COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ACME ENERGY SERVICES, INC. d/b/a 

RIG MOVERS EXPRESS,

 Appellant,

v.

SANDRA H. STALEY, INDIVIDUALLY 

AS INDEPENDENT EXECUTRIX OF 

THE ESTATE OF GEORGE G. STALEY, 

DECEASED, AND AS TRUSTEE OF 

THE TAX FREE TRUST FOR SANDRA 

H. STALEY,

 Appellee.

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No. 08-17-00148-CV

Appeal from the

109th District Court 

of Winkler County, Texas 

(TC# 15,687–B) 

O P I N I O N

Rig Movers Express appeals the judgment of the trial court holding its lien on an oil-andgas lease had been extinguished by a prior agreement. In Issues One, Two, and Three, Rig Movers

contends the trial court (1) erred by holding there is no debt owed to Rig Movers for the Invoices; 

(2) erred in finding that no debt is owed on the Invoices; and (3) erred in finding the lien claimed 

by Rig Movers had been extinguished. In Issues Four, Five, and Six, Rig Movers contends the 

trial court (4) erred in holding that because the lien had been extinguished, Rig Movers could not 

prevail on its claims; (5) erred in holding it would not be equitable and just for the trial court to 

award Rig Movers attorney’s fees; and (6) erred in holding Rig Movers is not entitled to recover 
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attorney’s fees.1 We affirm. 

BACKGROUND

This consolidated case is about an oil-and-gas contractor who went belly up and the 

subcontractors who are seeking to satisfy invoiced obligations not fully paid in the contractor’s 

bankruptcy. The somewhat convoluted facts are as follows. In 2008, Endeavor Energy 

Resources, L.P, Big Dog Drilling, and Rig Movers Express performed oil-and-gas-related work 

on a well known as the A.G. Hill No. 1 Well. The well was located on mineral leases in Winkler 

County, Texas, known as the Section 6 Leases, and were at the time one-hundred percent owned 

by Heritage Consolidated Services and Heritage Standard Corporation. Heritage contracted with 

Lakehills Productions to provide materials and services on the A.G. Hill No. 1 Well, and Lakehills 

hired Endeavor, Big Dog, and Rig Movers as subcontractors. The Subcontractors performed the 

work as required and invoiced Lakehills for payment. But Heritage had stopped making 

payments to Lakehills, and Lakehills in turn did not pay the Subcontractors for their work. On 

December 23, 2008, the Subcontractors recorded statutory mineral property liens against Heritage 

and its ownership in the leases and the well, collectively covering $1,178,294.71 in amounts 

invoiced to Lakehills.2 In July 2009, having still not received payment on the invoices, the 

 

1

In Rig Movers’s reply brief, for the first time, it contends a joint operating agreement entered into between Staley 

and Heritage provided for several liability, and therefore Staley owes hist proportionate share of the cost of developing 

and operating the contract area.

2 The lien affidavit reads, in relevant part:

Claimant having furnished and hauled materials, machinery or supplies and/or performed 

labor, work and services for and in connection with the drilling, operating, completing, maintaining, 

equipping, or repairing of one or more oil and/or gas wells situated on the oil, gas, and mineral 

leasehold estate(s) hereinafter described, makes this Affidavit pursuant to § 56.001 et seq of the 

TEXAS PROPERTY CODE for the purpose of perfecting a lien upon the oil, gas, and mineral 

leasehold(s) described, including all property thereon as provided in § 56.002 of the TEXAS

PROPERTY CODE to secure the amount of Claimant’s claim.
3

Subcontractors filed separate suits to foreclose the liens, order a judicial sale of the well and the 

leases, and find Heritage jointly and severally liable for paying the invoiced amounts.

