Centurion Planning Corp., Inc. & Thomas C. Knickerbocker v. Seabrook Venture II

Opinion issued December 9, 2004

In The

Court of Appeals

For The

First District of Texas

NO. 01-02-00518-CV

____________

CENTURION PLANNING CORPORATION, INC.

AND THOMAS C. KNICKERBOCKER, Appellants

V.

SEABROOK VENTURE II, Appellee

On Appeal from the 165th District Court

Harris County, Texas

Trial Court Cause No. 2000-01560

O P I N I O N

Appellants, Centurion Planning Corporation, Inc. (Centurion) and Thomas C.

Knickerbocker (Knickerbocker), challenge the trial court’s judgment, entered after

a jury verdict, declaring that Centurion’s mechanic’s and materialman’s lien on real

property owned by appellee, Seabrook Venture II (Venture), was null and void

because there was no written contract between Centurion and Venture and because

Centurion did not have any lien rights on the property as Centurion was not engaged

in the practice of engineering

and the lien was fraudulent.

In four issues, Centurion and Knickerbocker contend that the trial court erred

in (1) submitting to the jury a question concerning whether Centurion and

Knickerbocker made, presented, or used a fraudulent lien with the intent to cause

Venture to suffer financial injury; (2) applying the Uniform Declaratory Judgment

Act

to Knickerbocker personally and holding him personally liable for filing a

fraudulent lien; (3) excluding evidence that Centurion was “in compliance with the

rules and regulations of the Texas Board of Professional Engineers”; and (4)

submitting a jury instruction that Centurion and Knickerbocker assert constituted an

impermissible comment on the weight of the evidence. We affirm .

Facts

On October 20, 1998, Theodore McCollum Jr. (McCollum) entered into an

earnest money contract with Bayport 47 Limited to acquire a 53-acre tract of land in

Seabrook, Texas. On January 20, 1999, McCollum purchased 14 acres of the 53-acre

tract and conveyed it to Seabrook United Methodist Church. One month later,

McCollum purchased the remaining 39 acres.

On August 19, 1999, McCollum, on behalf of McCollum Interests, L.L.C.,

entered into a joint venture agreement with John Boswell, on behalf of Pacific Ride

Development Company, L.L.C. This agreement created Venture for the purpose of

developing the 39 acres into a housing subdivision. The following day, McCollum

conveyed the 39 acres to Venture .

Following the creation of Venture , McCollum contacted Knickerbocker, the

President and sole shareholder of Centurion, and requested that Centurion prepare a

preliminary plat for the 39 acres and submit it to Seabrook for approval. McCollum

specified that the plat had to meet all of the city’s conditions and ordinances and be

approved without requiring any variances. Knickerbocker orally agreed to

McCollum’s terms, and Centurion began working on the preliminary plat.

In October 1999, McCollum and Kickerbocker met with several city officials

to review the initial plat prepared by Centurion. At this meeting, the city officials

discovered several problems with the plat that needed to be corrected before it could

be submitted. McCollum instructed Knickerbocker to make the necessary changes,

but Knickerbocker submitted the plat without doing so.

When McCollum learned what Knickerbocker had done, he went to Seabrook

City Hall and recovered all documents on file relating to the plat. McCollum then

sent a letter to Centurion terminating its services because McCollum “had a lack of

confidence” in Centurion and “was disgusted” that Knickerbocker had not done what

McCollum had asked him to do. In response, Knickerbocker sent a letter to

McCollum demanding payment in the amount of $39,416.30 for work performed by

Centurion, but McCollum refused to pay.

Knickerbocker subsequently filed, on behalf of Centurion, a Notice of Claim

of Lien and Affidavit of Mechanic’s and Materialman’s Lien on the entire 53-acre

tract of land, including the 14 acres owned by Seabrook United Methodist Church .

Knickerbocker filed the lien for “labor and materials” provided to Venture in the

amount of $39,416.30. McCollum requested that Centurion release the lien from 39

acres owned by the Venture , but Knickerbocker refused.

