author: DIANE DEVASTO, Justice.

text:
    Sherron COOK, Individually and as Duly Appointed Guardian of Robert Cook, NCM, and as Next Friend of Nora Cook, a Minor, Hoyt Cook and Luther Cook, Appellant, v. NACOGDOCHES ANESTHESIA GROUP, L.L.P., Appellees.
    No. 12-04-00027-CV.
    Court of Appeals of Texas, Tyler.
    May 31, 2005.

      Mac Gann, for appellant.
    James Zeleskey, Robert T. Cain Jr., Zeleskey, Cornellius, Hallmark, Roper & Hicks, L.L.P., Lufkin, Lufkin, for appel-lees.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
   OPINION

DIANE DEVASTO, Justice.

Sherron Cook (“Sherron”) appeals the trial court’s order granting summary judgment in favor of Nacogdoches Anesthesia Group (“the Group”) and Dr. John Haidin-yak. She raises three issues on appeal. We affirm in part and reverse and render in part.

Background

The Group is a limited liability partnership that contracted with Nacogdoches Medical Center Hospital to be the exclusive provider of anesthesia services at the hospital. Peter Baublet, a certified registered nurse anesthetist, worked for the Group. Baublet provided anesthesia services to Robert Cook (“Robert”) on February 25, 2002.

At the time, Robert was forty-eight years old suffering from severe obstructive sleep apnea. He weighed 270 pounds. Dr. Gregory S. Tate suggested two surgical procedures for Robert, a laser-assisted uvuloplasty and a genio tubercle advancement. Prior to the scheduled procedures, Baublet consulted with Nancy Batzloff regarding Dr. Tate’s requested anesthesia care for Robert. Batzloff was a partner in the Group and also a nurse anesthetist. Baublet told Batzloff that because the intu-bation would be difficult, he had requested that a tracheostomy tray be available in case problems arose. Batzloff told Bau-blet that she would be next door and that if he needed anything, he should “just holler.”

After Dr. Tate finished the uvuloplasty, Baublet was unable to adequately oxygenate Robert. A “code blue” was called, and Dr. John Haidinyak, another partner in the Group, responded. Haidinyak noticed pink, frothy fluid coming through the en-dotracheal tube and said, “The case is cancelled.” Immediately following his answer, in response to a request for clarification, Haidinyak said, “I think it was obvious the case was cancelled.” Robert suffered respiratory arrest and cardiac arrest, which led to severe irreversible brain damage.

On November 5, 2003, Appellees filed a traditional and a no-evidence motion for summary judgment contending that a fact issue exists concerning whether Baublet was an employee of the Group or an independent contractor. Appellees assert that Baublet was an independent contractor and, thus, neither the Group nor Haidin-yak may be held vicariously liable for any of Baublet’s allegedly negligent acts or omissions. Additionally, Appellees contend that there is no evidence that Haidin-yak individually had a duty to Robert, that he breached any applicable standard of care, or that any alleged breach of care by Haidinyak is causally connected to Robert’s injuries. On December 9, 2003, Sher-ron filed a motion to nonsuit Haidinyak. After a hearing on Appellees’ joint motion for summary judgment, the trial court signed an order granting the motion on December 15, 2003. This appeal followed.

Summary Judgment

Sherron asserts in her first and second issues that the trial court erred in granting summary judgment for the Group. Specifically, she claims that the trial court erred in finding that Baublet was an independent contractor and that there was no evidence that Baublet was an employee or agent of the Group.

Standard of Review

Texas uses summary judgments merely “to eliminate patently unmeritorious claims and untenable defenses.” Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989). In reviewing a traditional motion for summary judgment, this court must apply the standards established in Nixon v. Mr. Property Management Company, 690 S.W.2d 546, 548-49 (Tex.1985), which are as follows:

(1) The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law;
(2) Evidence favorable to the non-mov-ant will be taken as true in deciding whether there is a disputed material fact issue precluding summary judgment; and
(3) Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

See id.

A defendant who negates at least one essential element of a cause of action or proves all essential elements of an affirmative defense is entitled to summary judgment as to that cause of action. See Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). Because the burden of proof is on the movant, and all doubts about the existence of a genuine issue of a material fact are resolved against the movant, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant. See Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965).

In a no-evidence summary judgment, a party is entitled to summary judgment if there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex.R. Civ. P. 166a(i). We view the evidence in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003), cert. denied, 541 U.S. 1030, 124 S.Ct. 2097, 158 L.Ed.2d 711 (2004). In reviewing a no-evidence summary judgment, we apply the same legal sufficiency standard we apply in reviewing a directed verdict. Id. at 750-51. A no-evidence summary judgment is improperly granted if the nonmovant brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Id. at 751. More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Id. If the movant’s motion and summary judgment proof facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a material fact issue sufficient to defeat summary judgment. Dolcefino v. Randolph, 19 S.W.3d 906, 917 (Tex.App.Houston [14th Dist.] 2000, pet. denied). If the issue raised is based upon undisputed and unambiguous facts, then the reviewing court may determine the question presented as a matter of law. Gramercy Ins. Co. v. MRD Invs., Inc., 47 S.W.3d 721, 724 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). However, if resolution of the issues rests on disputed facts, summary judgment is inappropriate, and the reviewing court should reverse and remand for further proceedings. Id.

Where, as here, the order granting summary judgment does not specify the particular grounds on which the trial court granted the motion, on appeal, the summary judgment opponent must defeat each summary judgment ground argued by the movant. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989). Otherwise, an appellate court must uphold the summary judgment on any ground that is supported by the evidence and pleadings. Id. Because the propriety of summary judgment is a question of law, we review the trial court’s summary judgment de novo. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994).

Employee or Independent Contractor

The test to determine whether a worker is an employee rather than an independent contractor is whether the employer has the right to control the progress, details, and methods of operations of the work. Thompson v. Travelers Indem. Co., 789 S.W.2d 277, 278 (Tex.1990); Farrell v. Greater Houston Transp. Co., 908 S.W.2d 1, 3 (Tex.App.-Houston [1st Dist.] 1995, writ denied). An employer controls not merely the end sought to be accomplished, but also the means and details of its accomplishment. Thompson, 789 S.W.2d at 278; Darensburg v. Tobey, 887 S.W.2d 84, 88 (Tex.App.-Dallas 1994, writ denied). Unless the evidence is conclusive and reasonably susceptible to only one inference, this question is one of fact. Pitchfork Land & Cattle Co. v. King, 162 Tex. 331, 346 S.W.2d 598, 603 (1961). We measure the right to control by considering (1) the independent nature of the worker’s business, (2) the worker’s obligation to furnish necessary tools, supplies, and materials to perform the job, (3) the worker’s right to control the progress of the work except as to final results, (4) the time for which the worker is employed, and (5) the method of payment. Id. (citing Indus. Indem. Exch. v. Southard, 138 Tex. 531, 160 S.W.2d 905, 907 (Tex.1942); Farrell, 908 S.W.2d at 3).

The Group’s summary judgment evidence showed that at the time of Robert’s surgery, Baublet worked for the Group each Monday and Friday for eight hours each day. He was free to work for anyone else the rest of the week. Additionally, the hospital, not the Group, provided the necessary equipment required for his work. Baublet also had broad discretion in how to do his job. He was free to use a variety of methods based on the type of procedure being performed, the particular patient’s health, and input from the surgeon. The Group merely told Baublet when to be at the hospital to be available for anesthesia services. Moreover, the Group reported Baublet’s income on a 1099 form, not a W-2 form. The Group did not pay Baublet for vacation, sick leave, or holidays, nor did the Group pay Baublét’s social security or federal income taxes. This evidence shows that Baublet was an independent contractor. See Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 312-13 (Tex.2002). Sherron did not produce any contradictory evidence.

On appeal, Sherron asserts that since the Group had the exclusive contract with the hospital to provide anesthesia services, Baublet would not be allowed to work at the hospital unless it was through the Group. We agree. She then maintains that because Baublet was allowed to work at the hospital only through the Group, Baublet must be an employee of the Group. That conclusion does not necessarily follow. Moreover, she provided no summary judgment evidence or legal authority to support her assertion. Additionally, Sherron asserts that the Group directed the details of Baublet’s work, pointing out that Haidinyak, not Baublet, commented that the “case is cancelled” upon seeing Robert’s condition. At most, the statement is ambiguous and is insufficient to create a fact issue. Finally, Sher-ron asserts that Baublet was a Group employee because he consulted with Batzloff prior to the procedure. However, the legal test for determining independent-contractor status in Texas is right to control, not the right to consult. See Thompson, 789 S.W.2d at 278.

The Group’s summary-judgment evidence established, as a matter of law, that the Group merely controlled the end sought to be accomplished — anesthesia services available for surgeries at the hospital — whereas Baublet controlled the means and details of accomplishing the work. See McNamara, 71 S.W.3d at 313; Thompson, 789 S.W.2d at 278. Consequently, the burden shifted to Sherron to raise a material fact issue. However, she failed to do so. Thus, the trial court could have granted the summary judgment on the ground that Baublet was an independent contractor and not a Group employee. Because the trial court did not specify the particular grounds for its order granting summary judgment, we need not address Sherron’s other arguments challenging the summary judgment. See Carr, 776 S.W.2d at 569. We overrule Sherron’s first and second issues.

Nonsuit of Dr. John Haidinyak

Sherron argues in her third issue that the trial court erred in granting summary judgment in favor of Haidinyak because she filed a motion to nonsuit Haidin-yak before the granting of the summary judgment. We agree.

