Freeman v. Harleton Oil & Gas, Inc. (528 S.W.3d 708, 2017)

OPINION

Opinion by

Justice Moseley

“In 2008, oil and gas companies descended on east Texas ... seeking to acquire leases to exploit the Haynesville Shale formation, which they viewed as having enormous potential.” During this frenzied period, Chesapeake Louisiana, L.P, (Chesapeake), entered into a letter agreement with Buffco Production, Inc. (Buffco), and Twin Resources, L.L.C. (Twin), to • purchase three-year term assignments in all of Buffco’s and Twin’s “right, title and interest in and to the lands described” in the agreement,, which comprised at least 14,378' acres in four counties. The total purchase price for this transaction was $232,146,680.00, and included' in the transaction were Buffco’s and Twin’s interests in mineral leases in a 680-acre oil and gas property located in Harrison County called the Geisler. Gas Unit No. 1 (Geisler Unit).

Pursuant to terms of the letter agreement, Chesapeake agreed to conduct “Title Due Diligence.” It also agreed to make the same offer it had made.to Buffco and Twin “to any non-operat[ing] working interest owners ... subject to Chesapeake’s due diligence.” Chesapeake’s due diligence mistakenly concluded that Buffco and Twin owned a 50% operating working interest in the deep rights in the Geisler Unit and that Freeman Resources, Ltd.,' owned the other 50% non-operating working interest. In exchange for assignments to “all of Assignor’s right, title and interest in and to the oil; gas and mineral leasehold” in the Geisler Unit, Chesapeake paid $13,600,000.00 each to Buffco/Twin and Freeman Resources, Ltd. Critically, Chesapeake’s due diligence failed to uncover the fact that Harleton Oil & Gas, Inc., actually owned a 50% non-operating working interest to the deep rights in the-Geis-ler Unit.

When Harleton discovered the existence of the deal between Chesapeake and Buff-co/Twin, Harleton sought to recover as a third-party beneficiary of that contract. Chesapeake, which believed it had contracted • to purchase 100% of thd deep rights interests in the Geisler Unit, sued to recover “overpayments” made under the contract. After all parties filed motions for summary judgment, the trial court entered judgment which, among other things, (1) found that Harleton was a third-party beneficiary to the letter agreement, (2) granted Harleton specific performance of the letter- agreement against Chesapeake, (3) concluded that Harleton had demonstrated its entitlement to unjust enrichment claims against Buffco, Twin, and their President, Frank M. Bufkin, III (collectively the Buffco Defendants), and Wayne E, Freeman, Freeman' Resources, Ltd., and FRMGP, LLC (collectively the Freeman Defendants), as a matter of law, (4) imposed a constructive trust against the Buffco and Freeman Defendants, (5) ordered the Buffco and Freeman Defendants constructive trustees of a total of $6,800,000.00 previously paid by Chesapeake under the letter agreement, and (6) ordered the Buffco and Freeman Defendants to pay Chesapeake’s specific performance consideration to Harleton out of the funds held in the constructive trust.

All parties have appealed from the trial court’s judgment. On appeal, the Buffco Defendants argue that the trial court erred (1) in entering judgment against Bufkin personally; (2) in failing to hold that Harleton’s unjust .enrichment claims against Buffco were barred by the two-year statute of limitations; (3) in concluding that Chesapeake overpaid; (4) in failing to enforce the letter agreement as written, (a) by ignoring the risk allocation and payment provisions, (b) in concluding that Chesapeake overpaid the Buffco Defendants, (c) in finding that any such overpayment belonged to Harleton, and (d) in undoing and restructuring a completed transaction; (5) in imposing a constructive trust on the proceeds realized from the deal by the Buffco Defendants based on the unjust enrichment claim by Harleton because (a) parties cannot recover on unjust enrichment when there is a contract, (b) the Buffco Defendants owed no duty to Harleton with regard to the deal with Chesapeake, (c) the Buffco Defendants made no misrepresentation to Harleton, and (d) the Buffco Defendants received no benefit from Harleton at Harleton’s detriment; (6) in ordering the Buffco Defendants to specifically perform in the absence of any pleading against them that would entitle Harleton to specific performance against them; and (7) in determining that Harleton could enforce the letter agreement against the Buffco Defendants as a third-party beneficiary of the letter agreement.

The Freeman Defendants’ appeal argues that (1) Harleton’s unjust enrichment theory was barred by the statute of limitations, (2) Harleton cannot recover under an unjust enrichment theory due to the existence of a contract, (3) the Freeman Defendants were not overpaid because Chesapeake waived any title defects and was required to pay the full purchase price in accord with contractual terms, (4) the Freeman Defendants did not benefit by fraud, duress, or undue advantage, and Harleton failed to submit any evidence showing otherwise, and (5) Chesapeake had actual notice of Harleton’s interest before the transaction.

Chesapeake’s appeal from the trial court’s judgment challenges only the trial court’s decision to allow the Freeman Defendants to retain $408,000.00 for a 3% interest in the Geisler Unit held by Freeman Capital, Ltd. (Capital), By cross-appeal, Harleton argues that Chesapeake was liable for its attorney fees.

We resolve this appeal by making the following rulings, which are dispositive of all issues brought on appeal: (1) imposition of a constructive trust on the monies received by the Buffco and Freeman Defendants for the sums received by them from Chesapeake was improper because Harle-ton’s unjust enrichment claims were barred by the statute of limitations, (2) Chesapeake cannot recover sums from Freeman for any overpayment under the letter agreement, (3) Harleton is not entitled to recover attorney fees from Chesapeake for breach of a contract because it (being neither a primary party to the contract nor a third-party beneficiary of the contract) has no standing to enforce the letter agreement as a contract, and (4) because Harleton was neither a primary party to the contract nor a third-party beneficiary of it, the trial court was without subject-matter jurisdiction to address any breach of contract claim Harleton held against Chesapeake.

Accordingly, as set forth in detail below, we reverse the trial court’s judgment and render judgment that Harleton take nothing on all of its claims. In all other respects, we affirm the trial court’s judgment.

I. Factual Background and Procedural History

This appeal derives from a complex factual and procedural history, which we discuss to provide context to the parties’ arguments.

A. The Basis of Harleton’s Breach of Contract Claims Against the Buffco and Freeman Defendants

1. Bufkin, Buffco, Wayne, and Harleton Agree to Jointly Develop an AMI

Bufkin and Wayne E. Freeman (Wayne) had been doing business together since the 1980s. At one point, Buffco owned 100% of the working interest in the Geisler Unit leases. On February 5, 1997, it assigned 50% working interest to Wayne.

