
Opinion issued October 1, 2009





 





In The
Court of Appeals
For The
First District of Texas



NO. 01-07-00761-CV



ANDREW CHOY, Appellant

V.

GRAZIANO ROOFING OF TEXAS, INC., Appellee



On Appeal from the 270th District Court
Harris County, Texas
Trial Court Cause No. 2002-61491



O P I N I O N

	In this dispute over construction trust funds, appellant, Andrew Choy, appeals
the trial court's judgment in favor of appellee, Graziano Roofing, Inc. (Graziano).  In
three issues, Choy argues that the trial court erred in (1) rendering judgment, because
Graziano failed to prove each element to establish a violation of the Texas Trust Fund
Act (the Act) (1);  (2) concluding that liability exists under the Act for intra-company
transfers of funds; and (3) awarding pre-judgment interest.
	We affirm.
Background

	In 1998, Lake Olympia Development Corporation (Lake Olympia) created
Windwater Homes, L.L.C. (Windwater), a wholly owned subsidiary, (2) to build homes
in Harris and Fort Bend County.  The companies were owned by Tan Yu, and Choy
served as the president of the companies.  Windwater hired Graziano, a roofing
contractor, to install roofs on the homes it was building.  Pursuant to their agreement,
Graziano performed roofing work and supplied roofing materials on a total of 39
properties for Windwater and invoiced Windwater $226,336.10 for the work and
roofing materials supplied.  To pay for this work, Windwater obtained construction
loans from Citibank of Texas ("Citibank") and Frost National Bank ("Frost Bank"). 
	On December 3, 2002, Graziano sued Lake Olympia and Windwater.  In its
third amended petition, Graziano added claims against Choy, individually.  Graziano
alleged that, instead of paying Graziano with the construction loan proceeds, Choy
had made the decision to misapply or had actually misapplied the funds received for
that purpose by Windwater, which he controlled.  This appeal follows from the bench
trial on Graziano's "Third Amended Petition," filed July 23, 2004.  For purposes of
trial, Graziano relied on Windwater records it was able to reconstruct following
Windwater's bankruptcy.  It sought recovery for only 21 of the properties.  The
damages sought reflected the total principal amount of $134,396.09 for these 21
properties--the original total invoice amount of $226,336.10 for all 39 properties
reduced to reflect a payment made by the Windwater bankruptcy trustee to Graziano
and by the debt on properties not included in the suit.  Graziano also sought its
attorney's fees (3) and pre-judgment (4) and post-judgment interest. 
	Following Windwater's bankruptcy, the case was tried to the bench.  At trial,
Citibank's loan service manager for Windwater, Vernon Facundo, testified that the
draw construction sheet included in the business records was the sheet used by the
inspector for each draw request.  Facundo testified that when a draw request was
received by Citibank, the inspector used that sheet to go out to the particular property
and document that whatever item was being billed at that time was complete. 
Facundo also testified that roofing work was typically completed at 35.5 percent of
total completion of the house and that the draw was then funded.  These procedures
were followed with regard to Windwater.  In addition, Citibank's loan information
sheets were used to annotate all the applicable loan information from origination
through payoff, together with all advances.  Citibank relied upon the construction
draw requests to disburse funds to Windwater.  Each referenced a percentage of
completion.  Citibank's wire transfer form was then used to  wire out the construction
funds to Windwater's checking account at another bank. 
	Choy testified that he started working for Lake Olympia in 1983 as president
and that his duties chiefly consisted of management for land development and sales
and marketing.  In 1997, the company was sold to America First Corp., Inc., owned
by Tan Yu.  Choy retained the title of president.  In 1998, Windwater was created as
a wholly-owned subsidiary for the purpose of home building.  Choy was President of
Windwater as well.  In 1999, Choy discovered that Tan Yu had started removing
money from the Windwater, amounting in the end to $4.732 million.  The money was
therefore not used for Lake Olympia or Windwater purposes.  
	Windwater paid its contractors after they submitted an invoice to Windwater's
superintendent, who initialed and approved payment.  The bookkeeper then issued a
check, which Choy would look at when it came to him for signing.  Windwater made
draw requests on banks in order to pay its contractors.  Choy testified that Tan Yu
"possibly" took some of the funds received from these draw requests overseas.  He
did not authorize the construction loan proceeds going overseas, but he knew the loan
construction proceeds owed to Graziano were taken overseas because "[t]his
particular bank, there's no separate account.  It's just the account for the company." 
	Choy admitted that if somebody signed a draw request for completed  roofing
work it would be safe to say that someone at Windwater thought the roof was
complete on the property.  He also admitted that Windwater did not use construction
loan proceeds to pay Graziano Roofing for some properties.  He agreed it was
"possible" that some of the construction loan home proceeds were sent to Tan Yu. 
Choy issued check and wire transfers from Windwater's operating accounts to Tan
Yu when Yu directed him to do so.  Choy stated that he did not have a choice as to
whether to send money to Tan Yu rather than to contractors because Tan Yu was the
owner of the company, and, if he had refused to comply, he would have been fired. 
Choy admitted he knew that Graziano and other contractors did not get paid for work
they had completed.  Choy also admitted that bank interest and some payrolls were
not paid.  Tan Yu also knew the contractors were not being paid for their work. 
Approximately $4.723 million was wired from Windwater to Tan Yu.
	Adam Stanford, Vice-President of Graziano, testified that Exhibit 55 was a
summary of invoices for amounts due Graziano for its work for Windwater.  The
checks Graziano received for payment were signed by Choy or Brigit Halloran. 
Stanford further testified that Graziano was seeking $134,396.90 in damages, reduced
by about $2,600 due to the discovery of a mathematical error.
	On June 7, 2007, the trial court entered a final judgment that Graziano recover
from Choy the sum of $131,796.09 plus pre-judgment interest and attorney's fees of
$65,000, together with costs of unsuccessful appeal, costs of court, and post-judgment
interest. On July 12, 2007, the trial court issued findings of facts and conclusions of
law.
Standard of Review
 In an appeal of a judgment rendered after a bench trial, the trial court's findings
of fact have the same weight as a jury's verdict, and we review the legal and factual
sufficiency of the evidence used to support them just as we would review a jury's
findings.  Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); In re K.R.P., 80
S.W.3d 669, 673 (Tex. App.--Houston [1st Dist.] 2002, pet. denied).  When
challenged, a trial court's findings of fact are not conclusive if, as in the present case,
there is a complete reporter's record.  In re K.R.P., 80 S.W.3d at 673; Amador v.
Berrospe, 961 S.W.2d 205, 207 (Tex. App.--Houston [1st Dist.] 1996, writ denied). 
When a party without the burden of proof at trial challenges the legal sufficiency of
the evidence, we consider all of the evidence in the light most favorable to the
prevailing party, indulging every reasonable inference in that party's favor. 
Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex.
1998).  If there is any evidence of probative force to support the finding, i.e., more
than a mere scintilla, we will overrule the issue.  Formosa Plastics Corp. USA v.
Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998).  An omitted
finding, supported by the evidence, may be supplied by a presumption that it supports
the judgment.  Black v. Dallas County Child Welfare Unit, 835 S.W.2d 626, 630 n.10
(Tex. 1992).  In our review of the factual sufficiency of the evidence, we must
consider and weigh all of the evidence, and we will set aside a verdict only if the
finding is so against the great weight and preponderance of the evidence that it is
clearly wrong and unjust.  Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).  We
review a trial court's conclusions of law de novo.  In re Moers, 104 S.W.3d 609, 611
(Tex. App.--Houston [1st Dist.] 2003, pet. ref'd).  We independently evaluate a trial
court's conclusions to determine their correctness, and we will uphold conclusions
on appeal if the judgment can be sustained on any legal theory supported by the
evidence.  Id.
I.  Failure to Prove Each Element of Violation of the Trust Fund Act
	In his first issue, Choy argues that the trial court erred in rendering judgment
because Graziano failed to prove each element necessary to establish a violation of
the Act.  Specifically, Choy contends that Graziano was required to prove (1) the
existence of trust funds, as defined by the Act, related to CitiBank and Frost Bank;
(2)(a) Choy's duty to Graziano as a trustee under the Act to pay out funds to Graziano
as a beneficiary under the Act, and (b) the tracing of funds from any loan proceeds
to the timing of the receipt and disbursement of the funds; and (3) the misapplication
of trust funds by Choy, rendering him personally liable under the Act.  Choy argues
that the trial court's findings with respect to those elements were not supported by
legally and factually sufficient evidence.  
	The Texas Supreme Court has indicated that the Act should be construed
liberally in favor of laborers and materialmen.  RepublicBank Dallas, N.A. v. Interkal,
Inc., 691 S.W.2d 605, 607 (Tex. 1985).  The Act was specifically enacted to serve as
a special protection for subcontractors and materialmen, when contractors refuse to
pay the subcontractor or materialman for labor and materials.  Taylor Pipeline
Constr., Inc. v. Directional Road Boring, Inc., 438 F. Supp. 2d 696, 715 (E.D. Tex.
2006); Herbert v. Greater Gulf Coast Enters., Inc., 915 S.W.2d 866, 870-71 (Tex.
App.--Houston [1st Dist] 1995, writ denied). 
 A.	Existence of Trust Funds as Defined by the Act Related to Citibank
and Frost Bank
	Choy first argues that legally insufficient evidence supports the existence of
"trust funds" within the meaning of the Act.  Specifically, he argues that "there is no
evidence, or insufficient evidence to support Findings of Fact Nos. 13-23, 27-34 and
40."  Choy contends that Graziano was required to prove "as to each Windwater loan,
that loan receipts were received by Windwater or Mr. Choy, (2) that the loan receipts
were from a loan for the improvement of specific real property, and (3) that the loan
was secured by a lien on that same property."  He contends the evidence is legally and
factually insufficient to satisfy these requirements. 
	The findings of fact challenged in this section state:
13.	Windwater obtained construction loans to finance the
construction of the homes made the basis of this lawsuit.

