Wolfcreek Minerals, LLC and Brett Duke v. Warren Power & MacHinery, L.P. D/B/A Warren Cat and IROCK Crushers, LLC

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00056-CV

WOLFCREEK MINERALS, LLC AND BRETT DUKE, APPELLANTS/CROSS-
APPELLEES

V.

WARREN POWER & MACHINERY, L.P. D/B/A WARREN CAT AND IROCK
CRUSHERS, LLC, APPELLEES/CROSS-APPELLANTS

On Appeal from the 47th District Court
Potter County, Texas
Trial Court No. 108316-A-CV, Honorable Dee Johnson, Presiding

August 7, 2025
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.

We deny Irock’s motion for rehearing, withdraw our opinion issued on July 16,

2025, and substitute the following opinion of the Court.

This appeal arises from complex commercial litigation involving a failed rock

crusher lease-purchase arrangement. Wolfcreek Minerals, LLC and its sole member

Brett Duke sued Warren Power & Machinery, L.P. d/b/a Warren Cat and Irock Crushers,
LLC, alleging violations of the Deceptive Trade Practices Act,1 fraud, breach of warranty,

and negligent misrepresentation. Warren filed a counterclaim seeking the unpaid balance

under the parties’ lease-purchase agreement.

Following a jury trial, the parties obtained mixed results that led to post-trial

motions and this appeal. The jury found that Warren and Irock committed knowing DTPA

violations, that Irock committed fraud,2 and that Warren committed negligent

misrepresentation. However, the trial court granted defendants’ post-trial motions to

disregard the jury’s DTPA findings, concluding that Texas’s large transaction exemption

barred Wolfcreek’s DTPA claims as a matter of law. The court rendered judgment

awarding Warren $97,216.84, consisting of $41,822.27 on its breach of contract

counterclaim and $115,394.57 in attorney’s fees, offset by $60,000 for Warren’s negligent

misrepresentation. All parties appeal various aspects of this judgment.

We affirm the trial court’s application of the large transaction exemption to the

DTPA, but reverse the attorney’s fees award for lack of statutory or contractual

authorization and award a take-nothing judgment. We reverse the judgment on negligent

misrepresentation and remand it for a new trial. The remainder of the judgment is

affirmed.

BACKGROUND

Wolfcreek operates a rock crushing business serving Texas customers. In April

2018, Wolfcreek entered into a rental purchase option agreement (RPO) with Warren for

1 Texas Deceptive Trade Practices-Consumer Protection Act, TEX. BUS. & COMM. CODE ANN.
§§ 17.41–.63.
2 A damage question tied to the jury’s fraud finding was not submitted.

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a TC-15CC rock crusher to serve its customers’ needs. The RPO provided that Wolfcreek

would rent the crusher for a minimum of three months at $26,900 per four-week period,

with an option to purchase the machine for $633,097.85. Brett Duke, Wolfcreek’s sole

member, executed a personal guaranty for all obligations under the RPO.

The crusher failed to perform as anticipated, requiring Wolfcreek to rent additional

equipment and purchase crushed rock from competitors to meet customer obligations.

Wolfcreek alleged that some of these performance problems resulted from Warren’s

failure to disclose the TC-15CC was a prototype model rather than standard production

equipment. Duke also alleged that Warren misrepresented other support equipment

would be provided at no additional charge. Duke testified Wolfcreek was forced to bear

$50,000 to $52,000 per month in total equipment expenses during the rental period, in

addition to the purchased rock.

Despite these problems, the parties addressed the purchase option provision of

the RPO in October 2018. Duke signed a conversion document stating Wolfcreek’s

agreement “to purchase this machine described above at the stated conversion price in

accordance with the terms and conditions of the original rental/[RPO] agreement.”

Wolfcreek received credit toward the purchase price for lease payments made during the

rental period. Despite signing this document, Wolfcreek ultimately returned the crusher

to Warren without completing the purchase.