Venture then filed this lawsuit seeking a declaration that Centurion’s lien was

null and void because Centurion and Knickerbocker had violated certain provisions

of the Property Code and the former Engineering Practice Act.

Moreover, Venture

alleged that Centurion and Knickerbocker had violated section 12.002 of the Civil

Practice and Remedies Code because they knowingly had made, presented, and used

a fraudulent lien.

In response, Centurion and Knickerbocker filed counterclaims

alleging that Venture owed Centurion $18,301.66 and that Centurion was entitled to

foreclose on the lien for this amount.

Following a jury trial, the trial court declared that Centurion did not have any

lien rights or lien claims against Venture and that Centurion’s lien against the 39 acre

property was “null, void, invalid, unenforceable and of no effect” because (1) there

was no written contract between Venture and Centurion; (2) Centurion and

Knickerbocker had violated the former Engineering Practice Act and were therefore

not entitled to a lien under Property Code section 53.021(c); and (3) Centurion and

Knickerbocker had violated Civil Practice and Remedies Code section 12.002 by

making, presenting, and using the lien with the knowledge that it was a fraudulent

lien. The trial court awarded Venture statutory damages, exemplary damages,

attorney’s fees, reasonable expenses, and costs. Fraudulent Lien Question

In their first issue, Centurion and Knickerbocker argue that the trial court erred

in submitting to the jury a question concerning whether Centurion and Knickerbocker

made, presented, or used a fraudulent lien with the intent to cause Venture to suffer

financial injury because (1) the question was “immaterial and of no legal

consequence,” (2) there was no evidence that they made, presented, or used a

document with knowledge that the document was a fraudulent lien, and (3) the

instruction accompanying the question was defective.

Question number 7 of the jury charge reads as follows:

Did Centurion or Knickerbocker make, present or use a document with

knowledge that the document was a fraudulent lien or claim against real

property or an interest in real property with the intent that the document

be given the legal effect of evidencing a valid lien or claim against real

property or an interest in real property with the intent to cause [Venture]

to suffer financial injury?

A lien is fraudulent if the person who files it has actual knowledge that

the lien was not valid at the time it was filed.

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

Materiality

Centurion and Knickerbocker argue that question number 7 was immaterial

because it premised a finding of liability on a statute, section 12.002 of the Civil

Practice and Remedies Code, which, they assert, does not apply to the facts of this

case. An appellate court may disregard a jury finding on a question that is immaterial.

See Spencer v. Eagle Star Ins. Co. of Am. , 876 S.W.2d 154, 157 (Tex. 1994). A jury

question is immaterial if it should not have been submitted, if it was rendered

immaterial by other findings, or if it called for a finding not within the jury’s

province, such as a question of law. Id.

Centurion and Knickerbocker contend that the Legislature did not intend for

Chapter 12 of the Civil Practice and Remedies Code to apply to a mechanic’s and

materialman’s lien filed under the laws of the State of Texas and that, therefore,

question number 7 was immaterial and should not have been submitted to the jury.

Centurion and Knickerbocker assert that the Legislature enacted Chapter 12, and

section 12.002 in particular, to “protect citizens from persons, particularly members

of an anti-government group called ‘the Republic of Texas,’ who were flooding

courts and clerks’ offices with the filing of fake documents purporting to be under

laws other than the laws of the State of Texas.”

Matters of statutory construction are questions of law for the courts to decide.

Harris County Water Control and Improvement Dist. v. Duke , 59 S.W.3d 333, 335-36

(Tex. App.—Houston [1st Dist.] 2001, no pet.). Our objective in construing a statute

is to determine and give effect to the intent of the lawmaking body. Id. at 336 . In so

doing, we look first to the plain and common meaning of the statute’s words. Id. We

also construe the statute in light of the entire body of law existing at the time of its

enactment. Id. Further, we consider the entire statute, not simply the disputed

portions. Id. Each provision must be construed in the context of the entire statute of

which it is a part. Id. We also should not adopt a construction that would render a

law or provision absurd or meaningless. Id. In construing a statute, we may consider

(1) the object sought to be obtained; (2) the circumstances under which the statute

was enacted; (3) its legislative history; (4) any common law or former statutory

provisions, including laws on the same or similar subjects; (5) the consequences of

a particular construction; (6) any administrative construction of the statute; and

(7) the title (caption), preamble, and emergency provision. Tex. Gov’t Code Ann .