14.	The loans were for the improvement of specific real property in
Texas.

15.	Construction loans were obtained from First American Bank,
SSB, now known as Citibank of Texas ("Citibank") for twelve
(12) properties, as set forth in Exhibits 180-193, which are
incorporated herein for all purposes.

16.	The construction loans obtained by Windwater from Citibank and
Frost Bank were secured in whole or in part by a lien on real
property upon which Graziano Roofing supplied materials and
performed labor.

17.	Citibank distributed construction loan proceeds to Windwater
Homes for roofing work because according to Citibank's draw
schedule (Exhibit 100) roofing work was completed by the 35.5%
mark.  See Exhibit 100 (Construction Lending Department
Inspection Sheet).

18.	Windwater received the loan proceeds from Citibank.  See
Exhibits 140-176.  Exhibits 110-120 (Prop. Info. Sheets showing
percentage of completion and amounts disbursed), Exhibits 140-176 (Draw Requests and Wire Transfers), Exhibits 180-193
(Summary of Citibank Records).  These documents show that
construction work on the properties were at the 35.5% mark or
higher.  The construction loan proceeds for these properties were
trust funds.

19.	According to Citbank's draw schedule roofing work was done
between the 30.0% and 35.5% marks.  The property at 7110
Harmony Cove was only 33.5% complete according to the draw
schedule, thus, the amount of trust funds would be only
$3,232.00.

20.	Loan proceeds of $57,719.35 for construction work, were
disbursed for 7110 Harmony Cove as shown on Exhibits 120B
and 182 which are incorporated herein as if set out verbatim. 
None of the loan proceeds for 7110 Harmony Cove were
distributed to Graziano Roofing.

21.	Citibank's records show construction loan proceeds for roofing
work and materials and other construction work were disbursed
or distributed to Windwater for the properties listed on Exhibits
180-193 total $1,840,782.85 (excluding the money disbursed for
7110 harmony cove).  See Exhibit 193.  These exhibits are
incorporated herein as if set out verbatim.

22.	None of the construction loan proceeds of $1,840,782.85
disbursed by Citibank to Windwater were applied to pay for the
roofing work done by Graziano Roofing.

23.	Based on the loan proceeds received from Citibank by
Windwater, the amount of the loan proceeds or trust funds owed
to Graziano Roofing is $81,584.20[.  T]his figure includes a
7.905% reduction from the figure of $88,587.00 because 7.905%
of the original principal debt was paid by the Bankruptcy Trustee.

. . . .

27.	Construction loan proceeds for roofing work done by Graziano
Roofing were received by Windwater and were not disbursed or
paid to Graziano.

28.	Construction loans were obtained from Frost Bank to build upon
or improve nine (9) properties, as set forth in Exhibits 210-215
and 220, which are incorporated herein for all purposes.

29.	The construction loans obtained by Windwater from Frost Bank
were secured in whole or in part by a on real property upon which
Grazaiano Roofing supplied materials and performed labor in
constructing an improvement on the property, namely a roof.