Wolfcreek and Duke sued Warren and Irock for equipment failures and alleged

misrepresentations. Warren raised various affirmative defenses, including the bar of the

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DTPA’s large transaction exemption.3 Warren also filed a counterclaim for the unpaid

balance under the RPO.

At trial, a jury found Irock committed fraud, Warren and Irock each committed

knowing DTPA violations, Warren committed negligent misrepresentation, and Wolfcreek

failed to pay all sums due Warren under the RPO. The jury awarded actual damages of

$24,500 each against Warren and Irock, with additional damages for knowing violations

of the DTPA in the amount of $110,000 against Warren and $200,000 against Irock. The

amount due Warren from Wolfcreek was stipulated at $41,822.27

Warren and Irock filed post-trial motions asking the trial court to disregard the jury’s

DTPA findings because the large transaction exemption applied as a matter of law. The

court granted these motions and rendered judgment that Wolfcreek take nothing on its

DTPA claims, with judgment for Warren on its counterclaim plus attorney’s fees.

Wolfcreek filed a motion for new trial, which was overruled by operation of law. This

appeal followed

ANALYSIS

I. WOLFCREEK’S APPEAL

A. The DTPA’s Large Transaction Exemption

3 See TEX. BUS. & COM. CODE ANN. § 17.49(g) (“Nothing in this subchapter shall apply to a cause

of action arising from a transaction, a project, or a set of transactions relating to the same project, involving
total consideration by the consumer of more than $500,000, other than a cause of action involving a
consumer’s residence.”).

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By its first issue, Wolfcreek argues the trial court erred in disregarding the jury’s

DTPA verdict because the large transaction exemption4 does not apply, there was

insufficient evidence supporting its application, and defendants waived the defense. We

disagree.

A trial court may disregard a jury finding if there is no evidence to support the

finding or if the finding is immaterial. TEX. R. CIV. P. 301; Spencer v. Eagle Star Ins. Co.

of Am., 876 S.W.2d 154, 157 (Tex. 1994). A jury question is considered immaterial when

it should not have been submitted, it calls for a finding beyond the province of the jury, or

it has been rendered immaterial by other findings. Southeastern Pipe Line Co., Inc. v.

Tichacek, 997 S.W.2d 166, 172 (Tex. 1999).

The DTPA does not apply when a “transaction, a project, or a set of transactions

relating to the same project, involve[s] total consideration by the consumer of more than

$500,000 . . . .” TEX. BUS. & COM. CODE ANN. § 17.49(g). The statute does not define

“total consideration” or “transaction.” In the absence of statutory definition, courts give

words their ordinary meaning and may consider dictionary definitions, judicial

constructions, and other statutory definitions. Am. Pearl Group, L.L.C. v. Nat’l Payment

Sys., L.L.C., No. 24-0759, __ S.W.3d __, 2025 Tex. LEXIS 424 at *8–9 (Tex. May 23,

2025); Colorado Cnty. v. Staff, 510 S.W.3d 435, 450 (Tex. 2017). A “transaction” under

the DTPA contemplates acts whereby an alteration of legal rights occurs. Doe v. Boys

4 TEX. BUS. & COM. CODE ANN. § 17.49(g). The 1995 revisions to the DTPA “eliminated many high-

dollar transactions from the reach of the DTPA. These changes were part of lawmakers’ efforts to maintain
the DTPA as a viable source of relief for consumers who encounter and are harmed by unscrupulous
business practices, but to remove from the scope of the Act . . . litigation between big businesses.” Teel
Bivins et al., The 1995 Revisions to the DTPA: Altering the Landscape, 27 TEX. TECH LAW REV. 1441, 1447
(1996). Senator Bivins was the senate sponsor of the bill resulting in section 17.49(g). Id. at 1441.

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Clubs of Greater Dall., Inc., 868 S.W.2d 942, 954 (Tex. App.—Amarillo 1994), aff’d, 907

S.W.2d 472 (Tex. 1995). “Total” means comprising or constituting a whole. MERRIAM-

WEBSTER’S COLLEGIATE DICTIONARY 1320 (11th ed. 2014). “Consideration” is a present

exchange bargained for in return for a promise. Roark v. Stallworth Oil & Gas, 813 S.W.2d

492, 496 (Tex. 1991).

