1 John T. Boyd, Chi ef Justice (Ret.), Sev enth Court of Appeals, sitti ng by assignment. Tex . Gov ’t CodeAnn. §7 5.002 (a)(1 ) (Vern on Sup p. 200 2). NO. 07-01-0332 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L B NOVEM BER 21, 2002

______________________________ KOKO M OTEL, INC.,

Appellant
v. ARTHUR M AYO, Appellee

_________________________________ FROM THE 237 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 97-560,912; HON. SAM M EDINA, PRESIDING

_______________________________ Before QUINN, AND JOHNSON, J.J., AND BOYD, SJ. 1 Ko ko Mot el, Inc. (Koko) appeals froma judgm ent awarding Arth ur Mayo (M ayo) damag es for personal injuries sustained on the prem ises of the m otel. His injurieswer e caused by a co ndition w hich a plum ber, Ram on Mendoza, c reated while fixing a sewer line in the m otel lobby. Six issues are as serted as grounds j ustifying reversal of the j udgme nt. Through them , Koko argues th at 1) the trial court erred in failing to ask the jury (th rough the charge) whet her Koko controlled the m anner in which the plum ber pe rf or me d his2

duties, 2) the evidence is legally or factually insuffici ent to show that Koko had actual or constructive knowledge of the prem ises defect, 3) the trial court erred in denying Koko’s mot i on for a m istrial after both parties introduced substantial evidence on the issue of control prior to Mayo non-suiting his action for negligent activity, 4) the trial cou rt e rre d in admitting, over its objection , expert evidence that wa s not produced prior to trial, and, 5) the evidence is le gally

and factuall y insuffi cient to suppo rt the damages awarded for lost wages and earning capacity. We affi rm t he judgm ent. Backgr ound Upon reading the record in a light most favorable to the judgm ent, Raw Hide Oi l & Gas v. Maxus

Expl oration, 766 S.W.2d 264, 27 6 ( Te x. App.—Am arillo 1988, writ denied) ( requiri ng that w

e do so whe n quest ions about the legal su fficiency

of the evidenceare raised), we note the following. Koko retained M endoza, an independent contr acto r, to rep air a sewer line inside the mo tel lobby. Perform ance of the j ob entailed the remova l of soil and debris, including pieces of concrete from the foundation, to gain access to the line. The hole he excavated in the concrete floor was three to four feet

long. Underneath the floor, how

eve r, it w as a ppr

ox im ate ly12 feet long and four feet dee p. A s th e so il and deb ris
wereremoved, Mendoza carried it in buckets to an unenclosed utility trailer parked on the sidew alk outside an en trance to the facility. He would empty the buckets onto t he trailer, and then em pty the trailer elsewhere once it w as filled with debris. Mendoza adm itted that debris would som etimes fa ll off the trailer onto the ground.2 Ari gger is o ne who desi gns an d ope rat es sy s te ms fo r mo vi ng scenery, props, and staging for

con cer ts an d shows.

3 Nee dl ess to say, the record is somewhat unclear given that Mayo was appa rently po inting to pictures as he described his injury and the l itigant s did not clarif y for t he record to what he was pointing. 3 Men doza had been perform ing the work for s everal days when Mayo (a rigge r touring w ith t he b and Nig ht Rang er) ren ted a ro om at t he m ote l. 2 Upon re turning to the lobby of t he m ote l after s pea king to a sso cia t es in the par king lo t, Mayo walked past Mendoza’s trailer and slipped upon a piece of concrete laying on thegro und . A s hefell, his foot apparently struck the trailer, which resulted in the fracture of a m etatarsal bone. 3 Mayo then noticed the concrete ob ject on which he slipped, picked it up, and tossed it into the trailer with the other debris from Mendoza’swork. After doing so, Mayo also noticed thatthetra iler w

as “ slam m ed” w ith “ rub ble” and tha t a m oun d of it a lso l ay a gain st t he w all of t he m ote l. Mayo subseq uently entered the m otel lobby with help from others and spoke w ith the receptionist on duty. When he told her of what happen ed, she stated that she was “re ally sorry” and that she “hope[ d] we can get m aintenance to clean tha t up , we’ve to ld them about it. ” No barriers orma rkers surrounded the trailer’s site at the tim e, though Koko personnel did pl ace some there at night so guest s co uld se e the area. And, that Mayo w as a business invitee at the tim e he fell is undisputed. Mayo sued Koko, alle ging causes ofaction sound ing in negli gence and prem ises liabil ity. Only the latter was subm itted to the j ury, however, for he non-suited the form er once trial began. Eventually, the jury found Koko responsible for the incident and ensuing injury and awarded Mayo $5,000 for past physical pain and mental anguish, $25,00 0 for4 We note that the issu e before us does not involv e the assignment of liabi lity under circum stances