30.	Frost Bank distributed construction loan proceeds to Windwater
Homes for roofing work on nine (9) properties as set forth in
Exhibits 210-215 and 220.  These Exhibits are incorporated
herein as if set out verbatim.

31.	Frost's documents, including the draw requests submitted by
Choy and others, shows the roofing work was completed.

32.	Windwater received the loan proceeds from Frost Bank to pay for
roofing work done by Graziano Roofing.  See Exhibit 220, which
is incorporated herein for all purposes.

33.	Thus, with regard to Frost Bank, construction draws or loan
proceeds for roofing work and materials for the properties listed
on Exhibit 220 total $87,517.72.

34.	The construction loan proceeds of $87,517.72 disbursed by Frost
Bank to Windwater for roofing work were not paid to Graziano
Roofing, Inc.  See Exhibit 220, which is incorporated herein for
all purposes.

. . . . 

40.	Windwater failed to pay Graziano Roofing for the roofing work
that Graziano Roofing performed even though Windwater
received construction loan proceeds from Frost Bank to pay for
the roofing work.
2.	"Trust Funds" Under the Act
	Section 162.001 of the Act, entitled "Construction Payments and Loan Receipts
as Trust Funds," provides,
	(a)	Construction payments are trust funds under this chapter if the
payments are made to a contractor or subcontractor or to an
officer, director, or agent of a contractor or subcontractor, under
a construction contract for the improvement of specific real
property in this state.

(b)	Loan receipts are trust funds under this chapter if the funds are
borrowed by a contractor, subcontractor, or owner or by an
officer, director, or agent of a contractor, subcontractor, or owner
for the purpose of improving specific real property in this state,
and the loan is secured in whole or in part by a lien on the
property.

Tex. Prop. Code Ann. § 162.001(a), (b) (Vernon 2007).  
	The loan documents introduced into the record show that Windwater received
home construction loan funds borrowed from Citibank and Frost Bank for the purpose
of improving the specific real property in Texas for which Graziano seeks damages. 
 The loan documents further show that each loan was secured by a deed of trust,
which is a type of lien. (5)  Exhibits 210 through 215 document draw requests made by
Windwater on Frost Bank specifying the amount requested and the date of the request
for nine different properties.  Exhibit 220 contains a summary of the disbursed funds
from Frost Bank for the various properties, showing the draw amount for the roofing
work, the funding of the draw, and the amount of Graziano's invoices.  Exhibits 180
through 191 document Windwater's draw requests to Citibank (6) and Citibank's wire
transfers to Windwater's account of  funds for 12 different properties.  Exhibit 192
contains a summary of the properties, the amount drawn, and the amount invoiced. 
	Specifically, according to Citibank's "Construction Lending Department
Inspection Sheet," Citibank considered roofing work complete for the purpose of
disbursing construction loan proceeds to Windwater at the 35.5% completion point.
In addition, Citibank's representative, Vernon Facundo, testified that Exhibit 100 
	is the sheet that is used by the inspector for each draw request.  When a draw
request is received the inspector uses this sheet to go out to the particular
property and document that, whatever item is being billed at that time
according to the inspection sheet that it has been complete.

	The record of Citibank's construction lending to Windwater shows, through the
draw requests, wire transfer forms, and confirmations entered in the record by
Graziano, that Graziano did roofing work on the 11 homes whose roofing was more
than 35% complete and for which Graziano seeks recovery in this suit; that Graziano
invoiced Windwater in a specific amount for its completed work on each of those
homes; that Windwater promptly sent a draw request to Citibank in response to each
invoice; and that, upon receipt of the draw requests, Citibank immediately funded
each request by wire to Windwater for the invoiced roofing work.  The 11 Citibank
properties on which more than 35% of the roofing was completed by Graziano and
for which draws were made, were 7138 Turtle Lagoon Row (89% complete); 7126
Turtle Lagoon Row (84% complete); 7106 Harmony Cove (74% complete); 7139
Windwater Lagoon (41.5% complete); 150 Palm Boulevard (78% complete); 6023
Arrowana Lane (89% complete); 6027 North Arrowana Lane (75.5% complete); 7118
Harmony Cove (47.5% complete); 7114 Harmony Cove (46.5% complete); 7110
Laguna Villas Lane (36.5% complete); and 226 Flamingo Island Drive (90.5%
complete).  The property at 7110 Harmony Cove was listed as being only 33.5%
complete, rather than a minimum of 35% complete.  Therefore, Graziano allowed for
a $2600 reduction of the amount that would be due for complete roofing for 7110
Harmony Cove.  The amount due Graziano for labor and materials on the property at
7110 Harmony Cove was likewise properly invoiced, and funds to pay Graziano's
invoice were requested and received by Windwater. 
	Frost Bank records show that Windwater submitted six Construction Draw
Requests to Frost Bank.  These Construction Draw Requests encompassed the nine
Frost Bank properties on which Graziano had done the roofing.  Each of the
Construction Draw Requests was signed by Choy or Halloran as an officer and agent
of Windwater, and each stated "Roof Complete."  Choy also testified that if
somebody at Windwater signed a draw request it would be safe to say that someone
at Windwater thought the roof was complete on the property.  Frost Bank records
show the roofing work complete at 5935 Turtle Beach Lane, 5927 Turtle Beach Lane,
7110 Turtle Lagoon Row, 7114 Turtle Lagoon Row, 7122 Turtle Lagoon Row, 5931
Turtle Beach Lane, 5923 Turtle Beach Lane, 7118 Turtle Lagoon Row, and 7106
Turtle Lagoon Row.  The "Summary of Completion and Funds Disbursed from Frost
Bank" shows that draw requests were made by Windwater at the time the roofing was
completed and that each was immediately funded by Frost Bank.  These exhibits were
admitted without objection.  Choy submitted no contrary evidence. 
	Viewing the evidence in the light most favorable to Graziano and indulging
every reasonable inference in its favor, we conclude that the evidence is legally
sufficient to support the challenged findings.  See Associated Indem. Corp., 964
S.W.2d at 285-86.  Considering and weighing all of the evidence, we further
conclude that the challenged findings are not so against the great weight and
preponderance of the evidence as to be clearly wrong and unjust, and therefore the
evidence is factually sufficient.  Ortiz, 917 S.W.2d at 772.  Accordingly, after
reviewing the exhibits, we conclude that the trial court correctly classified the funds
obtained from Frost Bank and Citibank as construction trust funds requested by
Windwater to pay its obligations to Graziano for completed roofing work on the
properties at issue in this suit and wire transferred to Windwater's account by
Citibank and Frost Bank for that purpose.  See Tex. Prop. Code Ann. § 162.001(b).
	Choy argues, however, that, in addition, Graziano failed to introduce "any
documentary evidence of the dates when Graziano supplied labor and/or materials to
each property. . ., the dates any invoices were issued to Windwater, or the dates any
obligations owed to Graziano by Windwater were due and payable under the terms
of any invoice issued to Windwater under the terms of any contract with Windwater." 
Choy provides no argument or authority for the inclusion of the requirements he seeks
to add to the proof of the existence of trust funds under § 162.001(b) of the Act.  It
is cardinal law in Texas that a court construes a statute, "first, by looking to the plain
and common meaning of the statute's words" and, if the language is unambiguous,
adopting the interpretation supported by the plain meaning of the provision's words
and terms.  Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865
(Tex. 1999); see Tex. Gov't Code Ann. §§ 311.011; 312.002 (Vernon 2005). 
Courts "may add words into a statutory provision only when necessary to give effect
to clear legislative intent," and "[o]nly truly extraordinary circumstances showing
unmistakable legislative intent should divert us from the enforcing the statute as
written."  Fitzgerald, 996 S.W.2d at 867. We find no support in the statute, the case
law, or the rules of statutory construction for the requirements Choy seeks to add to
the proof of "trust funds" under section 162.001(b) of the Act, and we decline to add
them.
	B.	Duty of Choy as Trustee to Pay Out Funds to Graziano as Beneficiary 
Under the Act and Evidence Tracing Funds Received and Disbursed 