Under the RPO, Wolfcreek’s transaction was the rental and acquisition of the

crusher through an integrated lease-purchase arrangement. The terms and pricing of the

RPO were undisputed at trial.5 If a contract has a certain and definite meaning, the

contract is unambiguous, and courts will construe it as a matter of law. Nettye Engler

Energy, LP v. BlueStone Nat. Res. II, LLC, 639 S.W.3d 682, 690 (Tex. 2022).6 The

minimum rental payments and purchase option created a unified transaction designed to

transfer ownership of the crusher to Wolfcreek. The RPO’s rental component provided

Wolfcreek the opportunity to assess the machine’s performance, while the purchase

option guaranteed Wolfcreek’s ability to acquire ownership on specified terms.7 The

agreement provided credit toward the purchase price for rental payments, demonstrating

the integrated nature of the arrangement. The total consideration Wolfcreek committed

5 That is, rental for at least three months at a four-week rate of $26,900, the option of purchasing

the crusher for a total price of $633,097.85 plus a 2% increase at any time during the RPO.
6 We construe contracts as a whole and according to their plain, ordinary, and generally accepted

meanings unless the lexical environment demands otherwise. Cook v. Cimarex Energy Co., No. 07-19-
00099-CV, 2021 Tex. App. LEXIS 2474, at *7 (Tex. App.—Amarillo Mar. 31, 2021, no pet.) (mem. op.).

7 An option states terms upon which the seller will sell if the optionee accepts. Holt v.
Pearcy/Christon, Inc., 663 S.W.2d 851, 853 (Tex. App.—Dallas, writ ref’d n.r.e.). The option holder
purchases the right to compel a sale on the stated terms before expiration. Comeaux v. Suderman, 93
S.W.3d 215, 219–20 (Tex. App.—Houston [14th Dist.] 2002, no pet.).

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to pay under this integrated arrangement exceeded $500,000, bringing it within the large

transaction exemption. TEX. BUS. & COM. CODE ANN. § 17.42(g).

Wolfcreek argues the total consideration determination must exclude the purchase

option and focus only on amounts committed at the time the parties entered the RPO.

This approach artificially fragments what the parties created: an integrated lease-

purchase arrangement. The exemption determination depends on facts existing when

the parties entered the agreement, but the analysis should consider the

“transaction . . . or a set of transactions relating to the same project,” rather than treating

the rental and purchase components as separate arrangements. See id. § 17.49(g)

(emphasis added).

Wolfcreek had choices. It could have entered only a lease agreement and received

only lease rights. Instead, it chose a purchase option and accepted the specific benefits

that option provided: protecting the equipment from sale to others and securing the right

to compel a sale on specified terms before expiration. By including the purchase option,

Wolfcreek made those terms part of the transaction. Having contracted for the option’s

benefits, Wolfcreek cannot now disclaim the burdens that flow from that same provision.

See E. Hill Marine, Inc. v. Rinker Boat Co., 229 S.W.3d 813, 820–21 (Tex. App.—Fort

Worth 2007, pet. denied) (rejecting dealer’s argument that boat dealer agreement did not

include promise to pay more than $500,000 where dealer “did not apply to sell Rinker

boats so that it could simply have that option and never use it; it applied to be a Rinker

boat dealer so that it could purchase boats and then sell them in its showroom for

profits.”).

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The trial court correctly applied the large transaction exemption to bar Wolfcreek’s

DTPA claims. The exemption determination turned on undisputed contractual terms, not

disputed facts requiring jury resolution. Wolfcreek’s arguments about insufficient

evidence and waiver therefore fail. We overrule Wolfcreek’s challenge.