In developing the Geisler Unit leases, Buffco and Wayne decided to enter into a partnership with Harleton, an oil and gas exploration and production company. Following negotiations, Harleton entered into a letter agreement with Bufkin, as President of Buffco, on February 21, 2003, to combine their separately-owned interests into an area of mutual interest (AMI), that “[would] last until October 31, 2005.” This letter agreement, which Wayne also signed, is called the co-development agreement.

Pursuant to this letter agreement, Buff-co would operate all wells completed below the base of the Pettit Formation in the Geisler Unit, and Harleton would operate all wells in that unit which were shallower than the Pettit formation. After Harleton had completed two wells, Buffco and Freeman Resources were to assign half of their working interests (25% each) to Harleton, giving a total 50% working interest in the Geisler Unit leases to Harleton; in return, Harleton was to assign 50% working interest in certain other specified leases (the Harris leases) to Bufkin and Freeman Resources. It further clarified: “the leasehold in each unit shall remain 50% owned by [Harleton] and 50% owned by Buffco.”

Bufkin described the relationship with Harleton as a partnership, stating, “[T]he terms are I would operate and we would try to go after oil and gas property together that was marginal, and not beat each— you know, not—and always try, you know, to go after properties that we think that had value.”

2. The Right of First Refusal is Created by a Co-Development Agreement and a Joint Operating Agreement (JOA)

The co-development agreement stated, “There will be a Right of First Refusal [the ROFR] regarding third party sales.” This particular clause is the basis of Harle-ton’s complaints against the Buffco and Freeman Defendants. The co-development agreement attached a JOA and specified that it would “govern the operation and development for these units.”

The 2003 JOA stated,

Should any party desire to sell all or any part of its interests under this agreement, or its rights and interest in the Contract Area, it shall promptly give written notice to the other parties, with full information concerning its proposed sale, which shall include the name and address of the prospective purchaser ..., the purchase price, and all other terms of the offer. The other parties shall then have an optional prior right ... to purchase on the same terms and conditions.

The terms of the JOA provided that the co-development agreement would remain in full force and effect “[s]o long as any of the oil and gas leases subject to [the] agreement remain[ed] or [were] continued in force as to any part of the Contract Area, whether by any production, extension, renewal or otherwise.” As of December 9, 2014, Harleton “eontinue[d] to operate the [shallow] Pettit formation Geisler [Unit] #1.... ” The JOA was signed by Bruce Wooldridge, on behalf of Harleton as operator, Wayne, individually, and Buf-kin, individually.

3. Harleton Acquires a 50% Working Interest in the Geisler Unit

Pursuant to the terms of the co-development agreement, Bufkin and Wayne executed an assignment, effective March 1, 2003, of “50% of ASSIGNORS’ right, title and interest in and to the entire estates created by the oil, gas and mineral leases” and “50% of all of Assignors’ right, title and interest in ... operating agreements” to Harleton. The assignment was signed by Bufkin and Wayne individually, and was acknowledged by Buffco employee Kenneth Faires. As a result of this assignment, Harleton acquired a 50% working interest in the Geisler Unit.

On January 14, 2004, Wayne executed an assignment of 3% of his interests in the Geisler Unit to Capital. In 2006, Bufkin assigned to Twin all of his working interest in oil and gas leases in Harrison County, including those which made up the Geisler Unit. On September 18, 2008, Wayne executed an assignment (which became effective March 1, 2008)' of his remaining- 22% interest in the Geisler - Unit to Freeman Resources.

B. Uncóntested Facts about the Geisler Unit

1. Ownership

The actual ownership of the deep rights to the Geisler Unit prior to Chesapeake’s involvement is wholly undisputed. Harle-ton owned a"'50% non-operating working interest, Capital owned a 3% non-operating working interest, Twin owned a 25% operating working interest, and Freeman Resources’ owned a 22% non-operating working interest. The various assignments proving the actual ownership of the Geisler Unit by all four entities was duly recorded in county records prior to Chesapeake’s involvement.

2. Chesapeake Enters into Negotiations for the Deep Rights Covered in the Geisler Unit

In 2008, Chesapeake spoke to Bufkin about purchasing deep rights in the Geis-ler Unit. Bufkin retained the Shore Freeman Law Firm to represent Buffco and Twin in connection with the Chesapeake transaction. Matthew l^olcott, an attorney previously employed' by Shore Freeman, assisted in drafting an agreement to memorialize the proposed sale, the content of which is described below.

Chesapeake drafted a letter agreement with Buffco and Twin dated July 31, 2008 (Letter Agreement).- The Letter Agreement, which was on Chesapeake letterhead and addressed to Bufkin, proposed three-year term assignments of the deep rights to oil and gas properties (including the Geisler Unit) that were to be conveyed in three separate closings. In the Letter Agreement, Chesapeake submitted a cash offer of $232,146,680.00 for “all of Seller’s right, title[,] and interest in and to the lands described” in the agreement, which was said to be comprised of at least 14,378 acres in four counties. This letter contained wording to which we refer as the non-op offer clause, stating: “phesapeake also agrees to make this offer to any non-operat[ing] working interest owners in the Properties (“Non-Ops”) under the same terms and net acre price as stated in this offer.” The offer contained in the Letter Agreement was

subject to Chesapeake’s due ■ diligence ... and the following terms and conditions:

1. The Leases to be conveyed by Seller to Chesapeake under the term assignments shall include approximately 10,-683.58 net acres in the Counties of Harrison, Panola, and Shelby, and Seller’s net revenue interest for each Lease in these counties shall be no less than seventy-five percent (75%)....

14. The Leases are, or will be delivered at closing, free, and clear of any mortgages, hens or other encumbrances.

15. ■ The three Closings shall occur at a mutually agreed location as follows:

• for the Properties described in Exhibit A-l, on or before August.29, 2008;

• for the Properties described in Exhibit A-2, on or before September 18, 2008; and

• for the Properties described in Exhibit A-3, on or before October- 8,2008 (the “Final Closing”).

17. Chesapeake shall not attempt to obtain, and shall not direct any of its agents, partners, contractors, brokers, or affiliates to attempt to obtain, any mineral rights in, any unit operated by Seller for a period of 90 days after the Final Closing. , ,

Exhibit A-2 to the Letter. Agreement (which included the legal description of the Geisler Unit) contained bold . lettering which maintained,

Seller does not represent that it owns the rights below the Cotton Valley formation in all of the lands and leases described below, and Chesapeake agrees that it will perform its own title due diligence subject to the provisions set forth in Exhibit B. Seller reserves the right to supplement this Exhibit in good faith with the intention of the parties being that Seller offer[s] to convey all rights below 100 feet beneath the base of the Cotton Valley formation in the counties listed below.