1.	Duty of Choy as Trustee to Pay Out Funds to Graziano as Beneficiary  Under
the Act

	Choy also argues that the evidence is legally and factually insufficient to show
that he was a trustee and that Graziano was a beneficiary of trust funds.  Specifically,
he argues that Graziano "failed to establish that Windwater and Mr. Choy had a duty
to pay out any trust funds to Graziano; nor did Graziano offer evidence tracing funds
from any loan proceeds or bank accounts to establish the timing of the receipt and
alleged disbursement of funds."  He argues that there was no evidence or insufficient
evidence to support findings of fact 3, 7-8, 18-19, 21, 23, 31-33, 35, 40-41.  Thus, he
argues that conclusions of law 8-11, 13-14, and 16 were erroneous because they were
based upon findings of fact for which there was no evidence or insufficient evidence. 
	The challenged findings state:
3.	Windwater contracted with Graziano Roofing of Texas, Inc.
("Graziano Roofing") to furnish and install Monier Lifetile roofs
on homes built by Windwater.

. . . .

7.	The properties for which roofing materials and roofing service
were provided and not paid as of the last invoice date on
November 11, 2002 are listed on Exhibits 57 and 57A. (7)  Those
Exhibits are incorporated into these findings as if set out
verbatim.

8.	The total principle amount owed to Graziano Roofing as of
November 11, 2002 was $226,336.10.

. . . .

18.	Windwater received the loan proceeds from Citibank.  See
Exhibits 140-176.  Exhibits 110-120 (Prop. Info. Sheets showing
percentage of completion and amounts disbursed), Exhibits 140-176 (Draw Requests and Wire Transfers), Exhibits 180-193
(Summary of Citibank Records).  These documents show that
construction work on the properties were at the 35.5% mark or
higher.  The construction loan proceeds for these properties were
trust funds.

19.	According to Citibank's draw schedule roofing work was done
between the 30.0% and 35.5% marks.  The property at 7110
Harmony Cove was only 33.5% complete according to the draw
schedule, thus, the amount of trust funds would only be
$3,232.00.

. . . .

21.	Citibank's records show construction loan proceeds for roofing
work and materials and other construction work were disbursed
or distributed to Windwater for the properties listed on Exhibits
180-193 total $1,840,782.85 (excluding the money disbursed for
7110 Harmony Cove).  See Exhibit 193.  These exhibits are
incorporated herein as if set out verbatim.

. . . .

23.	Based on the loan proceeds received from Citibank by
Windwater, the amount of the loan proceeds or trust funds owed
to Graziano Roofing is $81,584.20[.  T]his figure includes a
7.905% reduction from the figure of $88,587.00 because 7.905%
of the original principal debt was paid by the Bankruptcy Trustee.

. . . .

31.	Frost's documents, including the draw requests submitted by
Choy and others, [show] the roofing work was completed.

32.	Windwater received the loan proceeds from Frost Bank to pay for
roofing work done by Graziano Roofing.  See Exhibit 220, which
is incorporated herein for all purposes.

33.	Thus, with regard to Frost Bank, construction draws or loan
proceeds for roofing work and materials for the properties listed
on Exhibit 220 total $87,517.72.

. . . .

35.	The amount owed for the roofing work after the 7.905% reduction
is $52,811.89.  The reduction results from the bankrutpcy trustee
paying 2.905% of the original debt.

. . . .

40.	Windwater failed to pay Graziano Roofing for the roofing work
that Graziano Roofing performed even though Windwater
received construction loan proceeds from Frost Bank to pay for
the roofing work.

41.	Graziano Roofing is owed the principal sum of $131,796.09 for
the roofing work that it performed for Windwater on properties
where there were construction loans secured by liens on real
property from Citibank and Frost Bank.  See Exhibits 57A and
57C (The total due of $134,396.09 was reduced by $2,600.00
because Citibank's records show only 60% of the roofing work
was completed at 7110 Harmony Cove.).

	The challenged conclusions of law state:

8.	Andrew Choy as a fiduciary or trustee of the construction trust
funds had a duty to act for the benefit of any artisan, laborer,
mechanic, contractor, subcontractor or materialman who labored
or furnished labor or material for the construction (or repair) of an
improvement on specific real property.

9.	Andrew Choy as a fiduciary or trustee of construction trust funds,
was obligated to ensure that the construction trust funds were
properly distributed to the beneficiaries of the construction trust
funds, in this case--Graziano Roofing.

10.	Andrew Choy breached his duty to Graziano Roofing and he did
not ensure that the construction trust funds were properly
distributed to the beneficiary of the construction trust funds, in
this case--Graziano Roofing.

11.	Graziano Roofing, as a subcontractor of Windwater, furnished
labor or material for the construction or repair of an improvement
on specific real property in Texas and is a beneficiary of the
construction trust funds.

. . . .

13.	A corporate officer who has signature authority on a corporation's
bank accounts and abides by instructions from another person or
corporate entity to deliver construction trust funds has misapplied
construction trust funds.  Andrew Choy misapplied construction
trust funds.

