Reversed in Part, Affirmed in Part, and Re ndered , and Opinion filed January 25 , 2024

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 22

- 00219

- CV

LUIS SOLORZANO II D /B/A TEXAS CLEARING AND LE VEL ING , Appellant

V.

SAGE COM M ERCIAL GROUP LLC , Appellee

On App eal from the Co unty Civil Cour t at Law No . 4 H arris Co unty, Texas Trial Court Cause No. 1148015

O P I N I O N
Appellant Luis Solorzano II d/b/a Tex as Clearing and Leveling raises four
issues in h is appeal of the judgment rendered by the trial court in fa vor of appell ee Sage Comme rci al Group, LLC o n its declaratory

- judgment claim against
Solorzano.
In what appears to be a matter of first impression for this court, we must2 determine whether the trial court erred in determining that Solorzano did not meet
hi s burden under B u siness an d Comm erce Code chapter 56 to establish that the contingent

- payment clause in t he subcontract agreement between Sage and
Solor zano was unconscionable and therefore un enforceable

. Tex. Bus. & Com.
Code A nn. § § 56.001

– .057

. Althoug h we conclude th e contingent

- paym ent clause

was unc onscionab l e (and therefore unenforceable) due to the lack of diligence on the part of Sage, we agree with the tri al court that Solorzano released Sage from any contractual obligation to pay Solorzano by si g ning a separate release

. Solorza no also argues that Sage ’ s declaratory

- judgme nt counterclaim was inappropriate because it sought only a denial of Solorz ano ’ s claims along with an

aw ard of attorney ’ s fees. We agree w ith Solorzano , reverse the judgm ent of t h e trial court g ranting the decla ratory

- judgment action, an d render the judgment the
trial court should have rendered: a take

- nothing judgment on Solorzano ’ s claims against Sage.

I. B ACKGROUND Solorzano owns a company that perform s construction and land clear i ng. In 2016, a represen t ative of Western Spherical Deve lopers , LLC called Solorzano on the telephone ab out clearing land in La Porte, Texas. Solorzano was told that

someone w ould be in touch

. Gary Bielat of Sage la ter contacted Solorza no relating

to his q u ote.

Solorzano signed a contract with Sage ( the “ subcontractor a greement ” ) , which pro vided that Solor zano would be paid $180,000.00 by Sa g e for clearing a specific tra ct of lan d . Although the subcontractor agreement does not disclose the
owner of th e real property, the subcontractor agre ement p rovided:

T he Subcont r act o r shall file its payment application with the Contractor showing work completed during the current cale ndar3 month and payment of such application, provided same shall be f ound to be correct b y the Contractor, shall be due ne t 30 or when the Ge neral Con tra c t or receives payment from the Owner for said work, wh i chever is later

. After Solorzano had completed h alf the work, he filed a payment ap plication. Sage
informed Solorzano that it was not rec e iving any payment or response fr om Western Spherical

. Altho ugh Sage did m ake some atte mpts to contact Western Spherical , Bielat advised Solorzano to protect his rights and file a contractor ’ s lien

a gainst the real property. It is u ndisput ed th at Sage was n ever paid by Western Spherical ; and Sage , in turn , never paid Solorzano for the work perf orm ed or his
materials. In 2017 , Solorz ano filed a con tractor ’ s lien release agai nst the real property pursuant to P rop erty Code chapter 53

. See Tex. Prop. Code Ann. § § 53.021 , . 0 52

. Western Spher i cal ne v e r actually ow n ed the property

. Western Spherical ha d
b een in contract to purchase the property, but th e deal allegedl y fell t hrough over funding

. The owner of t he real property at all relevant times , 92 Fairmont Lakes, Inc., d iscovered Solorzano ’ s lien in its a ttempt to sell the property to another purchas er and contacted Solorzano to release the lien.
Malladi Reddy, on behalf of 92 F airmo nt Lakes, paid Solorzano $19 ,000 to
release his lien. Reddy ’ s non lawyer property m anager prepare d a release

ag r eement , which Solorzano signed

. However, t he release includ ed lang uage which recited payment of $90,000 and released Solor zano ’ s cla im for payment against several parties including Sage