wh ere in the land owner relinquished control ov er the premi ses or parts thereof to an independe nt contractor. Nor do es Koko suggest that it lacked the ri ght to control the premi ses themselv es, including t he area o n which Mendoza worked and piled the m aterial he exca vated . Thu s, the iss ue be foreus

is whether 1) a motel owner/operator

can inv ite m otel guests to enter the establishment , 2) then escape liabil ity when one of tho se gues ts is injured by a condi tion of which the owner/operator knows, 3) but which an independent contractor retained by the mot el owner/operator created. In effect, w e must answer whether the right to control t he premi sesal one i m poses l ia bi li ty when t he k nown defect was created by neither t he injured business inv itee or those for whom he worked. Or, m ay a motel ow n er do nothing to protect those renting rooms f rom hazardous conditions simpl y because third parties hired by t he motel but ov er whom the mot el owner had no co nt ro l cr

ea te d t he m? 4 future physical pain and me ntal anguish, $270,000 for loss of earning capacity in the past, $1,200,000 for loss of earning capacity in the future, $5,000 for disf igur em ent in the past, and $6,000 for m edical care in the past. A j udgme nt on that verdict was then entered by the trial court. Issue One — I

nstructi on on the Matte

r of Co ntrol In its first issue, Koko argues t hatthe trial court erred when it refused to subm it to the jury an instructi on on whether Koko controlled the work being done by Mendoza. The motel w as a llege dly

entitled tosam e becau se M endoza wasan indepen dent co ntracto r, and the owner/

occupier of the land is n ot responsible for conditions created by an independent contractor unless the ow ner / occupier controlled the work being done. The case of Clayton W. Williams, Jr., Inc. v. O livo, 952 S.W.2d 523, 527 (Tex. 1997) is cited as support for the propos ition. W e disagree with Kokoand overrule the issue. 4 In Clayton , the T exas S upreme Court had before it a circum stance w herein the employee of

an independent contractor (Olivo) fell from a pipe rack (while working at an oil and gas drilling site) and landed on drill pi pe thread protectors that had been left on the ground by the previous shi ft. Olivo sued Clayton (t he lease operator) and others, assert ing
causes of a ctio n so und ing in pre m isesliabil ity, neg ligen ce, and gro ss neg li ge nce.5 According to t he cou rt, a “ge ne ral con tra cto r in con tro l of th e p remis es is ch ar ge d w ith th e s ame duty as an o wner o r occupier.” Clayton , 952 S.W .2d at 527. Thu s, the duties a pplicable to both are synonymous in that both m ust use reaso nable care to m ake and kee p th e pr em ise s saf e f or b usi ness invitees. Id. 5 However, only the theory of negligence was subm itted to the jury even though Ol ivo’s injury w as caused by a condition of the prem ises, as opposed to active negligence. The jury then entered a ver dict in favor of the plaintiffs, and the trial court entered a j udgme nt upon that verdict. The Tex as Suprem e Court eventually reversed it. Reversal was m andated, according to the S upreme Court, for several rea so ns. First, it concluded that because the inj ury arose from a conditi on of the proper ty ( i.e. the thread protec

tors be ing left on t he groun d) as op posed to a contem poraneous act of negligence, the suit was actually one for prem ises defect. Clayton , 952 S.W.2d at 529. Next, it state d that to re co ver against a general contractor for a prem ises defect, the injured plaintiff must establish both the ge neral contractor’s right to control the defect
producing work and a breach of that duty ac cording to the traditi onal pre mises defect elementsdescribed in Corbin v. Safeway Stores, Inc. , 6 48 S.W .2 d 2 92 (T ex. 1983). 5 Id. Olivo was obligated to prove Clayton had a right to control becaus e genera l contrac tors
n orm ally have no duty to in sure that thei r indepe ndent contracto rs perform in a sa f e manne r. Id. at 527; see Coastal Mari ne Servi ce of Texas, Inc. v. Lawrence, 988 S.W.2d 223, 22 5- 26 (T ex. 1999) (holding that a general contractor generally has no duty to insure thatan independent contractor perform s his w

ork in a safe m anner). And, it is the right to control that subj ects general contractors to liability for the negligent activities of an independent contra ctor and the resulting conditions arising from thos e activities, according6 This is so because general contractors or those occupying the prem ises have no duty to warn an

independent contractor of condition s ca use d by th at contr actor o r its employees . Pence Constr. Cor p. v. Watson , 470 S.W .2d 637, 638-39 ( Tex. 197 1). The subcontractor i s deemed to know of the condi tion created by i ts em pl oye e, a nd t he ge ner al con tr act or i s n ot o bl ig ate d to in f orm it of what it al rea dy k nows. Id. Furtherm ore, the duty li es with the independent contractor to then inf orm i ts employees of the conditi on. Id. (citing Delhi-Taylor Oil Corp. v. Henry, 416 S.W.2d 390 (Tex. 1967 )); Bryant v