Exhibit, B tp the Letter Agreement, labeled Title Due Diligence, stated,

Upon reasonable advance request from .Chesapeake, Seller [will] make available to, Chesapeake at Seller’s offices ... all existing Lease, title, contract, and legal files-related to the Properties....

.... Chesapeake will review title to the Properties prior to - Closing and notify Seller in writing of any Title Defect, it discovers as soon as reasonably practicable.... Chesapeake will be deemed to have conclusively waived any Title Defect about which it fails to notify Seller in writing within the applicable period....

The Letter Agreement was signed by Buf-kin in his representative capacity as president of both Buffco and Twin on behalf of those entities.

3. An Error in Due Diligence

After the Letter Agreement was signed, Chesapeake contracted with Dwight Snell & Associates to perform the due diligence and title work associated with the agreement. Dwight Snell & Associates arranged for Don Parkins, an independent landman, to lead the team. Parkins and his team failed to uncover the true ownership interests in the Geisler Unit. Instead, they mistakenly believed that Buffco/Twin and Freeman Resources each owned a 50% working interest in the Geisler Unit.

4. The Chesapeake Transaction Closes

On September 18, 2008, Chesapeake received two assignments, one from Freeman Resources, and the other from Buffco and Twin (Chesapeake Assignments). Under the terms of each assignment, Buffco/Twin and Freeman Resources conveyed “all of Assignor’s right, title and interest in and to the oil, gas and mineral leasehold” deep rights interests in the Geisler Unit, subject to certain reservations not affecting this dispute. The assignments further (1) provided that Chesapeake was “TO HAVE AND TO HOLD all and singular such Leases together with all rights, titles, interests, estates, remedies, powers and privileges ... subject to ... [t]he terms and conditions of’ the Letter Agreement, and (2) stated,

Assignor does hereby bind itself, its heirs, successors and assigns, to warrant and forever defend all and singular title to the Leases unto Assignee, Assignee’s successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by through or under Assignor, but not otherwise. Assignor conveys the Leases free and clear of any outstanding mortgage, deed of trust, lien or encumbrance .created by Assignor, but not otherwise.

During the closing, Chesapeake paid $13,600,000.00 in connection with the Geis-ler Unit assignment to Shore Freeman, which distributed the funds to Buffco/Twin and Freeman Resources, with each receiving $6,800,000.00.

Soon, it came to light that Chesapeake had only acquired 47% of the working interests in the Geisler Unit ,as a result of the Chesapeake Assignments. Harleton continued to own 50% of the working interest rights in the Geisler Unit, and Capital owned 3% of the working interests. This dispute ensued.

C. Events Prior to, During, and After the September 18, 2008, Closing

In addition. to the uncontested facts, many contested facts were presented in the exhibits attached to the parties’ motions for summary judgment.

Bufkin testified that Chesapeake’s interest in the Haynesville Shale was no secret and that Chesapeake approached him to express its interest in. buying deep rights to many properties in which Buffco and Twin had interests. Bufkin testified that he hired' Shore Freeman to negotiate and handle the Chesapeake transaction and relied on it for everything regarding the Chesapeake matter. Bufkin instructed Shore Freeman to “get Chesapeake happy with the title” and keep Freeman Resources and other non-ops in the loop.

1. Lack of Communications with Non-Ops .

Daryl Stallings (Chesapeake’s senior land negotiator and the person whose signature was appended to the Letter Agreement on its behalf) and George Denny, Chesapeake’s manager of business development, were intimately involved in negotiating the Letter Agreement and the Chesapeake Assignments. Stallings testified that the negotiations were strictly with Bufkin, and both Stallings and Denny clarified that neither ever spoke with the Freeman Defendants or any other non-ops before entering into the Letter Agreement. Stallings and Denny did nothing to obtain a non-op agreement prior to the sale because they both said they believed paragraph 17 of the Letter Agreement prevented them from contacting the non-ops.

According to Stallings, “[A]t each closing, [Bufkin] would bring certain parties that were his partners or working interest owners in the [Geisler Unit] to—to make those available for the closing under the same offers that he got. That was our understanding.” Stallings confirmed that “[i]f [non-ops] came to the closings with their property, they had the same offer as Buffco did.”

Wayne testified that he did not communicate with Bufkin about the Chesapeake transaction and said he first heard about it through Shore Freeman, where one of his sons, Vance Freeman, was a shareholder. Wayne testified that he was never asked to provide documentation relating to title and that he had no communication with Bufkin, Chesapeake, Harleton, or Parkins in the months leading up to the closing. Wayne created Capital’s 3% interest in the Geisler Unit, but testified that he did not speak to Brandon or Capital because it never occurred to him to do so. Although Wayne knew of the actual ownership interest in the Geisler Unit, he did not raise the issue at .closing. Since he believed that diligence regarding title had been completed by Chesapeake, it did not occur to him to do so. Wayne indicated that he believed Chesapeake was purchasing whatever interest Freeman Resources had, and “[t]o [him], that was Chesapeake’s obligation to figure out who owned what in that unit.” Wayne averred that he “never made any representations or warranties to Chesapeake regarding the percentage of working interest that [he] or any of [his] companies owned in any of the properties.”

2. Reliance on Bufkin and Shore Freeman

According to Stallings, Bufkin “knew what he owned” and “misrepresented what he owned.” Stallings said Chesapeake hired Dwight Snell & Associates because it was “trying to verify what was represented to [it] by Frank Bufkin.” Stallings testified that Chesapeake knew of neither Harleton’s nor Capital’s interest in the Geisler Unit prior to the September 18 closing. Stallings stated, “We were relying on [the due diligence] and the representations of the agent for Buffco, which was the Shore Freeman law firm, who also confirmed that they owned 50 percent each, Freeman and Buffco.”

The confirmation from Shore Freeman to which Stallings referred came in the form of a few emails. Parkins had initially mistakenly determined that a portion of the interests in the Geisler Unit were owned by PetroShore. In discussing the monies to be paid at closing, an August 25, 2008, email from Stallings to both Wolcott and Bufkin stated, “I am assuming this amount includes the Non-ops working interest owners.... Petro Shore et cetera.” The email from Stallings showed that Shore Freeman “stated [it] would disburse to all from your Trust account for simplicity purposes.” When Shore Freeman received notification that PetroShore might have an interest in the Geisler Unit, on September 9, 2008, Wolcott emailed Stall-ings, writing, “This shows that Petro Shore acquired 50% of the Geisler [Unit] GU in 1997. I haven’t checked further but did not think that Petro Shore had anything in that unit, and I know they weren’t around in ’97. Is this a typo?” Because it was discovered that PetroShore had no interest in the Geisler Unit, Parkins assumed Shore Freeman would correct further mishaps.