. Sol orzano ’s material ’s supplier filed su it agai nst him in 2019 to re c over the amounts unpaid attribu t able to the projec t. In 20 2 0, Solorzano brought a third

- party peti tion for dam ages a gainst Sage , Western Spher i cal , and Gary Bielat , all eging Sage and Western Spherical failed to pay Solorzano fo r his performance under a4 s ubcontract. The trial court signed an agreed judgment in favor of the materials

s u ppl ier against Solorzano for $50,000

. Counsel for Western Spher i cal appeared
and a dmitted to liability ; t herefore, t he trial court rendered judgmen t against Western Spher i cal for the entire a mount in controversy und e r the subcontract.

In addition t o asserting affirmative de f ens es, Sage counterclaimed for declaratory judgment that (1) the contin g ent

- payment clause in the subcontract or

a greement was va lid and enforceab le and /or (2) Solo rzano’s l ien release was valid

an d enforceable

. After a be nch tria l , the tr ial court r endere d fi nal judgment for Sage on its de claratory

- judgment claim and awarded a ttor ney ’ s fees to Sage

. Solorzano now appeals the tri al court ’ s judgment in favor of Sage

. 1

II. A NALYSIS
A. Enforceability of contin g ent

- p ayment clause

1. The trial cou rt ’ s findings

In his issu e s 1 and 2 , Solorzano argues the trial court erred because : (1) the

t ri al court found it was “ not un consci onable for Sa ge Commerc i al to misrepresent
to its sub contractor tha t it has a contract with t he ow ner of the prope rty, and sh ift
the risk of collec tin g pa yment to Solorz ano when Sage Commercial had no contract with any one , much less a contract with the pro perty owner ”; and (2 ) t he
trial court found it was “ not unconsciona ble for Sage to misrepre s e nt to Solor zano that it had a co ntract with the owner of the property when Sage ’ s only contract was

a subseque nt contract with a non
- owner [.] ”
However, th e trial cour t did not make eithe r of those findings . The trial court
made th e following finding s and conclusions r e l ated to the co ntingent

- payment clause :

1 Solorzano dismissed his claims against Bielat on the record at the time of trial

.5 iii. Solorzano f a iled to meet [his] burden of proof to show that the contingent paym ent clause was unconscionable pursuant to Section 56.054 (a) of the Texas Business & Commerce Code based on the facts presented at th e time of trial: a. Sage made mul tiple attempts to collec t the amounts due and owing to Solorzano from Western; b. Sage enc ouraged Solorzano to file a lien claim to preserv e his right to payment; c. Solorzano had knowledge of the o wner, Western [Spherical] , prior to e n g aging in work on the Project; d . Solorzano was able to s ucce ssfully file a lien on the Project without seeking additional information from Sage; e. Solorz ano never requested an assignment of Sage’s right to payment from Western [Spherical] ; f. Solorzano received pay m e nt and release d the lien for th e total value purported t o be due and owing; g. Solorzano is the only contractor to be pai d anything for the work p erformed on this Project prior to Josh Materials, Inc.’s judgment against Solorzano ; and, h. Solorzano faile d to pay any por tion of the amoun t he received from Dr. R e ddy to his material supplier Josh Materials. Taking all of these facts into account the co ntingent payment clause is valid and enforceable and is not considered unconscionab le; therefore, Sage did n o t breach the Su bcontract and doe s not owe any funds to S o lorz ano. Because Solor zano specifically explains in his brief th at he is challenging
the l egal and factual sufficiency of the trial court ’ s findings , we construe issue s 1

an d 2 as a s ingle issue ch a l lenging the legal and factual su fficiency of the eviden c e
sup porting the trial court ’ s conclusion that the con tin gent

- payme nt clause is valid,
enfo rceable, and not unconscionable. 2

2 Solorzano specifically ex plain ed that he is raising on appeal legal

- and factual

su fficiency challenge s to the findings of the trial court:6 2. Statu tory prohibition on contingent

- pay ment cla u ses
Business and C ommerce Code c hapter 56 govern s c ons truction contracts with contingent

- payment clauses

. The provisions of the statute cannot be waived, and any purported waiver is void. Tex. Bus. & Com. Code Ann. § 56.004.