To take a nonsuit, the party can file either a written motion to dismiss or make an oral announcement of the non-suit in open court. Greenberg v. Brookshire, 640 S.W.2d 870, 872 (Tex.1982). The movant may choose to take a nonsuit as to some parties and claims without non-suiting the rest of the parties and claims. See Tex.R. Civ. P. 162, 163; see Mainland Sav. Ass’n v. Wilson, 545 S.W.2d 491, 493 (Tex.App.-Houston [1st Dist.] 1976, no writ). A plaintiff may take a nonsuit at anytime before the trial court grants a summary judgment. Leon Springs Gas Co. v. Rest. Equip. Leasing Co., 961 S.W.2d 574, 577 (Tex.App.-San Antonio 1997, no pet.); Taliaferro v. Smith, 804 S.W.2d 548, 550 (Tex.App.-Houston [14th Dist.] 1991, no writ). The party request ing a nonsuit has an absolute right to a nonsuit at the moment the motion is filed with the clerk, so long as the motion is timely filed. See Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 59 (Tex.1991); BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 840 (Tex.1990). A plaintiffs right to a nonsuit exists from the time the plaintiff files a motion for nonsuit or asks for one in open court. Greenberg, 640 S.W.2d.at 872. The granting of a nonsuit is merely a ministerial act. Id. The plaintiffs right to take a nonsuit is unqualified and absolute as long as the defendant has not made a claim for affirmative relief. Millard, 800 S.W.2d at 840.

The record shows that Sherron filed a motion to nonsuit Haidinyak on December 9, 2003. The trial court conducted a hearing on Appellees’ motion for summary judgment on December 11, 2003. On December 15, 2003, the trial court signed an order granting summary judgment in favor of both the Group and Haidinyak. Sherron’s nonsuit was effective at the time the trial court granted summary judgment. Therefore, the trial court should not have granted summary judgment in favor of Haidinyak. Accordingly, we sustain Sher-ron’s third issue.

Conclusion

Having overruled Sherron’s first and second issues, we affirm the trial court’s summary judgment in favor of the Group. We have sustained Sherron’s third issue. Accordingly, we reverse the summary judgment in favor of Haidinyak and render judgment dismissing Sherron’s claims against Haidinyak without prejudice.

      . In a separate issue and on different grounds, Sherron contends the trial court erred in granting summary judgment for Haidinyak.


source: Caselaw Access Project

author: KEM THOMPSON FROST, Justice.

license: Public Domain

text:
    Robert Blakely McLENDON, Appellant, v. The STATE of Texas, Appellee.
    No. 14-03-01166-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 2, 2005.
    Rehearing and Rehearing En Banc Overruled July 14, 2005.

      Jerald Kaplan Graber, Houston, for appellant.
    Lori DeAngelo Fix, Houston, for appel-lee.
    Panel consists of Justices ANDERSON, FROST, and HUDSON.
   OPINION

KEM THOMPSON FROST, Justice.

Appellant, Robert Blakely McLendon, appeals a conviction for arson on the grounds that: (1) the evidence is legally and factually insufficient; (2) the State commented on his failure to testify; and (3) the trial court erred in denying his motion to suppress. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Michael Edwards, a River Oaks Patrol security officer, was on duty the night of November 30, 2002. He had been instructed to keep a special watch on the house under construction at the address of 3005 Del Monte, in Houston, because the property was owned by a prominent Enron executive. At approximately three o’clock in the morning, Edwards noticed a suspicious vehicle, a black Lincoln Navigator, parked in front of 3005 Del Monte. As he approached the vehicle, Edwards noticed a white male running from the front of the house toward the vehicle. As Edwards turned on his lights, the man jumped into the vehicle and drove away. As he was looking for a specific address to call in a report on the suspicious vehicle, Edwards noticed the house at 3005 Del Monte was on fire. Edwards gave a description of the vehicle and its license plate number to the dispatcher and followed the Navigator through the neighborhood and onto the Southwest Freeway. The man eventually abandoned the vehicle and ran away through an open field toward an apartment complex. Edwards noted the license plate number of the vehicle and reported it to the Houston Police Department (HPD). Later that morning, HPD and River Oaks Patrol officers determined the registered owner of the Navigator was appellant, Robert Blakely McLendon.

An arson investigator, Nathaniel Gee, conducted a cause and origin investigation and concluded the fire at 3005 Del Monte was incendiary, not accidental. Gee found a large can at the scene, which was later determined to have contained diesel fuel. Debris collected from the fire was examined, and chemists found it contained a flammable heavy-petroleum distillate, such as diesel fuel. Leo Gonzalez, a senior investigator with the Houston Fire Department, placed a photograph of appellant in a photo array, which he showed to Edwards. When Edwards viewed the photos, he originally identified the photograph in position number two as the man he saw running from the house, but then stated the man in photograph number one looked similar to the man he identified.

Based on the investigation and Edwards’s identification, Gonzalez obtained an arrest warrant for appellant and arrested him at his apartment. At the time of his arrest, appellant was driving the black Navigator with the same license plates as the vehicle observed at the scene of the fire. Later, Edwards positively identified appellant at a live line-up.

Appellant was charged with arson of a habitation. Before closing arguments, appellant requested and received an instruction on the lesser-included offense of arson of a building. The jury convicted appellant of the lesser-included offense. After finding the allegations in the enhancement paragraph true, the jury assessed punishment at thirty-five years’ confinement in the Texas Department of Criminal Justice — Institutional Division and imposed a fine of $10,000.

II. ISSUES AND ANALYSIS

A. Is the evidence legally and factually sufficient to support appellant’s conviction for arson?

Appellant contends the evidence is legally and factually insufficient to support his conviction because it failed to establish he started the fire. Specifically, appellant contends the evidence shows, at best, he was merely present at 3005 Del Monte and left in his vehicle before the fire began.

1. Estoppel as a Bar to Challenge Legal Sufficiency

Appellant requested and received a charge on the lesser-included offense of arson of a building. The jury convicted appellant of the lesser-included offense. The State argues appellant is now es-topped from challenging the legal and factual sufficiency of the evidence supporting this conviction. The State relies on a line of cases from the Court of Criminal Appeals indicating that a defendant who invokes the benefit of a lesser-included offense by either requesting a jury charge on it or by not objecting to its submission is estopped from complaining on appeal that the evidence is legally insufficient to support a conviction on the lesser offense. See State v. Yount, 853 S.W.2d 6, 9 (Tex.Crim.App.1993) (majority opinion citing Lee estoppel rule with approval and as analogous to rule applied by the court in Yount); State v. Lee, 818 S.W.2d 778, 781 (Tex.Crim.App.1991) (plurality op.), overruled on other grounds by Moore v. State, 969 S.W.2d 4 (Tex.Crim.App.1998); Bradley v. State, 688 S.W.2d 847, 853 (Tex.Crim.App.1985) (plurality op. and dictum).

The opinions in Lee and Bradley were plurality opinions, and the Yount case did not involve an alleged waiver of legal sufficiency review. See Yount, 853 S.W.2d at 9; Lee, 818 S.W.2d at 781; Bradley, 688 S.W.2d at 853. Nonetheless, the Yount majority quoted Lee and cited its rationale with approval in holding that that the appellant in Yount had waived his limitations defense to the driving-while-intoxicated offense by requesting that it be submitted to the jury as a lesser-included offense. See Yount, 853 S.W.2d at 9. Though not part of the holding, we conclude that the Yount court’s approval of the Lee estoppel rule is a judicial dictum binding on this court as a deliberate and unequivocal declaration of the criminal law. See LeBlanc v. State, 138 S.W.3d 603, 606 (Tex.App.—Houston [14th Dist.] 2004, no pet.) (stating that, as an intermediate court of appeals, we are bound by the Court of Criminal Appeals’s deliberate and unequivocal declarations of criminal law); McKinney v. State, - S.W.3d -, - - -, 2005 WL 327145, at *2-5 (Tex.App.-Houston [1st Dist.] Feb.10, 2005, no pet. h.) (concluding that intermediate courts of appeals are bound by Yount’s affirmation of the Lee estoppel rule); see also Edwards v. Kaye, 9 S.W.3d 310, 314 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (distinguishing between a nonbinding obiter dictum and a judicial dictum). Because we are bound by the Court of Criminal Appeals’s affirmation of the Lee estoppel rule in Yount, we conclude appellant is estopped from bringing a legal sufficiency challenge. See Yount, 858 S.W.2d at 9; McKinney, — S.W.3d at -, 2005 WL 327145, at *3. Accordingly, we overrule appellant’s first issue.

Although we follow, as we must, the Court of Criminal Appeals’s judicial dictum in Yount, we question the soundness of this estoppel rule, and we join the First Court of Appeals in respectfully suggesting that the Court of Criminal Appeals reconsider this rule for the reasons expressed by the First Court of Appeals in the McKinney case. See McKinney, — S.W.3d at -, 2005 WL 327145, at *2-5.

2. Factual Sufficiency

The State further urges this court to follow the decisions of other intermediate courts of appeals that have extended the Lee estoppel rule to factual sufficiency challenges. See Otting v. State, 8 S.W.3d 681, 687 (Tex.App.—Austin 2000, pet. ref'd untimely filed); Reaves v. State, 970 S.W.2d 111, 118 (Tex.App.—Dallas 1998, no pet.); Bisco v. State, 964 S.W.2d 29, 30 (Tex.App.—Tyler 1997, pet. ref'd); Taylor v. State, 947 S.W.2d 698, 702 (Tex.App.—Fort Worth 1997, pet. ref'd). We respectfully decline to do so. For the reasons stated in McKinney, we conclude appellant is not estopped from challenging the factual sufficiency of the evidence supporting his conviction for the lesser-included offense of arson of a building. See McKinney, — S.W.3d at -, 2005 WL 327145, at *4-5.

Appellant contends the evidence is factually insufficient to support his conviction because it failed to establish that he aetually started the fire. When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App.2004). A reviewing court may find the evidence factually insufficient in two ways. Id. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a — reasonable-doubt standard could not have been met. Id. at 484-85. In conducting the factual sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 481-82. Our evaluation should not intrude upon the fact finder’s role as'the sole judge of the weight and credibility given to any witness’s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). In conducting a factual sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003).

