of material fact, and, as noted above, Sombrero was not seeking summary judgment on the basis the Partnership’s repudiation caused Boyd to lose the Lease. Thus, the assertion that the evidence precludes summary judgment is unavailing for the reasons explained in the preceding two paragraphs.
Like the Partnership, Smith argues that “mere payment of leasing bonuses does not give risе to a claim for damages.” Smith, however, offers no reasoned analysis in support of its argument. Accordingly, Smith has failed to carry its burden to present arguments and supporting authority to merit reversal of the trial court’s summary judgment. See McCoy,
Smith also echoes the Partnership’s argument that “Sombrero failed to provide any specific evidence of leases that were lost as a result of [his] acts and/or omissions.” We reiterate that Sombrero was not seeking summary judgment on the theory that the Partnership’s repudiation re-
No-Evidence Summary Judgment
We turn next to the trial court’s order denying Smith’s motion for summary judgment on no-evidеnce grounds. Because the trial court did not specify the basis, or bases for its ruling, we will affirm if any of the theories presented to the trial court and preserved for appellate review are meritorious. See. Two Thirty Nine Joint Venture,
In arguing why he was entitled to summary judgment on no-evidence grounds, Smith asserts “Boyd suffered no out-of-pocket damages related to the payment of the leasing bonuses ... [because] [i]t is undisputed that all leasing bonuses paid by Boyd to Smith and Black [Family Partnership] were reimbursed by the Rut-ter & Wilbanks Corporation.”
Smith also argues he was entitled to summary judgment on no-evidence grounds because Sombrero “cannot allege damages fоr wells that could not and were not to be drilled during the primary term of the lease.” This is the same argument that Appellants raised-—and we resolved against them—in challenging the trial court’s summary judgment in favor of Sombrero. Thus, for the same reasons articulated above, we conclude that Smith has not shown that the trial court erred in denying his motion for summary judgment on this basis.
Smith next contends that he was entitled to summary judgment on no-evidence grounds because Sombrero could not rely on the collateral source rule to establish Boyd’s entitlement to dаmages
Appellants’ first issue is overruled.
ATTORNEY’S FEES
In their second issues, Appellants argue the trial court erred in awarding attorney’s fees to Sombrero because Sombrero failed to prove it prеsented its claim to them as required by Chapter 38 of the Texas Civil Practice and Remedies Code. Sombrero counters that it was excused from having to provide proof of presentment because it pled that all conditions precedent to recovery had been met and the Partnership and Smith failed to deny specifically which conditions precedent to the recovery of attorney’s fees had not been met. We agree.
Applicable Law
To recover attorney’s fees under Chapter 38: (1) the claimant must be represented by an attorney; (2) the claimant must present the claim to the opposing party or to a duly authorized agent of the opposing party; and (3) payment for the just amount owed must not have been tendered before the expiration of the 30th day after the claim is presented. Tex.Civ. Prac. & Rem.Code Ann. § 38.002 (West 2008). The claimant bears the burden to plead and prove presentment. Ellis v. Waldrop,
Discussion
The trial court did not err in awarding attorney’s fees to Sombrero. In its third
Aрpellants raise several arguments why Sombrero was obligated to produce specific evidence of presentment. None of their arguments are persuasive, however.
Smith, but not the Partnership, contends that he and the Partnership specifically denied the issue of presentment in their “Motion in Limine and Motion to Exclude.” In that motion, Appellants asserted Sombrero “failed to make a proper demand under Section 38.002 and failed to timely present evidence supporting its claim for attorney’s fees .... ” A party, however, must specifically deny the issue of presentment in its answer. See Ferch v. Baschnagel, No. 03-04-00605-CV,
In support of his argument that he and the Partnership specifically denied presentment by raising that issue in their “Motion in Limine and Motion to Exclude,” Smith cites City of El Paso v. Parsons,
The Partnership, unlike Smith, acknowledges its failure to “specifically deny ... [Sombrero’s] condition-precedent allegation .... ” The Partnership nevertheless argues we should prevent Sombrero from recovering attorney’s fees because the Partnership continuously questioned “the propriety of Sombrero’s presentation” throughout litigation and objected to the submission of attorney’s fees at the charge conference. However, the Partnership cites no authority, and we have found
The Partnership also asserts “the condition-precedent allegation, which does serve the purpose of presentment, is not a substitute for the evidence of presentment required under [C]hapter 38.” Yet, the Partnership does not acknowledge, let alone distinguish the authority cited above, nor doеs it direct us to any authority requiring a party to provide proof of present when that party has pled that all conditions precedent for recovery have been met and the opposing party has failed to specifically deny presentment.
The Appellants’ second issue is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Notes
. Unless otherwise indicated, we will refer to the Partnership and Smith collectively as Appellants.
. At oral argument, Sombrero informed the Court that it was pursuing its cross-appeal conditionally,
. These two entities were controlled by Dewayne Keith Boyd, the man who bought the Frying Pan Ranch in December 1996 for $13.5 million. See Marrs and Smith P'ship,
.Although Boyd assigned his potential breach-of-contract cause of action against the Partnership to Sombrero, he retained a one-third interest in any damages recovered.
. The record does not disclose if the trial court ruled on Appellants’ objections to the summary judgment evidence tendered by Sombrero. In any event, Appellants do not complain of the trial court’s failure to do so.
. The Partnership did not move for summary judgment,
. Boyd entered into an agreement with Rutter & Wilbanks to have 3-D seismic data shot of the Frying Pan Ranch and geological studies prepаred to assist in selecting the most promising locations to drill for development.
. Given our disposition of this issue, we need not address Appellants' alternate arguments that Sombrero’s letters after the onset of litigation did not constitute timely and sufficient presentations or that demands in those letters were excessive. See Tex.R.App.P. 47.1 ("The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”).
. Because we have affirmed the trial court's judgment, we do not consider Sombrero's three conditional cross-issues.