This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 PAUL DOMINGUEZ, 7 Plaintiff-Appellant, 8

v. NO. 29,851 9 NORTHERN MOUNTAIN CONSTRUCTORS, INC. 10 d/b/a NORTHERN MOUNTAIN CONTRACTORS, 11 and NORTHERN MOUNTAIN CONSTRUCTION, 12 Defendant-Appellee. 13 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY 14 John M. Paternoster, District Judge 15 Edmund R. Pitts 16 Taos, NM 17 for Appellant 18 Yenson, Lynn, Allen & Wosick, P.C. 19 Phillis S. Lynn 20 Michael S. Jahner 21 April D. White 22 Albuquerque, NM 23 for Appellee 24 MEMORANDUM OPINION 252 VANZI, Judge. 1 Plaintiff Paul Dominguez appeals the district court’s decision granting 2 Defendant Northern Mountain Constructors , Inc.’s (Northern Mountain) Rule 1-050 3 NMRA motion for directed verdict. Plainti ff raises two issues. First, he argues that 4 the district court erred in ruling that th ere was insufficient evidence to show that 5 Northern Mountain had a legal duty to Plainti ff. Second, he cont ends that sufficient 6 evidence was presented at trial for the juryto decide whether Northern Mountain and 7 Perovich Properties, Inc. (Perovich Properties) d/b/a Taos Gravel Products (Taos 8 Gravel) acted as a joint venture or as partners. Because weconclude that the district 9 court did not err in granting Northern Mountain’s Rule 1-050 motion, we affirm. 10 The factual and procedural background is familiar to the parties. Because this 11 is a memorandum opinion, we provide detail s as necessary to our discussion of the 12 issues raised by Plaintiff. 13 DISCUSSION 14 Standard of Review 15 “A directed verdict is appropriate only wh en there are no true issues of fact to 16 be presented to a jury.” Sunwest Bank v. Garrett , 113 N.M. 112, 115, 823 P.2d 912, 17 915 (1992). In reviewing the evidence on appeal from a judgment entered pursuant 18 to a directed verdict, we consider all ev idence and view any conflicts in the evidence 193 in favor of the party resis ting the directed verdict. Id. “Directed verdicts are not 1 favored and should only be granted when the jury cannot reasonably and logically 2 reach any other conclusion.” W. States Mech. Contractors, Inc. v. Sandia Corp. , 110 3 N.M. 676, 679, 798 P.2d 1062, 1065 (Ct. App. 1990). However, “[i]t is fundamental 4 that the evidence adduced must support all issu es of fact essential to the maintenance 5 of a legally recognized and enforceable claim.” C.E. Alexander & Sons, Inc. v. DEC 6 Int’l, Inc. , 112 N.M. 89, 93, 811 P.2d 899, 903 (1991) (internal quotation marks and 7 citation omitted). Thus, if the evidence fails to support an issue essential to the legal 8 sufficiency of the asserted claim, th ere is no right to a jury trial. Id. Whether there 9 exists sufficient evidence to support a claim or defense is a question of law for the 10 district court that the appe llate court reviews de novo. See Sunwest Bank, 113 N.M. 11 at 115, 823 P.2d at 915. 12 On appeal, Plaintiff raises two issues. First, he argues that Northern Mountain 13 should be held liable for his injuries becauseNorthern Mountain’s status as the lessee 14 of the screener imposed on it a legal duty. Second, he claims that Northern Mountain 15 should be held liable because it was involve d in a joint venture or partnership with 16 Taos Gravel. We take each argument in turn. 17 Northern Mountain Did Not Owe a Legal Duty to Plaintiff 184 No one disputes that Paul Domingu ez was a good employee who was just doing 1 his job when he got seriously injured whileworking at a gravel processing plant in 2 April 1999. The question in this case, however, is whether Northern Mountain—the 3 sole remaining Defendant—exerc ised sufficient control over the screener that injured 4 Dominguez to impose on Northern Mountain a duty of care to Defendant. 5 As a threshold matter, the parties agree that a negligence claim requires that 6 “there be a duty owed from the defendant to the plaintiff.” Romero v. Giant 7 Stop-N-Go of N.M., Inc. , 2009-NMCA-059, ¶ 5, 146 N.M. 520, 212 P.3d 408. 8 “Whether a duty exists is a question of law for the courts to decide.” Herrera v. 9 Quality Pontiac , 2003-NMSC-018, ¶ 6, 134 N.M. 43, 73 P.3d 181 (internal quotation 10 marks and citation omitted). Further, the parties generally agree that the question we 11 must ask is “whether [a] defendant has th e ability to exercise control over a premise 12 or an activity such that it is reasonable to impose a duty of ordinary care on it as to the 13 management of the premises or activities.” Smith ex rel. Smith v. Bryco Arms , 2001- 14 NMCA-090, ¶ 25, 131 N.M. 87, 33 P.3d 638; see also Ortiz v. Gas Co. of N.M. , 97 15 N.M. 81, 83, 636 P.2d 900, 902 (C t. App. 1981) (concluding that “the gas company 16 ha[d] no duty to warn or inspect gas app liances which it did not own, install, or 17 control[.]”) 