B. Attorney’s Fees

Wolfcreek also challenges the trial court’s $115,394.57 attorney’s fees award to

Warren, arguing it lacked statutory or contractual authorization. Warren responds that

the “applicable law” provision for fees under the RPO includes both statutory and common

law. It contends Texas law permits fee-recovery provisions that are “looser or stricter”

than Chapter 38 of the Texas Civil Practice and Remedies Code allows. See Rohrmoos

Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469 (Tex. 2019); KC Pharmacy, LLC

v. JPMorgan Chase Bank, N.A., 2021 Tex. App. LEXIS 2183, at *21–22 (Tex. App.—

Houston [1st Dist.] 2021, no pet.) (mem. op.).

Texas follows the American Rule, which provides that litigants may recover

attorney’s fees only if specifically provided for by statute or contract. See Epps v. Fowler,

351 S.W.3d 862, 865 (Tex. 2011). We review a party’s entitlement to recover attorney’s

fees de novo as a question of law. Whittington v. Green, No. 07-18-00007-CV, 2020 Tex.

App. LEXIS 336, at *4 (Tex. App.—Amarillo Jan. 14, 2020, no pet.) (mem. op.).

Although we agree with Warren’s general discussion of the law, we disagree that

the RPO provided for attorney’s fees here. The RPO’s “Default and Remedies” section

states:

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In any event of default by Lessee, Lessor shall have all of the rights and
remedies provided by applicable law including recovery of attorney’s fees
and other costs of enforcing the RPO.

When Warren sued Wolfcreek in November 2019, the “applicable law” (section 38.001 of

the Texas Civil Practice and Remedies Code) allowed recovery of reasonable attorney’s

fees from “an individual or corporation.” Wolfcreek is a limited liability company. That

version of section 38.001 did not authorize attorney’s fees recovery against limited liability

companies. Renegade Well Services, LLC v. Amerivax, Inc., No. 07-21-00211-CV, 2022

Tex. App. LEXIS 3105, at *7–8 (Tex. App.—Amarillo May 9, 2022, no pet.) (mem. op.).

Warren’s cited authorities are inapposite because they involve fundamentally

different contractual provisions that created independent obligations to pay fees. In KC

Pharmacy, the guaranty stated that the guarantor “will also reimburse [Chase] for any

fees, charges, costs and expenses, including reasonable and necessary attorneys’ fees”

that Chase may pay in collecting from defendant. 2021 Tex. App. LEXIS 2183, at *5. In

Rohrmoos, the lease provided that “the prevailing party shall be entitled to an award for

its reasonable attorneys’ fees.” 578 S.W.3d at 488. The obligation to pay attorney’s fees

came from the text of the contract, not from an external source of law.

When reviewing agreements providing for possible recovery of attorney’s fees, “we

do not imply terms but adhere to the parties’ intent as expressed in the language of the

contract.” Rohrmoos, 578 S.W.3d at 490. Here, the RPO contains no independent fee-

shifting provision like those available in K.C. Pharmacy and Rohrmoos. Instead, it allows

Warren only the “remedies provided by applicable law.” This critical distinction means

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Warren’s recovery of fees depends on statutory or common law authority authorizing fees

against LLCs—for which no authority existed when Warren filed suit.

We sustain Wolfcreek’s second issue and render judgment that Warren take

nothing on its claim for attorney’s fees. Because this disposition resolves the attorney’s

fees issue, we need not address Wolfcreek’s related sub-issue. See TEX. R. APP. P. 47.1.

C. Jury Charge Error; Proper Remedy (Wolfcreek’s third issue and Warren’s second
issue)

Two related challenges converge at Wolfcreek’s final issue. Wolfcreek argues the

trial court erred by including it in a proportionate responsibility question without a sufficient

basis for that submission. Warren challenges the trial court’s remedy for that error.

Because the error and its remedy are intertwined, we address both together.