Stallings also believed that Bufkin would correct “title failure[s].” Stallings testified that Chesapeake did not close on other properties owned by the Buffco Defendants because Bufkin called Chesapeake to report title issues, adding that he was not ready to close. Stallings testified, “[Bufkin] withheld many of those units because they had title problems.” Stallings acknowledged that Chesapeake’s failure to point out title defects conclusively waived the title defect. Yet, he characterized the failure to own title as a “title failure,” not a title defect, such as a mechanic’s lien or other encumbrance. According to Stallings, if Chesapeake knew that Harleton had an interest in the Geisler Unit, he would have halted the transaction because of a title failure and would have instructed the sellers to work out title issues. Stallings confirmed that Chesapeake would have had no problem paying Harleton because Chesapeake “was obligated to offer through Frank Bufkin to Harleton their interest— the same offer we made to everyone else.”

On September 16, 2008, Stallings emailed Wolcott attaching the due diligence update and writing, “Here you go Matt ... please check our numbers and let me know what you think ... Don Parkins is available if you need him for questions.” On September 17, 2008, Wolcott attached “an updated breakdown showing each individual [working interest] owners allocation” and a revised price allocation spreadsheet to Stallings and Bufkin indicating that Freeman Resources was to receive $6,800,000.00 for its interest in the Geisler Unit. Bufkin testified that he reviewed the allocations on the spreadsheet, but did not check them for accuracy. Denny testified, “Pit’s obvious that record title reflected differently [than] what Mr. Bufkin had said. If Mr. Bufkin had told him the truth, then there wouldn’t have been a problem. [Parkins] could have gone back to the record and found the assignment.”

3. Harleton Claims that Chesapeake Knew of its Interest in the Geisler Unit

Harleton, however, argued that Chesapeake knew of its interest in the Geisler Unit prior to its closing under the Letter Agreement- and breached the Letter Agreement-by failing to make an offer to Harleton. On July 28, 2008, Bruce Ogilvie, a contract landman for Harleton, received an email from Chesapeake’s Land Negotiator, Steve McMillen, to . see if Ogilvie knew of any available-acreage in Panola and Shelby Counties. Copying Wooldridge, Ogilvie responded, “Harleton owns several units scattered around Panola & Harrison Cos. I think you would be interested in- the ... G[ei]sler GU (S. Harrison Co.).” In response, McMillen, copying everyone on the , chain e-mail, asked Ogilvie to provide all “units, surveys & net acres ÑRI owned by Harelton [sic]” for deep rights, which Ogilvie agreed to do. According to Ogilvie, Chesapeake did not communicate any offer to buy Harleton’s interest in the Geisler Unit at that time. The entire email chain (which also was sent to Chesapeake’s land-man in the Louisiana division, Jack Elliott) was, forwarded to Denny on September 3, 2008, prior to the closing of the Letter Agreement. When presented with evidence that the email chain had been transmitted, Stallings testified that he believed that Elliott knew-of Harleton’s interest in the Geisler Unit, but that Elliott’s and McMil-len’s knowledge about Harleton’s interest was not relayed to him. He also testified that he was not otherwise aware whether Denny had actually read the email chain prior to the closing.

4. The Mistake is Uncovered

According to the Affidavit of Wooldridge (an owner of a 50% interest in Harleton and its President), Harleton discovered in November 2008 that Chesapeake -had agreed to the non-ops offer clause in the Letter Agreement. Wooldridge learned of the sale and the Chesapeake Assignments and called a representative of Chesapeake, who advised him that they had purchased a 100% working interest in the Geisler Unit deep rights, “Ogilvie [also] talked to others at Chesapeake, including Daryl Stallings, who confirmed that Chesapeake had. paid [Buffo/Twin and Freeman Resources] for the Harleton interests.” Wool-dridge had no further discussions with anyone, representing Chesapeake and made no attempt at that time to compel Chesapeake to purchase Harleton’s interest in the deep rights of the Geisler Unit.

- In his deposition, Parkins explained his mistake. He testified that, he arrived at Buffco and was provided with the Btiffco file on the Geisler Unit, which had nothing in it referencing Harleton at all. Parkins stated, “I was waiting on files from Ken Faires to retrieve them one day. I walked out into their lobby and I saw Ken pilfering the folders. So he wasn’t going in there and just grabbing a folder and bringing it to me. He was going through the folders and giving me what he wanted.” Parkins said he believed in hindsight that Faires had been removing documents from the files. To double-check his work, Parkins obtained division orders from Bufkin’s office printed on July 23, 2008, to see what royalties and working interests were being paid out at the time. According to Parkins, the division orders listed the working interest owners as 50% Twin and 50% Freeman Resources. Parkins testified that the co-development agreement and assignments to Harleton in the Geisler Unit were not presented by the Bufkin Defendants because “they did not want [him] to see [them].”

Parkins did not check the county records, saying, that he was .told by Bufkin and Shore Freeman that his title determination was correct, When he uncovered the error and revealed Harleton’s .ownership interest to Bufkin in November 2008, Buf-kin told Parkins that Buffco’s assignment to Harleton must have been a, mistake because the assignment was only supposed to be “for a single wellbore.” When Par-kins informed Bufkin of the nature of the assignment, Bufkin stated that he needed to correct the assignment to reflect a “wellbore-for-wellbore” transaction. Par-kins asked Bufkin to address the problem.

5. Bufkin Reaches out to Harleton in ail Attempt to Correct the Mistake

Bufkin testified that he was surprised by the news of Parkins’ mistake. He claimed that he forgot about the assignments to Harleton, was unaware of Harleton’s interest, believed that Buffco/Twin and Freeman Resources each had a.50% interest in the Geisler Unit at closing, and had counted on Chesapeake to properly conduct the due diligence which the terms of the contract mentioned. Bufkin had no communications with Chesapeake about the error. Instead, because Parkins was concerned about getting fired and -asked Bufkin to help, Bufkin decided to call Harleton to engage in “shop talk about helping Harle-ton get paid.”