In the context of this case, a person commits arson of a building if the person starts a fire, regardless of whether the fire continues after ignition, with intent to destroy of damage any building, knowing that it is within the limits of an incorporated city or town. See TEX. PEN. CODE ANN. § 28.02 (Vernon 2003). Appellant asserts that the evidence merely showed that he was present at the scene before and after the fire, and that the evidence is factually insufficient to show he started the fire. However, the evidence in the record shows more than appellant’s mere presence at the scene. Arson investigator Nathaniel Gee testified that in his opinion the fire at 3005 Del Monte was intentionally set, and the cause of the fire was arson. Chemists testified that a can found at the scene contained diesel fuel, commonly used by arsonists because it does not emit fumes that can cause flash burns on the person who sets the fire. The investigators’ uncontroverted testimony is sufficient for a rational trier of fact to conclude the fire was intentionally set. See Machado v. State, 753 S.W.2d 252, 254 (Tex.App.—Houston [1st Dist.] 1988) (arson investigator’s undisputed testimony that fire was intentionally set was sufficient to support finding of arson), pet. ref'd, 767 S.W.2d 809 (Tex.Crim.App.1989).

Though appellant argues that no person saw him start the fire, direct evidence is not required, and the circumstantial evidence presented to the jury is factually sufficient to support a finding that appellant started the fire. At three o’clock in the morning, appellant’s vehicle was parked, with the tail lights on, in front of the house at 3005 Del Monte, which was under construction. Edwards positively identified appellant as the man he saw running away from the house immediately before he noticed the house was on fire. Edwards further testified that appellant fled the scene in his vehicle, then abandoned the vehicle and fled on foot. Although flight alone will not support a guilty verdict, it is a circumstance from which an inference of guilt may be drawn. Harris v. State, 645 S.W.2d 447, 458 (Tex.Crim.App.1983). Appellant presented no evidence to controvert the State’s evidence. In support of his factual-sufficiency argument, appellant cites testimony that, at some point in time, appellant’s vehicle was reported stolen. However, the testimony appellant cites was given at a motion-to-suppress hearing, and no such evidence was admitted at trial. Accordingly, we cannot consider this evidence in our factual sufficiency review. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App.2005) (holding that appellate courts determine the sufficiency of the evidence to support a conviction based on a review of all of the evidence admitted at trial). Under the applicable legal standard, we conclude the evidence is factually sufficient to support appellant’s conviction for arson of a building. See Zuniga, 144 S.W.3d at 484. Accordingly, we overrule appellant’s second issue.

B. Did the trial court err in overruling appellant’s objection to the State’s allegedly improper comment purportedly addressing his failure to testify during the guilt-innocence phase?

In his third issue, appellant contends the trial court erred in overruling his objection to the State’s jury argument in which the prosecutor allegedly commented on his failure to testify. The State made the following argument during the guilt-innocence phase:

[Edwards testified] absolutely, one hundred percent certain that that’s the person I saw. And coincidentally, that’s the same person who is the registered owner of the car. You have to think about that. That clearly corroborates the identification that Mr. Edwards made. You haven’t heard any evidence that there was someone else driving the Defendant’s vehicle that night. You haven’t heard any evidence—
[Defense Counsel]: Judge, I’m going to object. She’s putting the burden on the defense.
Court: That’s overruled.

On appeal, appellant contends the prosecutor’s comment was an impermissible comment on his failure to testify. An objection at trial not comporting with the complaint on appeal does not preserve error for appellate review. See Guevara v. State, 97 S.W.3d 579, 583 (Tex.Crim.App.2003). Because appellant objected at trial that the State was attempting to shift the burden, and on appeal he raises a different point — that the State commented on his failure to testify — he has failed to preserve error. See Paster v. State, 701 S.W.2d 843, 849 (Tex.Crim.App.1985) (appellant’s trial objection that the State was attempting to shift the burden did not comport with his appellate argument that the State commented on his failure to testify).

Even if appellant had preserved error on the issue he now raises, his argument would not be successful because the trial court did not err in overruling his objection. See Patrick v. State, 906 S.W.2d 481, 491 (Tex.Crim.App.1995) (stating that, if the prosecutor’s language reasonably can be construed to refer to appellant’s failure to produce evidence other than his own testimony, the comment is not improper). The State’s argument reasonably could be construed to refer to appellant’s failure to produce evidence other than his own testimony. Therefore, the trial court did not err in overruling appellant’s objection. Accordingly, we overrule appellant’s third issue.

C. Did the trial court err in denying appellant’s motion for mistrial made during the punishment phase, after the State’s allegedly improper comment purportedly aimed at his failure to testify?

In his fourth issue, appellant contends the trial court erred when, during the punishment phase, it denied his motion for mistrial after the State allegedly commented on appellant’s failure to testify.

The prosecutor made the following argument during the punishment phase:

This time when you go back to the jury room, I suggest you think about a couple of things. The first thing that you have to take into consideration, obviously, is the Defendant and what kind of person he is. And I promise you [defense counsel] is an excellent lawyer. He knows exactly what he’s doing. And I promise you, if there was anything good to say about the defendant—
[Defense counsel]: Judge, I’m going to object. She’s switching the burden.
THE COURT: That’s sustained.
[Defense Counsel]: I move for a mistrial.
THE COURT: That is denied.
[Defense counsel]: I ask that the jury disregard.
THE COURT: Jury, disregard the last comment by the prosecutor. You are not to consider it for any reason.

An objection at trial not comporting with the complaint on appeal does not preserve error for appellate review. See Guevara, 97 S.W.3d at 583. Because appellant objected at trial that the State was attempting to shift the burden, and on appeal he argues the State commented on his failure to testify, he has failed to preserve the complaint he now raises. See Paster, 701 S.W.2d at 849.

Furthermore, we review a trial court’s ruling on a motion for mistrial under an abuse-of-discretion standard, and we must uphold the trial court’s ruling if that ruling is within the zone of reasonable disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App.2004). Even if appellant had preserved the point he now argues, any harm was cured by the trial court’s instruction to disregard, and the trial court did not abuse its discretion in denying appellant’s motion for a mistrial. See Simpson v. State, 119 S.W.3d 262, 272-74 (Tex.Crim.App.2003). Accordingly, we overrule appellant’s fourth issue.

D. Did the trial court err in denying appellant’s pretrial motion to suppress the line-up identification?

In his fifth issue, appellant contends the trial court erred in denying his motion to suppress the line-up identification because, he claims, an affirmative misrepresentation was knowingly included in the probable cause affidavit and material facts concerning appellant’s innocence were knowingly excluded from it. Specifically, appellant contends Officer Gonzalez: (1) intentionally and knowingly included a falsehood in the affidavit when he wrote that Edwards “tentatively” identified appellant from a photospread, and (2) failed to include in the affidavit that he knew appellant’s vehicle had been reported stolen and that a witness described appellant’s hair as a different color.

Appellant filed a motion to suppress Edwards’s line-up identification of appellant, contending the affidavit for an arrest warrant contained false statements by the affiant, made knowingly and intentionally, or with a reckless disregard for the truth, which statements are necessary for the finding of probable cause. See Franks v. Delaware, 438 U.S. 154, 164-65, 98 S.Ct. 2674, 2680-81, 57 L.Ed.2d 667 (1978). In Franks, the United States Supreme Court recognized that, if an affirmative misrepresentation is knowingly included in a probable cause affidavit and is material and necessary to establishing probable cause, the warrant is rendered invalid under the Fourth Amendment. Id., 438 U.S. at 156, 98 S.Ct. at 2676. This exclusionary rule does not extend to instances in which the police are merely negligent in collecting the facts alleged in the affidavit. Id., 438 U.S. at 170, 98 S.Ct. at 2674. The affidavit must make a truthful showing of probable cause “in the sense that the information put forth is believed or appropriately accepted by the affiant as true.” Id., 438 U.S. at 165, 98 S.Ct. at 2674. A misstatement in an affidavit that is the result of simple negligence or inadvertence, as opposed to reckless disregard for the truth, will not make the warrant invalid. See Dancy v. State, 728 S.W.2d 772, 783 (Tex.Crim.App.1987).

Appellant contends the affidavit in this case is false because it contains the following statement:

On December 2, 2002 your affiant showed the photospread to Michael Edwards. Edwards tentatively identified [appellant] but told affiant that one of the fill in subjects also had similar features as the suspect.

The trial court conducted a pretrial suppression hearing at which appellant and the State presented evidence. At the hearing, Edwards testified he tentatively identified the photo in the number two position as being the man he saw running from the house, but thought the photo of the individual in the number one position looked similar. The trial court denied appellant’s motion and found there was no deliberate falsehood or material misrepresentation or any reckless disregard for the truth. As the sole fact-fínder and judge of the witnesses’ credibility and weight of the evidence, the trial court is owed great deference, and its ruling will be reversed only if outside the bounds of reasonable disagreement. Hinojosa v. State, 4 S.W.3d 240, 247 (Tex.Crim.App.1999). Applying this standard, we find no basis to overrule the trial court’s decision to deny appellant’s motion to suppress.

Appellant further contends the affidavit contained falsehoods due to omission of the fact that appellant’s vehicle had been stolen and that Edwards described the suspect as having sandy blonde hair. During the pretrial hearing, Officer Gonzalez, the affiant for the probable cause statement, testified that he reviewed the initial offense report, interviewed Edwards, and generated a supplemental report. The initial report reflects that Officer Gee interviewed Edwards, who stated that he observed an unidentified person running away from the structure and described the possible suspect as, “a heavy build, well-dressed, white male, approximately 5'10" to 6'0" tall with sandy blonde hair.” Regarding identification of appellant’s hair color and its omission from the affidavit, appellant presented no evidence to show the materiality of the suspect’s hair color. Regarding the report that the black Navigator was once reported stolen and the omission of that fact from the affidavit, Gonzalez testified that, at some time prior to the drafting of the probable cause affidavit, he became aware the vehicle had been reported stolen. There was no evidence, however, that the vehicle had been reported stolen immediately prior to the fire. Reviewing the evidence from the hearing, we find no basis to overrule the trial court’s ruling with regard to the omission of the stolen vehicle report and the description of appellant’s hair color. Accordingly, we overrule appellant’s fifth issue.

E. Did the trial court err in denying appellant’s motion to suppress identification testimony based on an allegedly impermissibly suggestive line-up?