The jury charge asked whether Warren committed negligent misrepresentation;

the jury said yes. The charge then asked the jury to apportion responsibility between

Warren and Wolfcreek for damages caused by negligent misrepresentation. The jury

assigned 60% responsibility to Warren and 40% to Wolfcreek. However, the charge

skipped a crucial step: it never asked whether Wolfcreek’s negligence contributed to its

injury in the first place.8 Proportionate responsibility analysis requires a preliminary

finding that the plaintiff was responsible before assigning percentage fault. TEX. R. CIV.

P. 277 (requiring inquiry into percentage of responsibility “to each of the persons found to

have been culpable”); Block v. Mora, 314 S.W.3d 440, 445 (Tex. App.—Amarillo 2009,

pet. dism’d) (holding comparative responsibility “necessitates a preliminary finding that

8 The jury awarded negligent misrepresentation damages of $60,000; the judgment awarded
Wolfcreek that amount.

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the plaintiff was in fact contributorily negligent”) (citing Kroger Co. v. Keng, 23 S.W.3d

347, 351 (Tex. 2000)). The trial court erred by requiring the jury to assign percentage

fault to Wolfcreek without first determining whether it was at fault.

This error creates a remedy problem that affects both parties. Under Civil Practice

and Remedies Code § 33.012(a), the trial court ordinarily must reduce the claimant’s

recovery by an amount equal to its percentage of responsibility. But here, the jury

awarded $60,000 to Wolfcreek on its negligent misrepresentation claim, and the trial court

did not reduce the amount.

If we disregard the percentage of responsibility, as the trial court did, Warren loses

any reduction in liability despite the jury’s fault finding. If we impose the 40% responsibility

finding, we would modify a judgment in the absence of a finding that Wolfcreek was

initially responsible. In other words, any effort to provide a remedy to the charge error

potentially harms one party or the other.

Warren’s alternative remedy argument resolves this dilemma.

Even though it initially argues the jury charge was not erroneous, it alternatively

contends that if there was charge error, the appropriate remedy was a new trial, not

disregarding the jury’s findings. When an improper question is submitted to a jury and

error is preserved, the remedy upon a finding of harm is a new trial. Borneman v. Steak

& Ale of Tex., Inc., 22 S.W.3d 411, 413 (Tex. 2000). “A trial court may disregard a jury

finding only if it is unsupported by evidence . . . or if the issue is immaterial.”9 USAA Tex.

9 Neither party argues the finding was immaterial.

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Lloyds Co. v. Menchaca, 545 S.W.3d 479, 505 (Tex. 2018) (quoting Spencer v. Eagle Star

Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994)).

The trial court erred when it disregarded the jury’s comparative fault finding. The

trial court presumably did so in an attempt to remedy the erroneous submission of the

jury charge. But as explained above, that remedy carried consequences for Warren.

While the parties disagree about whether the charge was erroneous, they agree that a

new trial is the proper remedy in light of our finding of error.

We sustain Wolfcreek’s third issue and Warren’s second issue.

II. WARREN’S REMAINING ISSUE

In its other issue on appeal, Warren raises a conditional issue that applies only if

we reverse the trial court’s take-nothing judgment on the DTPA large transaction

exemption. Because we affirm the trial court’s judgment on that issue, we overrule

Warren’s issue.

III. DUKE’S APPEAL

Duke argues the trial court erred in granting Warren’s motion for directed verdict

against his individual DTPA and fraud claims. The trial court agreed with Warren that

Duke lacked “standing” to assert such claims.

A directed verdict is warranted when the evidence is such that no other verdict can

be reached, and the moving party is entitled to judgment as a matter of law. Allred v.

Freestone Cty. Fair Ass’n, No. 07-20-00168-CV, 2022 Tex. App. LEXIS 2513, at *20 (Tex.

App.—Amarillo Apr. 18, 2022, no pet.) (mem. op.). We review directed verdicts using the

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same standard as legal sufficiency challenges, examining the evidence in the light most

favorable to the party against whom the verdict was directed and disregarding all contrary

evidence and inferences. City of Keller v. Wilson, 168 S.W.3d at 823, 827–28 (Tex. 2005).