A contingent

- payment clause ma y not be enforced by a contingent payor if
enforc e ment would be unconscion able, and the party asserting that a contingent

- payment clause is unconscionable has the burden of pr oving that the
clause is unconscionable. Tex. Bus. & Com. Code Ann. § 56.054(a)

. T he statute explains when a contract is not unconscionable : (b) The enforcement of a contingent payment clause is not unconscionable if the contingent payor: (1) proves that t he contingent payor has exercised diligenc e in ascertaining and communica t ing in writing to the contingent payee, before the co ntract in which the contingent payment clause has been asserted becomes enforceable against the contingent payee, the financial v iability of the primary obligor and the existence of adequate financial a rrangements to pay for the improv ements; and (2) has done the following: (A) made reasonable efforts to collect the amount owed to the contingent payor; or (B) made or offered to make, at a reasonable time, an assignment by t he contingent payor to the cont i ngent payee of a cause of action against the obligor for the amounts owed to the contingent payee by the contingent payor and offered reasonable cooperation to the

O n his four issues, A ppella nt challenges the legal and factual sufficiency of the

ev id ence to sup port the trial court finding s of fact and seeks de novo review of the trial court’ s conclusions of l aw as follows: Findin gs of fact numbers 7, 9, 11, 13, 16, 17, 27 and Conclusions of Law numbers 5 (introduction paragraph), 5ii, 5iii, 5iii(a), 5 iii(c), 5ii i(d), 5i ii(f), 5iii(g), 5 (c oncluding paragraph), 6, 8, 9, 10, 11, and 12.7 contingent payee ’s collection efforts, if the assigned

caus e of action is not subject to d e fenses caused by the contingent payor ’s action or failure to act

. Tex. Bus. & Com. Code Ann. § 56.054(b)

. A contingent payor is considered to have exercised di ligence in ascertaining and communicating in writing to the cont ingent payee if the contingent p ayee receives in writing from th e contingent payo r: (1) t he name, address, and business telephone number of the pr imary obligor; (2) a description, legally sufficien t for identification, of t he property

on which the improvements are being construc ted; (3) the name an d address of the surety on any pa yment bond prov ided under Subchapter I, Chapter 53, Property Code, to which any notice of claim should be sent; (4) if a loan h as been obtained for the c on struction of improvements: A. a statement, furnished by the primary obligor and supported by reasonable and credible evid ence from all applicable lenders, of the am ount of the loan;
B. a summary of the terms of the loan; C. a statemen t of whether there is fore seeab le defaul t of the primary obligor; and
D. th e name, a ddress, and business t e lephone number of the borrowers and lender s; and (5) a statement, furnished by the primary obligor and supported by reasonable and credible evidence from al l applicable banks or ot her dep ository institutions, of the amount, sour ce, and location of funds avail a ble to pay the balance of the co ntract am ount if there is no loan or the loan is not sufficient to pay for all of the construction of the improvements

. Tex. Bus. & Com. Code An n. § 56.054( d ). 3. Solorzano met his burde n on unco nscionab ility
Although the tria l court ’ s findings of fact and co nclusions of law state that8 Solorzano did not meet his burden, the trial court ’ s findings of fact do n ot support this co nclusion

.

