author: LAURA CARTER HIGLEY, Justice.

text:
    FOUNDERS COMMERCIAL, LTD. D/B/A Westchase Gables, Appellant, v. TRINITY UNIVERSAL INSURANCE COMPANY, Appellee.
    No. 01-03-01063-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 24, 2004.

      B. Edward Williamson, Jackson Walker L.L.P., Reginald E. McKamie, Sr., Houston, TX, for Appellant.
    Jack McKinley, Ramey, Chandler, McKinney & Zito, P.C., Houston, TX, for Appellee.
    Panel consists of Justices NUCHIA, HANKS, and HIGLEY.
   OPINION

LAURA CARTER HIGLEY, Justice.

In this insurance-coverage dispute, Founders Commercial, Ltd. d/b/a West-chase Gables (“Founders”) appeals the trial court’s summary judgment declaring that Trinity Universal Insurance Company (“Trinity”) has no duty to defend or indemnify Founders in a lawsuit brought in federal court.

We affirm.

Factual and Procedural Background

Founders owns eight acres of real property at the intersection of Westminster Plaza Drive and Richmond Avenue. At the time Founders purchased it, the property contained no structures. In October 1997, Trinity issued a commercial general liability (“CGL”) policy, providing coverage for the entire eight acres.

Founders later constructed an assisted living care center on the portion of the eight acres closest to the intersection of Westminster Plaza Drive and Richmond Avenue. It appears undisputed that approximately half the property remained without buildings after the construction of the assisted living care center.

Trinity renewed the insurance contract for policy years October 1999 to October 2002 by issuing three, consecutive renewal policies (“the policies”). Each of the renewal policies contained a designated premises endorsement. The endorsement provides that coverage is restricted to certain premises, which, in this case, are defined in the policy declarations.

Founders began using the trade name “Westchase Gables” in advertising and promotions around April 2000. In December 2001, Founders began conducting business at the assisted living care center using the name Westchase Gables. In February 2002, Gables Residential Trust (“GRT”) filed suit against Founders in federal court for trademark infringement and dilution of trade name. GRT asserts that it owns exclusive rights to the service mark “Gables” and alleges that Founders infringed on these rights by using the name “Westchase Gables” in conjunction with its apartment management services.

After the federal suit was filed, Founders requested Trinity to provide it with a defense under the policies. Trinity filed a declaratory judgment action in state court, contending that it had no duty to defend or indemnify Founders based on the designated premises endorsement in the policies.

In turn, Founders filed a counterclaim, seeking a declaratory judgment that Trinity owed it a duty to defend, and, in the event that Founders was obligated to pay damages in the federal suit, to indemnify. Founders pointed out that the policies provide coverage for claims against Founders based on an “advertising injury.” Founders asserts that, as defined in the policies, GRT’s claims constitute an “advertising injury” for which Trinity owes it coverage, and, thus, a duty to defend and to indemnify-

Founders also filed a motion for partial summary judgment, contending that Trinity owed it a duty to defend and indemnify as a matter of law. Trinity responded to Founders’s motion and filed its own motion for summary judgment. After considering both motions for summary judgment, the trial court granted Trinity’s motion and denied Founders’s. Although Trinity offered summary judgment evidence extrinsic to the insurance policies, including an affidavit and deposition testimony, the trial court’s order indicates that the court considered only the policies’ language in rendering summary judgment in Trinity’s favor. Specifically, the order provides that the trial court found “no ambiguity in the terms and no genuine issue of material fact regarding insurance coverage, and no duty of [Trinity] to defend or indemnify Founders against the allegations” made by [GRT] in the federal suit. The trial court ordered that Trinity “does not owe a duty to defend or indemnify [Founders] against the allegations made by [GRT] in the underlying suit ... and for the same reason does not have a duty to indemnify [Founders] against a judgment based upon such allegations.”

Founders brings this appeal to challenge the trial court’s ruling on the respective motions for summary judgment. Founders frames its sole issue as follows: “Trial court error arises because a reasonable test under the “eight comers” rule reveals insurance coverage for “Advertising injury” allegations shown within the complaint filed in an underlying tort lawsuit, and that [Trinity] owed [Founders] a defense under contested provisions of the insurance policy.”

Standard of Review

The well-settled principles governing the review of summary judgments apply in insurance coverage cases. Hanson v. Republic Ins. Co., 5 S.W.3d 324, 327 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). That is, a summary-judgment movant must establish its right to summary judgment on the issues presented to the trial court by conclusively proving all elements of the movant’s claim or defense as a matter of law. Tex.R. Civ. P. 166a(c); Havlen v. McDougall, 22 S.W.3d 343, 345 (Tex.2000). If both sides move for summary judgment and the trial court grants one motion and denies the other, then we review both sides’ summary judgment evidence and determine all questions presented. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000) (citing Comm’rs Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex.1997) and Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988)).

Principles Governing Duty to Defend

It is well established that a liability insurer’s duty to defend is determined by the factual allegations of the pleadings, considered in light of the policy provisions and without reference to the truth or falsity of the allegations. Nat’l Union Fire Ins. Co. v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.1997); Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22, 24 (Tex.1965). This test, generally known as the “eight-corners rule,” limits review to the four corners of the insurance policy and the four corners of the plaintiffs petition in the underlying suit. Merchants Fast Motor Lines, 939 S.W.2d at 141; see St. Paul Surplus Lines Ins. Co. v. Geo Pipe Co., 25 S.W.3d 900, 903 (Tex.App.-Houston [1st Dist.] 2000, no pet.).

If a petition does not allege facts within the scope of coverage, an insurer is not legally required to defend a suit against its insured. King v. Dallas Fire, 85 S.W.3d 185, 187 (Tex.2002) If a petition alleges facts that, if taken as true, potentially state a cause of action within the terms of the policy, the insurer has a duty to defend. Merchants Fast Motor Lines, 939 S.W.2d at 141. When applying the eight corners rule, we give the allegations in the petition a liberal interpretation, focus on the factual allegations that show the origin of the damages rather than on the legal theories alleged, and resolve all doubts concerning the duty to defend in favor of the insured. Id. “It is not the cause of action alleged that determines coverage, but the facts giving rise to the alleged actionable conduct.” Adamo v. State Farm Lloyds Co., 853 S.W.2d 673, 676 (Tex.App.-Houston [14th Dist.] 1993, writ denied).

The Relevant Policy Provisions

The Trinity policies covering the period of October 1999 through October 2003 contain virtually identical language, including the designated premises endorsement, which restricts coverage to injuries arising out of ownership, maintenance or use of certain, designated premises. The endorsement is reproduced, in relevant part, as follows:

This endoRsement Changes the Policy. Please Read it Cakefully.

LIMITATION OF COVERAGE TO DESIGNATED PREMISES OR PROJECT

This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART.

SCHEDULE
Premises:
Project:
(If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.)
This insurance applies only to “bodily injury,” “property damage,” “personal injury,” “advertising injury” and medical expenses arising out of:
1. The ownership, maintenance or use of the premises shown in the Schedule and operations necessary or incidental to those premises; ...

No premises is listed in “the Schedule” contained in the endorsement. Thus, by the endorsement’s terms, the information contained in the policies’ declarations will determine the premises designated for coverage.

The first page of the policies is the Commercial General Liability Policy Declaration (“declaration page”), which lists Founders as a named insured. Immediately following that form are the Commercial General Liability Classification Schedule (“liability classification schedule”) and the Policy Schedule Of Names and Addresses (“names and addresses schedule”). The names and addresses schedule identifies “Westminster Plaza Dr. at Richmond Ave, Houston, Harris Co., TX 77082” under the heading of “LOCATIONS OF ALL PREMISES YOU OWN, RENT OR OCCUPY.” The liability classification schedule identifies “4 acres” of “vacant land” as the basis for the policies’ insurance premiums.

The Parties’ Contentions

Trinity contends that Founders’ coverage under the policies is limited by the designated premises endorsement. Trinity asserts that the policies did not cover GRT’s claims because the alleged injuries did not arise from the premises designated for coverage.

Trinity contends that the designated premises in this case is determined by reading the liability classification schedule together with the names and addresses schedule. According to Trinity, both schedules are part of the policy declarations. Trinity points out that, while the names and addresses schedule identifies Westminister Plaza Drive at Richmond Avenue as the premises owned, rented, or occupied by Founders, the liability classification schedule identifies “4 acres” of “vacant land” as the basis for the insurance premium. Trinity explains that reading the schedules together reveals that the only premises designated for coverage is four acres of vacant land located at Westminster Plaza Drive and Richmond Avenue. Trinity asserts that, because GRT’s alleged injuries do not arise from the four acres of vacant land covered by the policies, Trinity owes Founders no duty to defend or indemnify it in the underlying federal suit.