14.	Andrew Choy knowingly misapplied the construction trust funds.

. . . . 

16.	The amount of construction loan proceeds (principal and interest)
misapplied by Choy total $131,796.09, as of April 5, 2003. 	Section 162.002, entitled, "Contractors as Trustees," provides, "A contractor,
subcontractor, or owner or an officer, director, or agent of a contractor, subcontractor,
or owner, who receives trust funds or who has control or direction of trust funds, is
a trustee of the trust funds."  Tex. Prop. Code Ann. § 162.002 (Vernon 2007).  
	Choy testified that he was the President of Windwater and that he had control
over the funds received from Frost Bank and Citibank.  Furthermore, Adam Stanford,
the Vice-President of Graziano, testified that he received checks from Windwater and
that the checks were signed by Choy.  Choy produced no contrary evidence.  Based
on this evidence, we conclude that Choy was a trustee of construction trust funds. 
See C&G, Inc. v. Jones, 165 S.W.3d 450, 455-56 (Tex. App.--Dallas 2005, pet.
denied) (concluding that officers of company had control or direction of trust funds);
see also Nuclear Corp. of America v. Hale, 355 F. Supp. 193, 197 (N.D. Tex. 1973),
aff'd, 479 F.2nd 1045 (5th Cir. 1973) (holding that company's president was trustee
of trust funds because he had control and direction over funds).
	Likewise, Graziano was properly classified as a beneficiary of trust funds.  A
subcontractor who furnishes labor or material for the construction or repair of an
improvement on specific real property in this state is a beneficiary of any trust funds
paid or received in connection with the improvement.  Tex. Prop. Code Ann.
§ 162.003 (Vernon 2007).  The evidence established that Graziano, a subcontractor,
installed roofs on a number of homes for Windwater, including those homes for
which recovery was sought.  Choy produced no contrary evidence.  We thus conclude
that Graziano was a beneficiary of any trust funds paid or received in connection with
its roofing services.  See id.
	Choy contends, however, that, as a trustee under the Act, he had no duty to pay
out trust funds to a subcontractor who furnished labor or materials for the
construction or repair of specific real property "unless and until certain events occur
in a particular sequence."  Specifically, Choy contends that Graziano had to submit
"evidence that the labor and/or materials were provided prior to the receipt of trust
funds and that the payment obligation arising therefrom is due and payable within 30
days of receipt of the trust funds."  (Emphasis in original).  He contends that section
162.031 of the Act, entitled "Misapplication of Trust Funds," "permits a recipient of
loan proceeds to use such proceeds for any purposes whatsoever provided they do not
have at the time such loan proceeds are received any outstanding 'current or past due
obligations' as defined under Property Code Section 162.005(2)."  He further
contends that Graziano ignored the definition of "current or past due obligations" in
section 162.005(2) and that there is a "complete absence of any evidence that
complies with Act's definition of 'current and past due obligations.'"  Choy states
that the term "due and payable" "is limited to 'no later than 30 days following receipt
of the trust funds.'"  He contends that "[i]f an obligation is not due and payable
within 30 days of receiving the trust funds then those funds are not trust funds under
the definitions of the Trust Fund Act."  Finally, Choy claims that "there is no
evidence in the record to prove" that Windwater was obligated to Graziano for labor
or materials furnished in the direct prosecution of work under a construction contract
prior to the receipt of trust funds and that "such obligations were due and payable 30
days from the receipt of trust funds."
	Section 162.031(a) of the Property Code provides,
(a)	A trustee who, intentionally or knowingly or with intent to
defraud, directly or indirectly retains, uses, disburses, or
otherwise diverts trust funds without first fully paying all current
or past due obligations incurred by the trustee to the beneficiaries
of the trust funds, has misapplied the trust funds.