. Gulf Oil Corp. 694 S.W .2d 443, 44 5- 46 (Tex. App.—Amarillo 19 85, w rit ref’d n.r .e.) (ho lding tha t the du ty to protect the em ployees of an ind ep en de nt con tra cto r is tha t of th e in de pe nd en t co ntr actor, no t th e o wn er/

occ up ier of th e la nd ). Th is allocati on of duti es indeed is instructiv e for another reason. It indicates that t he rule in Clayton ap plic ab le to situations wherein the right t o control must ex ist is restricted t o circum stances wherein an employee of an independe nt contractor s uff ersinjury from conditions caused by that contract or or its empl oyees. Under tho se circum stances, the general contractor has no duty to warn the independent contractor or i ts employees since the independent contract or is deemed to know of the conditi on created by its em ployees and has the duty to then warn its o ther e mployees

. Pence Cons tr. Corp . v. Wats on , supra . And, those were the circum stances in Clayton ; the thread protect ors upon which Oliv o fell were placed there by other empl oyees working for the same independe nt contractor, Diamond M. So, Clayton (the ge neral contractor)had no du ty to warn Diamond M of what the latter was deemed in law to alread y know. And , more im portantly, Diam ond M had the duty to warn and protect its em ployee Ol iv o. So, unless Clayton had the ri ght to control the activ ities of Di amond M or i ts employees at the ti me (which ri ght carried with i t the cor relativ e d uty to exercise it), Clayton wou ld be ins ulated from liability. 6 to the court. Clayton, 952 S.W.2d at 528 (citi ng Redin ger v. Li

ving, Inc. , 689 S.W.2d 415 (T ex. 198 5)) . S o, t he cour t in Claytonheld tha t be for e a g ene ral cont rac

tor cou ld be li able for prem ises defe cts cr

eated by a subcontractor, the com plainant had to prov e and se cure favora ble findings on b oth thetra ditio nal p rem isesdef ect elem ents an d th e rig ht to co ntr ol. Yet, the court also acknow ledged that the need to illustrate the right to control is not
a pplicablein every situation wherein an independent contractor creates a ha zardou s condition. For instance, when the conditions exist on the prem ises at the tim e the invitee entersor w

ere cre ate d by

som eon e or

som eth ing u nre late d totheact ivity of thein jure d invitee or h is em ployer, the right to control is irrelevant. 6 Id. at 527-28. Then, the general contractor or the one occupying the land m ust inspect the prem ises and warn invitees of dangerous con ditio ns of w hich it k now s or sho uld have know n. Id. at 527; Shell Chemi cal Co. v. Lamb , 4 93 S.W .2 d 7 42 , 7 46 (T ex. 1973); Bryant v. Gulf Oi l Corp. 694 S.W.2d 443, 445-46 (T ex. App.—

Am arillo 1985, w rit ref’d n.r.e). And, though an opi nion ci ted by Koko7

insinuates otherwise, Ama ra v. L ain , 725 S.W.2d 734 (Tex. App.—Fort Worth 1986, n o writ), we believe it wrongly deci ded for several reasons. First, Amaradoes not com port with Claytonor Shell . Again, through the tw o latter opini ons, the Suprem e Court held that the general dutyowed by an owner/occupier to an invitee applies when the inj ured did not create the condition or work for the entity which did. Sin ce t he in

j ure d ch ildre n in Amarawer e clearly not employees of the independent contractor

the test described in the foregoing sentence and ma ndated by the Tex as Su pr eme Cour

t should have applied. Yet, the Amarapan el ut ilize d an oth er; tha t is , it utilized the one applicable when the inj ured either created the condition or worked f or the entity that did. In short, it followed the w rong rule. Seco nd, thedecision f ails to com port with §422 of the Restatem ent (Second) of Torts. There, we are told that: [a] possessor of land w ho entrusts to an independent con tracto r construct ion, re pair, or other work on t he land, or on a building or other struct ure upon it, is sub ject to the same liabi

lity as tho ugh he had retai ned the work i

n his ow n hands to others on or outside of the land for physical harm caused to them by the unsafe condition of the structure (a) w hile the possessor

has r et ained possession of the land during the progress of the work, or (b) after he has resum ed possession of t he la nd upon its com pletion. R ESTATEM ENT (S ECOND ) O F T ORT S §4 22 (1965) (em phasis added). In other w ords, an owner/occ upierof land has no duty to insure that an independent contractor perform s its work safely. Koch Refi