On appeal, Founders contends that, applying the eight-corners rule, Trinity owes it coverage under the policies because GRT’s claims constitute an “advertising injury,” as defined in the policies. Founders also criticizes Trinity’s interpretation of the designated premises endorsement. Founders asserts that the reference in the liability classification schedule to “four acres” of “vacant land” “simply provides a basis for Trinity to calculate premiums chargeable to Founders” and nothing more. Founders contends that the schedule does not serve to identify the premises for purposes of the designated premises endorsement. Founders asserts that, because its policy interpretation is “reasonable,” the contested policy provisions are ambiguous and must be construed in favor of coverage.

Ambiguity of Designated Property Endorsement and Attendant Provisions

Whether the policies’ language is ambiguous with respect to identifying the premises for purposes of limiting coverage under the designated premises endorsement is crucial to determining coverage. Courts employ the doctrine of contra proferentem, or construing a contract term against the insurer in favor of coverage, only when construing an ambiguous policy provision. Evergreen Nat’l Indem. Co. v. Tan It All, Inc., 111 S.W.3d 669, 676-77 (Tex.App.-Austin 2003, no. pet.); see also State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex.1995) (explaining that only if insurance policy remains ambiguous after courts apply canons of interpretation should policy’s language be construed against insurer in manner that favors coverage.).

An ambiguity does not arise with respect to a policy merely because the parties advance conflicting interpretations. Grain Dealers Mut. Ins. Co. v. McKee, 943 S.W.2d 455, 458 (Tex.1997). Whether a policy provision is ambiguous is a question of law for the court to decide. Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex.1998). In making this determination, we interpret insurance policies according to the rules of contract construction. American Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.2003).

If a contract can be given only one reasonable meaning, it is not ambiguous and will be enforced as written. Kelley-Coppedge, 980 S.W.2d at 464. On the other hand, if a contract is susceptible to two or more reasonable interpretations, it is ambiguous. Id. When an alleged contract ambiguity involves an exclusionary provision of an insurance policy, then we “ ‘must adopt the construction urged by the insured if that construction is reasonable, even if the construction ... urged by the insurer appears to be more reasonable or a more accurate reflection of the parties’ intent.’” Balandran v. Safeco Ins. Co. of Am., 972 S.W.2d 738, 741 (Tex.1998) (quoting Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex.1991)).

If there is a single guiding principle that governs our interpretation of the insurance policy, it is to give effect to the parties’ intent as expressed in the policy’s plain language. See Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex.1994). While parol evidence of the parties’ intent is not admissible to create an ambiguity, the contract may be read in light of the surrounding circumstances to determine whether an ambiguity exists. Balandran, 972 S.W.2d at 741. To give effect to the parties’ intent as expressed in the policy’s plain language, we must read all parts of a contract together. Beaston, 907 S.W.2d at 433 (citing Forbau, 876 S.W.2d at 133). In other words, we give effect to the expressed intent of the parties in the policy as a whole, rather than interpret one provision in isolation. Id. “Courts must be particularly wary of isolating from its surroundings or considering apart from other provisions a single phrase, sentence, or section of a contract.” Id.

Applying these rules, we conclude that the contested policy provisions in this case are not ambiguous. There is only one reasonable interpretation offered by the parties: the policy interpretation offered by Trinity that coverage is limited to injuries arising out of “four acres” of “vacant land” at Westminster Plaza Drive and Richmond Avenue. In contrast, Founders policy interpretation — that the liability classification schedule serves only to allow the calculation of premiums — does not comport with the rules of contract construction. In particular, Founders’s reading violates the construction principles that policy provisions cannot be read in isolation and should be interpreted to effectuate the parties’ intentions.

Reading the plain language of the policy provisions in the context of the policies as a whole, reveals the following. Under the heading, “FORMS APPLICABLE TO THIS COVERAGE PART,” the declaration page of the policies expressly incorporates the designated premises endorsement into the policy, thus placing Founders on notice that coverage was limited to certain premises. The designated premises endorsement expressly warns the insured that it “modifies insurance provided” under the “commercial general liability coverage part” and that “This Endorsement Changes the Policy. Please Read it Carefully.” Such plain language indicates a change in the premises covered from the original CGL policy.

The designated premises endorsement makes clear that, if no premises is designated in the endorsement, then the premises to which coverage is limited will be identified in the policy declarations. Although the declaration page does not list any premises, it does provide that both the names and addresses schedule and the liability classification schedule are “applicable to this coverage part.” Another form, entitled “Commercial General Liability Policy Contents,” identifies both schedules as being part of the policy.

Applying the appropriate rules of contract construction, neither schedule can be read in isolation. We agree with Trinity that the names and addresses schedule and the liability classification schedule, which are found consecutively in the policies, must be read together, in context. Each schedule conveys distinct and pertinent information about the insured premises. The location of the premises is identified in the names and addresses schedule while the nature and extent of the premises is revealed in the liability classification schedule. As Trinity wrote in its motion for summary judgment, “[o]nly by reading the 2 schedules together does the insured have a complete description of the ‘premises’ to which the [designated premises endorsement] refers.”

Moreover, as recognized above, the liability classification schedule is part of the policies and has meaning beyond simply providing a basis for the premiums charged. Athough discounted by Founders, the basis for the premiums charged is indicative of the parties’ intent regarding what premises they agreed to be covered.

We hold that the policy, viewed in its entirety, unambiguously provides that coverage under the policy is limited to injuries arising out of “four acres” of “vacant land” at the corner of Westminster Plaza Drive and Richmond Avenue. Thus, unless the claims asserted by GRT arose out of “four acres” of “vacant land” at that intersection, Trinity has no duty to defend Founders in the underlying federal action.

Application of the Eight-Corners Rule

In its complaint, the factual basis given by GRT for its alleged injuries is that Founders “marketed and sold, and continues to market and sell, apartment management services utilizing” GRT’s service mark. The complaint does not mention the covered premises nor does it allege any tortious conduct attributable to the four acres of vacant land covered under the policies. Thus, applying the eight-corners rule, we hold that Trinity does not have a duty to defend Founders in the federal action because GRT’s alleged injuries do not arise from the covered premises.

Duty to Indemnify

Founders also contends that the trial court erred in determining that Trinity owed no duty of indemnification. The duty to indemnify is a distinct and separate duty from the duty to defend. Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 821-22 (Tex.1997). The Texas Supreme Court has held that the duty to indemnify is justiciable before trial of the underlying suit when the same reasons that negate the duty to defend may, likewise, negate any possibility that the insurer will have a duty to indemnify for any judgment. Farmers Tex. County Mut. Ins. Co. v. Griffin, 955 S.W.2d 81, 84 (Tex.1997). If the facts alleged in the underlying suit are insufficient to invoke the duty to defend, then proof of all of those same facts will not invoke the insurer’s duty to indemnify. Id. For the same reasons why there is no duty to defend, we hold that Trinity has no duty to indemnify Founder for any judgment obtained against it by GRT in the federal action. See id.

Conclusion

In summary, we hold that, under the facts pleaded in GRT’s underlying complaint and in light of the pertinent policy provisions, Trinity has no duty to defend or indemnify Founder’s as a matter of law. The injuries alleged by GRT do not arise from conduct or activities on the premises covered by the policies, ie., four acres of vacant land at Westminister Plaza Drive and Richmond Avenue. The trial court properly granted Trinity’s motion for summary judgment and properly denied that of Founders.

We overrule Founder’s sole issue and affirm the trial court’s summary judgment.

      . Trinity does not contest that GRT’s claims constitute an "advertising injury” as defined in the policies with regard to its duty to defend. Rather, Trinity contends that the policies restrict coverage to those claims for advertising injuries that arise from the premises identified via the designated property endorsement.

      . In its motion for partial summary judgment, Founders acknowledged that the premises designated for coverage under the endorsement is determined by the policy declarations. Founders contended that the names and addresses schedule, as part of the declarations, establishes the premises to which coverage applies. Because that schedule identifies "Westminister Plaza Drive at Richmond Avenue,” without any other limitation, Founders asserted that the entire eight acres owned by Founders at that location, which would necessarily include the assisted living care center, was the designated premises referenced in the endorsement. Founders does not make this particular contention in its appellate brief. Although it contends that the liability classification schedule serves only to calculate premiums, Founders does not expressly aver that the schedule is not part of the policy declarations.

      . Founders also contends that it was error for the trial court to consider the extrinsic evidence offered by Trinity in determining whether the policies require Trinity to defend Founders against GRT’s claims. As stated, the language of the trial court’s order indicates that it did not consider the extrinsic evidence in ruling on the parties motions for summary judgment. Thus, we need not determine whether it would have been permissible for the trial court to consider the extrinsic evidence in determining Trinity’s duty to defend in this case. See Tri-Coastal Contractors, Inc. v. Hartford Underwriters Ins. Co., 981 S.W.2d 861, 863 n. 1 (Tex.App.-Houston [1st Dist.] 1998, pet. denied) (explaining that exception to eight-corners rule allowing for consideration of extrinsic evidence applies "in very limited circumstances”).


source: Caselaw Access Project

author: ELSA ALCALA, Justice.

license: Public Domain

text:
    David Allen LORENZ, Appellant, v. The STATE of Texas, Appellee.
    No. 01-02-00649-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 2, 2004.
    Rehearing Overruled Jan. 5, 2005.
    Discretionary Review Refused June 15, 2005.