“ Generally , a contrac t is unconscionable if, ‘ given the parti es ’ general

commer cial backgrou n d and the commercial needs of th e partic ular trade or case , the clause involved is so one
- sided that it is unconscionable under the
circumstances exi st ing when the parties made the con tract

. ’ ” In re Olshan Found. Repair Co., LLC , 328 S.W.3d 8 83, 892 (Tex. 2010) (quoting In re FirstMerit Bank , N.A. , 52 S.W.3d 749, 757 (Tex. 2001) ). “ The principle is one of the prev ention of oppression and unfair surprise and not of disturbance of allocat ion of risks because of superior ba rg aining power. ” Tex. Bus. & Com. Code Ann. § 2.302 cmt. 1 (internal citati on omitted). The facts of this c ase involve a one
- sided c lause and a
sub contractor w ho was not given complete information about the project on whi ch he was working and the parties w ho were engaging his services.

Solorz ano eli cited testimony at trial establ ishing that Sage did no ne of th e things re quired by statute to a void th e conclus ion of unconscionability. See Tex. Bus. & Com. Code Ann. § 56.054( d). None of the trial co urt ’ s findings of fact

trac k the el ements in chapter 56 to support its conclusion tha t Solorzano did not
meet his bur d en. Other than the subcontract o r agreem ent it self, the record reflec ts nothin g was provi ded in writing to Solorzan o about the project or t he prop erty

owner

. If Sage sought disclosure from We stern S p herical regard ing its funding or
fi nancial resources available to c o ver the cost of the work perfor med , the record
does not reflect any such efforts

. Sage argues that Solor zano “ knew ” Western S p herical before Sage w as involved; therefore , Sage w as relieved of its res ponsibility to provide any
informa tion in writing as required by s t atute. S olorza no testified he had no pre
existing relationship with Western S p herical an d he w as called by Western9 S p herical out of the bl ue . However, even if Sage believed that Solorzano had previously worked on a different p roject with Wester n S p herical or “ k n ew ”
Western S p herical , the language of the statu t e does not support Sage ’ s position that they did not need to provid e p roject financi al information or b as ic information
about Western S p herical to rely on the contingent

- payment clause. To the contrary, section 56.054 makes cl e ar that a general contractor must ex er cise diligence with respect to each contract on which it se eks to enforce a continge nt

- payment clause.
See Tex. Bus. & Com. Code Ann. § 56.054

. Sage also offers no auth o rity to
supp ort their position.
Sage a rgues on appeal that Sage and Solor zan o “ entered a clear, unequiv ocal and expre ss agreement to shift the risk of Western ’ s nonpaymen t . . . to Solorzano. ” However, Sage ’ s arguments on this issue are unpersuasive becau se it
does not discuss the effect of c h apter 56 on the facts at issue , nor do es Sage rely on
caselaw written after the enactment of chapter 56.

We sustain issue s 1 and 2

.
B. Release of lien In issue 3, Solorzano argues the trial court erred in concl uding that “ the Release is valid, enforceable and relieves Sage of any paymen t oblig ations un der the subcontract agreement. Furt her the R elease constitutes an accord and
sati sf action of the Subcontract value. ”

We now consider whether the tria l court ’s dete rmination that the release was enforceable ag a inst Solorzano with respect to Sage w a s in error

. The release signed by Solorzano provided the following : The total of $90,000 .0 0 of all charges for and in connection with such labor performed and mat erial fur n ished by the subcontractor, through this dat e has been paid in full to the10 Subcontr ac tor by 92 Fair mont Lakes, Inc., and Mallad i S. Reddy, ind ividually , to satisfy unpaid i nv oices owed by Sage Commercial Group, 92 Fairmont Lakes, Inc, and Malladi S. Reddy , individually to [Solorzano]. [Solor zano] ac k nowledges complete satisfactio n of, an d for good and v aluable consideration, the r eceipt and sufficiency of which are hereby ac kn owledged, hereby forever waives and rel eases all liens and claims of lien of ever y kind against Owner, [Sage ] , or the Property [ .]