ni ng Co . v. Chapa , 11 S.W.3d 153, 155 (Tex. 1999). Yet, §422 illustrates that the ow ner/occupier cannot turn a blind eye to hazardous conditions created bythe indep endent contractor w hen it (theown er/occ upier) retains control of the property and con tinues to welcom e invitees (who did not create or w ork for one w ho created the8

condition) onto its prem ises. I f th is were not s o, then the ram ifications would be eyeopening. For instance, assum e an independent contractor dug a large hole in front of a hotel r oom as per t he work orde r of theinnkeeper and tha t the innkeeper k new th e contractor

covered the hol e with a thin tarp . Next, the unsuspecting gue stw hile ex iting his
room stepped on the tarp, which gave w ay, and fell into the hole. According to the co urt in Amara , the innkeeper, w ho exercised nocontrol over the work done by the independent contractor

would escape liability simply becaus e an independent contractor dug the hole. Nothing in Claytonor its predecessors or prog e ny reasonably supports suc h a result, though that is w hat Amarawould perm it. And, until the Suprem e Court holds otherw ise,
we opt not to a bideby a ru le inconsistent with Suprem e Court guidance or dictate.

Atbar, no one argues that Mayo was an em ployee of Mendoza or that his pr esence atthe hotel was s omehow related to theact ivity be ing cond ucted b y M end oza . S im ilarly undisputed is that May o’s action s did not cre atethecon ditio n w hich res ulte d in h is f all. Thisb eing true, the duties discussed in Claytonand Shell and involving hazardous conditions ma de by individuals or entities other than the injured party or h is em ployer are app licab le here. Thus, Koko’s right to control Mendoza’sactivities was irrelevant, and the trial court did not err when it om itted such an issue fromits jury cha rge. Issue s Two and S

ix— Ins ufficienc

y of the E

vidence P

roving A ctual or Constr uctive K nowledge9

Through issues two and six, Koko ar gues that reversal is warranted because no evidence or factually insufficient evidence supports the finding that it had actual or constructive knowledge of the debr is on which Mayo sli pped. W e overrul e the issues. 1. Standard of Revi ew and Appli

cable Law The standards of review used in determining w hether the evidence is legally and fac tua llysuf

fici ent to s upp ort

a v erd ict are tho rou ghly disc uss ed in Garz

a v. Alvi ar, 395 S.W.2d 821, 823 (Tex. 1965) and In re Ki ng’s Estate , 150 Tex. 66 2, 244 S.W.2d 660, 661- 62 (1951), respectively. No further ex planation of the standards is needed. Next, to recover upon a cause of action sounding in premises liability, the plaintiff must establish (among ot her things) that the ow ner/occupier of the grounds had actual or constructive knowledge of th e condition thatcaused the injury. Wal-Mar t Stores, Inc. v. Reece , 81 S.W.3d 812, 814 (Tex. 2002). One may prove this element by showing that t he defendant

cre ate d th e co ndit ion o r ac tua llyknew of it or that it existe d long enou gh to give the prem ises owner a reaso nable opportunity to discover it. Id. 2. Appli

cation o f Standard and Law Atbar, Mayo tes tified that Mendoza’s trailer was filled with “rubble,” “a big pile of . . . [it lay] agai nst the wall” of the building, “rubble [was] eve rywhere,” and “beh ind the trailer
wasa huge pile of rubble.” The debris agai nst the building appeared to be “stuff they couldn’t fit in this” t railer, he also opined. Furtherm ore, upon his falling, injuring himself, and bein g as sis ted by oth ersintothelobb y of them ote l, the desk clerk “cam e over” and asked what had happened. After M ayo explained the inci d ent, the cler k said, “. . . I’m
rea llysorry, I hope w

e can get m aintenance to clean that up, w e’ve told them aboutit” and10

“we’ve been m eaning to clean it up.” The clerk also knew tha t “the work w as going on outside and

. . . it

w as m ess y” b eca use“sh e ha d alr ead y to ld [h im ] th at. ” V iew ing t his testimony

and therea son ableinfe ren cesthe refromin a light m ost favora ble to the verdict,
as we m ust, Raw Hi

de Oi l & Gas, 766 S.W.2d at 276, it constitutes m uch m ore than a sci ntillaof evidence up on which a rea son able fac tfin der cou ld co nclu de t hat

Ko ko a ctu ally knew of the conditi on that caused Mayo to sli p and fall long enoug h to direct maintena nce to clean it. Moreover, the f inding is neitherma nifestly unjust or against t he great weight and preponderance of the evidence. To the exten t that Koko believes the c lerk’s st atem ents are no evidence of knowledge becaus e th ey can e qua llybe construed as illustrating that m aintenance was contacted after