      Henry L. Burkholder III, Houston, TX, for Appellant.
    Keisha L. Smith, Assistant District Attorney, Charles A. Rosenthal, Jr., District Attorney — Harris County, Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
   OPINION

ELSA ALCALA, Justice.

Appellant, David Allen Lorenz, pleaded not guilty to the misdemeanor offense of driving while intoxicated (DWI). After a jury convicted appellant, the trial court assessed punishment at 180 days in jail, suspended, placed appellant on community supervision for one year, and imposed an $800 fine. In three issues, appellant contends that (1) the evidence is legally and factually insufficient to sustain his conviction and (2) the trial court erred by permitting the arresting officer to testify that three studies had found that the combination of field-sobriety tests administered to appellant were 91 to 95 percent accurate in determining that a person was intoxicated. We affirm.

Background

Late at night on June 28, 2001, a deputy assigned as a patrol officer with the Harris County Precinct Four Constable’s Office stopped a vehicle driven by appellant for speeding on West FM 1960. When the deputy approached appellant, he noticed that appellant’s eyes were bloodshot, that his speech was slurred, and that he had a strong odor of an alcoholic beverage on his breath. Appellant admitted that he had consumed several beers earlier that night.

Appellant performed four field-sobriety tests as follows: (1) the Horizontal Gaze Nystagmus (HGN) test, (2) the walk-and-turn test, (3) the one-leg-stand test and (4) the Rhomberg test. Appellant exhibited signs of intoxication on each of the tests. From appellant’s performance on the field-sobriety tests, the deputy formed the opinion that appellant had lost the normal use of his mental and physical faculties, by reason of the introduction of alcohol into his body, and arrested appellant for DWI. At the police station, appellant refused to submit a breath sample into the intoxilizer instrument. Appellant also refused to perform any field-sobriety tests while recorded on videotape.

At trial, appellant testified that he was not intoxicated, but he acknowledged having consumed portions of three alcoholic beverages. Appellant’s employee, who accompanied appellant that evening, also testified that appellant had not lost the normal use of his mental and physical faculties.

Sufficiency of the Evidence

Appellant’s second and third points of error challenge the legal and factual sufficiency of the evidence to support his conviction for DWI. Appellant contends that the evidence is insufficient to establish that he had lost the normal use of his mental or physical faculties.

In assessing legal sufficiency, we determine whether, based on all of the record evidence, viewed in the light most favorable to the verdict, a rational jury could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App.2003). In conducting our review of the legal sufficiency of the evidence, we do not reevaluate the weight and credibility of the evidence, but only ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App.1993).

In a factual-sufficiency review, we view all the evidence in a neutral light and will set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App.2004). In conducting a factual-sufficiency review, we must discuss the evidence that appellant contends most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003). Unless the available record clearly reveals that a different result is appropriate, an appellate court conducting a factual-sufficiency review must defer to the jury’s determination concerning what weight to give conflicting testimony because resolution often turns on evaluation of credibility and demeanor. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App.2000).

To prove appellant guilty of the offense of DWI, the State was required to establish beyond a reasonable doubt that he did not have the normal use of his mental or physical faculties while he operated a motor vehicle in a public place. Tex. Pen. Code Ann. §§ 49.01(2)(A), 49.04(a) (Vernon 2003). Appellant contends that the evidence is legally and factually insufficient because (1) he did not operate his vehicle in a manner that suggested he was intoxicated, (2) he had no physical, motor difficulty producing his driver’s license and proof of insurance, (3) he had no trouble understanding each of the field-sobriety tests that the deputy asked him to perform, (4) he did not appear impaired on the videotape shown to the jury, and (5) the sole testimony of his intoxication came from the arresting officer.

The record shows that appellant exhibited the following: (1) bloodshot eyes; (2) slurred speech; and (3) a strong odor of an alcoholic beverage on his breath. In addition, appellant acknowledged that he had consumed portions of three alcoholic beverages within an hour and 15 minutes. From the officer’s descriptions of appellant’s performance on the four field-sobriety tests, the jury learned that appellant (1) had six clues on the HGN; (2) put his foot down three times, swayed three times, and raised his arms for balance twice during the one-leg-stand test; (3) missed stepping heel-to-toe seven times, raised his arms for balance four times, could not keep his balance during the instructions phase, and turned in the wrong direction during the walk-and-turn test; and (4) estimated 18 seconds for 30 seconds and exhibited a one-to-two-inch circular sway-while he attempted to balance during the Rhomberg test. The officer testified that, in his opinion, based on appellant’s performance on the field-sobriety tests, appellant had lost the normal use of his mental and physical faculties.

Viewed in the light most favorable to the verdict, a rational jury could have found that appellant had lost the normal use of his mental and physical faculties, based on having introduced alcohol into his body, and that the State proved the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89; Swearingen, 101 S.W.3d at 95. The evidence is therefore legally sufficient to sustain appellant’s conviction for DWI.

We also conclude that the evidence is not so weak that the verdict is clearly wrong and manifestly unjust; likewise, the contrary evidence, consisting of the testimony of appellant and his employee, is not so strong that the standard of proof beyond a reasonable doubt could not have been met. See Escamilla, 143 S.W.3d at 817. Because the available record here does not clearly reveal that a different result is appropriate, we must defer to the jury’s determination about what weight to give conflicting testimony concerning evidence of appellant’s intoxication because resolution turns on evaluation of the witnesses’ credibility and demeanor. See Johnson, 23 S.W.3d at 8. We hold that the evidence is factually sufficient to sustain the conviction.

We overrule appellant’s second and third points of error.

Evidence of Defendant’s Specific Blood Alcohol Content

In his first point of error, appellant contends that the trial court committed harmful, reversible error by permitting the arresting officer to testify that the combination of field-sobriety tests administered to appellant, “including the HGN test, had been determined by experts to be highly reliable, where such a conclusion was not justified, and therefore the testimony [was] inadmissible under rule 702 of the Texas Rules of Evidence.” Appellant’s specific complaint concerns the officer’s testimony that three studies had found that the three field-sobriety tests conducted on appellant — the HGN, the one-leg stand, and the walk-and-turn test — were 91 to 95 percent “accurate” when used in conjunction with each other. Appellant asserts that, by mentioning the HGN test as part of the field-sobriety tests that he performed on appellant, the arresting officer was in effect testifying that the HGN test “correlated to a particular intoxication level” in violation of Emerson v. State, 880 S.W.2d 759, 769 (Tex.Crim.App.1994).

We review a trial court’s decision to admit or exclude evidence under an abuse-of-discretion standard, and will not reverse the ruling unless it falls outside the zone of reasonable disagreement. Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App.2002).

A peace officer may not correlate a defendant’s blood alcohol content (BAC) with the defendant’s performance on field-sobriety tests. Emerson, 880 S.W.2d at 769 (holding peace officer may not correlate defendant’s performance on HGN test to precise (BAC); Webster v. State, 26 S.W.3d 717, 723 (Tex.App.-Waco 2000, pet. ref’d) (holding that testimony that 75 percent of subjects who have four clues on HGN test would have BAC over .10 was impermissible attempt to estimate Webster’s BAC on basis of HGN-test results); Smith v. State, 65 S.W.3d 332, 345-48 (Tex.App.-Waco 2001, no pet.) (holding that trial court erred by allowing peace officer to testify that (1) defendant who had four clues on HGN would have BAC over .08 percent, (2) when person has two or more clues on one-leg-stand test, that test is 83 percent accurate in showing that person would have BAC of .08 or higher, (3)when person has two or more clues on walk-and-turn test, that test is 79 percent accurate in showing that person would have BAC of .08 or higher). In short, a peace officer may give qualitative, but not quantitative, results from field-sobriety tests. Youens v. State, 988 S.W.2d 404, 406 (Tex.App.-Houston [1st Dist.] 1999, no pet.) (citing Emerson, 880 S.W.2d at 769) (referring to HGN test)).

The question before this court is whether testimony that field-sobriety tests are 91 to 95 percent accurate impermissibly correlates to a defendant’s quantitative BAC. Under the circumstances presented here, we conclude that it does not.

The trial court’s instructions to the jury defined “intoxication” as “not having the normal use of mental or physical faculties by reason of the introduction of alcohol into the body.” The jury was not instructed that Texas also defines intoxication as having a BAC of 0.08 or above, and appellant was not charged with having a BAC above the legal limit. The jury learned only that appellant refused to submit a breath sample into the intoxilizer. No evidence was introduced to explain that the intoxilizer is used to quantify a person’s BAC. The only evidence arguably relating to BAC came from the officer’s testimony that appellant did not have a high concentration of alcohol according to the vertical nystagmus test. But here, too, no evidence addressed appellant’s precise BAC.