In his sixth issue, appellant contends the trial court erred in denying his motion to suppress Juan Marroquin’s punishment-phase identification testimony — • both Marroquin’s in-court identification of appellant and testimony as to Marroquin’s line-up identification of appellant. Appellant argues the trial court should have excluded this evidence because the line-up was unduly suggestive given that Marro-quin knew the police suspected one of the men in the line-up of being the man Mar-roquin had seen fleeing from an earlier fire at the Harris County civil courthouse.

At the punishment phase, Marroquin testified that on July 28, 2001, he was working as the night shift supervisor at the old; criminal courthouse when he wit-. nessed a fire at the Harris County civil courthouse. As Marroquin was driving out of a driveway across the street from the civil courthouse, he saw a black vehicle he assumed belonged to a contractor working at the courthouse. Marroquin explained that contractors had been working around the clock to repair damage caused by a recent flood. As he drove away, Marroquin saw a man exit the courthouse building, and at almost the same time, he saw the fire at the courthouse begin to blaze. The man jumped into the black vehicle and drove away without using his vehicle’s headlights. Marroquin pursued the vehicle but was unable to maintain contact.

On December 5, 2002, Marroquin was asked to view a line-up at the police station. Marroquin testified that, at the time of the line-up, he knew a suspect in the courthouse fire was in the line-up. Appellant objected that the line-up was unduly suggestive, and the trial court overruled appellant’s objection. Marroquin identified appellant as the man he saw leaving the scene of the courthouse fire. Marro-quin’s testimony was introduced at the punishment phase as evidence of an extraneous crime or bad act, which could be considered by the jury if proved beyond a reasonable doubt.

On appeal, appellant contends the trial court erred in denying his motion to suppress Marroquin’s identification testimony. Although appellant did not file a pretrial motion to suppress Marroquin’s testimony on the grounds the line-up was unduly suggestive, appellant’s trial objection is sufficient to preserve error on this issue. See Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App.1992).

For appellant to exclude both the testimony as to Marroquin’s line-up identification and his in-court identification, he must show that the line-up identification procedure was impermissibly suggestive. Santos v. State, 116 S.W.3d 447, 451, 455 (Tex.App.—Houston [14th Dist.] 2003, pet. ref'd). A pretrial procedure may be suggestive, but that does not necessarily mean it is impermissibly so. Barley v. State, 906 S.W.2d 27, 34 (Tex.Crim.App.1995). Suggestiveness may be created by the manner in which the pretrial identification procedure is conducted, for example, by police pointing out the suspect or suggesting that a suspect is included in the line-up. Id. at 33. A pretrial identification procedure is not impermissibly suggestive, however, merely because a witness may have believed one of the individuals in the line-up was a suspect. Harris v. State, 827 S.W.2d 949, 959 (Tex.Crim.App.1992); Abney v. State, 1 S.W.3d 271, 275 (Tex.App.—Houston [14th Dist.] 1999, pet. ref'd).

Although Officer Marroquin testified that he knew someone in the line-up was a suspect in the courthouse fire, that fact did not make the line-up impermissi-bly suggestive. A line-up is not rendered impermissibly suggestive simply because a witness is told that the line-up includes a suspect, because a witness would normally assume that to be the case. Hams, 827 S.W.2d at 959. Because we find the out-of-court identification procedure was not impermissibly suggestive, we need not address the second prong of the analysis. We overrule appellant’s sixth issue.

Having overruled all of appellant’s issues, we affirm the trial court’s judgment.

      . The trial court took judicial notice of the fact that photograph number two was a picture of appellant.

      . In McKinney, the First Court of Appeals declined to extend the estoppel rule in Lee to a factual sufficiency review, reasoning that the factual sufficiency standard of review considers the quality and quantity of the evidence whereas a request for a lesser-included offense charge does not constitute an admission concerning the quality or quantity of the evidence.1 See McKinney, - S.W.3d at -, 2005 WL 327145, at *4-5.

      . Appellant also cites the O'Keefe and Machado cases in support of his factual sufficiency argument. See O’Keefe v. State, 687 S.W.2d 345, 349-50 (Tex.Crim.App.1985); Machado v. State, 753 S.W.2d 252, 253-54 (Tex.App.—Houston [1st Dist.] 1988), pet. ref'd, 767 S.W.2d 809. These decisions were based on a different legal standard, one that required evidence negating every reasonable hypothesis except that of appellant’s guilt. See O’Keefe, 687 S.W.2d at 349-50; Machado, 753 S.W.2d at 253-54. Because this is no longer the law, these cases are not on point. See Geesa v. State, 820 S.W.2d 154, 159-61 (Tex.Crim.App.1991) (abrogating legal standard that required evidence negating every reasonable hypothesis except appellant’s guilt).

      . The Court of Criminal Appeals has not yet determined whether omissions can be raised in a Franks analysis. See Massey v. State, 933 S.W.2d 141, 146 (Tex.Crim.App.1996); Arnold v. State, 47 S.W.3d 757, 760 (Tex.App.— Houston [14th Dist.] 2001, pet. ref'd). Because we find the omissions were not misleading, we need not address whether omissions may properly be raised in a Franlcs hearing.


author: LESLIE BROCK YATES, Justice.

text:
    Barry A. OLIPHINT, Appellant, v. Scott M. RICHARDS and Jacobs Engineering Group, Inc., Appellees.
    No. 14-04-00168-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 7, 2005.

      Peter Costea, Houston, for appellants.
    Ethel J. Johnson and Stephen Eric Hart, Houston, for appellees.
    Panel consists of Justices YATES, EDELMAN, and GUZMAN.
   OPINION

LESLIE BROCK YATES, Justice.

This is a defamation case arising out of a negative employment reference given by appellees, Scott M. Richards and Jacobs Engineering Group, Inc., to a private investigator hired by appellant, Barry A. Oliphint. The trial court granted appel-lees’ motion for summary judgment, and, in one point of error, Oliphint claims the trial court erred in doing so. We affirm.

Factual and Procedural Background

According to the undisputed summary judgment evidence, Oliphint began working for a subsidiary of Jacobs Engineering in 1984, and he eventually worked directly for Jacobs Engineering until his employment ended in 1991. From 1989 through 1991, Richards was one of Oliphint’s supervisors.

The day before Oliphint’s employment ended, Oliphint had a heated telephone discussion with another of his supervisors, Jimmy Lee. Lee asked Oliphint to perform an inspection earlier in the day than originally scheduled. Oliphint refused to do so and hung up on Lee. The next day, Richards called Oliphint into his office and said they had decided to terminate Oli-phint’s employment. After telling his side of the story, Oliphint told Richards that he wanted to quit because he could not work with Lee anymore. Oliphint claims that Richards agreed to document the separation as a resignation. Richards denies this and wrote that Oliphint was terminated for performance and other problems, “all of which are related to alcohol.”

A few months later, Oliphint was interviewing for another job. The interviewer asked about his separation from Jacobs Engineering, and Oliphint said he had resigned. Oliphint testified that the interviewer “shook his head in disgust and told me that he could take a lot, but he could not take a liar.” When Oliphint pressed the interviewer for more details, the interviewer said, “That’s not what Jacobs told me.”

Oliphint eventually obtained another job, and during the 1990s, he held various jobs, though he says he was turned down from a second job based on a suspected negative reference from Richards. Oliphint began looking for a new job in 2000 and was not satisfied with the results of his search. In March 2002, Oliphint hired a private investigator to check all of his references. At Jacobs Engineering, the investigator first called the human resources department, which would only verify dates of employment and positions held. The investigator then called Richards directly, who told her that Oliphint had been terminated for “substance abuse problems.”

Oliphint denies that he has ever had any substance abuse problems, and based on Richards’s statement to the investigator, Oliphint sued Richards and Jacobs Engineering for defamation, intentional infliction of emotional distress, and negligence. Appellees filed a motion for summary judgment, which the trial court granted. This appeal followed.

Analysis

Standard of Review

Appellees filed both a traditional motion for summary judgment and a no-evidence motion. See Tex.R. Civ. P. 166a(c), (i). The standard of review for a traditional motion for summary judgment is whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). A defendant must conclusively negate at least one essential element of each of the plaintiffs causes of action or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). Under this traditional standard, this court must take as true all evidence favorable to the nonmovant and must make all reasonable inferences in the nonmovant’s favor. See id. We review a no-evidence summary judgment de novo by construing the record in the light most favorable to the nonmovant and disregarding all contrary evidence and inferences. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). A no-evidence summary judgment is improperly granted when the respondent brings forth more than a scintilla of probative evidence that raises a genuine issue of material fact. See Tex.R. Civ. P. 166a(i); Coastal Conduit & Ditching, Inc. v. Noram Energy Corp., 29 S.W.3d 282, 284 (Tex.App.-Houston [14th Dist.] 2000, no pet.). When, as here, a trial court’s order granting summary judgment does not specify the grounds relied upon, we must affirm summary judgment if any of the summary judgment grounds are meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000).

Defamation

A plaintiff may not recover on a defamation claim based on a publication to which he has consented or which he has authorized, procured, or invited. Lyle v. Waddle, 144 Tex. 90, 188 S.W.2d 770, 772 (1945); Frank B. Hall & Co. v. Buck, 678 S.W.2d 612, 617 (Tex.App.-Houston [14th Dist.] 1984, writ ref'd n.r.e.). Appellees argue that Oliphint’s defamation claim is barred because Oliphint consented to or invited publication of the statement at issue by hiring an investigator to solicit a statement from Richards.

Relying on Buck and Free v. American Home Assurance Co., 902 S.W.2d 51 (Tex.App.-Houston [1st Dist.] 1995, no writ), Oliphint claims that hiring an investigator to determine the content of a defamatory statement does not amount to consent or invitation to defamation. In Buck, the plaintiff, an established salesman, was abruptly fired and was unable to find another job. Buck hired an investigator to determine the real reason he was fired, and his former employer made defamatory statements about him to the investigator. 678 S.W.2d at 617. When Buck sued for defamation, his former employer argued the statements were invited and therefore could not form the basis of a defamation claim. Id. This court rejected the employer’s argument, noting “there is nothing in the record to indicate that Buck knew [his former employer] would defame him when [the investigator] made the inquiries.” Id. Similarly, in Free, the First Court of Appeals rejected the employer’s consent defense to a defamation claim based on statements made to an employment headhunter because the employer could not establish, as a matter of law, that the plaintiff had reason to believe the employer would defame him when he requested that the headhunter check his references. 902 S.W.2d at 53-55.