Tex. Prop. Code Ann. § 162.031(a) (Vernon 2007).  
	Section 162.005 of the Property Code defines "current or past due obligations"
as used in section 162.031 as "those obligations incurred or owed by the trustee for
labor or materials furnished in the direct prosecution of the work under the
construction contract prior to the receipt of the trust funds and which are due and
payable by the trustee no later than 30 days following receipt of the trust funds." 
Tex. Prop. Code Ann. § 162.005 (Vernon 2007). 
	Under the Code Construction Act, it is presumed that in enacting a statute the
Legislature intended that the entire statute be effective, that the result be just and
reasonable, and that it be feasible of execution and in the public interest.  Tex. Gov't
Code Ann. § 311.021 (Vernon 2005).  In construing a statute, the court considers the
object sought to be attained and the consequences of a particular construction.  Id.
§ 311.023 (Vernon 2005).  Also, words are given their ordinary meaning.  Id.
§ 312.002; Fitzgerald, 996 S.W.2d at 865.  Therefore, in construing a statute, we
generally focus on and will follow the plain language of the statute unless following
the plain language would lead to absurd and unintended consequences.  Fleming
Foods, Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999).
	As a trustee of the funds borrowed by Windwater from First American Bank
and Frost Bank for the improvement of specific real property secured in whole or in
party by a lien, Choy clearly had a duty under the Act to pay out trust funds for all
"current and past due obligations" owed for labor or materials furnished by Graziano
under the construction contract for work completed on specific properties.  See Tex.
Prop. Code Ann. §§ 162.001, 162.002, 162.003, 162.031.  To misapply trust funds
under the Act, the trustee must have disbursed or otherwise diverted trust funds
without first fully paying all "current or past due obligations," namely "those
obligations incurred or owed by the trustee for labor or materials furnished in the
direct prosecution of the work under the construction contract prior to the receipt of
the trust funds and which are due and payable by the trustee no later than 30 days
after receiving the trust funds."  Tex. Prop. Code Ann. §§ 162.005, 162.031.  
	That section 162.005(2) defines "due and payable" obligations" to include all
obligations "due and payable by the trustee no later than 30 days following receipt of
the trust funds" does not mean, as Choy contends, that "[i]f an obligation is not due
and payable within 30 days of receiving the trust funds then those funds are not trust
funds under the definitions of the Trust Fund Act."  Nor does it mean that the trustee
has no obligation to pay out trust funds it has requested from a bank pursuant to a
construction loan to pay an obligation unless the beneficiary of the funds proves that
the "obligations were due and payable 30 days from the receipt of trust funds," and
that the trustee has no obligation to pay obligations already due and payable when an
invoice was sent to the trustee triggering the trustee's draw request for construction
loan funds, as here.  An obligation that is due and payable by the trustee at the time
he requests construction loan funds to pay an invoice he has received for "obligations
incurred or owed by the trustee for labor or materials furnished in the direct
prosecution of the work under the construction contract prior to the receipt of the trust
funds" is necessarily "due and payable by the trustee no later than 30 days following
receipt of the trust funds," because it was already due and payable when the trust
funds were requested by the trustee from the bank and was the cause for the transfer
of the funds by the bank so that the obligation could be paid.  
	Any construction of the statute such as that Choy urges upon the Court  would
be absurd.  First, it would remove from the definition of "current and past due
obligations" all past due obligations, rendering the statutory definition of "past due
obligations" meaningless.  Second, it would mean that borrowers like Windwater
could request construction loan funds on the basis of an invoice for completed work,
as here, and not have to pay the beneficiary whose invoice supported the borrower's
draw request because the beneficiary invoiced the borrower before it requested the
funds and did not specify that it required payment within 30 days after the borrower
received the funds that were released by the bank to the borrower on the basis of the
invoice.  We find no basis for adding this requirement to the language of the statute. 
See Fitzgerald, 996 S.W.2d at 867.
	We hold that, by the plain language of the Act, the words "due and payable . . .
no later than 30 days" after a trustee's receipt of construction trust funds include
invoices already due and payable at the time trust funds are requested by a trustee. 
See Tex. Prop. Code Ann. §§ 162.005, 162.031.  
	The evidence supports the challenged findings under the proper construction
of the statute.  Specifically, the Citibank and Frost Bank records admitted into
evidence and cited above in response to the first part of Choy's first issue establish
that at the time Frost Bank and Citibank disbursed funds to Windwater for
construction costs for the 21 properties identified in Graziano's petition Graziano had
supplied roofing materials and performed roofing services on those properties; the
roofing was counted as complete on 20 of those 21 properties and 33.5% complete
out of the necessary 35% required by Citibank for work to be counted as complete on
the 21st house; Windwater made draws upon Citibank and Frost Bank for roofing
supplies and services as the work was completed; and Citibank and Frost Bank
immediately funded each draw request by wire transfer to Windwater.  
	Graziano also produced a "Summary of Draw Request, Wire Transfer Form and
Wire Transfer Confirmation" for Citibank, summarizing this information, as well as
a "Summary of Completion and Dollars Disbursed or Funded for Citibank and
Graziano Roofing's Invoice Amount," referencing exhibits and summarizing the 
percentage of completion of each property, the amount drawn, the amount of
Graziano's invoice for the property, the amount of reduction from the original
invoice, and the funds wired to Windwater.  Similarly, it produced a "Summary of
Completion and Funds Disbursed from Frost Bank," stating the date of the draw
request for roofing work on each property, the Windwater agent making the request,
the draw amount, the status of the roof as complete, the source exhibits showing the
draws funded, the amount of Graziano's invoice, and the amount of the invoice
reduction.  No objection was made to any of these exhibits. 
	These exhibits show that Windwater's obligation to pay Graziano for the
properties for which Graziano seeks recovery under the construction contract was
owed by the trustee for labor and materials furnished in Graziano's direct prosecution
of the work on those properties prior to the receipt of the trust funds; that Graziano
invoiced Windwater for its completed roofing work that was due and payable in
specified amounts recited in the invoices, triggering Windwater's draw requests for
specified amounts of construction funds to pay those obligations; and that, promptly
upon receipt of Windwater's draw requests for construction loan funds, Citibank and
Frost Bank transferred the requested funds to Windwater's account at Frost Bank so
that it could pay the obligations it had incurred and that were due and payable to
Graziano. 
	Choy produced no evidence to the contrary.   
	Viewing the evidence in the light most favorable to Graziano and indulging
every reasonable inference in its favor, we conclude that the evidence is legally
sufficient to support the challenged findings. See Associated Indem. Corp., 964
S.W.2d at 285-86.  Considering and weighing all of the evidence, we further
conclude that the challenged findings are not so against the great weight and
preponderance of the evidence as to be clearly wrong and unjust, and therefore the
evidence in support of the challenged findings is factually sufficient.  Ortiz, 917
S.W.2d at 772.
	Choy contends, however, that even when obligations are current or past due
under the statue, the Act "does not prioritize what beneficiaries get paid first from
loan proceeds when there are several beneficiaries," nor does it "provide that a trustee
has misapplied trust funds where the loan receipts are simply insufficient to satisfy
all then current or past due obligations."  This argument is inapplicable in this case
because there is no evidence of additional beneficiaries entitled to the same draw
proceeds whom Choy failed to pay or whom Choy paid instead of paying Graziano
from "simply insufficient" funds.  Rather, the record evidence shows that  Windwater
made draws on Citibank and Frost Bank pursuant to its contracts with them to pay
invoices received from Graziano for completed roofing work on specified properties
and that it did not pay Graziano.  Choy testified that, Tan Yu, the owner of
Windwater, of which Choy was president, and Lake Olympia, started removing
money from the commingled funds of the two companies, amounting ultimately to
$4.732 million; that Tan Yu "possibly" took overseas some of the funds received
from the draw requests Windwater made on the banks to pay its contractors; and that
he, Choy, knew the loan construction proceeds owed to Graziano were taken overseas
because "[t]his particular bank, there's no separate account. It's just the account for
the company."  Choy admitted he knew that Graziano did not get paid for work it had
completed.
	Choy also attempts to inject into the proof of a violation of section 162.031(a),
governing the misapplication of construction trust funds, a requirement that the
beneficiary--here, Graziano--must provide direct evidence of the specific dates on
which it performed work on each property "establishing precisely when labor or
materials were furnished by a beneficiary to a particular property and the precise
terms of payment agreed to with the owner."  Choy also contends that Graziano had
to introduce into evidence its contract with Windwater "with specific payment terms." 
Choy's attempt to add to the requirements supported by the plain language of section
162.031(a) is no more supportable here than his attempt to add requirements to the
interpretation of sections 162.001 and 162.005(2) of the Act.  See Fitzgerald, 996
S.W.2d at 865; Tex. Gov't Code Ann. §§ 311.023; 312.002.  We decline to impose
additional requirements to the proof of a violation of section 162.031(a) of the Act
beyond those supported by the plain language of the statute.
2.	Evidence Tracing Funds Received and Disbursed 
	Although there is no tracing requirement in the language of the statute, Choy
also contends that "Graziano [had to] offer evidence tracing funds from any loan
proceeds or bank accounts to establish the timing of the receipt and alleged
disbursement of funds."  Choy relies on Kirschner v. State, 997 S.W.2d 335 (Tex.
App.--Houston [1st Dist.] 1999, pet. ref'd), as support for his claim.  
	In Kirschner, the contractor, Kirschner, was building a home for the buyers and
sending bills for labors and materials.  Once the buyers believed that Kirschner was
billing them for materials that they had already paid for and labor that had never been
performed, they fired him.  It was later determined that Kirschner had not paid 17
subcontractors, prompting an indictment by the State.  After he was convicted,
Kirschner appealed, arguing that the evidence was legally insufficient to show that
he misappropriated trust funds.  This Court concluded that the State offered no
evidence as to "when ten of the twelve subcontractors and vendors named in the
indictment furnished the labor or materials for which they were not paid by Krischner. 
Absent this evidence, the State failed to prove that there was a current or past due
obligation owed these ten alleged beneficiaries at the time Kirschner received trust
funds."  Id. at 341.  However, the State introduced into evidence copies of invoices
submitted by the two remaining subcontractors listed in the indictment, together with
evidence that Kirschner had made draws on loan proceeds committed to those
projects and had not used the trust funds he received to pay those obligations.  Id. at
341-42.  Bank records and Kirschner's own cost documentation showed that he wrote
many checks against trust funds after the obligations to the two sub-contractors
became payable, most of them payable to beneficiaries of the trust, but one payable
to his wife and one to himself.  Id. at 342.  Because Kirschner paid himself before
paying his obligations to trust beneficiaries, the court held that the subcontractors had
established a misapplication of trust funds.  Id.  The court rejected Kirschner's
argument that the State was required to trace the flow of funds and prove that any
questionable payments were not, in fact, payments directly related to the project.  Id.
at 342-43. 
	Here, the record contains ample, unrebutted evidence that Graziano provided
labor and materials for the roofing work on the 21 projects for which he sought
recovery in this lawsuit; that it invoiced the work on each of these properties upon
completion for specific amounts of money, (8) which then became due and owing,
triggering construction loan draw requests by Windwater to Citibank and Frost Bank;
that Citibank and Frost Bank promptly responded to each draw request by Windwater
and wire transferred the money to its account; and that Choy, as trustee for
Windwater with control over its funds, did not pay the invoices.  We conclude that
Choy's argument that Graziano was required to trace the funds received by
Windwater and disbursed is an attempt to add requirements to the statute without
support in the plain language of the statute or in case law and is without merit. See
Fitzgerald, 996 S.W.2d at 865.
	C.  Misapplication of Trust Funds
	Finally, Choy argues that no evidence, or factually insufficient evidence, shows
that he misapplied any of the alleged trust funds so as to be personally liable under
section 162.031(a) of the Act.  He contends that "[t]o prove a misapplication,
Graziano needed to establish that some amount of a particular loan draw was not used
to pay suppliers to the property securing the loan whose obligations were due and
payable by Windwater within 30 days after Windwater's receipt of the loan
proceeds."  Thus, Choy argues that findings of fact 25, 26, 37-39 were supported by
insufficient evidence and that conclusions of law 12-14 and 16 were erroneous.  
	The findings of fact challenged in this section state:

25.	Andrew Choy directed that the construction loan proceeds from
Citibank be directed or paid to someone other than Graziano
Roofing.

26.	Andrew Choy knowingly used, disbursed, or otherwise diverted
the construction trust funds owed to Graziano Roofing, so that
Graziano Roofing did not receive the trust funds.

. . . .

37.	Andrew Choy directed that the construction loan proceeds from
Frost Bank be directed or paid to someone other than Graziano
Roofing.

38.	Andrew Choy knowingly used, disbursed, or otherwise diverted
the construction trust funds from Frost Bank owed to Graziano
Roofing, so that Graziano Roofing did not receive the trust funds
from Frost Bank.

39.	When the Frost Bank construction loan proceeds were received
by Windwater, Andrew Choy decided to utilize the loan proceeds
for purposes other than to pay the construction costs on the homes
made the basis of this lawsuit.

	The conclusions of law challenged in this section state:

12.	Andrew Choy knowingly retained, used, disbursed, or otherwise
diverted the construction trust funds without first fully paying all
current or past due obligations incurred by Windwater and owed
to the beneficiary of the construction trust funds, Graziano
Roofing.

. . . .

14.	Andrew Choy knowingly misapplied the construction trust funds.

. . . .

16.	The amount of construction loan proceeds (principal and interest)
misapplied by Choy total $131,796.09 as of April 5, 2003.