. . . . A ll of the provisio n s of th is document shal l bind [Solorzano] and [his] heirs, legal representatives, successors and a ssigns and shall inure to the benefit of . . . [Sage Commercial ] and [Sa ge Commer cial ’ s] heirs, legal representatives, suc c ess o rs, and assigns. Solorzano arg ues that th e relea se does not match with the intenti on of the parties . He cites testimony at trial that Sage never paid t he amounts identified in
the release and explains that t his is evidence there was no accord and satis faction

. So lorzano fur ther argues th at Sage was not a party to the release and canno t claim any status under th e release

. Solorzano further describes the inclusion of Sage and
the amount id e ntified in the release paid as “ scrivener ’ s er r ors. ” A release is a writing whi ch pr ovid es that a duty or obligation owed to one party to the release is discharged immediat ely or upon the occurrence of a
condition. Nat iona l Union Fire Ins. Co. v. Ins urance Co. of N. Am. , 955 S.W.2d 120, 127 (Tex. App.

— Hous t on [14th Dist.] 1997), aff ’ d sub nom

. Keck, Mahin &
Cate v . Nat ional Fire Ins. Co. , 20 S.W.3d 692 (T ex. 2000); Baty v. ProTech Ins. Age ncy , 63 S.W.3d 841, 848 (Tex. App.

— Houston [14th Dist.] 2001, pet. denied). A release of a claim or cause of action extingu i shes the claim or cause of a ction.
Dr e sser In dus., Inc. v. Page Petroleum, Inc. , 853 S.W.2d 505, 508 (Tex.1993). Like any o ther agre ement, a release is a contract subject to the rules of contract
construction

. Baty , 63 S.W.3d at 848; see also Williams v. G lash , 789 S.W.2d 261, 264 (T ex. 1990)

. When co nstruing a con tract, the court must give effect to the true11 intentions of the parties a s expressed in the written instrument. Barrow

- Shaver Res.
Co. v. Carrizo Oi l & Gas, Inc. , 590 S.W.3d 471, 479 (Tex. 2019) ; Baty , 63 S.W.3d
at 848.

“If we determ ine that the contract ’ s language can be given a certain or
d efinite legal meaning or i nterpretat ion , then the contract is not ambiguous and we
will construe it as a matte r of law.” El Paso Field Servs., L.P. v. MasTec N. Am.,
Inc. , 389 S.W.3d 802 , 806 (Te x. 2012). If, however, the language of a release is subject t o two or more reasonable interpreta tio ns, then the release is ambiguous, raising a genuine issue of material f act on the parties ’ intent. Nat iona l Union Fire Ins. Co. of Pittsburgh, PA v . CBI Ind us., Inc. , 9 07 S.W.2d 517, 520 (Tex. 1995).
To effectively re lease a claim in Texas, the release m ust “ ‘ mention’ the
claim to be released.” Victoria Bank & Tr. Co. v. Brad y , 811 S.W. 2d 931, 938 (Tex. 1991). “[A]ny clai m s not clearly within the su bject matt er of the r elease are

not discharged.” Id. Here, the release cl early identifies the unpaid amount that
Solorzano un ambiguously agreed had been satisfied . The r elease also clearly identifies Sage as one of t h e parties against who m Solo rzano rele ase s his cl aim of
lien. F inley Res., Inc. v. Headington Royalty, Inc. , 67 2 S.W.3d 332, 339 (Tex. 2023) ( “ we have long said that a release will disc harge only t hose persons ‘ named ’
or identified ‘ with such descriptive p a rti cularity ’ that their identity or co nnection to
the released claims ‘ is not in doubt. ’ ” ).

Altho ugh Solorzano devotes leng thy briefing to his argument that Sage was not a part y to the release, the agreement was not a contract between two p art ies.
The rel e ase was signe d solely by Solorzano and release d his claims for payment as

ag ainst sev eral entities. Although S olorzano signed and agreed to the release, he
now seeks to avo id its legal effect and asks the court to rely on parol evidence.
Howev e r, “ the parol eviden ce rule bars the effort; and it matter s not that the12 defendants who invoke th e rule are not parties to the instrument. ” Cannon v.
Pearson , 383 S.W.2d 565, 570 (Tex. 1964) (concluding release of parents ’ allege d
cause of action for wron g ful death of child was valid and enforceable even though

p arents did not intend to release claim and defend ants who invoke d rule were not parties to release). Because the release is cl ear and unambiguous, we may not look to parol evidence to change or con t rad ict the la nguage of the cont ract. 3 See
Fri endswood Dev. Co. v. McDade + Co ., 926 S.W.2d 280, 2 83 (Tex. 1996).