Wooldridge stated that after the Chesapeake Assignments were signed, Bufkin called Jerry Irwin (Harleton’s other 50% owner and its Vice-President), telling Irwin that he (Bufkin) had an opportunity to sell Harleton’s Geisler Unit deep rights. According to Irwin, “Bufkin indicated that he wanted a commission of some sort on the sale.” Both Wooldridge and Bufkin testified that mention of Chesapeake never arose during the conversation. Bufkin testified, “[Eventually,] we discussed the possibility of getting their Geisler interest in a sale.” Based on Bufkin and Irwin’s discussion, Harleton proposed a letter of intent on Harleton’s letterhead dated December 11, 2008, (Harleton Proposal), containing proposed terms for the “Term Assignment of Oil and Gas Leases Geisler Gas Unit No. 1.” The Harleton Proposal stated a purchase price of $15,000.00 an acre and provided:

Assignee has offered and Assignor has agreed to execute a Term Assignment of Oil and Gas Leases ... covering Assign- or’s leasehold and/or mineral interest in the Contract Lands. It is the intent herein to .assign all of Assignor’s leasehold interest below the base of the Cotton Valley. Sand formation in the Contract Lands whether correctly described or not.

.... This letter and Assignment is subject to the confirmed sale of the Contract Lands between Buffco and Chesapeake Exploration, L.L.C. Should , this sale fail to take place, this letter agreement shall be considered null and void with no further obligations to either party herein. ..

On behalf of Harleton,. .Wooldridge signed the Harleton Proposal and delivered it to Bufkin at Buffco’s company Christmas Party. Wooldridge and Ogilvie both stated that they met with Bufkin in January or February of 2009 to discuss the Harleton Proposal, but that Bufkin was not sure if he would sign it .and “was not sure that he owed Harleton anything.”

According to Parkins, Bufkin, who was supposed to be resolving the matter, strung him along until February 2009, at which time Parkins called Chesapeake to admit his mistake. Parkins clarified that he never dealt with Wayne.

6. Why the Harleton Proposal Failed

Bufkin explained the reason for the $15,000.00 per acre figure contained in the Harleton Proposal, saying that he believed that Chesapeake would pay and Harleton would accept $15,000.00 per acre, representing that he was simply trying to facilitate a deal between them. Bufkin testified that he did not sign the Harleton Proposal because he was no longer going to purchase their interest in the Geisler Unit. He informed Harleton that the deal was a “no go” on January 23,2009.

Harleton had a different opinion as to the reason the Harleton Proposal failed. After it fell through, Ogilvie spoke with Wayne, who said that the Chesapeake transaction was “Frank Bufkiris deal.” Harleton suggested that Bufkin made the $15,000.00 per acre offer so that he could pocket the $5,000.00 per acre difference between the Harleton Proposal and the amount that Chesapeake had already paid. According to Rodney Schultz (who identified himself as a petroleum engineer and Former Senior Reservoir Engineer for Co-nocoPhillips oil company and its project engineer charged with completing gas projects in Texas, including East Texas deep wells), “natural gas prices fell by over fifty percent” between July 2, 2008 and January 15. 2009. By January 14, 2009, it appeared that the price to acquire interests in the Haynesville Shale had further plummeted to $2,500.00 per acre.

7. Harleton Argues Breach of the ROFR

Harleton believed that the entire problem could have been avoided had the Buff-co and Freeman Defendants tendered Harleton the right of first refusal contained in the co-development agreement and the attached JOA. The ROFR operated in a manner that would have allowed Harleton to step into Chesapeake’s shoes.

The Buffco and Freeman Defendants argue that Harleton suffered no damages as a result of any breach of the ROFR. In his deposition, Wooldridge stated that he would have considered purchasing the Buffco and Freeman Defendants’ interests in the Geisler Unit for the purposes of reselling the interests. Although he had no evidence that he could have gotten more than $20,000.00 per acre from a third party, he speculated that he could have sold the Geisler Unit interests to Chesapeake, but he admitted that he would have lost money if he could not sell the interests to Chesapeake. He further admitted that he had no discussions with Chesapeake about the amount they would have been willing to pay for 100% working interest in the Geisler Unit and only speculated that he would have been able to turn a profit had he purchased the Buffco and Freeman Defendants’ interests at $20,000.00 per acre. Later in the deposition, the following discussion ensued:

Q [By Counsel for Freeman Defendants] If Mr. Freeman or Mr. Bufkin had come to you on or before July 30, 2008 and said do you want to buy our interest for somewhere—for $20,000 per ace in connection with the Geisler Unit, would you have said yes or no?

A [By Wooldridge] I would have said no.[]

At that point, Wooldridge clarified that he would have purchased the Buffco and Freeman Defendants’ interests at $15,000.00 per acre, with the intention of reselling them to Chesapeake.

Harleton argued that notice of the Chesapeake transaction would have made Harleton aware of a potential sale. Wool-dridge stated, “Had Chesapeake ever communicated an offer to buy Harletoris Geis-ler [Unit] working interest for $20,000 per net acre, Harleton would have accepted the offer and tendered the necessary term assignments.... [and] would have appeared at the scheduled closing ready, willing, and able to convey the necessary term assignment.”

Bufkin testified that he did not offer Harleton the ROFR because, although his signature was on the documents that created that right and the JOA governed his dealings with Harleton, he was unaware that it existed. Bufkin stated that the obligation to offer the ROFR belonged to Chesapeake, Shore Freeman, or someone else. At trial, the Buffco Defendants argued that the co-development agreement and the JOA had expired. Wooldridge disagreed, stating that although the AMI expired, the agreements were still in place because Harleton was still operating and producing under the terms of the agreements. He explained,

While rights of refusal may be time-limited, they need not be so. Based upon my decades of experience in the industry, rights of refusal restricting the sales of oil-and-gas working interests commonly don’t come with any calendar-date expiration period. Rather, as is commonly understood in the industry, such rights continue in force for so long as the party burdened with right of refusal owns the subject working interest.

Wayne also .testified that although the AMI expired, the obligations under the co-development agreement and the JOA were ongoing because Harleton was still producing pursuant to the terms of these agreements. However, Wayne contradicted that statement in a later affidavit in which he said that hé wqs under the impression that the co-development agreement had expired in 2005, that he had “ho recollection of ever signing a joint operating agreement covering the Geisler [Unit] and, prior to the inception qf this litigation, was firmly of the belief that no such [JOA] existed,” and that he would have offered the ROFR to Harleton if he believed that it applied.

8. Bufkin Keeps Money as an “Offset” for Money Chesapeake Owes Buffco

Stallings testified that the purchase price paid = by Chesapeake at the closing was “based. on what was presented to [Chesapeake].” According to Stallings, “The agent for them [ (Shore Freeman) ] was—was to disp[e]rse those funds to the non-ops. That was our understanding.” Stallings “assumed that if Frank Bufkin knew about Harleton, he certainly would have disbursed [the funds] to them, regardless what [their] ownership [said];”

While Bufkin maintained that -although the Buffco Defendants did not warrant title in their conveyance to Chesapeake, he believed that at the time they were signed, Chesapeake was being transferred all deep rights to the Geisler Unit at closing. Buf-kin testified that Chesapeake had failed to close on other properties and that he was holding half of the money they paid to Buffco/Twin for their interest in the Geis-ler Unit as an “offset of what [Chesapeake] owe[d]” him for those other transactions.