	Choy contends that "[a]lthough the phrase 'directly or indirectly retains, uses,
disburses, or otherwise diverts trust funds' is not statutorily defined, case law
provides guidance on evidence need to prove this element under Property Code
[section] 162.031(a)."  Specifically, he contends that, in Kirshner, the court found
that checks paid to non-beneficiaries at the time current and past due obligations
remained outstanding evinced a misapplication of trust funds by the trustee.  See
Kirshner, 997 S.W.2d at 342.  Choy also cites Morelli v. State, 9 S.W.3d 909, 912
(Tex. App.--Austin 2000, pet. ref'd), for the proposition that no segregation of funds
by construction projects is required and that the intent to defraud must be shown to
establish the misapplication of funds.  We find both Kirschner and Morelli to be
inapplicable because they do not correspond to the circumstances of this case.
	Here, Choy testified that he wired over $4.3 million to Tan Yu.  He testified
that he wired money that should have gone to contractors and that he and Tan Yu
knew that contractors were not getting paid.  He admitted that, on some properties,
Graziano was not getting paid.  There is no evidence that trust funds received from
Frost Bank and Citibank in response to Windwater's draw requests for funds to pay
Graziano's invoices were used to pay any of those invoices.
	To prove the misapplication of construction trust funds, the plain language of
the statute required only that (a) a trustee "intentionally or knowingly or with intent
to defraud directly or indirectly" (b) "retain[], use[], disburse[], or otherwise divert[]
trust funds" (c) "without first fully paying all current or past due obligations incurred
by the trustee to the beneficiaries."  Tex. Prop. Code Ann. § 162.031(a).  Viewing
the evidence in the light most favorable to Graziano and indulging every reasonable
inference in its favor, we conclude that the evidence is legally sufficient to support
the challenged findings. See Associated Indem. Corp., 964 S.W.2d at 285-86. 
Considering and weighing all of the evidence, we further conclude that the challenged
findings are not so against the great weight and preponderance of the evidence as to
be clearly wrong and unjust, and therefore the evidence in support of the challenged
findings is factually sufficient.  Ortiz, 917 S.W.2d at 772.
	We overrule Choy's first issue. (9)II.  Intra-Company Transfers of Funds
 In his second issue, Choy argues that the "trial court erred in concluding that
liability exists under the Trust Fund Act of intra-company transfers of funds."
	Choy does not challenge a specific finding of fact or conclusion of law. 
Rather, he states that although Choy testified that he and others had the authority to
and did wire money to Tan Yu, the owner of lake Olympia and Windwater, of which
Choy was president, "there was no testimony or documentary evidence indicating
exactly when these transfers were made, the sources of the transferred funds, the
amount of each transfer, and who made the individual transfers."  Choy contends that
Graziano failed to carry its burden of proving that funds were "diverted, disbursed,
or misapplied."  He further contends that "the fact that the funds were never disbursed
by Mr. Choy, but remained within the corporate structure, should not cause Mr. Choy
to be held personally liable under the Trust Fund Act."
	Choy again attempts to add requirements of proof not contemplated by the
plain language of the case law, contrary to the canons of code construction.  See
Fitzgerald, 996 S.W.2d at 865; Tex. Gov't Code Ann. §§ 311.023; 312.002.
Moreover, the authorities he cites are inapplicable under the circumstances of this
case.  There is no evidence that construction trust funds received from Frost Bank and
Citibank to pay Graziano's invoices "remained within the corporate structure." 
Rather, there is unrefuted evidence that they were received by Windwater in response 
to draw requests made by Windwater to the banks to pay Graziano's invoices for
completed roof work, that they were not used to pay Graziano, that they were
commingled with all corporate funds, and that $4.3 million of corporate funds were
transferred overseas to Tan Yu, the owner of Windwater, and were not used for any
corporate purpose.  Proof of liability for misapplication of trust funds under the plain
language of section 163.931(a) of the Act requires no more.  In particular, there is no
requirement that the beneficiary of trust funds must prove "exactly when these
transfers of trust funds were made" by the company to a recipient other than the
plaintiff, "the sources of the transferred funds, the amount of each transfer, and who
made the individual transfers."
	Again, we "may add words into a statutory provision only when necessary to
give effect to clear legislative intent," and "[o]nly truly extraordinary circumstances
showing unmistakable legislative intent should divert us from the enforcing the
statute as written."  Fitzgerald, 996 S.W.2d at 867.  There is no such intent expressed
here, and increasing the beneficiary's burden of proof of the misapplication of trust
funds by requiring him to prove the exact method by which a trustee's disposed of
trust funds not used to pay the beneficiary--proof within the trustee's control--is
plainly contrary to the legislative intent that the beneficiary prove only that the trustee
"intentionally or knowingly or with intent to defraud, directly or indirectly retain[ed],
use[d], disburse[d], or otherwise divert[ed] trust funds without first fully paying all
current or past due obligations incurred by the trustee to the beneficiaries of the trust
funds."  Tex. Prop. Code Ann. § 162.031(a).
	We overrule Choy's second issue.
III.  Pre-judgment Interest

	In his third issue, Choy argues that the trial court erred in awarding Graziano
prejudgment interest based on the interest rate contained in the Texas Prompt Pay
Act.  Choy contends that conclusions of law 15 and 17 are erroneous.  
 The relevant conclusions of law provide,
15.	Interest on debts owed to beneficiaries of the construction trust
fund statute runs at ONE AND ONE-HALF (1.5%) percent per
month.

. . . .

17.	Pre-judgment interest continues to accrue to the date of judgment
at the per diem rate of $5,4162 from April 5, 2003 to the date of
judgment, that date being June 7, 2007.

	Graziano responds that Choy never raised this argument at trial and that
therefore the issue is waived. (10)  In his reply brief, Choy does not respond to
Graziano's waiver argument.  
	To make these claims on appeal, Choy was required to present these complaints
to the trial court.  See Tex. R. App. P. 33.1 (preserving error); see also Allright, Inc.
v. Pearson, 735 S.W.2d 240, 240 (Tex. 1987) (error regarding award of prejudgment
interest must be preserved); Miller v. Kendall, 804 S.W.2d 933, 945 (Tex.
App.--Houston [1st Dist.] 1990, no writ) (motion to amend or correct judgment or
motion for new trial is proper vehicle for preserving error in judgment); Wohlfahrt
v. Holloway, 172 S.W.3d 630, 639 (Tex. App.--Houston [14th Dist.] 2005, pet.
denied) (error regarding postjudgment interest is waived if not complained of at trial
level).  We conclude that by failing to object to the award of prejudgment interest at
trial, the complaint has been waived.  
	We overrule Choy's third issue.
Conclusion
	We affirm the judgment of the trial court.


						Evelyn V. Keyes
						Justice

Panel consists of Justices Jennings, Keyes, and Higley.
Justice Jennings, concurring in the judgment only.
1. See Tex. Prop. Code Ann. § 162.001-162.033 (Vernon 2007).
2. Windwater and Lake Olympia filed for bankruptcy on April 4, 2003 and are not
parties to this appeal.  Graziano filed a claim of proof in that proceeding and it
received $54,000 from the bankruptcy. 
3. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (Vernon 2008).
4. See Tex. Prop. Code Ann. § 28.001 (Vernon 2000).
5. Thus, Choy's assertion that the word "lien" is not present in the trial record and
Graziano failed to prove the existence of a lien on each property is without merit.
6. The draw requests are in the name of First American Bank, which is now Citibank.
7. Exhibit 57A is not in the record. However, the properties are specifically identified
in record exhibits 193, 194, and 220, which, in turn, reference backup materials in the
record. 
8. Or, in the case of 7110 Harmony Cover, just prior to completion.
9. In a sub-point of his first issue, Choy argues that Graziano did not plead a claim
relating to 7126 Turtle Lagoon Row in its petition and therefore the trial court should
not have awarded damages on this property.  Graziano responds that the issue was
tried by consent.  See Tex. R. Civ. P. 67 (trial by consent occurs when issues not
raised by pleadings are tried without objection).  We agree.  Graziano introduced
evidence that 7126 Turtle Lagoon Row was one of the properties where it furnished
labor and materials and that it had not received payment.  Choy did not object to
Graziano's evidence and thus tried this issue by consent.
10. In its third amended petition, Graziano pled for prejudgment interest pursuant to
section 28.001 et seq of the Texas Property Code.  See Tex. Prop. Code Ann.
§ 28.001 (Vernon 2000).  Section 28.004 provides, "An unpaid amount required under
this chapter begins to accrue interest on the day after the date on which the payment
becomes due."  Id. § 28.004(a) (Vernon 2000).