But before the Subcontractors filed their foreclosure suits, a separate dispute had arisen 

over an agreement involving the Section 6 Leases between Heritage and three other parties: Jeff 

Ragland, Dennis Rosini, and George G. Staley. Staley was a well-regarded geologist who had 

been hired by Heritage to overcome operational problems with the well and make it produce in 

paying quantities, for which he would receive an interest. In June 2009, as part of a settlement 

agreement, Heritage assigned working interests in the leases and well to the parties, with Staley 

 

Heritage Standard Corporation . . . and/or Heritage Consolidated, LLC . . . [business 

addresses omitted] is the owner or reputed owner of an interest in the following oil and gas lease(s) 

and/or oil, gas, and mineral leases(s) [sic]:

. . .

[LEGAL DESCRIPTIONS OF LEASES INCLUDING SUBJECT PROPERTY]

Under a contract with Lakehills Production, Inc., which was acting as a contract operator 

or agent for Heritage Standard Corporation, Claimant did furnish and haul materials, machinery, or 

supplies and/or perform labor and services on or about May 12, 2008, June 12, 2008, June 13, 2008, 

and June 25, 2008 for and in connection with the operating, completing, maintaining or repairing of 

one or more oil and/or gas wells owned or reputedly owned and/or operated by Heritage Standard 

Corporation, said well(s) being known as the AG Hill No.1 Well located in Section 6, Block 74, 

PSL Survey, Winkler County, Texas.

. . .

Claimant timely served written notice that the lien is claimed on the interest s of Heritage 

Standard Corporation and Heritage Consolidated, LLC.

The true and correct amount claimed by Claimant is One Hundred Forty six Thousand 

Seven Hundred Forty-four and 75/100 Dollars, ($146,744.75), and said amount is just and 

reasonable, due and unpaid, and all just and lawful payment, offsets, and credits have been allowed.

. . . This lien claim for the amount stated above is upon the oil, gas, and mineral leasehold(s), any 

well or wells locate[d] thereon, with all personal property, equipment, buildings, appurtenances, 

pipelines, right-of-ways, etc. located thereon and used or obtained in connection therewith and other 

items of property . . . .

. . .

Executed the 23rd day of December, 2008.
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receiving a 17.75 percent interest and Rosini and Ragland each receiving respective one-percent 

interests. Rosini and Ragland subsequently assigned their one-percent interests to Staley, leaving 

Staley with a 19.75 percent interest in the Heritage leases. Because the liens had been filed before 

these assignments were made, Staley took the assignments subject to the liens, but Staley never 

personally assumed an obligation to pay the invoices.

The Subcontractors’ suits to foreclose their liens against Heritage proceeded, and Staley 

and the others were added as Heritage’s successors in interest. More than a year later in

September 2010, while those suits were still pending, Heritage filed for Chapter 11 bankruptcy. 

The state trial court severed out the Subcontractors claims against Heritage to allow them to 

continue to pursue their claims against the remaining defendants in state court. 

Now proceeding in bankruptcy court, the Subcontractors filed proofs of claim to recover 

the invoiced amounts from Heritage. They also jointly filed an adversary proceeding in the 

bankruptcy court regarding the priority, and validity, of their respective debts and liens. Heritage 

moved for summary judgment in the adversary proceeding, claiming it did not owe the invoiced 

amounts and that the Subcontractors’ liens were invalid. The bankruptcy court agreed and 

granted summary judgment in favor of Heritage on all claims, and its decision was affirmed on 

appeal to the federal district court. 

The Fifth Circuit reversed, finding a fact question existed regarding whether Heritage owed 

the debt to the Subcontractors, and the case was remanded to the bankruptcy court for a 

determination of the validity of the debts. In June 2015, Heritage and the Subcontractors reached 

a settlement agreement to dismiss the adversary proceedings. This agreement provided that 

Heritage would acknowledge its liability for the debts, and the total amount owed to the 
5

Subcontractors would be reduced to a stipulated amount of $1,493,628.21, which represented the 

original invoiced amounts plus fifty percent of their prepetition interest and attorney’s fees. It 

also provided that $300,000 of the Stipulated Amount would be an allowed secured claim in 

Heritage’s bankruptcy, thus ensuring its payment, and the remaining $1,193,628.21 owed would 

be classified as a general unsecured claim. Paragraph seven of the agreement provided as follows:

7. Upon approval of this Stipulation, the parties agree that a dismissal with 

prejudice shall be filed in the Adversary Proceeding, with each party bearing their 

own costs and attorneys’ fees and further agree that, other than the continued 

indebtedness of the Stipulated Amount under the terms of this Stipulation, Heritage 

and the Trustee on the one hand, and Endeavor and Acme on the other, release each 

other and their respective counsel, agents, subsidiaries, and affiliates from all 

claims, causes of action, rights, demands, actions, costs, judgments, expenses, 

damages and liabilities whatsoever, at law or in equity, whether known or unknown, 

that arise out of or relate to the facts and circumstances made the basis of the 

Adversary Proceeding, or that were or could have been asserted in the Adversary 

Proceeding and/or the Proofs of Claim. In that regard, Endeavor and Acme 

acknowledge and agree that their recovery hereunder shall be in full and final 

satisfaction of their putative claims and liens against any interests of Heritage 

and/or the Trust in Section 6 Assets, and they shall not assert or enforce any claims 

and liens against any such interests, including, without limitation, any interest 

currently attributed to Trius in Section 6 Assets and/or recovered by the Trust 

through enforcement of claims against Trius in Section 6 Assets. This release is 

not intended to release any claims or liens owned or held by Endeavor or Acme 

against George Staley, J.R. Operating Company, Dennis Rosini and their 

successors and assigns.

The bankruptcy court approved this settlement in August 2015, and the Subcontractors received 

payment from Heritage in accordance with the Stipulation. 

The Subcontractors then returned to state court to attempt to foreclose on the interest held 

by Staley, who by this point had passed away and had left the interest to his wife, Sandra H. Staley, 

and to recover attorney’s fees. The trial court consolidated the Subcontractors’ suits and a bench 

trial was held in March 2017 on partially stipulated facts. The parties stipulated that Staley was 

not personally liable for the debts on the invoiced amounts and that the Subcontractors were only 
6

seeking a judgment to foreclose the liens as to Staley’s interest in the well. At trial, Staley asserted 

the liens had been extinguished because the underlying debt had been extinguished—that the 

Subcontractors had expressly released the underlying debt of the invoiced amounts owed by 

Heritage in exchange for a priority interest in the bankruptcy proceeding and an allowance of the

remaining balance as an unsecured claim, which Heritage had otherwise contested it owed. Staley

contended the only claim reserved against her and her late husband’s estate by the release was a 

claim for unjust enrichment, and because no lien existed against Staley the line reserving a lien 

against him was without effect. The Subcontractors in turn argued the Stipulation was not a 

release of the underlying debt of the invoiced amounts but merely an agreement to priority status 

in the bankruptcy. At trial, the Subcontractors orally agreed to withdraw their claim for unjust 

enrichment, which was their only claim against Staley personally. The trial court held in favor of 

Staley, finding no debt was owed to the Subcontractors on the invoiced amounts due to the 

Stipulation Agreement in the bankruptcy. Because no debt was owed to the Subcontractors on 

the invoiced amounts, the court concluded the lien was extinguished and the plaintiffs could not 

succeed on their claims and foreclose on Staley’s interest. It also concluded that because the 

Subcontractors could not succeed on their claims, they were not entitled to attorney’s fees. This 

appeal followed.

DISCUSSION

The Underlying Debt and the Stipulation

In Issues One, Two, and Three, Rig Movers contends the trial court erred in concluding the 

debts of the Invoiced Amounts were no longer owed because the underlying debt and lien were 

extinguished by the bankruptcy stipulation. 
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Standard of Review

Rig Movers frames the first three issues as legal and factual sufficiency challenges to the 

trial court’s findings on the effect of the settlement agreement on the underlying debt and its lien 

on the mineral lease. But the construction of an unambiguous contract is a question of law, which 

is reviewed de novo on appeal. Anderson Energy Corporation v. Dominion Oklahoma Texas 

Exploration & Production, Inc., 469 S.W.3d 280, 287 (Tex.App.—San Antonio 2015, no 

pet.)(citing MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650–51 (Tex. 1999)). 