Following a hearing conducted outside the presence of the jury, the trial court ruled that the arresting officer could not testify about appellant’s specific BAC, but would be allowed to discuss the statistical evidence. The arresting officer’s testimony outside the presence of the jury impliedly correlated appellant’s exhibiting signs of intoxication on the three field-sobriety tests with a BAC above the legal limit. Outside the presence of the jury, the officer explained that three studies showed that 91 to 95 out of 100 people who appeared intoxicated on the HGN, walk-and-turn, and one-leg-stand field-sobriety tests had a BAC above the legal limit. The officer further acknowledged, outside the presence of the jury, that each of the three non-Texas studies “related to a group of individuals who comply with those three tests, based their evaluations of those three tests, ... that percentage of a group would be above the legal per se law for that state.” Because the deputy’s testimony outside the presence of the jury effectively quantified appellant’s BAC to be above the legal limit, the trial court correctly ruled that the arresting officer would not be allowed to correlate appellant’s performance on field-sobriety tests with his BAC. See Emerson, 880 S.W.2d at 769; See Webster, 26 S.W.3d at 723; See Smith, 65 S.W.3d at 345-48. By excluding all references to BAC, the trial court ensured that the jury received very limited information concerning the studies. The arresting officer gave the following testimony concerning the reliability of the field-sobriety tests before the jury:

State’s attorney: And it is the NHTSA manual that you apply in your daily practice with field-sobriety tests?
Witness: Yes. Sir.
State’s attorney: And are you familiar with any validation studies concerning the field-sobriety tests?
Witness: Yes. Sir.
State’s attorney: And could you tell the jury what the percentage of reliability factors are that you are aware of?
Witness: The three studies were made, one in 1995, made in Colorado, 1996 made in Florida, 1997 made in San Diego, California. The study made in Colorado shows utilizing the HGN or horizontal gaze nystagmus test, one leg stand test and walk and turn test in conjunction to be 93 percent accurate. The Florida test, using all three tests again, showed to be 95 percent accurate. The San Diego, California studies showed to be 91 percent accurate.

The trial court’s order, which precluded the State from mentioning appellant’s BAC or that the studies involved testing the subject’s BAC to determine if the field sobriety tests were “accurate,” properly removed from the jury all references to BAC. We cannot conclude, therefore, that the trial court erred by allowing the statistical evidence on the grounds that it conveyed appellant’s specific BAC to the jury in violation of Emerson. See Wisdom v. State, 39 S.W.3d 320, 322-23 (Tex.App.-Waco 2001, no pet.) (holding that evidence from DWI Detection Manual, stating that HGN used in conjunction with walk-and-turn test was 80 percent accurate, as well as other statistics concerning reliability of field sobriety tests, were admissible under rule of optional completeness under circumstances demonstrating that appellant offered other portions of manual into evidence). Because no references to BAC were made at appellant’s trial, we hold that the testimony that field-sobriety tests are over 90 percent reliable did not convey the defendant’s specific BAC to the jury.

Conclusion

We affirm the judgment of the trial court.

      . HGN is the involuntary jerking of the eyes in a side-to-side motion caused by the introduction of alcohol or drugs into the body.

      . Rule 702 of the Rules of Evidence states that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” Tex.R. Evid. 702.

      . Although appellant’s attorney asserted, at trial, that the peace officer was not qualified to discuss the studies or to give testimony concerning the reliability of the field-sobriety tests, appellant has not briefed or argued that issue on appeal. Appellant’s point of error states generally that the expert’s “conclusion was not justified” and was thus inadmissible under Rule 702. Appellant’s entire analysis within the point of error focuses on the Emerson complaint discussed above. Thus, we decline to address the broader issue whether the officer was qualified to discuss the studies or whether the studies themselves were reliable. Additionally, appellant has not asserted in this appeal that the statistical evidence was irrelevant because "accuracy” in the field-sobriety tests was determined by subjects having blood alcohol contents above the legal limit, as opposed to subjects who had lost the normal use of their mental or physical faculties, such as appellant. We leave those issue for another day.


author: TERRY JENNINGS, Justice.

text:
    CENTURION PLANNING CORPORATION, INC. and Thomas C. Knickerbocker, Appellants, v. SEABROOK VENTURE II, Appellee.
    No. 01-02-00518-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 9, 2004.
    Rehearing Overruled May 27, 2005.

      Macon D. Strother, Strother, Keiter & Mulder, P.C., Houston, TX, for Appellant.
    Kyle R. Sears, Houston, TX, for Appel-lee.
    Panel consists of Chief Justice RADACK and Justices JENNINGS and HIGLEY.
   OPINION

TERRY JENNINGS, Justice.

Appellants, Centurion Planning Corporation, Inc. (Centurion) and Thomas C. Knickerbocker (Knickerbocker), challenge the trial court’s judgment, entered after a jury verdict, declaring that Centurion’s mechanic’s and materialman’s lien on real property owned by appellee, Seabrook Venture II (Venture), was null and void because there was no written contract between Centurion and Venture and because Centurion did not have any hen rights on the property as Centurion was not engaged in the practice of engineering and the lien was fraudulent.

In four issues, Centurion and Knickerbocker contend that the trial court erred in (1) submitting to the jury a question concerning whether Centurion and Knickerbocker made, presented, or used a fraudulent lien with the intent to cause Venture to suffer financial injury; (2) applying the Uniform Declaratory Judgment Act to Knickerbocker personally and holding him personally liable for filing a fraudulent lien; (3) excluding evidence that Centurion was “in compliance with the rules and regulations of the Texas Board of Professional Engineers”; and (4) submitting a jury instruction that Centurion and Knickerbocker assert constituted an impermissible comment on the weight of the evidence. We affirm.

Facts

On October 20, 1998, Theodore McCol-lum Jr. (McCollum) entered into an earnest money contract with Bayport 47 Limited to acquire a 53-acre tract of land in Seabrook, Texas. On January 20, 1999, McCollum purchased 14 acres of the 53-acre tract and conveyed it to Seabrook United Methodist Church. One month later, McCollum purchased the remaining 39 acres.

On August 19, 1999, McCollum, on behalf of McCollum Interests, L.L.C., entered into a joint venture agreement with John Boswell, on behalf of Pacific Ride Development Company, L.L.C. This agreement created Venture for the purpose of developing the 39 acres into a housing subdivision. . The following day, McCollum conveyed the 39 acres to Venture.

Following the creation of Venture, McCollum contacted Knickerbocker, the President and sole shareholder of Centurion, and requested that Centurion prepare a preliminary plat for the 39 acres and submit it to Seabrook for approval. McCollum specified that the plat had to meet all of the city’s conditions and ordinances and be approved without requiring any variances. Knickerbocker orally agreed to McCollum’s terms, and Centurion began working on the preliminary plat.

In October 1999, McCollum and Kicker-bocker met with several city officials to review the initial plat prepared by Centurion. At this meeting, the city officials discovered several problems with the plat that needed to be corrected before it could be submitted. McCollum instructed Knickerbocker to make the necessary changes, but Knickerbocker submitted the plat without doing so.

When McCollum learned what Knickerbocker had done, he went to Seabrook City Hall and recovered all documents on file relating to the plat. McCollum then sent a letter to Centurion terminating its services because McCollum “had a lack of confidence” in Centurion and “was disgusted” that Knickerbocker had not done what McCollum had asked him to do. In response, Knickerbocker sent a letter to McCollum demanding payment in the amount of $39,416.30 for work performed by Centurion, but McCollum refused to pay.

Knickerbocker subsequently filed, on behalf of Centurion, a Notice of Claim of Lien and Affidavit of Mechanic’s and Ma-terialman’s Lien on the entire 53-acre tract of land, including the 14 acres owned by Seabrook United Methodist Church. Knickerbocker filed the lien for “labor and materials” provided to Venture in the amount of $39,416.30. McCollum requested that Centurion release the lien from 39 acres owned by the Venture, but Knickerbocker refused.

Venture then filed this lawsuit seeking a declaration that Centurion’s lien was null and void because Centurion and Knickerbocker had violated certain provisions of the Property Code and the former Engineering Practice Act. Moreover, Venture alleged that Centurion and Knickerbocker had violated section 12.002 of the Civil Practice and Remedies Code because they knowingly had made, presented, and used a fraudulent lien. In response, Centurion and Knickerbocker filed counterclaims alleging- that Venture owed Centurion $18,301.66 and that Centurion was entitled to foreclose on the lien for this amount.

Following a jury trial, the trial court declared that Centurion did not have any lien rights or lien claims against Venture and that Centurion’s lien against the 39 acre property was “null, void, invalid, unenforceable and of no effect” because (1) there was no written contract between Venture and Centurion; (2) Centurion and Knickerbocker had violated the former Engineering Practice Act and were therefore not entitled to a lien under Property Code section 53.021(c); and (3) Centurion and Knickerbocker had violated Civil Practice and Remedies Code section 12.002 by making, presenting, and using the lien with the knowledge that it was a fraudulent lien. The trial court awarded Venture statutory damages, exemplary damages, attorney’s fees, reasonable expenses, and costs.

