AFFIRMED; Opinion Filed November 27, 2012.

In The

nurt uf Appia1

2FiftIi 1i,trirt iif ixa at Oa11a

No. 05-10-01486-CV

EMILIO OLIVARES, Appellant

V.

ALFONSO MARES AND MULTI-BUiLDING, INC., Appellees

On Appeal from the County Court at Law No. 3

Dallas County, Texas

Trial Court Cause No. CC-06-01800-C

OPINION

Before Justices Bridges, Richter, and Lang

Opinion By Justice Lang

Appellant Emilio Olivares filed suit against appellees Alfonso Mares 1and Multi-Building,

Inc. (“Multi-Building”) based on injuries suffered by Olivares while working on the construction of

an apartment complex (the “project”). Following a jury trial, the trial court rendered judgment that

Olivares recover $61,225 from Multi-Building and $146,940 from Mares, plus interest and a

percentage of court costs.

in four issues on appeal, Olivares asserts the trial court reversibly erred by (1) excluding from

evidence a written subcontract (the “subcontract”) between Multi-Building and the project’s general

I No brief has been filed by Mares in this Court.
contractor, Limestone Construction SW Bluffs, LC. (“Limestone”); (2) “forcing” a jury submission

on a premises condition liability theory when Olivares was seeking only a negligent activity

submission; (3) failing to include Multi-Building in the negligent activity question submitted to the

jury; and(4) reducing thejury’s award of past lost income on Multi-Building’s motion forjudgment

notwithstanding the verdict when there was some evidence to support the amount awarded by the

jury. Additionally, Multi-Building asserts two “cross-points” in which it contends that if the trial

court’s reduction of the jury’s award of past lost wages was error, (1) the trial court erred by not

granting judgment notwithstanding the verdict “that [Olivares) take nothing on his claims against

Multi-Building” and (2) the evidence was legally and factually insufficient to support an award of

past lost wages to Olivares. We decide Olivares’s four issues against him. Further, we decide

against Multi-Building on its two “cross-points.” The trial court’s judgment is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

In his live petition at the time oftrial, Olivares stated that at the time he was injured, he was

a “worker for one or more of [djefendants.” 2Olivares asserted that while on the job site of the

project (the “premises”) during the course and scope of his employment, he was directed by his

supervisor to obtain ajoist 3for installation, Olivares stated that in doing so, he “was required to step

atop of each joist of the second floor, stepping on each one, in order to traverse across the second

floor of the apartment complex.” According to Olivares, “[t]his method and manner of traversing

the second floor was of common knowledge to all employees of [Mares) as well as [Multi

2 In addition to Multi-Building and Mares, the defendants named in this case included Limestone; Limestone Group SW Bluffs, LC.;

and Bluffs at Vista Ridge, Ltd. This Court dismissed all defendants other than Multi-Building and Mares from this appeal.

During trial, Olivares testified the joists” with which he was working were wooden beams of varying length, eighteen or twenty-four

inches wide and four inches thick, that were being installed in the ceiling of the building’s first story to support the floor of the second story. The

parties dispute the proper designation for the beams with which Olivares was working. For purposes of this opinion, we refer to them as “joists”
Building]” Olivares contended that as he was stepping on a joist that “had not been properly braced,

banded or properly secured,” the joist “toppled over,” causing him to fall on his side. He stated that

as a result of his fall, he “suffered extensive medical injuries to his back, chest, arms, and body in

general.” Olivares asserted claims for, inter alia, negligence and premises liability.

In his negligence claim, Olivares contended in part that the incident in question “occurred

at the job site being managed and controlled by [d]efendants.” According to Olivares, “[d]efendants

were careless in their management ofthe job site and failed to maintain a safe working environment

for their employees/servants/agents, including [Olivares].” Specifically, Olivares stated

[Multi-Building] was contracted by [Limestone] to provide “labor and services” for

the installation ofjoists and trusses. The contractual provisions between [Limestone],

as the general contractor and [Multi-Building], as the subcontractor, provided not

only that [Multi-Building] would provide labor and services for the installation of

joists and trusses but also comply with all safety regulations, provide safety railings,

provide 051-IA approved equipment, provide a Safety Coordinator, and to comply

with all other OSHA rules and regulations on all aspects ofthe work to be performed,

which [Multi-Building] failed to do. Nor did Defendant properly brace the joists and

trusses as required by local governing ordinances, plans and specifications ofthejoist

and truss manufacturers.