A contract is unambiguous if, as worded, it can be given a clear and definite legal meaning so that 

it can be construed as a matter of law. Id., (citing Gilbert Tex. Contr., L.P. v. Underwriters at 

Lloyd’s London, 327 S.W.3d 118, 133 (Tex. 2010)); see also Columbia Gas Transmission Corp. 

v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996)(“An ambiguity does not arise simply 

because the parties advance conflicting interpretations of the contract.”). A contract is ambiguous 

if it is subject to more than one reasonable interpretation after applying the relevant rules of 

construction. In re D. Wilson Const. Co., 196 S.W.3d 774, 781 (Tex. 2006). We construe Rig 

Movers’ contention to be an attack on the trial court’s construction of an unambiguous contract. 

A reviewing court’s primary duty when construing an unambiguous contract is to give effect to 

the written expression of the parties’ intent. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133

(Tex. 1994). Each part of the contract should be given effect. Id. 

Applicable Law

The purpose of Section 56 of the Property Code is not only to give a lien to a party who 

furnishes materials, supplies, or labor, but also to put third parties who may want to acquire an 

interest in the properties at issue on notice of a claim for debt and a lien to secure that debt. Simon 
8

v. Post Oak Oil Co., 153 S.W.3d 1002, 1005 (Tex.App.—Fort Worth 1941), rev’d on other 

grounds, Oil Field Salvage Co. v. Simon, 168 S.W.2d 848 (Tex. 1943). When a party acquires a 

percentage interest in an oil and gas lease after the interest has been burdened with a materialman’s 

lien, he takes that interest subject to the lien, and the lien can be foreclosed against his interest 

even after the prior interest holder’s lien has been foreclosed upon in a separate action provided a 

deficiency remains after the prior foreclosure proceeding. Bancroft v. Welch, 258 S.W.2d 406, 

408 (Tex.App.—Eastland 1953, no pet.)(owner of a one-tenth interest in an oil and gas lease, who 

had acquired his interest after attachment of a materialman’s lien, was not made a party to a 

foreclosure proceeding against the original owner where a recovery was made, but the lien was 

allowed to subsequently be enforced against the one-tenth owner despite the recovery because a 

deficiency existed). To successfully foreclose on a materialman’s lien, the lienholder must prove 

that it performed the labor or furnished the materials and that the debt is valid. Crawford Services, 

Inc. v. Skillman Intern. Firm., L.L.C., 444 S.W.3d 265, 268 (Tex.App.—Dallas 2014, pet. dism’d). 

No lien can exist to secure payment of items that have been paid, and the satisfaction of a debt 

automatically extinguishes a lien securing that debt. Jarvis v. K & E Re One, LLC, 390 S.W.3d 

631, 642 (Tex.App.—Dallas 2012, no pet.)(citing Perkins v. Sterne, 23 Tex. 561, 563 (1859)); 

Clayton v. Bridgeport Mach. Co., 33 S.W.2d 787, 789 (Tex.Civ.App.—Eastland 1930, writ ref’d). 

An accord and satisfaction is a new contract, express or implied, in which the parties agree 

to the complete discharge of an existing obligation in a manner other than originally agreed upon. 

Trevor Rees-Jones, Tr. For Atkins Petroleum Corp. v. Trevor Rees-Jones, Tr. for Apache Services, 

Inc., 799 S.W.2d 463, 468 (Tex.App.—El Paso 1990, writ denied)(citing Harris v. Rowe, 593 

S.W.2d 303, 306 (Tex. 1979)). The parties must mutually intend that payment of the new amount 
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will amount to full satisfaction of the existing claim. Id., (citing Dahlstrom Corporation v. 

Martin, 582 S.W.2d 159, 164 (Tex.Civ.App.—Houston [1st Dist.] 1979, writ ref’d n.r.e.)). 