185 Plaintiff here contends there was “an abundance of evidence introduced by 1 Plaintiff showing Northern Mountain had control over the [screener]” and that, 2 therefore, Defendant had a duty of care to him. Specifically, Plaintiff contends the 3 following evidence required that the issue of control and responsibility should have 4 been decided by the jury: (1) the equipment lease with Western Wire Works, Inc. 5 d/b/a Aggregate and Mining Supply (Western Wire); (2) the testimony of safety expert 6 Vince Gallagher; and (3) the shipping documents for the equipment. For the reasons 7 that follow, we disagree. We begin with a review of the eviden ce introduced at trial 8 concerning the relationship between Northern Mountain and Perovich Properties and 9 then turn to the specific evid ence concerning ownership of th e screener at issue in this 10 case. Against this backdrop, we address Plaintiff’s argument. 11 The undisputed testimony at trial established that Northern Mountain and 12 Perovich Properties are two separate companies with di fferent names and different 13 officers. The two companies have been inbusiness for different lengths of time and 14 are completely different types of businesse s. Northern Mountain is a highway and 15 heavy equipment contractor. It owns bac khoes, road graders, trucks, belly dumps, 16 loaders, pavers, extractors, and service tr ucks. Further, Northern Mountain employs 17 its own mechanics to maintain and repair its equipment. Inorder to conduct its 18 business, Northern Mountain buys aggregat e from Taos Gravel and other suppliers. 196 When it purchases material from Taos Gravel, Northern Mountain is invoiced the 1 same as all other contractors that purchase aggregate from Taos Gr avel. The president 2 and senior manager of Northern Mountain is Patricia Perovich. The only other office 3 holder for Northern Mountain is Helen Perovich. 4 Perovich Properties, on the other hand, is a business that manufactures gravel 5 products to be used in making asphalt. Inaddition to manufacturing gravel products, 6 Perovich Properties also hires employees to work at Taos Gravel and Northern 7 Mountain. Taos Gravel owns its own equipment, and that equipment is maintained 8 and repaired by Taos Gravel employees. Northern Mountain and Taos Gravel do not 9 own the same equipment or have the same m echanics. Joey Perovich (Perovich) is the 10 president and senior manager of Perovich Properties, and he is ac tively involved in the 11 management of that company. He does not hold, and has never held, an office in 12 Northern Mountain. Although Perovich does not have many functions in the day-to13 day operations of Northern Mountain, some of his operational responsibilities there 14 include doing a bid, getting quotes on pricing, putting bid packages together, and 15 reviewing bids. 16 In addition to having di fferent names, officers, and business objectives, 17 Northern Mountain and Perovich Properties have different mailing addresses. 18 Northern Mountain’s mailing address is P.O. Box 348, El Prado, NM 87529. The 197 mailing address for Perovich Properties is P.O. Box 1620, El Prado, NM 87529. The 1 companies share a common office building, however, the offices are separated within 2 the building. Northern M ountain and Taos Gravel do not share profits, losses, or 3 expenses. They have different tax ID num bers and separate payroll accounts. They 4 issue separate W-2 forms for their employees. 5 Turning to the evidence surrounding the pur chase of the screener that caused 6 Dominguez’ injury, we begin with the testimony of Randy Brooks. At the time of 7 trial, Brooks was a supervisor at Taos Gravel for about fifteen years and was 8 personally involved in the acquisition of the screener at issue in this case. Brooks 9 initially spoke to Western Wire about pricing and leasing the screener for use by Taos 10 Gravel. He testified that when he inquires about pricing, he does so on behalf of Taos 11 Gravel, not for Northern Mountain. He has never purchased equipment for Northern 12 Mountain. Brooks was involved with the acquisition of two screeners—including the 13 one that injured Dominguez—both of whic h were purchased for Taos Gravel. 14 When the screener at issue in this cas e arrived at the grav el pit, no one from 15 Northern Mountain assisted in setting up the screener or control room, and no Western 16 Wire or Northern Mountain employees operated any of the rock-crushing equipment 17 at that pit. Only Taos Gr avel employees worked at the screen plants, and they were 18 responsible for maintaining, repairing, and operating all the equipment, including the 198 conveyor belts, screens, and cr usher. According to Perovich, Northern Mountain did 1 not have anything to do with the screener that injured Plaintiff. 