In his premises liability claim, Olivares stated in part

All [d]efendants had management and control ofthese premises in order to perform

both general and sub-contract work. As the general contractor, [Limestone] managed

and controlled the premises in order to construct a new apartment complex on behalf

of[the general partner and the premises owner]. In turn, [Limestone] contracted with

[Multi-Building] to install joists and trusses for the construction project. As such

[Multi-Building] had control and maintained the premises where the joists and

trusses were being installed.

Further, Olivares contended in part that Multi-Building proximately caused Olivares’s injuries by

“failing to warn [Olivares] a dangerous condition existed, which required extra care to be taken.”

Multi-Building and Mares filed separate general denial answers and asserted various

affirmative defenses. Multi-Building’s affirmative defenses included, in part, (1) Olivares’s injuries

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were caused, in whole or in part, by the negligence of Mares, over whom Multi-Building had “no

right ofor actual control”; and (2) Multi-Building owed no “legal duty” to Olivares. Further, MultiBuilding asserted several cross-claims against Mares, whom Multi-Building described as “the

employer of [Olivaresi.”

Additionally, Multi-Building filed a pretrial motion in limine in which it requested, in part,

that all counsel and witnesses be instructed to refrain from making any “mention or interrogation”

concerning the subcontract or any breach thereof Multi-Building asserted in part that “Mares (and

therefore [Olivares]) were not parties to the [subcontract], and the [subcontract] has no relevancy to

the duties and responsibilities of Multi-Building to Mares and/or Olivares.” Also, Multi-Building

contended the subcontract “would be cumulative and would confuse the jury and unfairly prejudice

[Multi-Building].” During argument on Multi-Building’s motion in limine, counsel for Olivares

asserted the subcontract showed Multi-Building “contractually bound themselves to provide a safe

place to work” and “contractually bound themselves to not sublet the work.” Thus, according to

counsel for Olivares, the subcontract showed Multi-Building “had a duty to provide a safe place to

work.” After some discussion, the trial court asked whether Olivares had pleaded “third party

beneficiary” as to the subcontract, and counsel for Olivares stated he had not. The trial court granted

Multi-Building’s motion in limine as to the subcontract.

During trial, Samuel Mark LeComte, an owner ofMulti-Building, testified in part that Multi

Building hired Mares as a subcontractor to perform work on the project. LeComte stated there was

no written contract between Multi-Building and Mares pertaining to the project. Additionally,

LeComte testified Multi-Building was not Olivares’s employer.

Thomas Littrell, an expert designated by Olivares, testified in part that in his opinion, the

party “responsible for overseeing safety at the jobsite” was Multi-Building.

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Olivares testified that at the time he was injured, he was working for Mares as a carpenter’s

helper. Olivares stated the incident in question occurred as follows:

We were working at the corner of the building that was being built. And

Santos, my foreman, asked me to bring a joist that was some distance away. So I

went walking on top ofthe joists to be able to get it and bring it to him, and I brought

several to him that way.

Well, and what happened, I was going, and the last one either wasn’t nailed

down or wasn’t firm, And I stepped on it, and it turned, and I fell on top of it.

As to past lost wages, Olivares testified he was paid $300 per week for his work at the job

site and he missed 240 weeks ofwork as a result ofhis injuries. Thus, according to Olivares, his past

lost wages totaled $72,000. Additionally, Olivares testified on cross-examination as follows:

Q. [by counsel for Multi-Building] Mr. Olivares, do you remember your earlier

testimony that, doing the math with what you’re making, that you believe you were

out in lost wages $72,000?