§ 311.023 (Vernon 1998). We review Chapter 12 of the Civil Practice and Remedies

Code with these rules in mind.

Section 12.002 provides as follows:

(a)A person may not make, present, or use a document or other

record with :

(1) knowledge that the document or other record is a fraudulent

court record or a fraudulent lien or claim against real or

personal property or an interest in real or personal

property;

(2) intent that the document or other record be given the same

legal effect as a court record or document of a court created

by or established under the constitution or laws of this state

or the United States or another entity listed in Section

37.01, Penal Code, evidencing a valid lien or claim against

real or personal property or an interest in real or personal

property; and

(3)intent to cause another person to suffer:

(A)physical injury;

(B)financial injury; or

(C)mental anguish or emotional distress.

(b) A person who violates Subsection (a) is liable to each injured

person for:

(1) the greater of:

(A)$10,000; or

(B)the actual damages caused by the violation;

(2) court costs;

(3) reasonable attorney’s fees; and

(4)exemplary damages in an amount determined by the

court.

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

There is nothing in the plain language of section 12.002 to indicate, as

Centurion and Knickerbocker maintain, that this section applies exclusively to cases

where members of anti-government groups file fake documents “purporting to be

under laws other than the laws of the State of Texas” from bogus “‘common-law’

courts.” The Legislature could have chosen to limit the application of Chapter 12 to

documents or records from sham courts, but it did not expressly do so. In fact,

Chapter 12 is entitled “Liability Related to a Fraudulent Court Record or a

Fraudulent Lien or Claim Filed Against Real or Personal Property.” Tex. Civ. Prac.

& Rem. Code Ann . §§ 12.001–.007 (Vernon 2002 & Supp. 2004-2005) (emphasis

added). The plain language of section 12.002(a) expressly prohibits a person from

making, presenting or using a document (1) with knowledge that the document is “a

fraudulent court record or a fraudulent lien or claim” against real property, (2) intent

that the document be given the same legal effect as a court record or document of a

court evidencing a valid lien or claim against real property, and (3) intent to cause

another person to suffer financial injury. Id . § 12.002(a) (emphasis added). Section

12.002(a)(2) does not limit liability only to fraudulent court documents or records

which are made, presented or used by anti-government groups. Rather, it expressly

applies to any document or record that is “a fraudulent lien or claim” against real or

personal property and that is intended to be “given the same legal effect” as a court

record or document “evidencing a valid lien or claim against real property.” Id .

§ 12.002(a)(1), (2).

Moreover, we disagree with the assumption, implicit in Centurion’s and

Knickerbocker’s argument, that the Legislature concluded that a fraudulent lien that

purports to be filed under laws other than the laws of the State of Texas from bogus

courts is more damaging to Texas property owners than fraudulent liens that purport

to be filed under the actual laws of this state. Our review of the plain and common

meaning of the words of Chapter 12 reveals that the Legislature intended to provide

a civil action for injunctive relief and monetary damages to all persons owning an

interest in real or personal property against which a fraudulent lien is filed, not just

victims of anti-government groups filing purported liens from sham courts. In fact,

section 12.003 actually distinguishes between cases involving “fraudulent liens” and

“fraudulent judgment liens.” It provides that, “in the case of a fraudulent lien or

claim against real or personal property or an interest in real or personal property,” the

obligor or debtor, or a person who owns an interest in the real or personal property

may bring an action. Id . § 12.003(a)(8). In the case of a “fraudulent judgment lien,”

the person against whom the judgment is entered may bring an action. Id . §

12.003(a)(7).