Because the matter could not be resolved, litigation ensued.

D. Prior State Court and Federal Court Lawsuits

Initially, Harleton sued the Buffco Defendants, Freeman, Freeman Resources, FRM GP, LLC, and Capital on April 22, 2009, in the 71st Judicial District Court of Harrison County, Texas. The causes of action raised in that state court suit were breach of the ROFR in the co-development agreement, fraud, and fraudulent inducement. Harleton later non-suited all of its claims, choosing to prosecute them by intervening in a lawsuit filed by Chesapeake in federal court.

The federal litigation began when Chesapeake sued Buffco, Twin, the Freeman Defendants, and Capital. Harleton intervened in the federal litigation, asserting the same causes of action it had previously asserted in state court and adding (1) Buf-kin as a defendant, (2) a cause of action for breach of the Letter Agreement, (3) a claim that “some” of the Defendants “intentionally and consciously concealed the working interest” of Harleton by failing to produce documents that would have shown Harleton’s interest, and (4) a cause of action for tortious interference,

Chesapeake settled its issues with the Buffco Defendants as set out in the federal lawsuit, part of which involved the dismissal of Chesapeake’s claims against them. Prior to trial, Judge Rodney Gilstrap issued a memorandum opinion and order on the parties’ motions for summary judgment. The order included the following language:

• “In the Court’s opinion, the Non-Ops Clause clearly means that Chesapeake intended to acquire all of the leasehold estate beneath the properties described in the Exhibits. This is further borne out by other provisions in the Letter Agreement which call for delivery of not less than a full 75% net revenue interest in each unit to be acquired by Chesapeake.”

• “Both Chesapeake and Buffco understood that any third-party ownership must be established and thereupon those parties would receive the same offer.”

• “[B]oth Chesapeake and Buffcof ] understood] that third-party ownership interests indeed existed and would need to be verified in order to properly effectuate .the Non-Ops Clause”’

• “[T]he parties understood that non-operating interest owners would benefit from the Letter Agreement.”

• Chesapeake, Buffco, and the Free- . man Defendants had constructive notice of the ownership in the public records,, .and .“the evidence establishes that Buffco and the Freeman Defendants also had actual notice of these interests.”

• As partners in the Geislér Unit, “there was a relationship of trust between Buffco, Freeman, Freeman Capital, and Harleton,” and Buffco and the Freeman Defendants took “undue advantage [which] created an unjust enrichment.”

• The Freeman Defendants and Buffco “conveniently ignored the known and . established 'status, of Harleton and Freeman Capital.”

• Because the Co-development Agreement expired by its own terms, no ROFR existed.

• Since Harleton said' it would not have bought the interest in the Geis-ler Unit, any claim that it was damaged by the failure to assert ROFR was “completely hollow and of no effect.”

Among other things, Gilstrap imposed a constructive trust for the benefit of Harle-ton on $6,800,000.00 held by Buffco and the Freeman Defendant's and on $408,000.00 held by Capital; Gilstrap further ordered specific performance of the Letter Agreement by requiring Harleton to execute an assignment of their rights in the Geisler Unit to Chesapeake. Although Gilstrap’s ruling was vacated after an appeal to the United States Fifth Circuit Court of Appeals and the case, with respect to the Geisler Unit, was dismissed for want of jurisdiction, Gilstrap’s ruling was adopted by the trial court in this case, as further detailed below.

E. This Lawsuit

After Gilstrap’s ruling was vacated, Harleton initiated suit June 18, 2012, in the 71st Judicial District Court of Harrison County, Texas. In that suit, Harleton asserted claims against the Buffco Defendants, the Freeman Defendants, Chesapeake, Freeman GP, Inc., and Capital, but raised no claim for unjust enrichment in that first pleading.

Harleton amended its petition March 23, 2015, wherein it omitted Capital and Freeman GP, Inc., as parties, asserted a cause of action against Chesapeake for breach of the non-ops clause, and sought the remedy of specific performance against Chesapeake. In that same petition, Harleton brought forth claims against both the Buff-co ■ and Freeman Defendants, wherein it asserted breach of the ROFR in the co-development agreement and the JOA, negligent misrepresentation, and unjust enrichment and sought the imposition of a constructive trust. Against only the Buffco Defendants, Harleton alleged common-law fraud, seeking damages, exemplary damages, and attorney fees for breaches of contract pursuant to remediéis under Chapter 38 of the Texas Civil Practice and Remedies Code.

Chesapeake answered Harleton’s suit, arguing that Harleton lacked standing or capacity to sue because it was not a third-party beneficiary to the Letter Agreement, or alternatively, that Harleton failed to tender performance under the agreement.

The Buffco Defendants’ amended answer argued that' Harleton’s claims were barred by the statute of limitations and that Harleton failed to meet the prerequisites required to obtain attorney fees, as set forth in Chapter 38 of the Texas Civil Practice and Remedies Code.

The Freeman Defendants’ answer likewise sought to interpose the statute of limitations as a defense, and asserted, further, that (1) the ROFR had expired, (2) some of the Freeman Defendants were wrongfully sued because they did not have an interest in the Geisler Unit, (3) they had no duty to inform Harleton of the Chesapeake transaction, and (4) Harleton failed to meet the prerequisites required to obtain attorney fees, as set forth in Chapter 38 of the Texas Civil Practice and Remedies Code.

Chesapeake, which had settled claims relating to the Geisler Unit with the Buff-co Defendants in the federal suit, filed cross-claims against the Freeman Defendants for breach of the Letter Agreement, unjust enrichment/failure to refund, breach of the warranties included in the Chesapeake Assignments, and misrepresentation of their ownership interest. The Freeman Defendants answered Chesapeake’s cross-claims, asserting, among other things, that they were barred by Chesapeake’s assumption of the risk as. set forth in the due diligence portions of the Letter Agreement.

F. The Parties’ Motions for Summary Judgment

Harleton filed a traditional motion for partial summary judgment on its contractual claims (breach of ROFR and breach of the Chesapeake Letter Agreement), its assertion that it was entitled to specific performance of the Letter Agreement, and the issue of attorney fees. It further argued that the existence of contracts did not preclude unjust enrichment, that the money for its interest in the Geisler Unit “equitably should come from the overpay-ments Buffco and Freeman hold,” and that Harleton could recover these funds “as a restitutionary remedy and as a remedy for unjust enrichment.”