A. Yes.

Q. Can you tell the jury how much that you are currently making selling clothes?

A. There’s not a fixed amount. It varies suddenly.

Q. Would you agree that it’s sometimes 600 per week and sometimes a thousand?

A. Pesos.

Q. Would you agree that you are making about 40 percent ofthe income that you had

made in the past?

A. More or less.

Following Olivares‘S testimony, counsel for Olivares offered into evidence excerpts from the

deposition testimony of William Whitford 111, who worked as a superintendent for Multi-Building.

Counsel for Multi-Building objected to the admission of certain portions of Whitford’s deposition

testimony on the ground that such testimony referred to the subcontract. The trial court sustained

Multi-Building’s objection. Outside the presence ofthe jury, counsel for Olivares made an offer of
proof respecting the excluded testimony. The subcontract was proffered by Olivares as part ofthat

offer of proof.

Later in the trial, during the testimony of an expert witness for Multi-Building, counsel for

Olivares again objected to the trial court not allowing the subcontract into evidence, Counsel for

Olivares argued, in part, “[B]y not allowing the jury to see that the ultimate responsibility was with

Multi-Building, we feel that we were prevented from adequately presenting our case to the jury as

far as what responsibility contractually Multi-Building had to provide a safe working environment

and that they were not to sublet the actual work that was being performed by Mr. Mares and, of

course, ultimately Mr. Olivares, which caused his injury.” Counsel for Multi-Building responded

that the subcontract was not relevant because “[ijt only deals with the contractual duties between

Limestone and Multi-Building” and “whatever contractual duties back and forth to them, Limestone

and Multi-Building don’t affect the agreement and duties between Multi-Building and the

subcontractor that they hired to do the work.” The trial court overruled Olivares’s objection, and

counsel for Olivares then “renew[ed]” his offer of proof described above.

At the charge conference, counsel for Olivares asserted, in part, that he had “never presented

this case as premises liability” and did not want to “provide a jury charge regarding premises

liability.” Later during the charge conference, counsel for Olivares stated he was “willing to

pursue—to submit to the jury a premises liability claim.” The trial court charged the jury on

“straight negligence” and premises liability theories with respect to Mares, but included only

premises liability definitions and questions as to Multi-Building. Counsel for Olivares objected to

the omission from the charge of instructions, definitions and questions proposed by him pertaining

to his claims against Multi-Building for “straight negligence.” Those objections were overruled by

the trial court.
After the jury returned a verdict, 4Multi-Building moved for judgment notwithstanding the

The fury responded as follows to the questions in the charge of the court:

SfIN1:

Did any of the following exercise or retain some control over the mantter in which the injury causing activity was performed,

other than the right to order the work to start or stop or inspect progress or receive reports?

Answer Yes” or “No” far each of the following:

a. Multidluilding, Inc. Yes

h. Alfbnso Mares Yes

If you atiswered Question No. I “no” as to either party, then do not attswer Question 2 as to that party

QUESTION 2.

Did the negligence of any of the following proxtrnately cause the oecrtrrence in question?

With respect to the condition of the premises, Alfdnso Mares was negligent if:

a. the condition posed au unreasonable risk of harm, atid

h. he knew or reasonably should have known of the danger, and

c. fiuled to exercise ordinary care to protect Emilio Olivares from the danger, by failing to adequately warn Emilio Olivares

of the condition and fai lirtg to make that condition reasonably safe.

With respect to the condition of the premises, MultiBuilding, Inc., was negligent if:

a. the condition posed an unreasonable risk of harm, and

b. it knesv or reasonably should have known of the danger, and

c. failed to exercise ordittary care to protect I2rnilio Olivares from the danger, by f/tiling to adequately svam Emilio Olivares

of the condition and failing to make that condition reasonably safe.

“Ordinary Care,” when used svith respect to the conduct of Alfonso Mares arid/or Multi4lttilding, Inc. as itfl owner or

occupier of the pretnises. means that degree of care that would he used by an owner or occupier of ordinary prudence rtnder

the same or similitr circumstances.