2 Perovich signed the equipment lease w ith Western Wire for the screener as 3 “President.” The lease states that the “lessee” is Northern Mountain although the 4 mailing address on the signature block belongs to Taos Gravel. Perovich testified that 5 he did not know why Northern Mountain’s name is on the lease because Northern 6 Mountain never used the screener and does not use screeners in its operations. He 7 further stated that he did not pay close attention to the lessee name on the document 8 because only the equipment and price were important to him. 9 There is no dispute that the sales order fo r the screener statedthat it was to be 10 billed and shipped to Northern Mountain. Inaddition, invoices for the rental of the 11 screener were made out to Northern Mountain. However, until it ultimately purchased 12 the equipment, Perovich Properties made all the lease payments to Western Wire for 13 the screener pursuant to the lease. In 1999, Perovich Properties secured financing 14 through Orix Credit Alliance, Inc. in the amount of $143,100 to purchase the screener. 15 Perovich Properties depreciates the equipm ent it owns for tax purposes and, beginning 16 in the tax year 1999, it depreciated the screen er. The cost being depreciated that year 17 was $116,200, the cost of the screener at the time of purchase. Northern Mountain 189 made no lease payments on the screener, it did not purchase the screener, and it did 1 not depreciate the screener on its tax schedule. 2 As we have noted, Plaintiff argues thathe introduced three pieces of evidence 3 at trial that demonstrate that NorthernMountain had exclusive custody and control 4 over the screener. First, Plaintiff conte nds that the equipment lease, which lists 5 Western Wire as the lessor of the screen er and Northern Mountain as the lessee, 6 supports his theory of ownership and contro l. Second, Plaintiff asserts that the 7 shipping document showing that the equipm ent was billed and delivered to Northern 8 Mountain is further evidence of Northern Mountain’s ownership and control of the 9 screener. Finally, Plaintiff relies on the testimony of safety e xpert Vince Gallagher. 10 We conclude that the evidence relied on by Plaintiff is insufficient to support 11 a finding that Northern Mountain exercised control over the screen er on which he was 12 injured. We begin with Plaintiff’s reliance on Gallagher’s testimony. Gallagher 13 testified that the lease gave NorthernMountain the right of possession of the 14 equipment. Specifically, when asked if he found any evidence concerning Northern 15 Mountain’s role in the accident, Gallagher testified, over Defendant’s objection, as 16 follows: 17 The lease agreement says that Northern Mountain . . . ha[s] the 18 only right of possession of the equipment and that they agree to keep it 19 in first-class conditions and repair at their own expense. And they agree 20 to provide liability insurance for it. 2110 And more importantly[,] at number ten in the agreement entitled 1 use of equipment[,] it says: “The lessee, which is Northern Mountain 2 Constructors, agrees to use, operate and maintain said equipment in 3 accordance with laws.” And it was signed by Joey Perovich as president 4 of Northern Mountain. 5 At the outset, we note that Gallagher was qualified to tes tify as an expert in the 6 field of occupational safety and health only. He was not qualified to testify as to 7 Northern Mountain’s duty and responsibilities under the lease. However, we need not 8 reach the issue of the valid ity of Gallagher’s testimony b ecause it essentially entailed 9 no more than reciting the language in the leas e. We therefore look to the lease itself 10 to conduct our analysis. 11 Left with only the lease’s identification of Northern Mountain as the lessee and 12 the identification of Northern Mountain on the shipping document, we now decide 13 whether the district court correctly ruled that Northern Mountain did not owe a legal 14 duty to Plaintiff. As we have said, weconclude that it did. The overwhelming 15 evidence at trial was that the equipment us ed at the gravel pit was owned, operated, 16 and controlled by Taos Gravel. Although No rthern Mountain’s name appeared on the 17 lease, the mailing address belonged to Ta os Gravel, and the lease was signed by 18 Perovich, who is the president of Taos Gravel, not Northern Mountain. Perovich 19 testified that he did not notice the name of the lessee because hewas more concerned 20 with the list and the price of the equipm ent. Moreover, Plaintiff presented no 2111 evidence to refute testimony that Taos Grav el first leased and then purchased the 1 screener; that Taos Gravel employees set up and operated the screener, crusher, and 2 control room; that Taos Gravel performed all the obligations under the lease; and that 3 Northern Mountain never used the screener referred to in the lease. There was also 4 no evidence discrediting Perovich’s testimony that Taos Gravel listed the screener on 5 its depreciation schedule and expense report and that Taos Gravel, not Northern 6 Mountain, obtained financing to purchase the screener several months after the lease 7 was signed. In this case, even viewing the conflicts in the lease and shipping 8 document in favor of Plainti ff, we are nevertheless compe lled to conclude that the 9 “facts and inferences are so strongly and overwhelmingly in favor of [Defendant] . . 10 . that reasonable people could not arrive at a contrary result.” Melnick v. State Farm 11 Mut. Auto. Ins. Co. , 106 N.M. 726, 729, 749 P.2d 1105, 1108 (1988). 12 Plaintiff cites to Tafoya v. Rael , 2008-NMSC-057, 145 N.M. 4, 193 P.3d 551, 13 as support for his assertion that Northern Mountain owed him a duty of ordinary care. 14