Mayo fell, i t is mistaken. It is true that circumstantial evidence from which equ ally pl au si bl e b ut op po si te in fe re nc es may b e d ra wn is too speculative to support a verdict. Wal-Mart

Stores, Inc. v. Gonz

alez , 968 S.W.2d 934, 936 (Tex. 1998). Yet, here, the evidence in question does not support the infe ren ce K okosug ges ts i t do es. What is missing from the record is any indication that the clerk left Mayo to call m aintenance after he told her what occurred and then returned to tell him that m aintena nce h ad been contacted. The existence of such evid enc e would be n ece ssa ry b efo re a nyo ne could
rea son ably

say that the clerk was referring to apost-incident call to maintenance. I nstead,
w hat w e ha ve h ere is evidence of Mayo falling and then being helped into the lobby, the clerk leaving her station at the front desk to approac h and ask him what happ ened, and then ma king the statem ents she did upon hea ring hi s recitati on of the events. Now here11

is there any indication that the clerk knew of the accident before she approached Mayo or interrupted her conversation with himto order others to rem ove the debris. Issue Three — Mistria l Under its third issue, Koko asserts that the trial court erred in denying its mot ion for mi str ial. It was

allegedly entitled to same because M ayo had interjected the issue of control into the trial via his negligent activity theory, non-suited that clai m, and nonetheless continued to present evidence of control. This purportedly caused the “dynam ics of the case” to change, permitted the ad mission of “pla inly i rreleva nt and inad missible [evi dence of] remed ial measures” and cons tituted “unfairness.” We overrul e the issue for several
reasons. First, in presenting evidence of control, Mayo did nothing more than that which Koko argued he had to do, i.e. illustrate that Koko had the right to control Mendoza ’s activiti es. W e cannot fault a plaintiff for attem pting to prove what a defendant m istakenly claims to be an element

of the case. Second, irrespective of what K oko m ay say, control rem ained an issue in the case even though the negligent activity theory was non-suited. The control of which w e speak was not that invol ving the reg ulati on of Mendoza’s activi ties but rath er Koko’s control of the premises. If Koko lacked s ame then there would have b een no foundation upon which to base recovery upon t he claim sounding in prem ises defect. This is so because a landowner

is not responsible for injuries arising from conditions created by an independent contractor

on property over w hich the landowner relinquished possession or control. See R ESTAT EM ENT (S ECOND ) O F T ORTS §422 (1965); Brownsville & Matamoros Bridge Co. v.7 Koko did not depose Stedtler prior to tri al. Furt hermore, K ronrad receiv ed the data from Stedtler

abou t ten da ys to

two wee ks b efore trial. 12 Nu ll, 578 S.W.2d 774, 782 (Tex. Civ. App.—Corpus Christi 1978, w rit ref’d n.r.e.)

. Moreo ver, evidence of

subsequent rem edial measures undertaken bythe owner can be admitted to establish control over or the rightto control the property. See T EX . R. E V ID . 407 (stating that evidence of subs equent re medial measures may be adm issibl e to prove control). Issue Four — Adm ission of E xpert Te stimony Koko next arguesthat the trial court erred in failing to exclude the expert tes timony of Dr. Gary Kronrad. Mayo retained Kronrad to render an opinion about M ayo’s earning capacity, past and future. The report subse quently deve loped (a copy of which Koko received throu gh discovery) and calculated Mayo’ s earning capacity based upon the supposition that Mayo would have been m aking $6000 to $8000 per w eekas a m ot ion control expert. Thes e calculati ons were ten der ed a t tr ial. How

eve r, M ayoalsohad his exp ertcalc ulat e w hat

his ear ning cap acit

y w ould have been had he rem ained a rigger

. The latter opinion had not been previously disclosed to Koko, though K oko had sought through discovery di sclosure of th e expert’s opini ons. Nor had Mayo prev iously disclosed the factual data upon w hich Kronrad ba sed his new opinion, though the identity of the witness who act ually supplied the data ( i.e. Frank Stedtle r) and the subject upon which Stedtler proposed to testify had been disclosed. 7 Moreo ver, by the tim e Kronrad was asked to disc uss his new calculations, Stedt ler had already testified, without obj ection, aboutw hat