Answer “Yes” or “No”

a. Alfonso Mares Yes

N Mtilti4/tttilding, Inc. Ye’s

c. Emilio Olivares Yes

If you answered “Yes” to Question I or 2 for more than one of those tiamed above, then answer the following question,

Otherwise, do not answer the followitig question.

QUESTION 3.

What percentage of the negligence that caused the occurrence do you find to be attributable to each ofthose listed below and

found by you, in your answer to Question 2, to have been negligent?

The percentages you find must total 100 percent. The percentages must be expressed in whole numbers. ‘I’he negligence

attributable to any one named below is not necessarily measured by the nutnber of acts or omissions found. The percentage

attributable to any one need not he tlte same percentage attributed to that one in answering another question.

a Multf/Building, Inc.: 25%

b. Alfonso Mares: 60%

c. Emilio Olivares: 15%

‘rOTAL I 00%

QUESTION 4.

Did the negligence, if any, of those named below proximately cause the occurrence or injury in question? Answer “Yes” or

“No” for each of the following:

“Ordinary Care,” when used with respect to the conduct of Alfonso Mares as an occupier of a premises, means that degree

of care that would be used by an occupier of ordinary prudence under the same or similar circumstances.

“Negligence,” when used with respect to the conduct of Alfonso Mares, means failure to use ordinary care, that is, failing to
verdict, In its motion, Multi-Building (1) requested that the trial court “disregard the jury’s answer

to question numbers I and 2 with respect to Multi-Building so that [Olivaresj takes nothing from

Multi-Building” because there was no evidence to support the jury’s findings as to those questions

do that which a person or entity of ordinary prudence would have done under the same or similar circumstances or doing that

which a person or entity of ordmary prudence would not have done under the same or similar circumstances.

a. Allouso Mares Yes

h. Emilio Olivares Yes

QUESTION 5.

What percentage of the negligence that caused the occurrence do you find to he attributable to each of those listed below and

found by you. in your answer to Question 2, to have been negligent?

The percentages you find must total 100 percent. The percentages must be expressed in whole numbers. The negligence

attributable to any one named below is not necessarily measured by the nutiiber of acts or omissions found. The percentage

attributable to any one tieed not be the same percentage attributed to that one in answering another question.

A. Allonso Mares 80%

b. Emilio Olivares 20%

TOTAL 100%

QUESTION 6.

What sum ofmoncy, ifpaid now in cash, would Oairly and reasonably compensate EMILIO OLIVARE5 forhis injuries, ifany,

that resulted from the occurrence in question?

Consider the elements of damages listed below and none other, Consider each element separately. Do not include damages

for one clement in any other element. Do not include interest on any amount of damages you find.

Do not reduce the amounts, if any, in your answers because of the negligence, if any, of EMILI() OLIVARES. Answer

separately, in dollars and cents, for damages, if any. Do not include any amount Oar any condition not resulting from the

occurrence in question. Do not include any amount for any condition existing before the occurrence in question, except to

the extent, if any, that such other condition was aggravated by any injuries that resulted from the occurrence in question.

a. Physical pain and mental anguish sustained in the past.

Answer: 540,000.0(1

b. Physical pain and mental anguish that, in reasonable probability, will he sustained in the future.

Answer: $10,000.00

c. Reasonable expenses of medical care in the past.

Answer: $122,900.00

d. Loss of wages sustained in the past.

Answer: $70,000.00

e. Impairment sustained in the past.

Answer: $15,000.00

f. Impairmetit that, in reasonable probability, will be sustained in the future.

Answer: $10,000.00

g. Disfigurement sustained in the past.

Answer: ,,$5000.00

h. Disfigurement that, in reasonable probability, will be sustained in the future.

Answer: -0-

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and (2) asserted “the jury’s finding of $70,000 for past lost wages should be reduced to $42,000

(60%of$70.000)” because the uncontradicted testimony wasthatOlivares was making forty percent

ofthe income that he claimed he had lost as a result ofthe accident. Olivares filed a response to

Multi-Building’s motion in which he stated in part

When asked if he “[v]ouLd ... agree that” he is “making about 40 pcrcent of the

income that” he “had made in the past,” Plaintiff answered, “More or less.”