If conflicting evidence of probative value raises a material fact issue on any theory of

recovery, the determination is for the jury. Allred, 2022 Tex. App. LEXIS 2513, at *21.

Despite the parties’ and trial court’s reference to the term “standing,” we do not

construe the arguments as jurisdictional challenges, but rather as questions of whether

Duke is entitled to prevail on the merits. See Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d

763, 778 (Tex. 2020); State v. Riemer, No. 07-24-00302-CV, __ S.W.3d __, 2025 Tex.

LEXIS 4406 *5–6 (Tex. App.—Amarillo June 25, 2025, no pet. h.).

Regarding Duke’s DTPA claim, we held above that the large transaction exemption

bars Wolfcreek’s DTPA claim as a matter of law. Duke is not entitled to prevail on a DTPA

claim for the same reason.

Duke’s fraud10 claim also fails for the reasons stated below. Duke testified he

would not have signed the personal guaranty if he had known the crusher was a

prototype. Duke’s claim of injury is limited to any related to the guaranty; other injuries

belonged to Wolfcreek. See Swank v. Cunningham, 258 S.W.3d 647, 661 (Tex. App.—

Eastland 2008, pet. denied).

10 The elements of fraudulent inducement are: “(1) a material misrepresentation, (2) made with

knowledge of its falsity or asserted without knowledge of its truth, (3) made with the intention that it should
be acted on by the other party, (4) which the other party relied on, and (5) which caused injury.” Anderson
v. Durant, 550 S.W.3d 605, 614 (Tex. 2018).

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A plaintiff suing for fraud may recover economic damages, mental anguish

damages, and exemplary damages. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299,

310 (Tex. 2006). But recovery of mental anguish damages depends on proof that the

fraud proximately caused the harm. Blackwell v. Wise, No. 11-99-00224-CV, 2000 WL

34235121, at *2 (Tex. App.—Eastland July 20, 2000, no pet.) (per curiam). Proximate

cause requires both foreseeability and cause in fact—meaning the defendant’s conduct

must be a substantial factor in producing an injury that otherwise would not have occurred.

See Werner Enterprises, Inc. v. Blake, No. 23-0493, 2025 Tex. LEXIS 585, at *13 (Tex.

June 27, 2025); Potter v. HP Tex. 1 LLC, No. 05-18-01513-CV, 2020 Tex. App. LEXIS

2860, at *18–19 (Tex. App.—Dallas Apr. 6, 2020, no pet.). The plaintiff cannot rely on

“meager circumstantial evidence which could give rise to any number of inferences, none

more probable than another.” Hancock v. Variyam, 400 S.W.3d 59, 70–71 (Tex. 2013).

Although some evidence showed Duke suffered mental anguish, including

inpatient treatment related to financial strain, no evidence connects this harm to signing

the guaranty agreement. Hancock, 400 S.W.3d at 70–71. Similarly, no evidence shows

Duke personally suffered economic injury from signing the guaranty.

The evidence demonstrates that Duke’s damages resulted from Wolfcreek’s

business problems rather than from any fraudulent inducement related to the personal

guaranty. Because the trial court’s directed verdict was proper, Duke’s issue on appeal

is overruled.

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IV. IROCK’S APPEAL

Irock raises a conditional issue that applies only if we reverse the trial court’s take-

nothing judgment on the DTPA large transaction exemption. Because we affirm the trial

court’s judgment on that issue, we overrule Irock’s issue as moot.

CONCLUSION

We reverse the portion of the judgment awarding attorney’s fees to Warren and

render judgment that Warren take nothing by its claim for attorney’s fees. We reverse the

portion of the judgment pertaining to Wolfcreek’s claim for negligent misrepresentation

against Warren and remand that claim for a new trial.11 We overrule the parties’ remaining

issues and affirm the remainder of the judgment. See TEX. R. APP. P. 43.2(c),(b).

Lawrence M. Doss
Justice

11 Because Wolfcreek did not challenge the jury’s finding that Irock was not liable for negligent

misrepresentation, only Wolfcreek’s claim against Warren is now viable.

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