Absent such clear intent, the taking of some type of security for the payment of an existing 

obligation does not discharge the debtor from an action to recover under the original contract and 

does not discharge the lien arising from it. Id., (citing Keystone Pipe & Supply Co. v. Wright, 37 

S.W.2d 227, 230 (Tex.Civ.App.—Fort Worth 1931, writ dism’d)). Similarly, a release is a 

writing providing that an obligation owed to one party is discharged immediately or on the 

occurrence of a condition. In re OSG Ship Mgmt., Inc., 514 S.W.3d 331, 344 (Tex.App.—

Houston [14th Dist.] 2016, no pet.). A valid release extinguishes a claim and bars recovery on 

the released matter. Id.

In Atkins Petroleum Corp., our Court faced similar arguments to those raised in the present 

case. Atkins Petroleum Corp., 799 S.W.2d at 463. There, appellants appealed a summary 

judgment entered for lien claimants against appellants’ mineral leases, the liens having been filed 

to secure services rendered and equipment furnished in the drilling of oil-and-gas wells. Id., at 

464. Atkins Petroleum Corporation, the lease operator, owned a one-hundred percent working 

interest in the oil-and-gas leases at the time it contracted with the lien claimants. Id., at 465. 

After contracting with the lien claimants, Atkins assigned fractional ownership interests to 

appellants pursuant to prior letter agreements. Id. Subsequently, Atkins stopped making timely 

payments for the work done and the lien claimants filed their lien affidavits and attempted to 

foreclose on the liens. Id. Atkins entered a settlement agreement with the lien claimants in 

which Atkins assigned its remaining interest in the leases to the lien claimants and provided for a 

cash payment in exchange for the lien claimants not enforcing judgment against Atkins for the 
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debts it owed for the work performed. Id., at 467. A separate suit was then filed by the lien 

claimants to foreclose the liens as to the interests held by appellants for the remaining balance of 

the debt. Id., at 467. The appellants argued the trial court improperly granted summary 

judgment against them because they were only partial successors-in-interest and the settlement 

agreement between the lien claimants and Atkins was an accord and satisfaction that extinguished 

the underlying debt and liens. Id., at 467–68. In reaching our decision, we emphasized the wellestablished rule that it must be the mutual intent of the parties that payment of a new amount will 

amount to a full satisfaction of the existing claim. Id., at 468. We held the record did not reflect 

any intention to extinguish or release the liens of record because the agreement itself stated the 

lien creditors only obligated themselves to dismiss any pending suit against Atkins without 

prejudice and to assign their indebtedness and liens to a trust, with the intent that the trustee would 

pursue foreclosure of the liens. Id., at 468. Because the debt and liens were expressly reserved 

with the intent they be pursued by the trustee, we held it could not have been the mutual intent of 

the parties that the underlying debt be extinguished in exchange for the security payment and 

assignment by Atkins. Id. We also acknowledged that while a payment can be consideration for 

an accord and satisfaction to discharge an existing debt, the agreement established, by its terms, 

that there was no accord and satisfaction. Id. 

Analysis

Here, Rig Movers asserts the Stipulation only extinguished Heritage’s personal liability to 

pay the debt but left the underlying debt of the Invoiced Amounts intact against the property. 

Citing Atkins, Rig Movers contends the Stipulation did not contain express language releasing the 

lien or underlying indebtedness, and therefore the debts could not have been extinguished. 
11

Alternatively, Rig Movers contends the language in paragraph seven specifically reserving their 

“claims and liens” against George Staley establishes that it was not the mutual intent of the parties 

to release the underlying debt. Rig Movers also points to a line in the Stipulation reserving “the 

continuing indebtedness of the Stipulated Amount,” to show the debt of the Invoiced Amounts 

was not intended to be extinguished.