Accordingly, we disagree with Centurion and Knickerbocker’s contention that

Chapter 12 does not apply to the facts of this case, and we hold that the trial court did

not err in submitting question number 7 to the jury on the grounds that it was

“immaterial.”

No Evidence

Centurion and Knickerbocker also argue that the trial court erred in submitting

question number 7 to the jury because there was no evidence that they made,

presented, or used a document with knowledge that the document was fraudulent “as

defined by Gov. Code § 51.901(c).” See Tex. Gov’t Code Ann. § 51.901(c)

(Vernon 1998).

When reviewing a legal sufficiency question, we consider only the evidence

and inferences that tend to support a finding, and we disregard all evidence and

inferences to the contrary. Holt Atherton Indus., Inc. v. Heine , 835 S.W.2d 80, 84

(Tex. 1992) . If there is more than a scintilla of evidence to support the finding, the

no-evidence challenge fails. Id. More than a scintilla of evidence exists when the

evidence, as a whole, supporting the finding “rises to a level that would enable

reasonable and fair-minded people to differ in their conclusions.” Merrell Dow

Pharms., Inc. v. Havner , 953 S.W.2d 706, 711 (Tex. 1997).

Centurion and Knickerbocker point out that, although the term “fraudulent” is

not defined in Chapter 12, section 12.006 references that term as it is used in the

Government Code. Section 12.006 provides, in pertinent part, as follows:

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

(1)the plaintiff prevails; and

(2)the court finds that the defendant, at the time the defendant

caused the recorded document to be recorded or filed, knew or

should have known that the recorded document is fraudulent, as

described by Section 51.901(c), Government Code .

Tex. Civ. Prac. & Rem. Code Ann. § 12.006(a) (emphasis added). Section

51.901(c) of the Government Code provides that, “[f]or purposes of this section,” a

document or instrument “is presumed to be fraudulent” if:

[T]he document or instrument purports to create a lien or assert a claim

against real or personal property or an interest in real or personal

property and:

(A)is not a document or instrument provided for by the constitution

or laws of this state or of the United States;

(B)is not created by implied or express consent or agreement of the

obligor, debtor, or the owner of the real or personal property or an

interest in the real or personal property, if required under the laws

of this state, or by implied or express consent or agreement of an

agent, fiduciary, or other representative of that person; or

(C)is not an equitable, constructive, or other lien imposed by a court

with the jurisdiction created or established under the construction

or laws of this state or of the United States.

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

Centurion and Knickerbocker note that Chapter 51 of the Government Code

“was part of the same bill” that enacted Chapter 12 of the Civil Practice and

Remedies Code. They also note that “the history preceding the passage of [section

12.002] and [s]ection 51.901(c) show[s] that these two code sections were enacted to

deny legitimacy to fake documents without regard to the validity of the claimed

interest or the claims of the parties.” Centurion and Knickerbocker assert, thus, that

the Legislature intended for the term “fraudulent” as used in Chapter 12 to have the

same meaning as that term is described in Government Code section 51.091(c).

Moreover, they argue that, because they proved that their lien was filed under the

laws of the State of Texas , the lien was not fraudulent under section 51.091(c).

However, section 51.091(c) does not define the term “fraudulent”; it

establishes a “presumption” that a document or instrument is fraudulent under certain

circumstances. Moreover, section 12.006, entitled “Plaintiff’s Costs,” simply

provides the circumstances under which a plaintiff “shall” recover the “costs of

bringing the action” in addition to the plaintiff’s damages awarded under section

12.002. If the Legislature had wanted to define the term “fraudulent” as used for all

purposes in Chapter 12, it could have done so. Instead, the Legislature referenced the

term fraudulent “as described” in Government Code section 51.901(c) in regard only

to the recovery of plaintiff’s costs in section 12.006. We cannot read section 12.006’s

reference to the term fraudulent “as described by Section 51.901(c), Government

Code” as providing a definition of the term for all of Chapter 12.