However, that calculation is clearly a mistake because 600 pesos per week is only

$41.32, and 1,000 pesos is $68.87 in the United States. Since $68.87 is only 23.0%

of $300.00 and $41.32 is only 13.8% of $300.00, there is insufficient credible

evidence for this Court to reduce the jury’s award of past lost wages by 40.0%.

Accordingly, ifthis Court reducesthe $72,000.00 awarded by the jury for PlaintifFs

past lostwages by any sum, itshould be by no more than 18.4%, which isthe average

of 23.0% and 13.8%.

(citations to record and exhibit omitted). After a hearing, the trial court granted Multi-Building’s

motion forjudgment notwithstanding the verdict as to the reduction ofpast lost wages to $42.000.

Following the trial court’srendering ofthejudgment described above, this appeal wastimely

filed.

11. APPELLANT’S ISSUES

A. Standard ofReview

We review a trial court’s admission or exclusion of evidence under an abuse ofdiscretion

standard. See State v. Cent Expressway Sign Assocs., 302 S.W.3d 866, 870 (rex. 2009); In re

J.P.B., 180 S.W.3d 570, 575 (rex. 2005). Likewise, an abuse ofdiscretion standard is applied to

review of claimed error in the jury charge. See Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex.

2006). A trial court abuses its discretionby failing to follow guiding rules and principles. Columbia

Rio Grande Healthcare, LP. v. Hawley, 284 S.W.3d 851, 856 (rex. 2009) (citing Bocquet v.

Herring, 972 S.W.2d 19,21 (fex. 1998)); see Downerv. Aquamarine Operators, Inc., 701 S.W.2d

238,24142 (fex. 1985).

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We review a party’s challenge to the trial court’s grant or denial of a motion for judgment

notwithstanding the verdict under a legal sufficiency standard. [Jo/land v. Love/ace, 352 S.W.3d

777, 795 (Tex. App.—Dallas 2011, pet. denied). We review the evidence in the light most favorable

to the jury’s findings, considering only the evidence and inferences that support them and

disregarding all evidence and inferences to the contrary. Pvfewhinney v. London Winenian, Inc., 339

S.W3d 177, 180 (Tex. App.—Dallas 2011, pet. denied). Ifthere is more than a scintilla of evidence

to support the jury’s findings, the motion for judgment notwithstanding the verdict was properly

denied. Id.

Additionally, pursuant to Texas Rule of Appellate Procedure 44.1(a), no judgment may be

reversed on appeal on the ground that the trial court made an error oflaw unless the court of appeals

concludes the error complained of “probably caused the rendition of an improper judgment; or..

probably prevented the appellant from properly presenting the case to the court of appeals.” TEx.

R. App. P. 44.1(a). The Texas Supreme Court has stated that it “recognize[sj the impossibility of

prescribing a specific test to determine whether a particular error is harmful” and “entrust[s] that

determination to the sound discretion ofthe reviewing court.” C’ent. Expressway Sign Assocs., 302

S.W.3d at 870. In making such a determination, the court must review the entire record. Id. (citing

Gee v. Liberty Mat. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989); Lorusso v. Members Mut. Ins.

Co., 603 S.W.2d 818, 821 (Tex. 1980)). The exclusion or admission of evidence is likely harmless

if the evidence was cumulative, or the rest of the evidence was so one-sided that the error likely

made no difference in the judgment. Cent. Expressway Sign Assocs., 302 S.W.3d at 870 (citing

Reliance Steel & Aluminum o. v. Sevcik, 267 S.W.3d 867, 873 (Tex. 2008)). But if erroneously

admitted or excluded evidence was crucial to a key issue, the error is likely harmful. Id.; see Boulle

v. Boulle, 254 S.W.3d 701, 708 (Tex. App.—Dallas 2008, no pet.) (“A trial court’s error in

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excluding evidence requires reversal if the evidence is both controlling on a material issue and not

cumulative.”’ (quoting Mends v. Barnard, 870 S.W.2d 14, 16 (Tex. 1994)).