The present case is distinguishable from Atkins. In Atkins, the agreement reached by the 

corporation and lien claimants provided that a judgment would not be enforced against the 

corporation, dismissed the pending suit without prejudice, and expressly stated ownership of the 

debt and liens would be transferred to a trustee who would seek to foreclose the liens. Atkins 

Petroleum Corp., 799 S.W.2d at 467. But here, the language of the Stipulation expressly releases 

not only the underlying debt owed by Heritage but the lien against Heritage as well. The 

Stipulation states Rig Movers’ “recovery”—Heritage’s acknowledgment of the debt’s validity, the 

priority status in bankruptcy of part of the Stipulated Amount, and the rest of the Stipulated 

Amount as an unsecured claim—would “be in full and final satisfaction of their putative claims 

and liens against any interests of Heritage and/or the Trust in [Section 6 leases and A.G. Hill No. 

1 Well] . . . .” The Stipulation also stated each side released the other from all claims whatsoever 

“that arise out of or relate to the facts and circumstances made the basis of the Adversary 

Proceeding, or that were or could have been asserted in the Adversary Proceeding and/or the Proofs 

of Claim.” This is the type of language we acknowledged in Atkins would demonstrate a mutual 

intent to discharge a debt by accord and satisfaction. Id., at 468. While Rig Movers contends 

the language reserving “claims and liens” held against Staley preserves the debt and lien, the only 

lien on record is against Heritage for the debt of the Invoiced Amounts, which was specifically 
12

reduced to the Stipulated Amount by the terms of the Stipulation. If Staley had received his 

interest in the well prior to the perfection of the mechanic’s lien, and if the lien affidavit had been 

perfected as to both Heritage and Staley, then perhaps Rig Movers could argue severance and have 

reserved a right to proceed separately against Staley’s interest after settling with Heritage in 

bankruptcy court. Instead, the Stipulated Amount was given partial priority in the bankruptcy, 

thus ensuring payment by Heritage of at least some part of that amount, in exchange for “full and 

final satisfaction” of their claims and liens against Heritage. Thus, by its terms, the Stipulation 

was an accord and satisfaction because it was the mutual intent of the parties “that payment of the 

new amount will amount to full satisfaction of the existing claim.” Adkins Petroleum Corp., 799 

S.W.2d at 468.

Rig Movers contends that our decision in Atkins requires us to presume the lien holder did 

whatever was to the lien holder’s advantage, and it would not be to Rig Movers’ advantage to 

release the entire debt for only a fraction of what it was owed. But this is a misreading of Atkins. 

There, we held the issue of whether a merger of the estates extinguished the debt and liens was

controlled by the intention of the lienholder, as he has the election to keep it alive, and in case of 

ambiguity as to his intent it would be presumed he intended whatever was to his advantage. See 

Atkins Petroleum Corp., 799 S.W.2d at 468 (citing 50 Tex.Jur.3d Liens, § 28 (1986)). The issue 

of merger is not contended here.3

Rig Movers further asserts their lien rights could not be affected by a subsequent 

 

3 As to Rig Movers’ contention the Stipulation was without advantage for it, without speculating on the motives of 

Rig Movers, we note two significant benefits accrued to it from the Stipulation Agreement: (1) Heritage 

acknowledged its liability to pay the debt, an issue that had been litigated for six years and was still being contested

at the time of the negotiated agreement; and (2) Rig Movers received a priority payment in the bankruptcy of part of 

the Stipulated Amount and the remainder was given status as an unsecured claim.
13

agreement, citing the Fifth Circuit’s holding in the case involving Heritage’s bankruptcy, where 

that court interpreted Texas law and our holding in Atkins. Rig Movers asserts the court there 

held that a subsequent agreement cannot alter or change a lien holder’s rights, and therefore 

nothing in the Stipulation could affect Rig Movers’ lien. This is, however, a misreading of the 

Fifth Circuit’s reasoning. The passage cited by Rig Movers from that case dealt with whether the 

Subcontractors’ status as subcontractors could be affected by a subsequent agreement between the 

main contractor and other interest holders, a point that was relevant to their ability to enforce a lien 

against Heritage under Section 56 of the Property Code. In re Heritage Consol., L.L.C., 765 F.3d 

507, 515–16 (5th Cir. 2014). The Fifth Circuit held the subsequent agreement did not affect their 

status as subcontractors, quoting our decision in Atkins that the lien claimants’ status cannot be 

converted “by another contract to which they are not privy.” Id., at 516 (quoting Atkins Petroleum 

Corp., 799 S.W.2d at 465–66). By contrast, Rig Movers was a party to the agreement here, and 

its status as a lien holder can be changed by an accord and satisfaction because Texas law provides 

that satisfaction of a debt automatically extinguishes a lien securing that debt. Jarvis, 390 S.W.3d 

at 642; Clayton, 33 S.W.2d 789. 