Whereas in both Buck and Free the evidence did not establish that the plaintiff had reason to expect defamation when he requested the reference check, that is not the situation here. According to Oliphint’s own testimony, he knew within months of leaving that appellees were contradicting Oliphint’s account of his separation from Jacobs Engineering, leading a prospective employer to call him a liar. Though he may not have known the exact words that would be said, the undisputed evidence shows that Oliphint clearly had reason to expect a defamatory statement. By hiring an investigator to check his references under these circumstances, Oliphint invited the defamation, and therefore his claim is barred. See Saucedo v. Rheem Mfg. Co., 974 S.W.2d 117, 121 (Tex.App.-San Antonio 1998, pet. denied) (affirming summary judgment on former employee’s defamation claim based on consent because the statement was made only after employee requested a reference check when he suspected employer was giving a bad reference); Smith v. Holley, 827 S.W.2d 433, 440 (Tex.App.-San Antonio 1992, writ denied) (concluding that consent barred former employee’s defamation suit, in part because, unlike in Buck, the employee knew that her former employers had unfavorable opinions about her performance); see also Rouch v. Cont'l Airlines, Inc., 70 S.W.3d 170, 174 (Tex.App.-San Antonio 2001, pet. denied) (distinguishing Buck based on evidence of the employee’s expectation that employer would make defamatory remarks). Thus, the trial court did not err in granting summary judgment on Oliphint’s defamation claim.

Intentional Infliction of Emotional Distress

Oliphint’s claim for intentional infliction of emotional distress is based solely on the alleged defamatory statement made to the investigator. However, the Texas Supreme Court has held that intentional infliction of emotional distress is a gap-filler tort that has no application when the conduct at issue invades some other legally-protected interest. See Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex.2004). “Where the gravamen of a plaintiff’s complaint is really another tort, intentional infliction of emotional distress should not be available.” Id. Though Hoffmann-La Roche is a sexual harassment case, the court cited with approval four other state and federal cases applying this theory in the defamation context. See id. Because Oliphint did not even attempt to base his intentional infliction of emotional distress claim on facts independent of his defamation claim, we hold that an intentional infliction of emotional distress claim is not available. The trial court did not err in granting summary judgment on this claim.

Negligence

Oliphint’s negligence claim is also based on the alleged defamatory statement made to the investigator. Oliphint asserts that appellees owed him a duty not to defame him or supply false information about him to third parties. Appellees argue that such a claim is not a separate cause of action but merely a re-labeled defamation claim. We agree. The courts of this state frown on attempts to fracture one cause of action into multiple claims. Ross v. Arkwright Mut. Ins. Co., 892 S.W.2d 119, 133 (Tex.App.-Houston [14th Dist.] 1994, no writ). In Ross, this court rejected the plaintiffs attempt to convert his malicious prosecution and defamation claims into a negligence claim as well. ‘When the labels attached to the causes of action pled by appellants are ignored, and the pleadings are read for content and analyzed, it is clear, even with a liberal construction, that appellants have pled nothing more than malicious prosecution, defamation, and conspiracy based on these torts.” Id.; see also Tacon Mech. Contractors, Inc. v. Aetna Cas. & Sur. Co., 65 F.3d 486, 488 (5th Cir.1995) (“Under Texas law, an attempt such as this to fracture one cause of action into three or four by massaging the labels and language is impermissible.”).

To support his argument that a defamation claim can support a claim for negligence, Oliphint relies on Mitre v. Brooks Fashion Stores, Inc., 840 S.W.2d 612 (Tex.App.-Corpus Christi 1992, writ denied). In Mitre, shopping mall customers sued individual shop owners for negligence and defamation after flyers accusing the customers of passing counterfeit bills were posted in shops. Id. at 615. The Corpus Christi Court of Appeals reversed the trial court’s grant of summary judgment in favor of the customers, concluding that because the customers’ defamation claim was based on a negligence standard, the customers could also assert a negligence claim based on that duty. Id. at 623. We disagree with the Mitre court’s analysis. Though a defamation claim not involving a public figure contains a negligence liability standard, that is a component of the defamation claim itself, not a separate claim. See Dolcefino v. Randolph, 19 S.W.3d 906, 917 (Tex.App.-Houston [14th Dist.] 2000, pet. denied) (explaining that defamation involving a private citizen requires a showing that a “false statement was made with negligence as to its truth”); Carabajal v. UTV of San Antonio, Inc., 961 S.W.2d 628, 631 (Tex.App.-San Antonio 1998, pet. denied) (referring to “the negligence component of defamation”). Further, Mitre is inconsistent with our analysis in Ross limiting attempts to fracture claims by massaging labels. We hold that Oliphint cannot maintain a negligence claim based solely on a duty not to defame. Therefore, the trial court did not err in granting summary judgment on Oliphint’s negligence claim.

Because we have determined that appel-lees presented one meritorious ground for summary judgment on each of Oliphint’s claims, we need not address the other bases of appellees’ summary judgment motion. We overrule Oliphint’s sole issue and affirm the trial court’s judgment.


author: JOHN S. ANDERSON, Justice.

text:
    William Coben LIFFICK, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 14-04-00179-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 9, 2005.

      Randy Martin, Houston, for appellants.
    Amanda Joy Peters, Houston, for appel-lees.
    Panel consists of Justices YATES, ANDERSON, and HUDSON.
   OPINION

JOHN S. ANDERSON, Justice.

Appellant, William Coben Liffick, Jr., was charged by information with possession of less than two ounces of marijuana. See Tex. Health & Safety Code Ann. § 481.121(a)(b)(l) (Vernon 2008). Appellant filed a motion to suppress the marijuana claiming it was illegally obtained from a warrantless search of his vehicle. After his motion was denied, appellant entered a plea of no contest pursuant to a plea agreement. The trial court deferred adjudication of guilt, assessed a $300 fine, and placed appellant on community supervision for one year. In one point of error, appellant contends the trial court erred by overruling his motion to suppress. We affirm.

I. FACTUAL BACKGROUND

Appellant is the owner of a bar named “What’s Left.” Appellant’s bar is licenced by the Texas Alcohol and Beverage Commission to sell alcoholic beverages. On July 24, 2003, three Texas Alcohol and Beverage Commission agents went to ‘What’s Left” to speak with appellant about an illegal raffle he was promoting at the bar. The agents saw appellant drive into and park in the bar’s parking lot, exit his vehicle, and walk to the tailgate area of his truck. The agents approached appellant, and one of the agents, Sergeant Dill, immediately noticed “small green leafy substances” on the outside of appellant’s pants. Dill, believing the leaves were marijuana, grabbed one of the leaves and showed it to Agent Roskey, who confirmed Dill’s suspicion. The third agent, Agent Francois, smelled the odor of burnt marijuana coming from appellant and saw several flakes of what he believed to be marijuana on appellant’s pants. After the agents identified the marijuana, appellant dusted the remaining leaves and seeds off of his pants and was detained.

Immediately thereafter, Agent Roskey walked to appellant’s driver’s side door and smelled the odor of burning marijuana coming from inside. Agent Roskey then opened the trucks’s door, saw seeds and leaves that he believed to be marijuana on the carpet and seats, and found a plastic bag filled with marijuana in appellant’s center console.

II. DENIAL OF MOTION TO SUPPRESS

In his sole point of error, appellant contends the trial court erred in overruling his motion to suppress. Specifically, appellant argues the “automobile exception” does not apply to this case because his vehicle was not parked on a public street.

A. Standard of Review

In reviewing the trial court’s ruling on a motion to suppress, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.Sd 323, 327 (Tex.Crim.App.2000). We give almost total deference to the trial court’s determination of historical facts that depend on credibility and- demeanor, but conduct a de novo review of the trial court’s application of the law to facts if resolution of those ultimate questions does not turn on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997); see Carmouche, 10 S.W.3d at 327. Furthermore, we will sustain the trial court’s ruling admitting the evidence if the ruling is reasonably supported by the record and correct on any theory of law applicable to the case. Laney v. State, 117 S.W.3d 854, 857 (Tex.Crim.App.2003). This is so even if the decision is correct for reasons different from those espoused at the hearing. Id.

B. Automobile Exception

The federal and state constitutions both guarantee the right to be secure from unreasonable searches and seizures. See U.S. Const, amend. TV; Tex. Const. art. I, § 9; see also Tex.Code CRiM. PROc. Ann. art. 38.23(a) (Vernon Supp.2004) (forbidding any evidence obtained in violation thereof to be admitted against an accused). This fundamental right is preserved by a requirement that searches be conducted pursuant to a warrant issued by an independent judicial officer. California v. Carney, 471 U.S. 386, 390, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). As a result, searches conducted without a warrant are unreasonable per se, subject to a few specifically established and well delineated exceptions. Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App.2003). The State bears the burden to show the warrantless search falls within one of these exceptions. McGee, 105 S.W.3d at 615.

At issue in this case is the applicability of the “automobile exception” to the warrant requirement in the Fourth Amendment to the United States Constitution. The automobile exception permits officers to conduct a warrantless search of a motor vehicle if the officer has probable cause to believe the vehicle contains evidence of a crime. Chambers v. Maroney, 399 U.S. 42, 48-49, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); see Powell v. State, 898 S.W.2d 821, 827 (Tex.Crim.App.1994); Amos v. State, 819 S.W.2d 156, 160-61 (Tex.Crim.App.1991). A warrantless search of an automobile based on probable cause is justified under the United States and Texas Constitutions because a vehicle can be quickly moved out of the location or jurisdiction in which the warrant must be sought, making obtaining a warrant impractical. See Scott v. State, 531 S.W.2d 825, 827 (Tex.Crim.App.1976). In Carney, 471 U.S. at 392-93, 105 S.Ct. 2066, the United States Supreme Court gave two justifications for the automobile exception: “First, the vehicle is obviously readily mobile by the turn of an ignition key, if not actually moving. Second, there is a reduced expectation of privacy stemming from its use as a licensed motor vehicle subject to a range of police regulation inapplicable to a fixed dwelling.”