The Freeman Defendants filed a traditional motion for summary judgment, arguing that the statute of limitations barred Harleton’s unjust enrichment and negligent misrepresentation claims, and, alternatively, a no-evidence motion based on Harleton’s admission that the Freeman Defendants never made any misrepresentations to Harleton. The Freeman Defendants also filed a no-evidence motion for summary judgment against Harleton (1) on Harleton’s unjust enrichment claims, arguing that they were not overpaid since (a) Chesapeake conclusively waived any title defects, (b) they were not holding any money that belonged to Harleton, and (c) there was no special trust or fiduciary relationship entitling Harleton to recover; and (2) on Harleton’s breach of contract claims, arguing that the ROFR expired, or alternatively, (a) Harleton had no evidence that it was damaged by any breach of the ROFR, or (b) Harleton was not entitled to summary judgment for any breach of the ROFR because there was a genuine issue as to whether Harleton would have purchased the Freeman and Bufkin Defendants’ interests in the Geisler Unit even if it had been granted the right to match the offer to purchase that had been tendered. In their response to Harleton’s motion for summary judgment, the Freeman Defendants also argued that Chesapeake knew of Harleton’s interest in the Geisler Unit before closing and that Harleton was attempting to hold the Freeman Defendants liable for Chesapeake’s breach of the Letter Agreement.

Chesapeake filed its own no-evidence motion for partial summary judgment, arguing that (1) Harleton was not a third-party beneficiary to (and could not enforce) the Letter Agreement, (2) Harleton never accepted the terms of the Letter Agreement, and (3) Chesapeake Operating was not a party to the Letter Agreement. Chesapeake also filed a traditional motion for summary judgment against the Freeman Defendants, arguing that the conveyances were warranty deeds, and that it conclusively established that the Freeman Defendants breached the warranty provisions of the Chesapeake Assignment. Chesapeake also argued that its unjust enrichment claim and money had and received claim were both conclusively established.

The Freeman Defendants filed a motion for summary judgment against Chesapeake, arguing that (1) Chesapeake’s breach of contract and breach of warranty claims were barred because it had conclusively waived all title defects and had paid for a deed of whatever interest the Freeman Defendants had in the Geisler Unit; (2) Chesapeake offered no evidence of fraud; (3) Chesapeake’s mutual mistake claims were barred by the due diligence provisions in the Letter Agreement; and (4) Chesapeake’s unjust enrichment claim was barred (a) due to the existence of a valid contract, (b) because the Freeman Defendants were holding no money belonging to Chesapeake, and (c) because Chesapeake knew of Harleton’s interest prior to closing.

The Bufkin Defendants filed a cross-motion for summary judgment, arguing that Bufkin was not individually liable because he was a party to neither the co-development agreement nor the Letter Agreement and that Twin was not a party to the co-development agreement. The Bufkin Defendants further argued that Harleton’s unjust enrichment and negligent misrepresentation claims were barred by the statute of limitations, unjust enrichment was not an independent theory of recovery, the ROFR was not breached, there was no duty to disclose the Chesapeake transaction, attorney fees could not be recovered against Twin, and there was no basis for awarding attorney fees.

G.The Trial Court Adopts Gilstrap’s Vacated Ruling

After a hearing, the trial court “adopt[ed] the ruling of ... Gilstrap.” The order granting partial summary judgment first established (1) that all parties had filed motions for summary judgment; (2) that Harleton was seeking summary judgment relief on its claims against all parties, except for (a) its claim for negligent misrepresentation against the Freeman Defendants and (b) its claim for fraud and misrepresentation against the Bufkin Defendants; (3) that Buffco, the Freeman Defendants, and Chesapeake all sought summary judgment on all of Harleton’s claims against them; (4) that the Freeman Defendants sought summary judgment on all of Chesapeake’s claims against them; and (5) that Chesapeake sought summary judgment on its claims for breach of warranty, breach of contract, unjust enrichment, and money had and received against the Freeman Defendants.

The trial court granted the Buffco Defendants’ and the Freeman Defendants’ motion for summary judgment “seeking] a dismissal of Harleton’s claims for breach of the” ROFR. It also granted the Freeman Defendant’s no-evidence motion for summary judgment on Harleton’s negligent misrepresentation claims and Chesapeake’s “refund” claims. The trial court denied Chesapeake’s motion for summary judgment against the Freeman Defendants and noted that Harleton abandoned its claims against Chesapeake Operating.

H. Harleton’s Claims for Fraud and Misrepresentation against the Buffco Defendants are Severed and Abated

Because Harleton’s fraud and misrepresentation claims against the Buffco Defendants were still pending, the trial court’s summary judgment was not a final ruling. In order to create a final, appealable order, Harleton filed a motion to sever and abate these claims, which the trial court granted. The severance provided the mechanism that allowed the trial court to enter a final judgment in this case.

I. Final Judgment and Motions for New Trial

The trial court’s final judgment decreed the Buffco and Freeman Defendants constructive trustees of the $6,800,000.00 paid by Chesapeake for the Geisler Unit and decreed Harleton the constructive beneficiary. It ordered specific performance of the Letter Agreement (which it ruled required Harleton to sign a three-year term assignment of its interests in the Geisler Unit to Chesapeake) and ordered the Buffco and Freeman Defendants to pay over and deliver the money held in the constructive trust to Harleton. The judgment dismissed Chesapeake’s claims for' overpayment, Harleton’s claim's for breach of the R.OFR, Harleton’s ■ claims against Chesapeake Operating, and Harle-ton’s claims against the Freeman Defendants based on the theory that Wolcott and Shore Freeman represented the Freeman Defendants. The trial court further denied all claims and causes' of action that were not severed, including Harleton’s claim for attorney fees.

The Freeman and Buffco Defendants filed motions for new trial, which were denied. Among other things, the Freeman Defendants argued that Harleton’s “unjust enrichment or constructive trust” claims were barred by the two-year statute of limitations. The Buffco Defendants further objected to the inclusion of relief against Bufkin, pointing out that all of the actions attributed to him were done in his capacity as an officer of the two entities making up the other .Buffco Defendants. When their motions for new trial-were denied,..this appeal ensued.

II. Standard of Review

“We review grants of summary judgment de novo.” First United Pentecostal Church of Beaumont, d/b/a the Anchor of Beaumont v. Leigh Parker, 514 S.W.3d 214, 219 (Tex. 2017) (citing Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015)). “In our review we take as true all evidence favorable to the non-movant, indulge every reasonable inference in favor of the non-movant; and resolve any doubts in the non-movant’s favor.” Id. (citing Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)).