Fraudulent Lien Question

In their first issue, Centurion and Knickerbocker argue that the trial court erred in submitting to the jury a question concerning whether Centurion and Knickerbocker made, presented, or used a fraudulent lien with the intent to cause Venture to suffer financial injury because (1) the question was “immaterial and of no legal consequence,” (2) there was no evidence that they made, presented, or used a document with knowledge that the document was a fraudulent lien, and (3) the instruction accompanying the question was defective.

Question number 7 of the jury charge reads as follows:

Did Centurion or Knickerbocker make, present or use a document with knowledge that the document was a fraudulent hen or claim against real property or an interest in real property with the intent that the document be given the legal effect of evidencing a valid lien or claim against real property or an interest in real property with the intent to cause [Venture] to suffer financial injury?
A lien is fraudulent if the person who files it has actual knowledge that the lien was not valid at the time it was, filed.

The jury answered this question “yes” as to both Centurion and Knickerbocker.

Materiality

Centurion and Knickerbocker argue that question number 7 was immaterial because it premised a finding of liability on a statute, section 12.002 of the Civil Practice and Remedies Code, which, they assert, does not apply to the facts of this case. An appellate court may disregard a jury finding on a question that is immaterial. See Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex.1994). A jury question is immaterial if it should not have been submitted, if it was rendered immaterial by other findings, or if it called for a finding not within the jury’s province, such as a question of law. Id.

Centurion and Knickerbocker contend that the Legislature did not intend for Chapter 12 of the Civil Practice and Remedies Code to apply to a mechanic’s and materialman’s lien filed under the laws of the State of Texas and that, therefore, question number 7 was immaterial and should not have been submitted to the jury. Centurion and Knickerbocker assert that the Legislature enacted Chapter 12, and section 12.002 in particular, to “protect citizens from persons, particularly members of an anti-government group called ‘the Republic of Texas,’ who were flooding courts and clerks’ offices with the filing of fake documents purporting to be under laws other than the laws of the State of Texas.”

Matters of statutory construction are questions of law for the courts to decide. Harris County Water Control and Improvement Dist. v. Duke, 59 S.W.3d 333, 335-36 (Tex.App.-Houston [1st Dist.] 2001, no pet.). Our objective in construing a statute is to determine and give effect to the intent of the lawmaking body. Id. at 336. In so doing, we look first to the plain and common meaning of the statute’s words. Id. We also construe the statute in light of the entire body of law existing at the time of its enactment. Id. Further, we consider the entire statute, not simply the disputed portions. Id. Each provision must be construed in the context of the entire statute of which it is a part. Id. We also should not adopt a construction that would render a law or provision absurd or meaningless. Id. In construing a statute, we may consider (1) the object sought to be obtained; (2) the circumstances under which the statute was enacted; (3) its legislative history; (4) any common law or former statutory provisions, including laws on the same or similar subjects; (5) the consequences of a particular construction; (6) any administrative construction of the statute; and (7) the title (caption), preamble, and emergency provision. Tex. Gov’t Code Ann. § 311.023 (Vernon 1998). We review Chapter 12 of the Civil Practice and Remedies Code with these rales in mind.

Section 12.002 provides as follows:

(a) A person may not make, present, or use a document or other record with:
(1) knowledge that the document or other record is a fraudulent court record or a fraudulent lien or claim against real or personal property or an interest in real or personal property;
(2) intent that the document or other record be given the same legal effect as a court record or document of a court created by or established under the constitution or laws of this state or the United States or another entity listed in Section 37.01, Penal Code, evidencing a valid lien or claim against real or personal property or an interest in real or personal property; and
(3) intent to cause another person to suffer:
(A) physical injury;
(B) financial injury; or
(C) mental anguish or emotional distress.
(b) A person who violates Subsection (a) is liable to each injured person for:
(1) the greater of:
(A) $10,000; or
(B) the actual damages caused by the violation;
(2) court costs;
(8) reasonable attorney’s fees; and
(4) exemplary damages in an amount determined by the court.

Tex. Civ. Prac. & Rem.Code Ann. § 12.002 (Vernon 2002) (emphasis added).

There is nothing in the plain language of section 12.002 to indicate, as Centurion and Knickerbocker maintain, that this section applies exclusively to cases where members of anti-government groups file fake documents “purporting to be under laws other than the laws of the State of Texas” from bogus “ ‘common-law’ courts.” The Legislature could have chosen to limit the application of Chapter 12 to documents or records from sham courts, but it did not expressly do so. In fact, Chapter 12 is entitled “Liability Related to a Fraudulent Court Record or a Fraudulent Lien or Claim Filed Against Real or Personal Property.” Tex. Civ. Prac. & Rem.Code Ann. §§ 12.001-.007 (Vernon 2002 & Supp.2004-2005) (emphasis added). The plain language of section 12.002(a) expressly prohibits a person from making, presenting or using a document (1) with knowledge that the document is “a fraudulent court record or a fraudulent lien or claim” against real property, (2) intent that the document be given the same legal effect as a court record or document of a court evidencing a valid lien or claim against real property, and (3) intent to cause another person to suffer financial injury. Id. § 12.002(a) (emphasis added). Section 12.002(a)(2) does not limit liability only to fraudulent court documents or records which are made, presented or used by anti-government groups. Rather, it expressly applies to any document or record that is “a fraudulent lien or claim” against real or personal property and that is intended to be “given the same legal effect” as a court record or document “evidencing a valid hen or claim against real property.” Id. § 12.002(a)(1), (2).

Moreover, we disagree with the assumption, implicit in Centurion’s and Knickerbocker’s argument, that the Legislature concluded that a fraudulent lien that purports to be filed under laws other than the laws of the State of Texas from bogus courts is more damaging to Texas property owners than fraudulent liens that purport to be filed under the actual laws of this state. Our review of the plain and common meaning of the words of Chapter 12 reveals that the Legislature intended to provide a civil action for injunctive relief and monetary damages to all persons owning an interest in real or personal property against which a fraudulent lien is filed, not just victims of anti-government groups filing purported liens from sham courts. In fact, section 12.003 actually distinguishes between cases involving “fraudulent liens” and “fraudulent judgment hens.” It provides that, “in the case of a fraudulent hen or claim against real or personal property or an interest in real or personal property,” the obligor or debtor, or a person who owns an interest in the real or personal property may bring an action. Id. § 12.003(a)(8). In the case of a “fraudulent judgment hen,” the person against whom the judgment is entered may bring an action. Id. § 12.003(a)(7).

Accordingly, we disagree with Centurion and Knickerbocker’s contention that Chapter 12 does not apply to the facts of this case, and we hold that the trial court did not err in submitting question number 7 to the jury on the grounds that it was “immaterial.”

No Evidence

Centurion and Knickerbocker also argue that the trial court erred in submitting question number 7 to the jury because there was no evidence that they made, presented, or used a document with knowledge that the document was fraudulent “as defined by Gov.Code § 51.901(c).” See Tex. Gov’t Code Ann. § 51.901(c) (Vernon 1998).

When reviewing a legal sufficiency question, we consider only the evidence and inferences that tend to support a finding, and we disregard all evidence and inferences to the contrary. Holt Atherton Indus., Inc. v. Heine, 885 S.W.2d 80, 84 (Tex.1992). If there is more than a scintilla of evidence to support the finding, the no-evidence challenge fails. Id. More than a scintilla of evidence exists when the evidence, as a whole, supporting the finding “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997).

Centurion and Knickerbocker point out that, although the term “fraudulent” is not defined in Chapter 12, section 12.006 references that term as it is used in the Government Code. Section 12.006 provides, in pertinent part, as follows:

The court shall award the plaintiff the costs of bringing this action if:

(1) the plaintiff prevails; and
(2) the court finds that the defendant, at the time the defendant caused the recorded document to be recorded or filed, knew or should have known that the recorded document is fraudulent, as described by Section 51.901(c), Government Code.

Tex. Civ. Prac. & Rem.Code Ann. § 12.006(a) (emphasis added). Section 51.901(c) of the Government Code provides that, “[f]or purposes of this section,” a document or instrument “is presumed to be fraudulent” if:

[T]he document or instrument purports to create a lien or assert a claim against real or personal property or an interest in real or personal property and:
(A) is not a document or instrument provided for by the constitution or laws of this state or of the United States;
(B) is not created by implied or express consent or agreement of the obligor, debtor, or the owner of the real or personal property or an interest in the real or personal property, if required under the laws of this state, or by implied or express consent or agreement of an agent, fiduciary, or other representative of that person; or
(C) is not an equitable, constructive, or other lien imposed by a court with the jurisdiction created or established un-
. der the construction or laws of this state or of the United States.

Tex. Gov’t Code Ann. § 51.901(c)(2) (Vernon 1998).