Solorzano also argue s on appeal that the affirmative defense of mutual mistake operates to avoid enforcement of the release. However, Solorzan o did not plea d the affirmative de fense, nor di d he argue it at trial.

We conclude that the trial did not err in finding th at the releas e “ speci fically
releases [Sage ] of any obligation to make payme n t ” t o Solorzano. 4 The language of
the release itself int r odu ce d into e vidence constitutes legal ly and factually
suffi cient evidence to support the judgmen t of the trial court.

We o verrule i ssue 3

.

3 Solor zano also argues t hat inclusion of Sage as a release d pa rty in the release was a scri vener ’ s error. Black ’ s Law Dictionary defines “scrivener ’ s error” as a synonym for “c leri cal

erro r.” See S crivener ’s E rror , Black ’ s Law Dictionary (11th ed. 2019)

. A “clerical error” is one “resulting from a mi nor mistake or inadverte nce

. . . esp. , a drafter ’ s or typist ’ s technical error that can be rectified without serious doubt about t he c orrect r eading .” See E rror , Black ’ s Law Dictionary (11th ed. 2019) (defining “ clerical error ” )

. The release specifically refere nce s the Subcontractor Agreement , identifie s Sage by name on several occasions , and refers to Sage

se veral additional times a s th e “ contr actor ” which was def ined in th e release as Sage . The language and context of the release do not support Solorzano ’ s arg ument that Sage was only referenced in the release due to a scrive ner ’ s error. The release reflects a clear intent to include Sag e as a r eleased party and re l ease Sage from any further claims for payment arising out of the subcontract agreement.

4 B e cause we conclude th at S age prevailed o n its a ffi rmati ve defense of release, w e need not address its affirmative defense of accord and satisfac tion.13 C

. Sag e’ s declaratory

- judgment counterclaim
In issue 4, Solorzano argues that the tri al court erred in awardin g att orney’s
fees a nd costs to Sage on its declaratory

- judgment counterclaim because they were simply “ mirror claim s” attemptin g to rea ssert issues already before the trial court.

The Unifor m Declaratory Judgments Act (“Act”) authorizes a court to
“award costs a nd reaso nable and necessary attorney ’ s fees as are equitable and just.” Tex. Civ. Prac. & Rem. Code An n. § 37.009. H oweve r, a declaratory

- judgment action may not be used solely to obtain attorney ’ s fees that are not otherwise authorized by statute. See Nat iona l En te r., Inc. v. E.N.E. Prop s. , 167 S.W.3d 39, 44 (Tex. App.

— Waco 2005, no pet.)

. “A co unter claim th at presents no new controversy[ ] but exists solely to pave the way to an award of attorney ’s fees is improper.” Howell v. Mauzy , 899 S.W.2d 690, 7 06 (Tex. App.

— Austin 1994, writ denied); see Save Our Springs All., Inc. v. Lazy Nine Mun. Util.
Dist

. , 198 S .W.3d 300, 3 18 (Tex. App.

— Texarkana 2006, pet. denied). In other words, a party generally may not invoke the Act to settle disputes t hat are alrea dy pending before the court. BHP Petro. Co. v. Millard , 800 S.W.2d 838, 841 (Tex

. 1990) (orig. pro ceeding). This is someti mes referred to as the “ mirror- image” ru le.
See Washington Square Fin., LLC v. RSL Funding, LLC , 418 S.W.3d 761, 776 (Tex . App.