“When a party moves for both traditional and no-evidence summary judgments, we first consider the no-evidence motion.” Id. (citing Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004)). “If the non-movant fails to meet its burden under the no-evidénce motion, there is no need to address the challenge to the traditional motion as it necessarily fails.” Id. (citing Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013)). “Thus, we first review each claim under the no-evidence standard.” Id. “To defeat a no-evidence motion, the non-movant must produce evidence raising a genuine issue of material fact as to the challenged elements.” Id. at 220 (citing Ridgway, 135 S.W.3d at 600). “A genuine issue of material fact exists if the evidence ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’ ” Id. (quoting Menell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). “The evidence does not create an issue of material fact if it is ‘so weak as to do.no more than create a mere surmise or suspicion’ that the fact exists.” Id. (quoting Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 876 (Tex. 2014)).

“Any claims that survive the no-evidence review will then be reviewed under the traditional standard.” Id. at 219-20. “Á traditional motion for summary judgment is granted only when the movant establishes there are no genuine issues of material fact and it is entitled to judgment as a matter of law.” Tipps v. Chinn Expl. Co., No. 06-13-00033-CV, 2014 WL 4377813, at *2 (Tex. App.—Texarkana Sept. 5, 2014, pets. denied) (mem. op.) (citing Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009)).

“Where, as here, both parties file dispos-itive cross motions for summary judgment and the court grants one and overrules the other, the appellate court has jurisdiction to review both the grant and the denial.” Id. (citing Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007)). In such a case, “we are to review the summary judgment evidence presented by each party, determine all questions presented, and render judgment as the trial court should have rendered.” Id. (citing Comm’rs Court v. Agan, 940 S.W.2d 77, 81 (Tex. 1997); Nash v. Beckett, 365 S.W.3d 131, 136 (Tex. App.—Texarkana 2012, pet. denied)).

III. Imposition of a Constructive Trust Against the Buffco and Freeman Defendants Was Improper Because Harleton’s Unjust Enrichment Claims Were Barred by the Statute of Limitations

A. The Law of Constructive Trusts

“A constructive trust is a creation of equity intended to prevent a wrongdoer from profiting from his wrongful acts.” Lee v. Holoubek, No. 06-15-00041-CV, 2016 WL 2609294, at *6 (Tex. App.—Texarkana May 6, 2016, no pet.) (mem. op.) (citing Gray v. Sangrey, 428 S.W.3d 311, 315 (Tex. App.—Texarkana 2014, pet. denied)). “A constructive trust is a remedy—not a cause of action.” Sherer v. Sherer, 393 S.W.3d 480, 491 (Tex. App.—Texarkana 2013, pet. denied) (citing Meadows v. Bierschwale, 516 S.W.2d 125, 131 (Tex. 1974); In re Estate of Arrendell, 213 S.W.3d 496, 504 (Tex. App.—Texarkana 2006, no pet.)). Therefore, “[a]n underlying cause of action such as a breach of fiduciary duty, conversion, or unjust .enrichment is required, The constructive trust is merely the remedy used to grant relief on the underlying cause of action.” Id.

“The trial court may impose a constructive trust ‘when one party commits fraud or breaches a confidential relationship.’” Lee, 2016 WL 2609294 at *6 (quoting In re Marriage of Nolder, 48 S.W.3d 432, 434 (Tex. App.—Texarkana 2001, no pet.)). “In addition to either actual fraud or the breach of a confidential relationship, the imposition of a constructive trust requires unjust enrichment of the wrongdoer and the identification of a specific res that can be traced back to the original res acquired by fraud or breach of a confidential relationship.” Id. ..(citing Gray v. Sangrey, 428 S.W.3d 311, 315 (Tex. App.—Texarkana 2014, pet. denied)).

B. Initial Matters

Initially, we note that Harleton (1) severed its claims for fraud and misrepresentation against the Buffco Defendants, (2) did not appeal the trial court’s decision granting summary judgment in the Freeman and Buffco Deféndants favor on breach of the ROFR, and (3) did not appeal the trial court’s decision to grant the Freeman Defendants’ no-evidence motion for summary judgment on Harleton’s negligent misrepresentation claims against them. Harleton also filed no pleading based on the breach of a fiduciary or confidential relationship. Thus, the only cause of action pled by Harleton that could support the imposition of a constructive trust is unjust enrichment.

Next, we address Harleton’s argument that the statute of limitations issue was “waived-twice” by the Buffco and Freeman Defendants. Both the Buffco and Freeman Defendants pled the affirmative defense of limitations and moved for summary judgment on the ground that the two-year statute of limitations had passed. Harleton responded to these arguments by arguing that (1) it had continuously pled facts that could give rise to a claim for unjust enrichment, (2) Harle-ton’s federal summary judgment motions and filings alleged unjust enrichment, (3) Harleton’s claims in intervention in the federal suit related back to the day Chesapeake filed its complaint in the federal litigation, (4) Harleton’s second state court suit was timely, pursuant to Section 16.064 of the Texas Civil Practice and Remedies Code, because it was filed within sixty days of the date of the dismissal of the federal suit, (5) the discovery rule and the doctrine of fraudulent concealment apply, because Harleton did not learn of the Chesapeake transaction until January or February 2009, and (6) limitations was equitably tolled.

The Buffco Defendants replied to these arguments and argued that none of Harle-ton’s theories saved their unjust enrichment claim from the application of the statute of limitations because (1) Harleton dismissed the state court suit and the limitations period had expired before the federal suit was filed; (2) the discovery rule did not apply; (3) Harleton had the burden of proving fraudulent concealment to apply a tolling provision; and (4) equitable tolling did not apply since Harleton could have simply abated its first state court suit until the resolution of the federal litigation. Although the Freeman Defendants did not reply to all of the specific limitations arguments in Harleton’s' brief, it filed a motion for new trial arguing that the trial court erred in failing to grant their summary judgment on limitations grounds. ■

We conclude that the issue of whether Harleton’s unjust enrichment claims were barred by the statute of limitations was squarely before the trial court. Finding the limitations issue preserved, we address it on the merits.

C. Limitations Barred Harleton’s Unjust Enrichment Claims

“The Texas Supreme Court has held that the two-year statute of limitations applies to unjust enrichment” claims. Sherer, 393 S.W.3d at 491-92 (citing Elledge v. Friberg-Cooper Water Supply Corp., 240 S.W.3d 869, 871 (Tex. 2007) (per curiam)); see Tex. Civ. Prac. & Rem. Code Ann. § 16.003 (West 2017). “The statute of limitations ... period start[s] to run when the unjust enrichment cause of action accrued.”