Appellant does not argue the agents lacked probable cause to search his vehicle. Instead, appellant argues the automobile exception does not apply to this case because his vehicle was not parked on a public street. As his only authority, appellant relies on two cases applying the automobile exception as applied to vehicles parked on a public street, and contends the exception is inapplicable here because his vehicle was parked on appellant’s private premises and not on a public street. See Miller v. State, 11 S.W.3d 345, 348 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd); Martin v. State, 780 S.W.2d 497, 500 (Tex.App.-Corpus Christi 1989, pet. denied). However, contrary to appellant’s assertion, the fact that appellant’s vehicle was not parked on a public street does not automatically render the automobile exception inapplicable. Instead, the automobile exception applies when the vehicle “is found stationary in a place not regularly used for residential purposes ” and is readily capable of being used on the highways. See Miller, 11 S.W.3d at 348 (citing Carney, 471 U.S. at 392-93, 105 S.Ct. 2066) (emphasis added); Martin, 780 S.W.2d at 500 (quoting Carney, 471 U.S. at 392-93, 105 S.Ct. 2066) (emphasis added).

Here, the evidence shows appellant’s vehicle was found stationary in a private parking lot of a bar owned by appellant. The record does not indicate, and appellant does not claim, his bar is a place regularly used for residential purposes. Appellant’s truck was readily capable of being used on the highways because the agents witnessed appellant driving the vehicle shortly before he was arrested. See Miller, 11 S.W.3d at 348 (finding vehicle capable of being used on a highway since the vehicle was not continuously at the same location). Thus, appellant’s vehicle was found stationary in a place not regularly used for residential purposes and was readily capable of being used on the highways. These facts justify application of the automobile exception and permit the search of appellant’s vehicle without a warrant. Carney, 471 U.S. at 392, 105 S.Ct. 2066.

We hold the trial court did not err in overruling appellant’s motion to suppress because the State met its burden to show the warrantless search of appellant’s vehicle was authorized under the automobile exception to the Fourth Amendment requirement of a warrant. We overrule appellant’s sole point of error.

III. CONCLUSION

Because we have overruled appellant’s sole point of error, we affirm the judgment of the trial court.

      . All three agents testified they had received drag recognition training prior to appellant’s arrest.


author: TERRIE LIVINGSTON, Justice.

text:
    TAYLOR ELECTRICAL SERVICES, INC., Appellant/Appellee, v. ARMSTRONG ELECTRICAL SUPPLY COMPANY, Appellee/Appellant.
    No. 2-04-127-CV.
    Court of Appeals of Texas, Fort Worth.
    June 9, 2005.

      Eric F. Dankesreiter, Flower Mound, for Taylor Electrical Services, Inc.
    Matthews, Stein, Shiels, Pearce, Knott, Eden & Davis, L.L.P., Misti L. Beanland, Dallas, for Armstrong Electrical Supply Company.
    Panel B: LIVINGSTON, DAUPHINOT, and McCOY, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

Both parties appeal from the judgment entered on the jury’s verdict primarily in favor of Taylor Electrical Services, Inc. in its breach of contract, fraud, and Deceptive Trade Practices Act (DTPA) claims against Armstrong Electrical Supply Company. Taylor challenges the trial court’s entry of an award for Armstrong’s attorney’s fees.

Armstrong raises sufficiency challenges to the evidence that supports the finding of fraud, the amount of damages the jury awarded, and the knowledge element on the fraudulent mechanic’s and material-men’s hens claim. Armstrong also contends that the trial court erred by concluding that Taylor had standing to challenge the mechanic’s and materialmen’s hens under section 12.003 of the civil practice and remedies code. See Tex. Civ. PRác. & Rem. Code Ann. § 12.003 (Vernon 2002). We reverse and render judgment for Taylor on Armstrong’s attorney’s fees claim but affirm the trial court’s judgment in ah other respects.

Fact Summary

Taylor is an electrical contractor that was working on replacing interior electrical fixtures in two of the Church of Jesus Christ of Latter Day Saints’ churches in Denton County. One church was located at 3000 Old North Road in Denton, Texas (Denton Project), and the other was located at 1100 Stapleton in Flower Mound, Texas (Flower Mound Project).

Armstrong is a subcontractor of electrical supphes that Taylor had used for many years. Taylor, through its president Gary Taylor, had an eighteen-year relationship with its primary contact at Armstrong, David Nichol. Time was of the essence to the church, so Taylor included specific provisions in its suppliers’ work orders requiring them to provide supphes by a certain time or hquidated penalties would be incurred. The purchase orders for the Den-ton Project and the Flower Mound Project each contained a specific on-site delivery date and included a clause that stated, “Delays of receipt will cause delays of completion. Liquidated damages apply to this contract.” The on-site delivery date was June 8 for the Flower Mound Project and was June 13 for the Denton Project. Nichol determined both dates after Gary contacted him about the different projects. During these conversations, Gary had specifically told Nichol that timely delivery of supphes was critical. Armstrong failed to timely deliver all of the materials to either project.

When Armstrong failed to timely deliver ah of the materials ordered, Taylor began working directly with one of Armstrong’s principals, Doris Armstrong, who ultimately disputed the existence of delivery deadlines. Armstrong charged Taylor $46,600 on the Flower Mound Project and $19,650 on the Denton Project. Eventually, Taylor paid the invoices to Armstrong but deducted $6,110 as its hquidated damages due to Armstrong’s late deliveries. Initially, Armstrong did not cash one of Taylor’s checks for $7,732.99 for the Flower Mound Project or apply a credit to Taylor’s outstanding account. Instead, Armstrong filed mechanic’s and materialmen’s hens against both of the church’s properties for the fidl amounts Armstrong had billed to Taylor. Armstrong did not deposit the $7,732.99 check until after the hens were filed, on November 27, 2001. At the time of trial, Armstrong claimed that it was still owed $6,169.05.

Taylor told Armstrong that its contract with the church would be suspended if anyone filed hens on the church’s property and that Taylor could be subjected to penalties according to its contract with the church. Taylor set forth the existence of the late penalty and the method of calculating it in the Scope of Work document that was supposed to be attached to the bid for each project. Although Gary admits that he did not attach the Scope of Work document to each bid, each bid states that it is subject to penalties for failure to meet delivery deadlines. Gary also testified that he and Nichol went over the delivery deadlines, guarantees, and penalties clause. Under Taylor’s contract with the church, Taylor was obligated to defend and indemnify the church against any and all liens filed against church property. Toward that end, Taylor hired legal counsel to demand removal of the liens, but ultimately Taylor was forced to file suit to procure their removal and to sue to recover its other claimed damages for breach of contract, fraud, and deceptive trade practices.

Issues Presented

In Armstrong’s first two points in its appeal, it challenges the sufficiency of the evidence to support the jury’s liability and damages award of $13,262 on Taylor’s fraud claim. It does not challenge the jury’s findings of either liability or damages on Taylor’s breach of contract claim. In Armstrong’s third point, it challenges the jury’s finding that it filed the mechanic’s and materialmen’s liens with knowledge that it was asserting a fraudulent lien. In its fourth point, Armstrong contends that Taylor lacked standing to bring a fraudulent lien or fraudulent claim cause of action under section 12.003 of the civil practice and remedies code. See Tex. Crv. Peac. & RemlCode Ann. § 12.003.

Taylor’s sole point in its appeal attacks the propriety of the award of Armstrong’s attorney’s fees of $57,567.50 because Taylor never denied that Armstrong was entitled to the unpaid outstanding balance on the supplies that it provided. Additionally, Taylor points out that the jury’s findings were primarily in its favor, thereby creating only an offset to the award in Taylor’s favor. Taylor argues that an offset awarded to a defendant does not make it a “successful party” to support the attorney’s fees award under section 38.001 of the civil practice and remedies code. See id. § 38.001 (Vernon 1997).

Sufficiency of Evidence — Fraud

To prevail in a cause of action for fraud, one must provide sufficient evidence of the elements of fraud, which are (1) a material misrepresentation was made; (2) it was false; (3) when the representation was made, the speaker knew it was false or the statement was recklessly asserted without any knowledge of its truth; (4) the speaker made the false representation with the intent that it be acted on by the other party; (5) the other party acted in reliance on the misrepresentation; and (6) the party suffered injury as a result. See DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 688 (Tex.1990) (op. on reh’g), cert. denied, 498 U.S. 1048, 111 S.Ct. 755, 112 L.Ed.2d 775; Trenholm v. Ratcliff, 646 S.W.2d 927, 930 (Tex.1983); Kajima Int’l, Inc. v. Formosa Plastics Corp., USA, 15 S.W.3d 289, 292 (Tex.App.-Corpus Christi 2000, pet. denied).

A brief should concisely state all issues or points presented for review. Tex.R.App. P. 38.1; Bankhead v. Maddox, 135 S.W.3d 162, 163 (Tex.App.-Tyler 2004, no pet.). Unless a brief flagrantly violates the briefing rules, we will address those issues that are fairly included. Tex.R.App. P. 38.1(e), 38.9; White v. State, 50 S.W.3d 31, 45 (Tex.App.-Waco 2001, pet. ref'd). “An issue presented in an appellant’s brief is sufficient if it directs the attention of the appellate court to the error about which complaint is made.” Bankhead, 135 S.W.3d at 163; Maida v. Fire Ins. Exch., 990 S.W.2d 836, 839 (Tex.App.-Fort Worth 1999, no pet.).

Armstrong challenges the sufficiency of the evidence to show that there was ever a promise to make deliveries of the materials by any specific time or to show that Armstrong knew at the time any such representation was made that Armstrong had no intention of delivering the materials by a date certain. Armstrong says that Taylor produced “no evidence” of and failed to introduce “more than a scintilla of evidence” on either of these two elements. Although Armstrong never clearly asserts whether it is making a legal or a factual sufficiency challenge, we interpret the use of this language as attacking the legal sufficiency of the evidence to support the jury’s findings. See Tex. Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52, 54 (Tex.1998).