In conducting our legal sufficiency review of the evidence, we note that

Property Code section 53.021(c) provides, in pertinent part, that “[a]n architect,

engineer , or surveyor who prepares a plan or plat under or by virtue of a written

contract with the owner . . . in connection with the actual or proposed design,

construction, or repair of improvements on real property . . . has a lien on the

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

added). Here, McCollum testified that he did not enter into a written contract on

behalf of himself or Venture with either Knickerbocker or Centurion. Moreover,

Knickerbocker testified that, after McCollum refused to pay for work that Centurion

had done, Knickerbocker, on Centurion’s behalf, filed a mechanic’s and

materialman’s lien against the entire 53-acre tract of land. Taken together, this

testimony constituted more than a scintilla of evidence establishing that

Knickerbocker had violated section 12.002 when he “made, presented, or used the

lien” knowing , based on the lack of a written contract, that the lien was invalid and

intending that it be given the same legal effect as a valid lien. Additionally, because

Centurion conceded that Knickerbocker was acting on its behalf, Centurion was

subject to vicarious liability for Knickerbocker’s violation of section 12.002. See

Baptist Mem’l Hosp. System v. Sampson , 969 S.W.2d 945, 947 (Tex. 1998) (noting

that, under doctrine of respondeat superior, employer is vicariously liable for tortious

acts of employee acting within scope of employment).

Accordingly, we hold that the trial court did not err in submitting question

number 7 to the jury on the grounds that the evidence was legally insufficient to

support the submission of the question.

Defective Definition

Centurion and Knickerbocker next argue that the trial court erred in submitting

question number 7 to the jury because the question contained a defective instruction.

As noted above, the trial court instructed the jury that “[a] lien is fraudulent if the

person who files it has actual knowledge that the lien was not valid at the time it was

filed.” Centurion and Knickerbocker assert that, instead of submitting this instruction,

the trial court should have defined the term “fraudulent lien” by referencing the

presumption set out in Government Code section 51.901(c) .

However, to preserve error in the jury charge, a party must timely and plainly

make the trial court aware of the complaint and obtain a ruling. Tex. R. Civ. P. 274;

State Dept. of Highways v. Payne , 838 S.W.2d 235, 241 (Tex. 1992). A party is

required to object before the trial court submits an erroneous question, instruction or

definition. Tex. R. Civ. P. 274; Payne , 838 S.W.2d at 241 .

At the charge conference, Centurion and Knickerbocker objected to question

number 7 as follows:

We especially object to Question No. 7. That relates to the pleading and

claim of [Venture] that [Centurion and Knickerbocker] violated section

12.00[2] of the Texas Civil Practice and Remedies Code. And without

going over the same objections that I could in my motion for directed

verdict, it’s just generally our grounds . . . that there’s no evidence

whatsoever that [Centurion and Knickerbocker] violated the section as

contended by the Legislature of the state of Texas, that the Legislature

intended by the enactment of this section that it would be a violation if

anyone attempted to file a lien that was not pursuant to the laws of the

state of Texas or the Constitution of the state of Texas. And the lien

affidavit and the evidence clearly shows that my client, [Centurion and

Knickerbocker], were attempting to file the lien affidavit pursuant to the

state of Texas and this Constitution of the state of Texas. Even if

[Venture] is correct, that there were mistakes or errors or incorrect

information set forth in the lien affidavit, we contend that . . . would not

make [Centurion and Knickerbocker] liable under this Act. Therefore,

[we] object on the grounds of no evidence .

(Emphasis added.) Centurion and Knickerbocker objected to question number 7, not

on the grounds that it included a defective instruction, but “on the grounds of no

evidence.” A party cannot enlarge on appeal an objection made in the trial court.