Finally, Rig Movers also asserts liens pass through bankruptcy unaffected by discharge, 

and therefore, any agreement between it and Heritage in the bankruptcy could not have affected 

the lien. Indeed, liens do pass through bankruptcy under certain circumstances, as when they are 

not provided for and paid in full under a confirmed plan or are not extinguished by operation of 

Section 506(d) of the Bankruptcy Code. In re Kleibrink, 346 B.R. 734, 748 (Bankr. N.D. Tex. 

2006), aff’d, 3:07-CV-0088-K, 2007 WL 2438359 (N.D. Tex. Aug. 28, 2007), aff’d, 621 F.3d 370 

(5th Cir. 2010). But here, as we have already noted, the Stipulation provided that the acceptance 
14

of liability by Heritage and the granting of the priority status of part of the Stipulated Amount 

would “be in full and final satisfaction of their putative claims and liens against any interests of 

Heritage . . . .” A secured-lien holder in bankruptcy can consent to the discharge of his lien via 

agreement and secured-lien holders commonly do so. Matter of Penrod, 50 F.3d 459, 462–63 

(7th Cir. 1995)(“[S]ecured creditors commonly give up their preexisting liens for other interests 

in the reorganized firm.”). 

Accordingly, because Rig Movers’ debt was extinguished via the Stipulation, the trial court 

did not err in concluding Rig Movers could not foreclose on its putative lien against Staley’s 

interest. Issues One, Two, and Three are overruled. 

Several Liability

In its reply brief, Rig Movers raises a new issue in which it contends a joint operating 

agreement entered into between Staley and Heritage provided for several liability, and therefore 

Staley owes his proportionate share of the cost of developing and operating the contract area. A 

reply brief may not be utilized to present issues to the court that were not presented in the original 

brief. Fox v. City of El Paso, 292 S.W.3d 247, 249 (Tex.App.--El Paso 2009, pet. denied)(citing 

TEX.R.APP.P. 38.3). Accordingly, this issue is overruled. 

Attorney’s Fees Under Section 53.146 

In Issues Four, Five, and Six, Rig Movers contends the trial court erred by refusing to 

award it reasonable attorney’s fees. The trial court concluded, “It would not be equitable and just 

for the Court to award attorneys’ fees to Plaintiff when Plaintiff has failed to prevail on its claims.”

Section 53.156 of the Texas Property Code requires a court to award costs and attorney’s fees in 

an action to foreclose a lien as it deems “are equitable and just.” TEX.PROP.CODE ANN. § 53.156. 
15

Awarding fees in an equitable and just way is a matter squarely within the trial court’s discretion. 

Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). Moreover, the statute by its terms makes the 

award of attorney’s fees discretionary and not automatic, even to a prevailing party. World Help 

v. Leisure Lifestyles, Inc., 977 S.W.2d 662, 685 (Tex.App.—Fort Worth 1998, pet. denied); Texas 

Const. Associates, Inc. v. Balli, 558 S.W.2d 513, 522 (Tex.Civ.App.—Corpus Christi 1977, no 

pet.). Accordingly, the trial court did not err in denying Rig Movers attorney’s fees. Rig 

Movers’ fourth, fifth, and sixth issues are overruled.

CONCLUSION

Having overruled Issues One through Six, the judgment of the trial court is affirmed.

February 22, 2019

YVONNE T. RODRIGUEZ, Justice

Before Rodriguez, J., Palafox, J., and Larsen, Senior Judge

Larsen, Senior Judge (Sitting by Assignment)