Ma yo c ould have expe cted to earn as a rigger. Nevertheless, K oko objec

ted13

to adm iss ion o f th e ne w calc ulat ionsbecaus e th ey w ere not pre viou sly

rev eale d via supplementat ion to discovery. The trial court overruled the o bjection . W e overrule the issue. 1. Standard of Revi ew and Appli

cable Law W hether th e trial court erred in allowing Kronrad to testify about the new calculations depends upon whether it abused its discretion. National Liabi lity and Fire Ins. Co. v. Al len, 15 S.W.3d 525, 527 (Tex. 2000). Whether it abused its discretion depends upon whether th e decision failed to com port with controlling rules and principles or evinced caprici ousness or arbitrariness. Pack v. Crossroads, Inc., 53 S.W.3d 492, 499 (Tex. App. —Fort W orth 2001, pet. denied). And, finally, whether abused discretion warrants reversal depends upon whet her it “ probably caused the rendition of an im proper judgm ent” or “pr oba bly prevented the a ppellant fro m p roperly presenting the case to the court of appeals.” T EX . R. A PP . P. 44.1(a)(1) & (2). Next, a party’s duty to am end or supplement

written discovery regarding a testifying exp ertis governed by Texas Rule of Ci vil Proced ure 193.5. T EX . R. C IV . P. 195.6. P er Rule193.5, the duty

to supplem ent or am end arises when a party learns that its previous responses to written discovery were incom plete or incorrect when m ade or no longer
com plete or correct. T EX . R. C IV . P. 193.5(a). In addition to the requirements imposed by Rule 193.5, a party

mu st also am end or supplem ent any deposition testim ony or written report of an expert that

it retained, employed, or controlled. Yet, the duty extends only to the expert’s

me ntal impressions or opinions and the basis for them . T EX . R. C IV . P. 195.6. Moreo ver, caution m ust be taken in applying Rules 193.5(a) and 195.6 for neither prevents14

an expert from

refining h is ca lcula tion s an d pe rfe ctin g hisrep ort thr oug h tim e of

tria l. Exx on Corp. v. West Tex

as Ga thering C o. , 868 S.W.2d 299, 304 (Tex. 1993); Foust v. Estateof Walte rs , 21 S.W.3d 495, 504 (Tex. App.—San A ntonio 2000, pet. denied). For instance, in Branham v. Brown , 925 S.W.2d 365 (Tex. App.—H ouston [1st Dist.] 1 996, no
wr it), the e xpert based his prior findings upon a diagram that w as not draw n to scale. W hen he re ce i ve d d i ag ra ms that we re drawn to s cale, he recalculated his findings using settled principles of

m ath. This m erely constituted a refinem ent of those prior findings which did not trigger the duty to supplem ent, according to the court. Id. at 370. Nor was supplementat ion required in Lubbock Co unty v . Strube , 9 53 S.W .2 d 8 47 (T ex. Ap p.— Au stin 1997, pet. denied), w hen t he ex pert m ade additional calculati ons im m edia tely

before trial regarding the plai n tiff’s dam ages. Though the percentageof diminished earning capacity factored into the equation by the ex pert increased, the met hodology or form ula he used to derive the sum s did not. And, beca use it did not, the appellate court held that Lubbock C ounty had the requisite information it needed to “attack [the expert’s ] testim ony . . . w hatever the level of diminished earning capacity.” Id. at 856. So, there was no “f un damen tal alterations that would constitute a surprise attac k” and necessitate supplementation. Id. ; see West Texas Gathering C o. , 868 S.W.2d at 30 4 (st ating tha t th e du ty to su pple m ent req uire s th at o ppo sing par tieshav e su ffic ie n t information about an ex pert’s opinion to prepare a rebuttal with their ow n experts). Similarl y, in Navis tar Intern. Transp. Corp. v. Cri m Truck & Tractor Co. , 883 S.W.2d 687 (T ex. App.—Texarkana 1994, w rit denied) the reviewing court refuse d to hold that the
new opin io ns of Navista r’s expert had to be excluded. This was so because the new15

opinions did not constitute a “m aterial change in [the expert’s ] testim ony” but rather evinced “an ex pansion on an already disclosed subj ect.” Id. at 691. That is, the ex pert
m ere lywanted to “put ‘hard numbers’ to his cri ticisms [of the opposi ng expert’s opini ons] and illus tra te f

or t he j ury

thediff ere ncethis

w ould m aketo [ Crim

Tractor’s] dam ages.” Id. at690. Nor could the ex pert of Crim Tractor be prevented from changing his calculations attrial by “subtracting numbersthat Navistar argued should not have been included in the first place.” Id. at 692. Again, his new opinions were m erely an expansion on topics previously discussed. 2. Appli

cation o f Standard and Law Atbar, and m uch like th e ex pert in Navis tar

, Kronrad was simply applying different data appearing of record into old m ethodology or form ulas to voice an alternate opinion. ThatKoko had prior know ledge of the form ulas or meth odology being used is undisputed. Sim ilarly beyond question is that Sted tler provided the trial court and jury with the new