Operation Rescue-Nat’l v. Planned Parenthood of Houston and Southeast Tex., Inc. ,

937 S.W.2d 60, 70 (Tex. App.—Houston [14th Dist.] 1996), aff’d as modified , 975

S.W.2d 546 (Tex. 1998). An objection on appeal that is not the same as that which

was urged at trial presents nothing for appellate review. Id. Nor can a party raise a

new objection to the trial court’s charge for the first time on appeal. Tex. R. App. P.

33.1(a); Tex. R. Civ. P. 274. Accordingly, we hold that Centurion and Knickerbocker

have waived any error with respect to the submission of the complained of

instruction.

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

Declaratory Judgment

In their second issue, Centurion and Knickerbocker argue that the trial court

erred in applying the Declaratory Judgment Act to Knickerbocker personally and in

finding him personally liable for filing a fraudulent lien because “there was no

justiciable controversy between [Venture] and Knickerbocker.”

A declaratory judgment is appropriate only if a justiciable controversy exists

as to the rights and status of the parties and the controversy will be resolved by the

declaration sought. Bonham State Bank v. Beadle , 907 S.W.2d 465, 467 (Tex. 1995).

To constitute a justiciable controversy, there must exist a real and substantial

controversy involving a genuine conflict of tangible interests and not merely a

theoretical dispute. Id. If a justiciable controversy does not exist between the parties,

a court must dismiss the case for lack of jurisdiction, even if the issue is not raised by

the parties. Lavely v. Heafner , 976 S.W.2d 896, 897 (Tex. App.—Houston [14th

Dist.] 1998, no pet.).

The jury found that both Centurion and Knickerbocker had made, presented,

or used a document with knowledge that the document was a fraudulent lien or claim

against real property or an interest in real property with the intent that the document

be given the legal effect of evidencing a valid lien or claim against real property or

an interest in real property and with the intent to cause Venture to suffer financial

injury. The trial court then declared that Centurion and Knickerbocker had violated

(1) Chapter 53 of the Property Code , (2) the former Texas Engineering Practice Act,

and (3) Civil Practice and Remedies Code section 12.002.

Centurion and Knickerbocker assert that Venture did not plead or prove any

theory for a judgment against Knickerbocker personally and that there were,

therefore, no rights to be declared as between Venture and Knickerbocker. They note

that they “objected to [Venture’s] attempt to pierce the corporate veil in its proposed

judgment,” and they contend that Knickerbocker, as an officer of Centurion, was not

liable to the Venture for its damages, attorney’s fees, expenses and costs.

However, it is a “longstanding rule” in Texas that “a corporate agent is

personally liable for his own fraudulent or tortious acts.” Miller v. Keyser , 90 S.W.3d

712, 717 (Tex. 2002). In Miller , the Texas Supreme Court held that a corporate agent

may be held personally liable under the Deceptive Trade Practices–Consumer

Protection Act

for personally making misrepresentations. Id . The Court explained

that such liability is based on the agent’s own actions, not his status as an agent. Id .

We find this analysis equally applicable to violations of Chapter 12 of the Civil

Practice and Remedies Code.

Here, as noted above, the jury expressly found that Knickerbocker personally

made, presented, or used a document with the knowledge that the document was a

fraudulent lien or claim against real property or an interest in real property with the

intent that the document be given the legal effect of evidencing a valid lien or claim

against real property or an interest in real property and with the intent to cause

Venture to suffer financial injury. The evidence supports the jury’s finding and the

trial court’s declarations.

Knickerbocker testified that Centurion had offered and had attempted to

practice engineering services; however, Knickerbocker was not a licensed engineer.

Moreover, the evidence indicated that Centurion did not have a regular, full-time

employee who was a licensed engineer and who provided engineering services or

supervised the provision of any engineering services.

Although Centurion and

Knickerbocker presented Dexter Jones as Centurion’s “Director of Engineering,” the

jury expressly found that Jones was “not a regular[,] full-time employee of Centurion”

during the time in question. Jones, himself, testified that he was an “independent

contractor” for Centurion and was not a full-time employee.

