                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                           ____________________
                             NO. 09-14-00210-CV
                           ____________________

                      ENGLOBAL U.S., INC., Appellant

                                        V.

                 JEFFERSON REFINERY, L.L.C., Appellee

_______________________________________________________           ______________

                   On Appeal from the 172nd District Court
                          Jefferson County, Texas
                        Trial Cause No. E-194,140-A
________________________________________________________           _____________

                         MEMORANDUM OPINION

      In this appeal, we are asked to determine whether subject-matter jurisdiction

existed over a Uniform Declaratory Judgments Act claim when the trial court

rendered judgment. Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-.011 (West

2015). ENGlobal U.S., Inc. asserts the dispute became moot before the trial court

rendered judgment on the claim. We conclude the trial court had jurisdiction over




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the subject matter of the suit, and we overrule the sole issue ENGlobal presents in

its appeal.

      In October 2012, ENGlobal U.S., Inc. sued Jefferson Refinery, L.L.C. to

recover the balance that it claimed it was owed under a consulting and engineering

contract that it had with the refinery. In an amended petition, filed in March 2013,

ENGlobal added a claim to its suit seeking to foreclose on a mechanic’s and

materialman’s lien that it had filed against the refinery’s property. The lien that

ENGlobal relied upon in its foreclosure claim was based on a lien affidavit that

ENGlobal filed against Jefferson Refinery’s property in the property records of

Jefferson County. The debt described in the lien affidavit concerns the same debt

for consulting and engineering services that served as the basis of ENGlobal’s

breach of contract claim.

      In its answer to ENGlobal’s suit, Jefferson Refinery denied that it owed

ENGlobal any more money under the terms of its consulting and engineering

contract with ENGlobal. Jefferson Refinery also filed a counterclaim against

ENGlobal, alleging that ENGlobal breached the parties’ contract and had

converted the refinery’s property to its use. Jefferson Refinery’s answer includes a

claim seeking declaratory relief, and Jefferson Refinery asked the trial court to

declare ENGlobal’s lien invalid.

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      In August 2013, Jefferson Refinery filed a motion for partial summary

judgment. In its motion, Jefferson Refinery sought a summary judgment on its

claim seeking to declare ENGlobal’s lien invalid, and its claim for attorney’s fees

to clear the cloud ENGlobal created on its property by filing the lien that Jefferson

Refinery claimed was invalid. Shortly before the judge ruled on Jefferson

Refinery’s motion, ENGlobal released the allegedly invalid lien. Approximately

one week later, the trial court rendered an interlocutory order granting Jefferson

Refinery’s motion for partial summary judgment. The trial court’s interlocutory

order declares ENGlobal’s lien invalid and includes an award of attorney’s fees

based on Jefferson Refinery’s declaratory judgment claim.

      In March 2014, the trial court severed Jefferson Refinery’s claim for

declaratory judgment, costs, and fees into Cause Number E-194,140-A. In April

2014, the trial court rendered a final judgment in Cause Number E-194,140-A. In

Cause Number E-194,140-A, the trial court rendered a judgment declaring

ENGlobal’s lien invalid and of no force and effect, quieted the cloud on Jefferson

Refinery’s property that ENGlobal created by filing an invalid lien, and awarded

Jefferson Refinery relief on its claim seeking to recover the attorney’s fees that

were reasonably required to have the court remove ENGlobal’s lien.




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      On appeal, ENGlobal argues that after releasing its lien, the dispute

regarding the lien became moot, causing the trial court to lose subject-matter

jurisdiction over Jefferson Refinery’s declaratory judgment action, Cause Number

E-194,140-A. In response, Jefferson Refinery argues that after ENGlobal released

its lien, a cognizable dispute remained concerning Jefferson Refinery’s claim

seeking to recover attorney’s fees under the Uniform Declaratory Judgments Act.

See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 2015)

      We agree with Jefferson Refinery’s argument that a cognizable claim for

attorney’s fees remained before the trial court after ENGlobal released its lien.

Under Chapter 37 of the Civil Practice and Remedies Code, trial courts are

authorized to award “costs and reasonable and necessary attorney’s fees as are

equitable and just” in proceedings filed pursuant to the Uniform Declaratory

Judgments Act. Tex. Civ. Prac. & Rem. Code Ann. § 37.009. In support of its

argument that no cognizable claim remained after it released its lien, ENGlobal

relies on the Ninth Court of Appeals’ opinion in Target Corporation v. Advanced

Alarm Systems, Incorporated, No. 09-06-322-CV, 2007 Tex. App. LEXIS 4431

(Tex. App.—Beaumont June 7, 2007, no pet.) (mem. op.). In Target, even though

the removal of the lien by settlement rendered the validity of the lien moot, we

exercised jurisdiction over an appeal that addressed the trial court’s denial of

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Target’s request for attorney’s fees under section 53.156 of the Texas Property

Code. Id. at **3-4. Although we noted in Target that there was nothing left for the

trial court to resolve after Advanced Alarm removed its lien, we did so because the

ruling denying fees was issued in a hearing that occurred prior to the trial court’s

rendering a judgment denying the request for fees. Id. at *4. In Target, we did not

conclude, given the procedural history of that case, that the trial court did not have

jurisdiction over the dispute. Id. at *5 Instead, with respect to Target’s claim

seeking to recover attorney’s fees, we held that Target failed to demonstrate that

the trial court abused its discretion by denying Target’s request for fees. Id. at 7.

We conclude that Target does not support ENGlobal’s argument that the trial court

did not have jurisdiction over the subject matter of Jefferson Refinery’s case.