In determining a “no evidence” point, we are to consider only the evidence and inferences that tend to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). Anything more than a scintilla of evidence is legally sufficient to support the finding. Cont’l Coffee, 937 S.W.2d at 450; Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex.2002).

A “no evidence” point may only be sustained when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999).

Armstrong challenges the evidence to support two elements of Taylor’s fraud claim: that a false statement was made and that it was made with knowledge of its falsity. In response, Taylor points to the evidence that supports the jury’s finding. As to a “material misrepresentation,” Taylor points to Nichol’s admission that he knew that Taylor would not have been awarded the jobs had Armstrong not guaranteed the delivery dates. Both the Arm-strongs testified that it was Armstrong’s policy not to guarantee delivery dates because their suppliers could not guarantee dates to them. But Gary testified about discussions with Nichol on the importance of the delivery dates. Further, Gary testified that he specifically told Nichol that the church would not award Taylor the contracts if Taylor could not meet and guarantee delivery dates. Gary said that he and Nichol had discussions regarding delivery dates and how to manage them. Gary also explained that he and Nichol agreed that he would type in delivery dates as provided to him by Nichol. In other words, Nichol would actually tell Gary when to expect delivery, and then Gary would type that date on the purchase order. Therefore, even if there was a policy to the contrary, there is more than a scintilla of evidence that Armstrong committed to and guaranteed delivery dates. This is sufficient to support a finding of a material misrepresentation.

Circumstantial evidence of fraud may also be used to support a finding of fraudulent intent, the knowledge element that Armstrong says is not supported by any evidence. See Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 435 (Tex.1986). Evidence that Armstrong represented to Taylor that it could deliver certain supplies by a date certain, knowing that such a representation was against company policy, is sufficient to show knowledge of the falsity of the representation. Additionally, it was reasonable for the jury to infer that Nichol’s conceding that Gary advised Armstrong the delivery dates were critical ahead of time, and that failure to meet delivery dates could result in the loss of Taylor’s contracts with the church and monetary penalties being assessed, supports a knowing and intentional misrepresentation.

Thus, we conclude that there was more than a scintilla of evidence supporting the jury’s fraud finding. We overrule Armstrong’s first point.

Sufficiency of the Evidence— Damages for Fraud

According to the Texas Supreme Court opinion of Formosa Plastics Corp. v. Presidio Engineers and Contractors, Inc.,

Texas recognizes two measures of direct damages for common-law fraud: the out-of-pocket measure and the benefit-of-the-bargain measure. The out-of-pocket measure computes the difference between the value paid and the value received, while the benefit-of-the-bargain measure computes the difference between the value as represented and the value received.
The out-of-pocket measure allows the injured party “to recover the actual injury suffered measured by ‘the difference between the value of that which he has parted with, and the value of that which he has received.’ ”

960 S.W.2d 41, 49 (Tex.1998) (citations and footnotes omitted). Armstrong contends in its second point that there is insufficient evidence to support the jury’s award of $13,262 under either of the recognized measures set forth in Formosa Plastics. Again, Armstrong does not plainly state whether it is asserting a legal or factual insufficiency point but refers repeatedly to a claim of “insufficient evidence” in this portion of its brief. We will therefore treat this complaint as a factual sufficiency challenge.

Taylor contends that because Armstrong did not attack the jury’s damages finding by way of its motion for new trial, it has waived this complaint on appeal. A complaint of factual insufficiency of the evidence to support a jury answer or of the excessiveness of the damages found by the jury must have been raised in a motion for new trial. Tex.R. Crv. P. 324(b)(2), (4); In re M.S., 115 S.W.3d 534, 547 (Tex.2003); Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex.), cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998). Taylor argues that Armstrong’s challenges in its motion for new trial are confusing, unclear, and multifarious. However, a review of Armstrong’s motion for new trial states that it is challenging the jury’s findings of damages for fraud in question number 21 in the amount of $13,262 as being excessive. Therefore, to the extent that Armstrong’s point on appeal challenges the excessiveness of the amount of the jury’s fraud award that was challenged in its motion for new trial, we will address it. See C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 796 (Tex.App.-Houston [1st Dist.] 2004, no pet.).

An assertion that the evidence is “insufficient” to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). We are required to consider all of the evidence in the case in making this determination, not just the evidence that supports the finding. Mar. Overseas Corp., 971 S.W.2d at 406-07.

There are two primary sources of evidence of damages in the trial below. Gary testified from two exhibits that the trial court admitted; both are summaries of his testimony on damages. Neither the exhibits nor the testimony regarding them is clear. However, we can tell from a review of both that Gary testified to liquidated or penalty damages of $200 per day for forty-two days, for a total of $8,400, and out-of-pocket expenses of $8,089.75, which would total more than $16,000. Also, in response to a question on lost profits, Gary testified to as much as $48,000 in lost profits. While these amounts do not equal the $13,262 in damages the jury found, they are sufficient to support that award. See C.M. Asfahl Agency, 135 S.W.3d at 797-98. Because there is evidence supporting a damages award that is actually in excess of the jury’s damage award for fraud, the finding is not so weak as to require us to set aside that finding. We overrule Armstrong’s second point.

Fraudulent Lien Statute

In Armstrong’s third and fourth points, it challenges the jury’s fraudulent lien findings as to one of the projects and the trial court’s award of a $10,000 penalty against it due to that finding. Armstrong says that there is insufficient evidence to show that it knew it was filing a fraudulent lien or that it filed it with intent to cause another person to suffer injury. Importantly, Armstrong also challenges Taylor’s standing to assert a claim under the fraudulent lien and fraudulent claim provisions of chapter twelve of the civil practice and remedies code. See Tex. Civ. Peao. & Rem. Code Ann. 12.001-.007 (Vernon 2002 & Supp.2004-05).

Subject matter jurisdiction is an issue that may be raised for the first time on appeal; it may not be waived by the parties. Bland ISD v. Blue, 34 S.W.3d 547, 553-54 (Tex.2000); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993). The doctrine of standing is “implicit in the concept of subject matter jurisdiction.” Tex. Ass’n of Bus., 852 S.W.2d at 443. We review standing, as a component of subject matter jurisdiction, de novo. City of Arlington v. Scalf 117 S.W.3d 345, 347 (Tex.App.-Fort Worth 2003, pet. denied).

Section 12.002 of the Texas Civil Practice and Remedies Code states that

[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 canse another person to suffer:
(A) physical injury;
(B) financial injury; or
(C) mental anguish or emotional distress.

Tex. Civ. PRAC. & Rem.Code Ann. § 12.002(a) (Vernon 2002).

One who violates the fraudulent lien or claim provisions may become liable to an injured person to the greater of $10,000 or the actual damages caused by such violation in addition to incurring liability for court costs, reasonable attorney’s fees, and even exemplary damages as determined by the court. Id. § 12.002(b). District, county, and municipal attorneys, as well as the “obligor or debtor, or a person who owns an interest in the real or personal property,” are allowed to enjoin such actions or to recover damages. Id. § 12.003(a)(8). Armstrong says that because the liens are filed against the church’s property, the church would be the only party with standing to sue under the fraudulent hen or claim statute. Armstrong says that the liens simply do not create an obligation or debt on Taylor’s part that would entitle it to bring this claim. The statute, however, allows property owners as well as “obli-gors or debtors” to pursue its remedies. Id. Unfortunately, neither of those terms is defined.

When a statute is clear and unambiguous, we “should give the statute its common meaning.” St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.1997). When language in a statute is unambiguous, we will seek the intent of the legislature as found in the plain and common meaning of the words and terms used. Id.; In re K.L.V., 109 S.W.3d 61, 65 (Tex.App.-Fort Worth 2003, pet. denied). We do not need to resort to rules of construction or extrinsic aids to construe a statute that is clear and unambiguous. St. Luke’s Episcopal Hosp., 952 S.W.2d at 505; Cail v. Serv. Motors, Inc., 660 S.W.2d 814, 815 (Tex.1983). When a statute fails to define a term, we apply and use its plain meaning. See Tex. Gov’t Code ANN. § 312.002 (Vernon 2005) (instructing appellate court to use words’ ordinary meaning). We should not adopt a construction that would render a law or provision meaningless. Centurion Planning Corp. v. Seabrook Venture II, No. 01-02-00518-CV, 2004 WL 2823125, at *3, — S.W.3d -, -(Tex.App.-Houston [1st Dist.] Dec. 9, 2004, no pet. h.).

Webster’s Dictionary defines the term “obligor” as “one that binds himself or gives his bond to another [or] one that places himself under a legal obligation.” WebsteR’s Third New International Dictionary 1556 (3d ed.1981). It defines “debt- or” as “one indebted to another [or] ... one under obligation to another.” Id. at 583. The statute clearly lists “obligors” or “debtors” or persons owning interests in real or personal property in the disjunctive such that any one of those persons is authorized to bring a cause of action for a fraudulent lien or fraudulent claim. Tex. Civ. PraC. & Rem.Code Ann. § 12.003(a)(8). The statute does not require the “obligor” or “debtor” to also be a person owning an interest in the real or personal property. If we were to read an ownership requirement into the statute, as Armstrong urges, then the language clearly including persons owning real or personal property would be unnecessary and superfluous. We therefore hold that one who is liable as an obligor or debtor on the underlying debt, whether a property owner of the encumbered property or not, may pursue a cause of action under the fraudulent lien or claim statute. See Centurion Planning Corp., 2004 WL 2823125, at *4, — S.W.3d at -. Thus, so long as Taylor showed that it was an obligor or debtor of the debt represented by the lien Armstrong filed, it had standing.