Moreover, McCollum testified that he did not enter into a written contract on

behalf of himself or Venture with either Knickerbocker or Centurion. Knickerbocker

testified that, after McCollum refused to pay for work that Centurion had done,

Knickerbocker, on Centurion’s behalf, filed the mechanic’s and materialman’s lien

against the entire 53-acre tract of land. In fact, Knickerbocker signed, verified, and

personally mailed the lien for filing.

Taken together, this evidence demonstrated that Knickerbocker violated section

12.002 when he “made, presented, or used” the lien knowing that Centurion was not

entitled to the lien under Property Code section 53.021(c) because (1) there was no

written contract between Centurion and Venture and (2) Centurion was not engaged

in the practice of engineering in compliance with the requirements of the former

Engineering Practice Act. Accordingly, we hold that Venture established that a “real

and substantial controversy” existed between itself and Knickerbocker.

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

Exclusion of Evidence

In their third issue, Centurion and Knickerbocker contend that the trial court

abused its discretion in excluding an exhibit which was offered to show that

Centurion was in voluntary compliance with the rules and regulations of the Texas

Board of Professional Engineers and the former Engineering Practice Act.

A trial court’s decision to exclude evidence is reviewed under an abuse of

discretion standard. City of Brownsville v. Alvarado , 897 S.W.2d 750, 753 (Tex.

1995). In addition to showing an abuse of discretion, a party complaining of error in

the exclusion of evidence must also show that the trial court’s error was reasonably

calculated to cause, and probably did cause, the rendition of an improper judgment.

Id. at 753-54 ; see Tex. R. App. P. 44.1(a)(1).

Centurion and Knickerbocker offered into evidence Defendants’ Exhibit 15A,

a certified copy of a document from the Texas Board of Professional Engineers,

which states that, as of January 20, 1999, Centurion was in “voluntary compliance”

with the regulations of the Texas Board of Professional Engineers and the former

Engineering Practice Act. The trial court sustained Venture’s objection to the

document as irrelevant and as hearsay. Centurion and Knickerbocker argue that the

exhibit should have been admitted into evidence because “the central issue to

[Venture’s] claims and defenses was that Centurion violated the [former] Texas

Engineering Practice Act.”

However, Venture did not allege simply that Centurion had violated the former

Engineering Practice Act. Rather, Venture alleged that Centurion was not entitled to

be compensated for preparing the preliminary plat because Centurion was not

engaged in the practice of engineering because it did not have a licensed engineer as

a regular, full-time employee during the period from August to October of 1999 as

required by the Act. As noted above, the former Act prohibited a corporation from

holding itself out as being engaged in the practice of engineering unless all of its

engineering services were “either personally performed by a licensed engineer or

under the direct supervision of a licensed engineer who [was] a regular full-time

employee.”

Defendants’ Exhibit 15A did not specify that Centurion had a licensed engineer

as a regular, full-time employee. Nor did it address the appropriate time period.

Centurion had worked on the preliminary plat for Venture between August and

October of 1999; however, Defendant’s Exhibit 15A demonstrates that the Texas

Board of Professional Engineers made its determination in January 1999, six months

before the time period in question. Accordingly, we hold that the trial court did not

abuse its discretion in excluding Defendants’ Exhibit 15A on the grounds that it was

irrelevant.

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

Employment Status

Question number 1 of the jury charge asked the jury to make a factual

determination concerning the employment status of Dexter Jones . In their fourth

issue, Centurion and Knickerbocker contend that the trial court erred in submitting

a definition of “employee” and “independent contractor” in question number 1

without the additional instruction that “Centurion was not required to direct the

detail” of Jones’s work. Centurion and Knickerbocker assert that, without their

requested instruction, the included definitions “constituted an impermissible comment

on the weight of the evidence.” They further contend that the trial court erred in

submitting the definition of “independent contractor” because there was insufficient

evidence that Jones was in pursuit of an independent business at the time that he

worked for Centurion.