Centurion and Knickerbocker note that Chapter 51 of the Government Code “was part of. the same bill” that enacted Chapter 12 of the Civil Practice and Remedies Code. They also note that “the history preceding the passage of [section 12.002] and [s]ection 51.901(c) show[s] that these two code sections were enacted to deny legitimacy to fake documents without regard to the validity of the claimed interest or the claims of the parties.” Centurion and Knickerbocker assert, thus, that the Legislature intended for the term “fraudulent” as used in Chapter 12 to have the same meaning as that term is described in Government Code section 51.091(c). Moreover, they argue that, because they proved that their lien was filed under the laws of the State of Texas, the lien was not fraudulent under section 51.091(c).

However, section 51.091(c) does not define the term “fraudulent”; it establishes a “presumption” that a document or instrument is fraudulent under certain circumstances. Moreover, section 12.006, entitled “Plaintiffs Costs,” simply provides the circumstances under which a plaintiff “shall” recover the “costs of bringing the action” in addition to the plaintiffs damages awarded under section 12.002. If the Legislature had wanted to define the term “fraudulent” as used for all purposes in Chapter 12, it could have done so. Instead, the Legislature referenced the term fraudulent “as described” in Government Code section 51.901(c) in regard only to the recovery of plaintiffs costs in section 12.006. We cannot read section 12.006’s reference to the term fraudulent “as described by Section 51.901(c), Government Code” as providing a definition of the term for all of Chapter 12.

In conducting our legal sufficiency review of the evidence, we note that Property Code section 53.021(c) provides, in pertinent part, that “[a]n architect, engineer, or surveyor who prepares a plan or plat under or by virtue of a written contract with the owner ... in connection with the actual or proposed design, construction, or repair of improvements on real property ... has a lien on the property.” Tex. Prop.Code ANN. § 53.021(c) (Vernon Supp.2004-2005) (emphasis added). Here, McCollum testified that he did not enter into a written contract on behalf of himself or Venture with either Knickerbocker or Centurion. Moreover, Knickerbocker testified that, after McCollum refused to pay for work that Centurion had done, Knickerbocker, on Centurion’s behalf, filed a mechanic’s and materialman’s lien against the entire 53-acre tract of land. Taken together, this testimony constituted more than a scintilla of evidence establishing that Knickerbocker had violated section 12.002 when he “made, presented, or used the hen” knowing, based on the lack of a written contract, that the hen was invalid and intending that it be given the same legal effect as a vahd hen. Additionally, because Centurion conceded that Knickerbocker was acting on its behalf, Centurion was subject to vicarious liability for Knickerbocker’s violation of section 12.002. See Baptist Mem’l Hosp. System v. Sampson, 969 S.W.2d 945, 947 (Tex.1998) (noting that, under doctrine of re-spondeat superior, employer is vicariously liable for tortious acts of employee acting within scope of employment).

Accordingly, we hold that the trial court did not err in submitting question number 7 to the jury on the grounds that the evidence was legally insufficient to support the submission of the question.

Defective Definition

Centurion and Knickerbocker next argue that the trial court erred in submitting question number 7 to the jury because the question contained a defective instruction. As noted above, the trial court instructed the jury that “[a] hen is fraudulent if the person who files it has actual knowledge that the hen was not vahd at the time it was filed.” Centurion and Knickerbocker assert that, instead of submitting this instruction, the trial court should have defined the term “fraudulent hen” by referencing the presumption set out in Government Code section 51.901(c).

However, to preserve error in the jury-charge, a party must timely and plainly make the trial court aware of the complaint and obtain a ruling. Tex.R. Civ. P. 274; State Dept. of Highways v. Payne, 838 S.W.2d 235, 241 (Tex.1992). A party is required to object before the trial court submits an erroneous question, instruction or definition. Tex.R. Civ. P. 274; Payne, 838 S.W.2d at 241.

At the charge conference, Centurion and Knickerbocker objected to question number 7 as follows:

We especially object to Question No. 7. That relates to the pleading and claim of [Venture] that [Centurion and Knickerbocker] violated section 12.00[2] of the Texas Civil Practice and Remedies Code. And without going over the same objections that I could in my motion for directed verdict, it’s just generally our grounds ... that there’s no evidence whatsoever that [Centurion and Knickerbocker] violated the section as contended by the Legislature of the state of Texas, that the Legislature intended by the enactment of this section that it would be a violation if anyone attempted to file a lien that was not pursuant to the laws of the state of Texas or the Constitution of the state of Texas. And the lien affidavit and the evidence clearly shows that my client, [Centurion and Knickerbocker], were attempting to file the lien affidavit pursuant to the state of Texas and this Constitution of the state of Texas. Even if [Venture] is correct, that there were mistakes or errors or incorrect information set forth in the lien affidavit, we contend that ... would not make [Centurion and Knickerbocker] liable under this Act. Therefore, [we] object on the grounds of no evidence.

(Emphasis added.) Centurion and Knickerbocker objected to question number 7, not on the grounds that it included a defective instruction, but “on the grounds of no evidence.” A party cannot enlarge on appeal an objection made in the trial court. Operation Rescue-Nat’l v. Planned Parenthood of Houston and Southeast Tex., Inc., 937 S.W.2d 60, 70 (Tex.App.-Houston [14th Dist.] 1996), aff’d as modified, 975 S.W.2d 546 (Tex.1998). An objection on appeal that is not the same as that which was urged at trial presents nothing for appellate review. Id. Nor can a party raise a new objection to the trial court’s charge for the first time on appeal. Tex. R.App. P. 33.1(a); Tex.R. Civ. P. 274. Accordingly, we hold that Centurion and Knickerbocker have waived any error with respect to the submission of the complained of instruction.

We overrule Centurion’s and Knickerbocker’s first issue.

Declaratory Judgment

In their second issue, Centurion and Knickerbocker argue that the trial court erred in applying the Declaratory Judgment Act to Knickerbocker personally and in finding him personally liable for filing a fraudulent lien because “there was no jus-ticiable controversy between [Venture] and Knickerbocker.”

A declaratory judgment is appropriate only if a justiciable controversy exists as to the rights and status of the parties and the controversy will be resolved by the declaration sought. Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex.1995). To constitute a justiciable controversy, there must exist a real and substantial controversy involving a genuine conflict of tangible interests and not merely a theoretical dispute. Id. If a justiciable controversy does not exist between the parties, a court must dismiss the case for lack of jurisdiction, even if the issue is not raised by the parties. Lavely v. Heafner, 976 S.W.2d 896, 897 (Tex.App.-Houston [14th Dist.] 1998, no pet.).

The jury found that both Centurion and Knickerbocker had made, presented, or used a document with knowledge that the document was a fraudulent hen or claim against real property or an interest in real property with the intent that the document be given the legal effect of evidencing a valid lien or claim against real property or an interest in real property and with the intent to cause Venture to suffer financial injury. The trial court then declared that Centurion and Knickerbocker had violated (1) Chapter 53 of the Property Code, (2) the former Texas Engineering Practice Act, and (3) Civil Practice and Remedies Code section 12.002.

Centurion and Knickerbocker assert that Venture did not plead or prove any theory for a judgment against Knickerbocker personally and that there were, therefore, no rights to be declared as between Venture and Knickerbocker. They note that they “objected to [Venture’s] attempt to pierce the corporate veil in its proposed judgment,” and they contend that Knickerbocker, as an officer of Centurion, was not liable to the Venture for its damages, attorney’s fees, expenses and costs.

However, it is a “longstanding rule” in Texas that “a corporate agent is personally liable for his own fraudulent or tortious acts.” Miller v. Keyser, 90 S.W.3d 712, 717 (Tex.2002). In Miller, the Texas Supreme Court held that a corporate agent may be held personally liable under the Deceptive Trade Practices— Consumer Protection Act for personally making misrepresentations. Id. The Court explained that such liability is based on the agent’s own actions, not his status as an agent. Id. We find this analysis equally applicable to violations of Chapter 12 of the Civil Practice and Remedies Code.

Here, as noted above, the jury expressly found that Knickerbocker personally made, presented, or used a document with the knowledge that the document was a fraudulent lien or claim against real property or an interest in real property with the intent that the document be given the legal effect of evidencing a valid hen or claim against real property or an interest in real property and with the intent to cause Venture to suffer financial injury. The evidence supports the jury’s finding and the trial court’s declarations.

Knickerbocker testified that Centurion had offered and had attempted to practice engineering services; however, Knickerbocker was not a licensed engineer. Moreover, the evidence indicated that Centurion did not have a regular, full-time employee who was a licensed engineer and who provided engineering services or supervised the provision of any engineering services. Although Centurion and Knickerbocker presented Dexter Jones as Centurion’s “Director of Engineering,” the jury expressly found that Jones was “not a regular[,] full-time employee of Centurion” during the time in question. Jones, himself, testified that he was an “independent contractor” for Centurion and was not a full-time employee.