data without objection from Koko. Under these circumstances, and agai n much like the ex pert in Navist

ar , Kronr ad m erely functioned as a hum an calculator deriving sums from information already before the j ury. A lit igan t ca n ha rdly

clai m surprise when hi s opponent removes a calculator from his briefcase, inp uts into it data already appearing of record, triggers the application of settled ma them atical formulas to that data by press ing a button, obtains a result, and then presents the result to the jury. That is no l ess true when the calculator is a human being applying known m athem atical formulas. In the latter sit uat ion, theex per

t is not m ate rially changing his previous opinions but rather expanding on a subj ect a lre ady bro ach ed v ia8 W hether our determ ination would hav e remai ned the same had Koko object ed to and succeeded

in excl uding Stedtler’s testim ony is something about which we do not opine . Unde r that s ituation, th e data wou ld not h ave already b een b efore the trial cour

t. 16 discover yand the presentation of evidence thr ou gh other witnesse s. In short, K ronrad
m ere lyperform ed m athem atical computations like the ex pert in Branham , an d allow ing h im to do so at trial was not an abuse of discretion. 8

Issue Five — Pa st and Futur e Ear ning Capac

ity Next, Koko questions thelegal and factual sufficiency of the evidence underlying the jury’s awards for impairment to Mayo’s past and future earning capacity. Sim ply said, he believes that the awa rds were not supported by the evidence. W e overrule the issue. 1. Standard of revi

ew and appli

cable law The sta nda rdsof r

eview use d in determ ining whether the evidence is legally and fac tua llysufficient to support a verdict are thoroughly discuss ed in Garz a v. Alvi ar, 395 S.W.2d 821, 823 (Tex. 1965) and In re Ki ng’s Estate , 150 Tex. 66 2, 244 S.W.2d 660, 661- 62 (1951), respectively. No further ex planation of the standards is needed. Next, lost wages or earnings refers to the actua l loss of incom e due to an inability to perform a specific job from the time of injury to the time of t rial. Strauss v. C ontinental Airli nes, Inc. , 67 S.W.3d 428, 435 (Tex. App.— Houston [14th Dist.] 2002, no pet. ); Border Apparel-East, Inc. v. Guadi an , 868 S.W .2d 894 , 897 (T ex. App.—El Paso1993, n o wr it). On the other hand, l ost earnin g capacity conce rns the impairment to one’s abi lity to work. Guadian , 868 S.W.2d at 897. It entails the consideration of what the plaintiff’s capacity to earn a li velih ood actuall y was and assess es t he extent to which it w as impaired. Id. Moreo ver, courts recognize that calculating the ex tent of im pairment

c onstitutes an17

exercise in uncertainty. Mc Iv er v. G lo ria , 14 0 T ex. 566, 169 S.W.2d 710, 712 (1943). So, much is left to the sound discretion of the j ury. Id. This does not m ean tha t it m ay s im ply journey into the realm of conjecture. Quite the contrary, its decision m ust be based upon such fac ts a s ar e av ail able in the p articular case. Id. ; Strauss , 67 S.W.2d at 436. The “damages

[m ust also be] proved w ith that degree of certainty of w hi ch the c aseis susceptible.” McIver, 169 S.W.2d at 712. And, “w here the plaintiff seeks special damages for lo ss o f his

ear ning cap acit

y in a pa rtic ular

bus ines s or

pro fes sion , th e am oun t of his earnings or the value of his services in that busines s m ust be s how n w ith r

eas ona ble certainty .” Id. Next, the non-exc lusive factors to be considered include the earnings of the injured party before and after the incident. Id. His stam ina and abilit y tow ork w ith p ain and the weakness and degenerat ive changes w hich naturally result from the injury and from long suffered pain also merit consideration. G uadian , 868 S.W.2d at 897 (citi ng Springer v. Baggs , 500 S.W.2d 541 (Tex. Ci v. App.—T exarkana 1973, wri t ref’d n.r.e. )). So too does logi c compel that the potenti al of the i ndivi dual, or hi s abili ty to advance in s kill, job, and pay, is also relevant, assum ing that the potential can be reasonably ex trapolated from the evidence of the particular case. 2. Appli

cation o f Standard and Law Ap pea ring of r

eco rd isevid enc e th at M ayow as q uick lyprogressing in the field of concert rigging. Though not yet the head rigger at the time of his accident , one witness (Sted tler) w ho h ad e m ploy ed h im bef ore theacc iden t te stif