— Housto n [14th Dist.] 2013, pet. denied); Save Our Springs , 198
S.W.3d a t 318.

While t his rule precludes a counterclaim that pres ents nothing more than a denial of the p laintiff ’ s claim, a court may allow a declaratory

- judgment
counterclaim if it st ates a claim f o r affirmative relief. See Millard , 800 S.W.2d at
841 (instructing that “Texas trial co urts shoul d decline to exercise jur isdiction seeking a declaration of non -l iability in a tort action,” but acknowledging that “[i]n
certain instances

. . . a defensive d e claratory ju dgment may present issues beyond14 those raised by the plaintif f

” ) ; Hitchcock Props. , Inc. v. Levering , 776 S.W .2d 236, 239 (Tex. App.

— Houston [1st D ist.] 1989, writ denied) (same); Howell , 899 S.W.2d at 706 (same). “ To qualify as a claim for a ffirmative r elief, a defensive pleading must allege that the defendant ha s a cause of a ction, i ndependent of the plaintiff ’ s cl aim, on which he could recover be nefits, compensation or relief, even though the plaintiff may abandon his cause of action or fa i l to establi sh it. ”
Gen eral Land Office v. OXY U.S.A., Inc. , 789 S.W.2d 56 9, 57 0 (Tex. 19 90) (quot ing Weaver v. Jock , 717 S. W.2 d 654, 657 (Tex. App.

— Waco 1986, wr it ref ’ d n.r.e.)).

Problematic f or Sage is that the two declarations it sought rel ate to its
d ef enses against Solorzano ’s breach

- of

- contract action. There is no continuing or ongoing r elationsh ip between Sage and Solor zan o. The subcontract agreement was
f

or a specific scope of work that was completed. The parties testified at trial ther e had been n o communication for s everal years between Sage and Solorzano leading up to Solorz ano filin g suit ag ainst Sage. Although Sage ar gues on appeal its counterclaim pr esents greater ramifications than Solorzano ’ s petition sought, Sage
does n ot develo p this argum en t stating onl y that “ Solorzano executed an instrument intending [t o] modify ” th e rights of the p a rt ies under the subcontra ct agreement. But the release whi ch S age references here is part of its defen ses to contract enforcement and presents no great er ram if ications than Solorzano ’ s claims

. Because Sage ’s counterclaim was merely a den ial of Solorzano ’s cau ses of
action , the tri al court erred in granting the declar atory

- judgment action and no attorney ’s fees could have been awarded to Sage

. See Newman Oil Co v . Alkek , 614 S.W.2d 653, 653 (Tex. Civ. App.

— Corpus Christi 1981, writ ref ’ d n .r.e.) ( e ven thoug h defendants framed counte rcl aim as request for declarato ry relief,15 court of appeals held that allegations pleaded in defendants ’ cou nterclaims w ere
not averm en ts of fact up on which affirmative relief could be granted ) . Although an award of attorney ’s fe es is generally reviewed for ab use of discretion, the trial
court did not ha ve discretion to award attorney ’s fees. S outhwest Guar. Tr. Co. v. Hardy Rd. 13.4 Joint Ve nt ure , 981 S.W. 2d 951, 956 (Tex. App.

— Houston [1st Dist.] 1998, pet. denied) ; se e g enerally Bocque t v. Herring , 972 S.W.2 d 1 9, 21 (Tex. 1998) (standard of review for aw ard of a ttorney ’ s fees under Uniform Declaratory Judgments Act).
Accordingly, we su stain i ssue 4.

III. C ONCL USION Having sustained issue s 1 , 2 and 4 , and overrule d iss ue 3 , we reverse the judgm ent of t h e trial cour t g ranting Sage ’ s decla ratory

- judgment action , aff irm in part the judgment of the trial court , and render the judgment the trial cou rt should
have rendered: a ta ke

- nothing judgment by Solorzano on his claims against Sage.

/s/ Charles A. S pain Justice

P an el c on sist s of Jus t i ce s Wise , B ourliot , and Spain

.