Moreover, McCollum testified that he did not enter into a written contract on behalf of himself or Venture with either Knickerbocker or Centurion. Knickerbocker testified that, after McCollum refused to pay for work that Centurion had done, Knickerbocker, on Centurion’s behalf, filed the mechanic’s and material-man’s lien against the entire 53-acre tract of land. In fact, Knickerbocker signed, verified, and personally mailed the lien for filing.

Taken together, this evidence demonstrated that Knickerbocker violated section 12.002 when he “made, presented, or used” the lien knowing that Centurion was not entitled to the lien under Property Code section 53.021(c) because (1) there was no written contract between Centurion and Venture and (2) Centurion was not engaged in the practice of engineering in compliance with the requirements of the former Engineering Practice Act. Accordingly, we hold that Venture established that a “real and substantial controversy” existed between itself and Knickerbocker.

We overrule Centurion’s and Knickerbocker’s second issue.

Exclusion of Evidence

In their third issue, Centurion and Knickerbocker contend that the trial court abused its discretion in excluding an exhibit which was offered to show that Centurion was in voluntary compliance with the rules and regulations of the Texas Board of Professional Engineers and the former Engineering Practice Act.

A trial court’s decision to exclude evidence is reviewed under an abuse of discretion standard. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995). In addition to showing an abuse of discretion, a party complaining of error in the exclusion of evidence must also show that the trial court’s error was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment. Id. at 753-54; see Tex.R.App. P. 44.1(a)(1).

Centurion and Knickerbocker offered into evidence Defendants’ Exhibit 15A, a certified copy of a document from the Texas Board of Professional Engineers, which states that, as of January 20, 1999, Centurion was in “voluntary compliance” with the regulations of the Texas Board of Professional Engineers and the former Engineering Practice Act. The trial court sustained Venture’s objection to the document as irrelevant and as hearsay. Centurion and Knickerbocker argue that the exhibit should have been admitted into evidence because “the central issue to [Venture’s] claims and defenses was that Centurion violated the [former] Texas Engineering Practice Act.”

However, Venture did not allege simply that Centurion had violated the former Engineering Practice Act. Rather, Venture alleged that Centurion was not entitled to be compensated for preparing the preliminary plat because Centurion was not engaged in the practice of engineering because it did not have a licensed engineer as a regular, full-time employee during the period from August to October of 1999 as required by the Act. As noted above, the former Act prohibited a corporation from holding itself out as being engaged in the practice of engineering unless all of its engineering services were “either personally performed by a licensed engineer or under the direct supervision of a licensed engineer who [was] a regular full-time employee.”

Defendants’ Exhibit 15A did not specify that Centurion had a licensed engineer as a regular, full-time employee. Nor did it address the appropriate time period. Centurion had worked on the preliminary plat for Venture between August and October of 1999; however, Defendant’s Exhibit 15A demonstrates that the Texas Board of Professional Engineers made its determination in January 1999, six months before the time period in question. Accordingly, we hold that the trial court did not abuse its discretion in excluding Defendants’ Exhibit 15A on the grounds that it was irrelevant.

We overrule Centurion’s and Knickerbocker’s third issue.

Employment Status

Question number 1 of the jury charge asked the jury to make a factual determination concerning the employment status of Dexter Jones. In their fourth issue, Centurion and Knickerbocker contend that the trial court erred in submitting a definition of “employee” and “independent contractor” in question number 1 without the additional instruction that “Centurion was not required to direct the detail” of Jones’s work. Centurion and Knickerbocker assert that, without them requested instruction, the included definitions “constituted an impermissible comment on the weight of the evidence.” They further contend that the trial court erred in submitting the definition of “independent contractor” because there was insufficient evidence that Jones was in pursuit of an independent business at the time that he worked for Centurion.

We review a trial court’s decision on the submission of jury definitions and instructions under an abuse of discretion standard, and we note that trial courts have “wide discretion to determine sufficiency of definitions and instructions.” Plainsman Trading Co. v. Crews, 898 S.W.2d 786, 791 (Tex.1995). When a trial court refuses to submit a requested instruction, our review is focused upon the issue of whether the request was reasonably necessary to enable the jury to render a proper verdict. Vinson & Elkins v. Moran, 946 S.W.2d 381, 405 (Tex.App.-Houston [14th Dist.] 1997, writ dism’d by agr.).

Although the court in its charge may not comment directly on the weight of the evidence, the charge is not objectionable because it “incidentally constitutes a comment on the weight of the evidence or advises the jury of the effect of their answers when it is properly a part of an instruction or definition.” Tex.R. Civ. P. 277. To be a direct comment on the weight of the evidence, the language must suggest the trial court’s opinion concerning the issue. Maddox v. Denka Chem. Corp., 930 S.W.2d 668, 671 (Tex.App.-Houston [1st Dist.] 1996, no writ).

Question number 1 reads as follows:

Do you find that Dexter Jones was not a regular full time employee of Centurion from August 21,1999 through October 5, 1999?
An “employee” is a person in the service of another with the understanding, express or implied, that such other person has the right to direct the details of the work and not merely the result to be accomplished.
A person is not acting as an employee if he is acting as an “independent contractor.” An independent contractor is a person who, in pursuit of an independent business, undertakes to do specific work for another person, using his own means and methods without submitting himself to the control of such other person with respect to the details of the work, and who represents the will of such other person only as to the results of his work and not as to the means by which it is accomplished.

Centurion and Knickerbocker requesteci that the jury be further instructed that “Centurion was not required to direct the detail of Dexter Jones’s work requiring his engineering expertise.” However, the trial court refused to include this instruction and the jury subsequently answered the question “yes.”

Centurion and Knickerbocker argue that “the court’s instruction left little room for the jury to find any[ ]thing other than that [Jones] was not a full-time employee because it instructed that if Jones did not submit himself to the control of Centurion and it’s [sic] owner, a non-engineer, with respect to the details of engineering work, then Jones was an independent contractor.” However, Centurion and Knickerbocker cite no authority to show either that their requested instruction was a correct statement of the law or that they were entitled to have the instruction submitted to the jury. Moreover, Centurion and Knickerbocker do not logically explain how the trial court’s refusal to submit their additional instruction suggested to the jury the trial court’s opinion concerning the issue.

In contrast, the definitions submitted by the trial court, which followed verbatim the definitions provided by Texas Pattern Jury Charge, have been held to be adequate instructions on employee-independent contractor law. See Weidner v. Sanchez, 14 S.W.3d 353, 376 (Tex.App.-Houston [14th Dist.] 2000, no pet.). Accordingly, we hold that the trial court did not abuse its discretion in submitting the definitions and in refusing Centurion’s and Knickerbocker’s requested instruction on the grounds that the definitions constituted an improper comment on the weight of the evidence.

In regard' to Centurion’s and Knickerbocker’s assertion that there was “insufficient evidence that Jones was in pursuit of an independent business,” we conclude that, if a person is retained as an independent contractor, then he is necessarily pursuing a business independent from that of the person who retains him. Here, Jones testified that he worked as an independent contractor for Centurion and that he was not a full-time employee. While Jones was working for Centurion, he had other clients and he worked part-time for Centurion and part-time for his other clients. Additionally, Nancy Heeth, Centurion’s bookkeeper, testified that Jones was paid by the hour and that Centurion did not withhold state or federal taxes from his paycheck. Accordingly, we hold that the trial court did not abuse its discretion in submitting the definitions to the jury on the grounds that there was insufficient evidence that Jones was in pursuit of an independent business.

We overrule Centurion’s and Knickerbocker’s fourth issue.

Conclusion

We affirm the judgment of the trial court.

      . See Tex Prop.Code Ann. § 53.021(c) (Vernon Supp.2004-2005).

      . See Tex. Civ. Prac. & Rem.Code Ann. §§ 12.001-.007 (Vernon 2002 & Supp.2004-2005).

      . See Tex. Civ. Prac. & Rem.Code Ann. §§ 37.001-.011 (Vernon 1997).

      . Centurion subsequently released its lien on this portion of the tract.

      . Act of May 28, 1937, 45th Leg., R.S., ch. 404, 1937 Tex. Gen. Laws. 816, 816-26, repealed by Act of April 26, 2001, 77th Leg., R.S., ch. 1421, § 13(a), 2001 Tex. Gen. Laws 5020 (hereinafter, "the former Engineering Practice Act”) (current version at Tex. Occ. Code Ann. §§ 1001.001-.604 (Vernon 2004)).

      . See Tex Civ. Prac. & Rem.Code Ann. § 12.002 (Vernon 2002).

      . Tex. Bus. & Com.Code Ann. §§ 17.41-.63 (Vernon 2002 & Supp.2004-2005).

      . The former Engineering Practice Act specified that a corporation could not hold itself out to the public as being engaged in the practice of engineering unless all of its engineering services were "either personally performed by a licensed engineer or under the direct supervision of a licensed engineer who [was] a regular full-time employee.” Act of May 27, 1997, 75th Leg., R.S., ch. 344, § 19, 1997 Tex. Gen. Laws 1462, 1468, repealed by Act of April 26, 2001, 77th Leg., R.S., ch. 1421, § 13(a), 2001 Tex. Gen. Laws 5020.