ied t hat he w ould hav e hir

e d18

Mayo in that capac ity for sever al parti cular conce rts had he not suffer ed his foot i njury. Furthermore, pay for that position approx imated $3750 per week. Next, Mayo’s footinj ury w as n ot o nly

painful , according to his testi mony, but it also prohibited him from

climbing. The latter was ess ent ial to being a rigger. And, though Mayo was capable of perform ing other jobs like carpentry and lighting, they paid less than the sum s earned by riggers. Furtherm ore, to the exten t those other j obs required standing for long periods of

time, Ma yo’ s inj ury , alo ng w ith t he a cco m pan ying art hrit is, disa bled him from doing that. Also appeari ng of record i s evidence illustrating that prior to his injury M ayo earned from $1500 to $2500 per w eek as a rigger, depending upon the concert . For instance,
w hile on tour with Night Ran ger, Bad Company a nd T ed Nugent, he received $1500 to $2000 per week. W ith the Grateful Dead, he earned up t o $2500 per week. Those promot ing Barbar

a Stre isand’stour p aid him $2400 to $2500 per week, and those promot ing Phil Collins and Genesis paid him $2000 to $2250. These tours could last up to ten m onths, like that with Barbara Streisand. Furtherm ore, he would do “oneof f” sho ws thatpaid from $20 0 to $400 per day. Ye t, a fte r su ffe ring his inj ury and rea lizin g hecou ld
no longer be a rigger or pursue the status of head rigg er, he took j obs as a carpenter during the tou rs of the Dixie Chicks, B arry W hite, and Metallica and lighting technician during the tours of Chicago and B ush. And, thou gh he received $20 00 per week when working as the head carpenter w ith the Dixie Chicks (a j ob he can no longer perform given the foo t pa in ca use d by sta ndin g), he w

as p aid o nly

$750 to $1100 by thos e prom oting the Chicago and Bush concerts.9 Mayo testified th at he w as making , pre-in

jury, $10 0,000per ye ar. This amount co ns is te d of in co me earned while on tour within the Uni ted St at es (w hi ch in co me would be reflect ed in his U.S. t ax returns) and in co me ea rne d o uts idethe Uni ted Sta tes

(w hich inco me wou ld n ot b e reflect ed on his U.S. tax return). Mayo was a citizen of Great Britain a t the time.
10 Again, Stedtler testified th at he would hav e hired Mayo as the head rigger f or that concert and others h ad he not s uff ered a foot injury. 19 Next, Kronrad, the expert retained to calculate lost earning and earning capacity, opined thatMa yo’ s los t ea rnin g ca pac ity prio r totria l app rox im ate d $2 70, 000 . Th is sum consisted of a $6600 loss in 1995, $ 27,000 in 1996, $93,000 in 1997, $27,000 in 1998, $36,000 in 1999, and $78,000 in 2000. M oreover, the s um s for 1995 through 1999 represented the difference betw een what

he was mak ing before the injury w hile earning $2000 per we ek as a rigger and w hat he m ade after it as a carpenter and lighting technician. 9 The year 2000 calculation was ba sed upon w hathe m ade befo re at $2000 per week as a num ber two rigger an d what he could have made as a head rigger at $3750 per week ha d he not been injured. 10 As tothe im pairm ent of f uture earning capacity, Kronrad compared the difference between what M ayo wasma king in the jobs he had been doing with the pay he could have madeas a head rigger, i.e. , $3750 per week. Furtherm ore, t he d ifference was t hen
m ultip lie d by 45, thelatter r epr ese ntin g th e nu m ber

of w eeks S ted tler

said Ma yo could
rea son ably

exp ect to work

per year in that

capacity. The sumderived was then mu ltipli ed byMayo’s life work exp ectancy (27 assum ing retirement at 60 and 32 assum ing retirement at65). That sumwas t hen reduced to present v alue. The loss der ived if retirem ent occurred at 60 w

as $1,763,258 and at 65 was $2,0 18,780.20

Final ly, th e ju ry awarded M ayo $270,000 in lost earning capacity in the past and $1,200,000 for impairm entto his future earning capacity. Com parison of each sum to the calculations of Kronrad illustrates that the aw ards do not exceed the range of lo ss described bythe expert witness. In deed, regarding future earning capacity, the jury fou nd the loss to be from $500,000 to $800,000 less tha n what K ronrad cal culate d. And, because Kronrad’s numbers were derived fro m evidence appearing of record, we cannot sayth at th e ju ry awa rd s en joy no evi de nt ia ry sup po rt . No r c an we say that the aw ards
were m anifestly unjust or aga inst the great we ight and preponderance of the evidence. Having ove rru le d all i ssues or points of error, we affirm the j udgme nt of the trial court.

Brian Quinn Justice
Publish.