We review a trial court’s decision on the submission of jury definitions and

instructions under an abuse of discretion standard, and we note that trial courts have

“wide discretion to determine sufficiency of definitions and instructions.” Plainsman

Trading Co. v. Crews , 898 S.W.2d 786, 791 (Tex. 1995). When a trial court refuses

to submit a requested instruction, our review is focused upon the issue of whether the

request was reasonably necessary to enable the jury to render a proper verdict.

Vinson & Elkins v. Moran , 946 S.W.2d 381, 405 (Tex. App.—Houston [14th Dist.]

1997, writ dism’d by agr.).

Although the court in its charge may not comment directly on the weight of the

evidence, the charge is not objectionable because it “incidentally constitutes a

comment on the weight of the evidence or advises the jury of the effect of their

answers when it is properly a part of an instruction or definition.” Tex. R. Civ. P.

277. To be a direct comment on the weight of the evidence, the language must

suggest the trial court’s opinion concerning the issue. Maddox v. Denka Chem.

Corp. , 930 S.W.2d 668, 671 (Tex. App.—Houston [1st Dist.] 1996, no writ).

Question number 1 reads as follows:

Do you find that Dexter Jones was not a regular full time employee of

Cent urion from August 21, 1999 through October 5, 1999?

An “employee” is a person in the service of another with the

understanding, express or implied, that such other person has the right

to direct the details of the work and not merely the result to be

accomplished.

A person is not acting as an employee if he is acting as an “independent

contractor.” An independent contractor is a person who, in pursuit of an

independent business, undertakes to do specific work for another person,

using his own means and methods without submitting himself to the

control of such other person with respect to the details of the work, and

who represents the will of such other person only as to the results of his

work and not as to the means by which it is accomplished.

Centurion and Knickerbocker requested that the jury be further instructed that

“Centurion was not required to direct the detail of Dexter Jones’s work requiring his

engineering expertise.” However, the trial court refused to include this instruction

and the jury subsequently answered the question “yes.”

Centurion and Knickerbocker argue that “the court’s instruction left little room

for the jury to find any[]thing other than that [Jones] was not a full-time employee

because it instructed that if Jones did not submit himself to the control of Centurion

and it’s [sic] owner, a non-engineer, with respect to the details of engineering work,

then Jones was an independent contractor.” However, Centurion and Knickerbocker

cite no authority to show either that their requested instruction was a correct

statement of the law or that they were entitled to have the instruction submitted to the

jury. Moreover, Centurion and Knickerbocker do not logically explain how the trial

court’s refusal to submit their additional instruction suggested to the jury the trial

court’s opinion concerning the issue.

In contrast, the definitions submitted by the trial court, which followed

verbatim the definitions provided by Texas Pattern Jury Charge,

have been held to

be adequate instructions on employee-independent contractor law . See Weidner v.

Sanchez , 14 S.W.3d 353, 376 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

Accordingly, we hold that the trial court did not abuse its discretion in submitting the

definitions and in refusing Centurion’s and Knickerbocker’s requested instruction on

the grounds that the definitions constituted an improper comment on the weight of the

evidence.

In regard to Centurion’s and Knickerbocker’s assertion that there was

“insufficient evidence that Jones was in pursuit of an independent business,” we

conclude that, if a person is retained as an independent contractor, then he is

necessarily pursuing a business independent from that of the person who retains him.

Here, Jones testified that he worked as an independent contractor for Centurion and

that he was not a full-time employee. While Jones was working for Centurion, he had

other clients and he worked part-time for Centurion and part-time for his other clients.

Additionally, Nancy Heeth, Centurion’s bookkeeper, testified that Jones was paid by

the hour and that Centurion did not withhold state or federal taxes from his paycheck.

Accordingly, we hold that the trial court did not abuse its discretion in submitting the

definitions to the jury on the grounds that there was insufficient evidence that Jones

was in pursuit of an independent business.

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

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Chief Justice Radack and Justices Jennings and Higley.