      . Act of May 27, 1997, 75th Leg., R.S., ch. 344, § 19, 1997 Tex. Gen. Laws 1462, 1468, repealed by Act of April 26, 2001, 77th Leg., R.S., ch. 1421, § 13(a), 2001 Tex. Gen. Laws 5020.

      . See 2 Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges PJC 7.1, 7.8 (2d. ed 2002).


text:
    Kaci HERRING, Administratrix of the Estate of Denis Scott Herring, Appellant, v. BANK OF AMERICA, N.A., Appellee.
    No. 01-04-00276-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 9, 2004.
    Michael A. Hirsch, Houston, TX, for Appellant.
    Steven A. Leyh, Leyh <& Payne, L.L.P., Houston, TX, Michael R. Hooper, Addison, TX, for Appellee.
    Panel consists of Justices TAFT, NUCHIA, and JENNINGS.
   OPINION

TERRY JENNINGS, Justice.

In this probate proceeding, appellant, Kaci Herring, as the administratrix of the estate of her husband, Denis Herring, challenges the trial court’s order that any proceeds from the sale of real property owned by the estate be paid to appellee, Bank of America, N.A. (the Bank), before being distributed to satisfy any other claims against the estate, including the claims of appellant and of the decedent’s minor daughter. In her sole issue, appellant contends that the trial court, in making its ruling, misconstrued the applicable provisions of the Probate Code “so as to prevent the priority of payment upon widow’s and family allowance in priority ahead of claim[s] for mortgage indebtedness as a preferred secured debt.” We affirm.

Factual and Procedural Background

In May 2001, the Herrings borrowed $169,000 from the Bank for the purchase of a home — the property at issue — located at 62 McGowan Street, in Houston, Texas. Denis Herring died in March 2003. Appellant, as the administratrix of her husband’s estate, in October 2003, applied for allowances from the proceeds of the estate for herself and for her husband’s minor daughter from a previous marriage. The trial court approved such allowances in the amount of $30,000 each.

In December 2003, the Bank filed a “preferred debt and lien” claim against the property indicating that the outstanding amount of the mortgage totaled $170,115.33. See Tex. Prob.Code Ann. § 306(a)(2) (Vernon 2003). Appellant allowed the Bank’s claim as “just and owing.” Appellant subsequently filed a report of a pending sale of the property for approximately $217,000. In her report, appellant stated that “payment of mortgage indebtedness is subject to § 320(a)(b) [sic] of the Texas Probate Code, and will be paid only in line of priority thereby provided.... ” The Bank then filed an objection to the report of the sale of the property and specifically to appellant’s statement that she intended to distribute any proceeds from the sale according to the priority of claims established by section 320(a) of the Probate Code. See id. § 320(a) (Vernon 2003).

On February 25, 2004, following a hearing, the trial court signed an order in which it made written findings that (1) the Bank was a secured creditor of the property, (2) the Bank elected to file its claim as a “preferred debt and lien” pursuant to section 306(a)(2) of the Probate Code, and (3) appellant acknowledged the Bank’s claim as just and owing. In its order, the trial court also ruled that any proceeds from the sale of the property were to be paid to the Bank, to the extent of its claim, prior to any distribution to satisfy any other claims, including those of appellant and of her husband’s minor daughter.

Standard of Review

Here, appellant challenges the trial court’s interpretation of the applicable provisions of the Probate Code. Statutory construction is a question of law, and we review a trial court’s interpretation of statutes under a de novo standard of review. Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002). In construing a statute, we must attempt to determine and to give effect to the Legislature’s intent. Id. In doing so, we look first to the plain and common meaning of the language of the statute. Id.; see Tex. Gov’t Code Ann. § 311.011 (Vernon 1998). We may not construe a provision of a statute so as to render another provision absurd or meaningless. See Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex.1987); Mueller v. Beamalloy, Inc., 994 S.W.2d 855, 860 (Tex.App.-Houston [1st Dist.] 1999, no pet.).

Priority of Claims

In her sole issue, appellant argues that the trial court erred in ruling that any proceeds from the sale of the property be paid to the Bank, in satisfaction of its preferred debt and lien, before being distributed to satisfy any other claims. As noted above, appellant asserts that the trial court misconstrued the applicable provisions of the Probate Code “so as to prevent the priority of payment upon widow’s and family allowance in priority ahead of claim[s] for mortgage indebtedness as a preferred secured debt.”

With regard to the order in which claims against an estate are given priority for payment, section 320 of the Probate Code provides, in pertinent part, as follows:

(a) Priority of Payments. Personal representatives, when they have funds in their hands belonging to the estate, shall pay in the following order:
(1) Funeral expenses and expenses of last sickness, in an amount not to exceed [$15,000].
(2) Allowances made to the surviving spouse and children, or to either.
(3) Expenses of administration and the expenses incurred in the preservation, safekeeping, and management of the estate.
(4) Other claims against the estate in order of their classification.
(b) Sale of Mortgaged Property. If a personal representative has the proceeds of a sale that has been made for the satisfaction of a mortgage, lien, or security interest, and proceeds, or any part of the proceeds, are not required for the payment of any debts against the estate that have a preference over the mortgage, lien, or security interest, the personal representative shall pay the proceeds to any holder of a mortgage, hen, or security interest....

Tex. Prob.Code Ann. § 320(a), (b) (Vernon 2003).

Appellant does not dispute that the Bank was a secured creditor of the specific property used to secure the mortgage or that the Bank’s claim as a preferred debt and hen against the property was valid. Rather, appellant argues that, following the statutory priority of claims set out in section 320(a), the trial court’s allowances for her and for her husband’s daughter take priority over the mortgage indebtedness claim asserted by the Bank and that any proceeds from the sale of the property must be distributed accordingly.

However, as the Bank points out, its claim is not a general claim made against the assets of the estate, but is a preferred debt and hen claim asserted solely against a specific piece of property, namely, the property used to secure the mortgage. With regard to such claims, section 306 of the Probate Code provides, in pertinent part, as follows:

(a) Specification of Claim. When a secured claim for money against an estate is presented, the claimant shall specify therein, in addition to ah other matters required to be specified in claims:
(1) Whether it is desired to have the claim allowed and approved as a matured secured claim to be paid in due course of administration, in which event it shall be so paid if allowed and approved; or
(2) Whether it is desired to have the claim ahowed, approved, and fixed as a preferred debt and hen against the specific property securing the indebtedness and paid according to the terms of the contract which secured the hen, in which event it shall be so ahowed and approved if it is a vahd hen....
(d) Approved Claim as Preferred Lien Against Property. When an indebtedness has been allowed and approved under Paragraph (2) of Subsection (a) hereof, no further claim shall be made against other assets of the estate by reason thereof, but the same thereafter shall remain a preferred hen against the property securing same, and the property shah remain security for the debt in any distribution or sale thereof prior to final maturity and payment of the debt.

Tex. Prob.Code Ann. § 306(a), (e) (Vernon 2003).

The Bank argues that, pursuant to the provisions of section 306, because it asserted its claim as a preferred debt and lien solely against the property used to secure the mortgage, its claim takes priority over all other claims in the distribution of any proceeds from the sale of the property. In support for its contention, the Bank relies on Wyatt v. Morse, 129 Tex. 199, 102 S.W.2d 396, 399 (1937). In that case, the Texas Supreme Court considered the effect of the language of former Article 3515a of the Revised Civil Statutes, whose language was virtually identical to that of section 306 of the current Probate Code. The court held that, under the former statute, a preferred debt and hen claim took priority over all other claims with respect to the disposition of the specific property securing the indebtedness. See id. at 398-99. In reaching its holding, the court expressed its reasoning, in part, as follows:

The preference thus provided is not one which the court is authorized to make by virtue of a legislative pattern for classification of claims theretofore laid down, but is a legislative declaration of preference which is accorded holders of secured claims who elect to proceed against the specific property securing the claim rather than against the entire property of the estate. In return for this preference the claimants so electing are required to forego making further claims against other assets of the estate.

Id. at 399.

Here, the Bank elected to assert its claim not against the assets of the estate, but solely against the property used to secure the mortgage, foregoing any claim against any other assets of the estate. Thus, the order of priority of payment of claims against an estate set out in section 320 does not apply to the Bank’s claim because it is not a general claim against the assets of the estate. Based on our review of the plain language of the provisions of section 306 of the Probate Code, we hold that the trial court did not err in ruling that the Bank’s preferred debt and lien claim must be given priority over all other claims with regard to the distribution of any proceeds from the sale of the property used to secure the mortgage.

We overrule appellant’s sole point of error.

Conclusion

We affirm the order of the trial court.

      . See Tex. Prob.Code Ann. §§ 306(a)(2), 320 (Vernon 2003).

      . The mortgage documents were filed with the Harris County Clerk and are part of the record.

      . The record on appeal does not contain a reporter's record from this hearing.