The uncontroverted evidence at trial showed that Taylor had contractually agreed to indemnify and hold the church harmless from any and all claims or liens asserted against the church or against its property arising out of Taylor’s work. Armstrong’s own counterclaim against Taylor asserts that Taylor owes it the balance. The uncontroverted evidence and Taylor’s admission that it owed Armstrong some balance on the supplies lead us to conclude that Taylor owed some debt to Armstrong and was contractually obligated to remove, pay to remove, and indemnify the church against any liens or claims filed against the church’s property. Because of this contractual obligation imposed on or agreed to by Taylor, we conclude and hold that Taylor was an obligor or debtor entitled to pursue a cause of action against Armstrong under the fraudulent lien or claim statute even though it was not the actual property owner against whose property the hens had been filed. We overrule Armstrong’s fourth point.

Because we have determined that Taylor is an appropriate party to bring a fraudulent lien or claim as a cause of action, we turn now to Armstrong’s third point that challenges the sufficiency of the evidence to support recovery under the fraudulent lien or claim statute. Again, it is unclear whether Armstrong is asserting a legal or factual insufficiency challenge, but because it repeatedly claims that there is “insufficient evidence,” we will apply a factual sufficiency review.

Jury question eighteen asked the jury if it found that Armstrong presented a document to the Denton County Clerk with knowledge that such document would create a fraudulent lien or claim against the property with the intent that the document be treated as a valid lien against the property. As to the Flower Mound Project, the jury answered “yes.” Armstrong says that there is insufficient evidence to show that it knew it was filing a fraudulent lien or that it did so with intent to cause harm.

The evidence shows that the lien filed against the Flower Mound Project on October 10, 2001 claimed $12,452.04 under oath. One of Armstrong’s employees admitted in his deposition testimony that the $12,452.04 amount did not reflect Taylor’s $7,732.99 payment dated September 24, 2001 that had already been received. Although this same employee modified his testimony somewhat later at trial to say that he did not know when Armstrong received the check, his deposition testimony is evidence of Armstrong’s knowledge that, at the very least, the amount claimed in the mechanic’s and materialmen’s lien was incorrect. Thus, not only had Armstrong filed a lien against the church property, but it also knowingly claimed an erroneous amount while holding Taylor’s check for over half the balance.

As to the “intent to cause injury” prong of a fraudulent lien claim, Taylor points to a letter written by one of the Armstrongs to Taylor that on one hand threatens the filing of the liens yet states, “[w]e do not wish you any harm in your business.” Taylor says this is at least some evidence that Armstrong was aware of the potential harm filing a lien on any of the church property could have on Taylor. Further, there was substantial testimony that Taylor made Armstrong aware of not only the importance of timely delivery but also made Armstrong aware of Taylor’s exposure to financial loss due to Armstrong’s failure to timely perform. Specifically, Gary testified to prior problems with Armstrong on earlier projects so that he was careful to go over the specifications for these two projects as well as the short time frame. He let Nichol know that the short delivery dates were “critical” to the two church projects and that Taylor would be subjected to a penalty on a sliding scale if deliveries were delayed. Nichol also knew that timely deliveries were essential to Taylor’s ability to successfully bid on the projects. We believe this evidence is sufficient to support the intent prong of a fraudulent lien claim.

Based on this evidence, we must conclude that there was factually sufficient evidence to support the jury’s finding on the fraudulent lien filing. We overrule Armstrong’s third point.

Attorney’s Fees — Successful Party on Appeal

In Taylor’s sole issue on appeal, it challenges the jury’s award of attorney’s fees against it and in favor of Armstrong on Taylor’s claim to recover the outstanding balance due it under the Taylor-Armstrong agreements or under a quantum meruit theory. In particular, Taylor argues that it was error to award Armstrong its attorney’s fees ($57,567.50) under section 38.001 of the civil practice and remedies code because Taylor, not Armstrong, was the successful party in the litigation. See Tex. Crv. PRAC. & Rem.Code Ann. § 38.001. On the other hand, Armstrong argues that because it was allowed an offset against the Taylor recovery for the unpaid balances due from Taylor, it too was a successful or prevailing party under the code.

The issue of whether a party is entitled to recover attorney’s fees is a question of law for a court to determine. Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex.1999); VingCard A.S. v. Merrimac Hospitality Sys., Inc., 59 S.W.3d 847, 867 (Tex.App.-Fort Worth 2001, pet. denied); Jackson Law Office, P.C. v. Chappell, 37 S.W.3d 15, 23 (Tex.App.-Tyler 2000, pet. denied). Because it involves a purely legal question, we review the availability of the award de novo. Holland, 1 S.W.3d at 95.

A party may recover reasonable attorney’s fees in addition to the amount of a valid claim and costs if the party’s claim is for services rendered, labor performed, or materials furnished, or if the claim is for an oral or written contract. Tex. Civ. Prao. & Rem.Code ANN. § 38.001(1),(2), (3), (8). To recover attorney’s fees under section 38.001, a party must (1) prevail on a cause of action for which attorney’s fees are recoverable and (2) recover damages. Tex. Civ. Prac. & Rem.Code Ann. § 38.001; Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex.1997); Alma Group, L.L.C. v. Palmer, 143 S.W.3d 840, 845-46 (Tex.App.-Corpus Christi 2004, pet. denied). Taylor says that Armstrong did neither.

According to our Hawkins opinion, we are to look to which party prevailed on the main issue. Hawkins v. Ehler, 100 S.W.3d 534, 544 (Tex.App.-Fort Worth 2003, no pet.); see also State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 437 (Tex.1995). The prevailing party is the party who is vindicated by the judgment rendered. Brown v. Fullenweider, 135 S.W.3d 340, 347 (Tex.App.-Texarkana 2004, pet. denied); Flagship Hotel, Ltd. v. City of Galveston, 117 S.W.3d 552, 565 (Tex.App.-Texarkana 2003, pet. denied). The determination of who is the prevailing party should focus on who was successful on the merits. Flagship, 117 S.W.3d at 565. If multiple parties receive judgment, “the party which received judgment on the ‘main issue’ is the prevailing party.” Id. But a party may be entitled to recover attorney’s fees even “if the amount recovered on the claim is entirely offset by an amount awarded on an opposing party’s claim.” Blizzard v. Nationwide Mut. Fire Ins. Co., 756 S.W.2d 801, 806 (Tex.App.Dallas 1988, no writ); see also McKinley v. Drozd, 685 S.W.2d 7, 10 (Tex.1985) (discussing and abolishing the “net recovery” rule in context of article 2226 claims for attorney’s fees, the predecessor to section 38.001).

Taylor contends that Armstrong was not a prevailing party. According to Taylor, we should look to see who is the one who “successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not necessarily to the extent of his original contention.” Taylor contends that it prevailed on the main issue — whether Armstrong had represented that it would provide materials by specified times and failed. Also, Taylor contends that because it never denied or contested whether Armstrong actually supplied materials or their value, Armstrong really prevailed “on none of its claims.” Because Taylor admitted that it had withheld the $6,110 offset amount the jury awarded to Armstrong and Taylor’s recovery was in excess of $27,500 (more than four times Armstrong’s recovery), Armstrong really recovered nothing. Therefore, it recovered no damages and was thus not entitled to attorney’s fees.

We know that the jury found that Taylor was successful in virtually all of its claims against Armstrong. It found that Armstrong had breached its contract to Taylor on both projects, that Armstrong had committed fraud against Taylor regarding delivery dates, that Armstrong had breached a warranty made to Taylor thereby violating the DTPA, and that Armstrong had fraudulently filed a lien against one of the church projects, entitling Taylor to a $10,000 statutory penalty. Moreover, the trial court held both liens void and released both of them. Thus, Taylor was unsuccessful only with regard to the statutory penalty on one of the fraudulent lien claims against it and the jury’s failure to find malice against Armstrong in connection with its DTPA claim.

We also know, however, that Taylor withheld a portion of the amounts Armstrong had billed it under their contracts. And Taylor contended it properly withheld funds for the liquidated damages that Armstrong would owe it for Armstrong’s failure to timely deliver materials. Taylor contends that it never contested liability for or compensability of the balance, only whether there would ultimately be any money due Armstrong in light of Taylor’s claims for breach of contract and liquidated damages. In support, Taylor points to the jury’s award of liquidated damages to it on each project.

Armstrong, on the other hand, points to its offset to justify the award of attorney’s fees in its favor. Armstrong points to the jury’s findings that Armstrong had rendered compensable work on the Denton Project in the amount of $8,465 and com-pensable work on the Flower Mound Project in the amount of $11,153.70. After applying appropriate payments already made by Taylor, the trial court’s judgment reflected an offset in Armstrong’s favor in the amount of $6,110 — the amount Taylor withheld — yet awarded Armstrong $57,567.50 in attorney’s fees. In contrast, the trial court’s judgment awarded $4,356.17 to Taylor for Armstrong’s breach of contract, $10,000 for Armstrong’s filing a fraudulent lien, $13,262 for Armstrong’s fraud, $45,000 in attorney’s fees, and $2,193.34 in costs.

Because Taylor conceded the issue of the amount that it had not yet paid to Armstrong, it is difficult to see how Armstrong incurred attorney’s fees in pursuing its claim against Taylor. Armstrong’s attorneys testified that the fees incurred were for the benefit of both Armstrong and Pat Stokes, a party no longer involved in the litigation. Plus, that evidence shows that the attorney’s fees were incurred in securing the liens — which were found to be fraudulent and void — and in defending against the claims Taylor was pursuing. Moreover, when the litigation is considered in its entirety, we can come to only one conclusion: that Taylor was successful in pursuing the main issue litigated in this casé — whether Armstrong knew and represented that it could meet specific delivery dates and failed. Therefore, we conclude and hold that Taylor was the prevailing party entitled to recover attorney’s fees under section 38.001 and that Armstrong was not. For this reason, we sustain Taylor’s sole point and reverse the trial court’s award of $57,567.50 in attorney’s fees to Armstrong and render judgment that Armstrong take nothing on those fees.

Conclusion

Having overruled all of Armstrong’s points and sustained Taylor’s sole point, we reverse the award of attorney’s fees to Armstrong and render judgment that Armstrong take nothing on its claim for attorney’s fees. We affirm the trial court’s judgment in all other respects.

      . Although the jury concluded that only the Flower Mound Project lien was fraudulently filed, the trial court held both liens void in its final judgment. Armstrong has not challenged that part of the judgment.