In Tafoya , our Supreme Court held that, as a matter of public policy, a general 15 contractor owed a duty of care to an un licensed independent c ontractor whom the 16 general contractor had hired to perform dangerous work, which resulted in the 17 independent contractor’s death. Id. ¶ 1. In that case, the defendant, a licensed 18 contractor, was hired to renovate a garage into an apartment. Id. ¶ 2. At some point 1912 during the construction, the de fendant learned that he woul d have to connect the sewer 1 line from the apartment to the town’s main sewer line, and he hired the decedent to dig 2 the trench for the connection. Id. ¶¶ 3-4. It was undisputed in Tafoya that the 3 defendant was the general contractor for th e project and that he hired the decedent as 4 an independent contractor to dig the trench. Id. ¶ 4. Ultimately, our Supreme Court 5 based its determination of duty on “clear expressions of policy in the Construction 6 Industries Licensing Act (CILA), NMSA 1978, §§ 60-13-1 to -59 (1964, as amended 7 through 2001), and its corre sponding regulations.” Tafoya , 2008-NMSC-057, ¶ 15. 8 Plaintiff argues that Tafoya controls our determinati on because “[t]he status of 9 . . . Northern Mountain in this case is esse ntially one of a general contractor.” We 10 disagree. Unlike Tafoya , there was no evidence presented—much less undisputed 11 evidence—that Northern Mountain was a general contractor and that the “role of 12 Perovich Properties . . . was essentially a subcontractor.” More importantly, as 13 Defendant notes, Plaintiff ne ver raised this argument to the district court and, 14 therefore, it was not preserved for review. “To preserve an issue for review on appeal, 15 it must appear that appellant fairly invoked a ruling of the trial court on the same 16 grounds argued in the appellate court.” Woolwine v. Furr’s, Inc. , 106 N.M. 492, 496, 17 745 P.2d 717, 721 (Ct. App. 1987). We also observe that Plaintiff did not file a reply 18 brief and dispute Defendant’s assertion that he failed to raise this argument before the 1913 district court. We have said that “on appeal, the party must specifically point out 1 where, in the record, the party invoked the court’s ruling on the issue. Absent that 2 citation to the record or any obvious preservation, we will not consider the issue.” 3 Crutchfield v. N.M. Dep’t of Taxation & Revenue , 2005-NMCA-022, ¶ 14, 137 N.M. 4 26, 106 P.3d 1273. 5 We conclude that Northern Mountain di d not exercise the requisite amount of 6 control over the screener on which Plainti ff was injured to substantiate any duty of 7 care and/or liability on its part. The distri ct court did not err in granting Northern 8 Mountain’s motion for directed verdict. 9 Plaintiff Failed to Preserve His Argume nt That Northern Mountain and Perovich 10 Properties, Inc. Acted as a Joint Venture or as Partners 11 Plaintiff argues that the district court erred in failing to allow the jury to 12 consider whether Northern Mountain and Ta os Gravel acted as joint venturers or 13 partners with regard to the operation of the screener. Plaintiff does not indicate in his 14 brief in chief where this issue was raisedbelow, and he did not file a reply brief 15 disputing Defendant’s contention that the issue was not preserved. Moreover, we 16 have reviewed the record withrespect to the motion for directed verdict, and we find 17 no argument by Plaintiff concerning the issue of joint venture or partnership. We 18 therefore decline to revi ew the issue on appeal. Sandoval v. Baker Hughes Oilfield 19 Operations, Inc. , 2009-NMCA-095, ¶ 56, 146 N.M. 853, 215 P.3d 791 (“In order to 2014 preserve an issue for appeal , [a party] must have madea timely and specific objection 1 that apprised the district court of the nature of the claimed error and that allows the 2 district court to make an intelligent ruling thereon.”). 3 CONCLUSION 4 For the reasons set forth above, we affirm the district court. 5 IT IS SO ORDERED. 6

__________________________________ 7 LINDA M. VANZI, Judge 8 WE CONCUR: 9

_________________________________ 10 MICHAEL D. BUSTAMANTE, Judge 11

_________________________________ 12 TIMOTHY L. GARCIA, Judge 13