      In declaratory judgment actions, it is well-settled law that a cognizable claim

remains before the court if a claim for attorney’s fees is pending when the trial

court renders a final judgment. See Allstate Ins. Co. v. Hallman, 159 S.W.3d 640,

642-43 (Tex. 2005) (holding that in a declaratory judgment case, the claim for

attorney’s fees prevented the appeal from becoming moot); Hansen v. JP Morgan

Chase Bank, N.A., 346 S.W.3d 769, 774-75 (Tex. App.—Dallas 2011, no pet.)

(holding that in a declaratory judgment case, as long as a claim for attorney’s fees

under the Uniform Declaratory Judgments Act is pending, the suit is not moot). In

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our opinion, the question that ENGlobal raises about the language in the judgment

declaring ENGlobal’s lien invalid concerns whether the trial court committed error

by granting declaratory relief after ENGlobal released its lien. However, ENGlobal

has not argued that the part of the judgment declaring the lien invalid should be

reversed because that part of the dispute became moot after it released its lien. See

Brooks v. Northglen Ass’n, 141 S.W.3d 158, 162 (Tex. 2004) (treating the problem

of whether the trial court should have refused to enter a declaratory judgment

under the circumstances as a question involving error, not jurisdiction).

      In this case, the argument ENGlobal presents is limited to challenging the

trial court’s jurisdiction to act in the dispute. While ENGlobal argues its release of

the lien left nothing for the trial court to resolve, the record shows that a cognizable

claim for attorney’s fees remained following ENGlobal’s release of its lien. See

Camarena v. Tex. Emp’t Comm’n, 754 S.W.2d 149, 151 (Tex. 1988) (holding that

a claim for attorney’s fee is a live controversy that prevents the case from

becoming moot).

      The Uniform Declaratory Judgments Act authorizes an award of fees if they

are otherwise available under the law. See Tex. Civ. Prac. & Rem. Code Ann. §

37.009 (authorizing a court through its equity powers to award reasonable and

necessary attorney’s fees in a declaratory judgment action); MBM Fin. Corp. v.

                                           6
Woodlands Operating Co., L.P., 292 S.W.3d 660, 669 (Tex. 2009) (reversing an

award of attorney’s fees where the recovery was not otherwise authorized by the

Legislature through a statute). In this case, several statutes were invoked by

Jefferson Refinery’s first amended and second amended petitions authorizing an

award of attorney’s fees. See Tex. Prop. Code Ann. § 53.156 (West 2014)

(authorizing award of costs and attorney’s fees in proceedings under Chapter 53 of

the Property Code to declare a lien invalid); Tex. Civ. Prac. & Rem. Code Ann. §

12.002(b) (West Supp. 2015) (authorizing award of damages that includes

reasonable attorney’s fees and costs for knowingly using a fraudulent lien); Tex.

Civ. Prac. & Rem. Code Ann. § 38.001 (West 2015) (authorizing the recovery of

reasonable attorney’s fees in suits for breach of an oral or written contract). In its

appeal, ENGlobal has not asked that we address whether Jefferson Refinery was

entitled to recover attorney’s fees given the merits of Jefferson Refinery’s

declaratory judgment action. Additionally, ENGlobal has not argued that the trial

court erred by awarding fees on the grounds that the declaratory relief Jefferson

Refinery sought duplicated the issues that it is litigating in Cause Number E-

194,140. See Etan Indus., Inc. v. Lehmann, 359 S.W.3d 620, 624 (Tex. 2011)

(reversing fees awarded in declaratory judgment action where the declaratory




                                          7
judgment claims were unwarranted because they added nothing to the other

remedies being sought).

      In its brief, Jefferson Refinery asks that we declare ENGlobal’s appeal

frivolous. Jefferson Refinery also asks that we award damages under Rule 45 of

the Texas Rules of Appellate Procedure for the delays ENGlobal caused by

pursuing an appeal. Tex. R. App. P. 45.

      We decline to impose an award of fees under the circumstances presented on

the record before us in this appeal. In deciding whether to award fees under Rule

45 of the Texas Rules of Appellate Procedure, we exercise caution. See Goss v.

Houston Cmty. Newspapers, 252 S.W.3d 652, 657 (Tex. App.—Houston [14th

Dist.] 2008, no pet.) (“Whether to grant sanctions for a frivolous appeal is a matter

of discretion that this court exercises with prudence and caution and only after

careful deliberation in truly egregious circumstances.”). “If an appellant’s

argument on appeal fails to convince us but has a reasonable basis in law and

constitutes an informed, good-faith challenge to the trial court’s judgment,

sanctions are not appropriate.” Id. We note that in this case, the trial court’s

judgment includes conditional awards of attorney’s fees to reimburse Jefferson

Refinery for the expenses that it incurred in connection with the appeal. Under the




                                          8
circumstances, we decline to grant Jefferson Refinery’s request to find ENGlobal’s

appeal frivolous. See Tex. R. App. P. 45.

      In conclusion, we have not been asked to decide if the trial court committed

error in declaring the parties’ rights and awarding fees; instead, the only matter we

are asked to decide is whether the trial court had subject-matter jurisdiction over

the dispute when it ruled. Because a claim for attorney’s fees was pending when

the trial court rendered judgment, we hold the trial court had jurisdiction over the

parties when it rendered the judgment at issue in this appeal. We overrule

ENGlobal’s sole issue and affirm the judgment.

      AFFIRMED.


                                                    _________________________
                                                         HOLLIS HORTON
                                                              Justice

Submitted on December 30, 2014
Opinion Delivered December 10, 2015

Before McKeithen, C.J., Kreger and Horton, JJ.




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