B. Applicable Law

In order to warrant submission to thejury, an issue must he raised by both the pleadings and

the evidence. See TEx. R. Civ. p. 278. A trial court may refuse to submit a question if there is no

evidence in the record to warrant its submission. See Park N. Serv. Ctr., L.P. v. Applied Circuit

Tech., Inc., 338 S.W.3d 719, 721 (Tex. App.—Dallas 2011, no pet.) (citing Elbaor v. Smith, 845

S.W.2d 240, 243 (Tex. 1992)).

The supreme court has explained the difference between liability for negligent activity and

liability for failing to remedy an unreasonable risk of harm due to the condition of premises as

follows:

“Recovery on a negligent activity theory requires that the person have been injured

by or as a contemporaneous result of the activity itself rather than by a condition

created by the activity.” Negligence in the former context means simply doing or

failing to do what a person ofordinary prudence in the same or similar circumstances

would have not done or done. Negligence in the latter context means “failure to use

ordinary care to reduce or eliminate an unreasonable risk of harm created by a

premises condition which the owner or occupier [of land] knows about or in the

exercise of ordinary care should know about.”

TimberwalkApartments, Partners, Inc. v. C’ain, 972 S.W.2d 749, 753 (Tex. 1998) (footnote citations

omitted) (quoting Keetch v. Kroger Co., 845 S.W.2d 262, 264, 267 (Tex. 1992)). If an injury was

caused by a condition created by an activity rather than the activity itse1f a plaintiff is limited to a

premises liability theory of recovery. Crooks v. Moses, 138 S.W.3d 629, 639 (Tex. App.—Dallas

2004, no pet.) (citing Lucas v. Titus Cnty. Hosp. Dist./Titus Cnty. Mem ‘1 Hosp., 964 S.W.2d 144,

153 (Tex. App.—Texarkana 1998, pet. denied)).

An owner or occupier of land has a duty to use reasonable care to keep the premises under

his control in a safe condition. Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex. 1985). In the

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context of premises liability, a general contractor on a Construction site, who is in control of the

premises, is charged with the same duty as an owner or occupier. Id. With respect to existing

defects, an owner or occupier has a duty to inspect the premises and warn of concealed hazards the

owner knows or should have known about. Shell Oil C’o. v Khan, 138 S.W.3d 288, 295 (Tex. 2004),

With respect to defects arising later, an owner has no duty unless it retains a right to control the work

that created the defect. Id.

Pursuant to Texas Rule of Appellate Procedure 33.1(a), as a prerequisite to presenting a

complaint for appellate review, the record must show the complaint was made to the trial court by

a timely request, objection, or motion that “stated the grounds for the ruling that the complaining

party sought from the trial court with sufficient specificity to make the trial court aware of the

complaint, unless the specific grounds were apparent from the context.” TEx. R. App. P. 33.1(a).

C. Analysis

1. Jury Charge Error

We begin with Olivares’s second and third issues, which we address together. In those

issues, Olivares contends the trial court reversibly erred by (1) “forcing” a jury submission on a

premises condition liability theory when Olivares “was seeking only a negligent activity submission”

and (2) “failing to include Multi-Building in the negligent activity question submitted to the jury.”

Multi-Building responds, in part, that “[b]ecause [Olivares] was injured as a result of a

condition created by an activity, and not as a contemporaneous result of a negligent activity itself,”

the trial court’s submission to the jury was proper.

In his brief in this Court, Olivares asserts the evidence showed Multi-Building “failed to

instruct [Olivares] as to the proper and safe way of maneuvering when there were joists present.”

Therefore, Olivares argues, a “straight negligence” submission as to Multi-Building was warranted

I 2-
and a premises liability submission was not warranted, However, the record shows Olivares alleged

in his live petition that his injury occurred when he stepped on a joist that “had not been properly

braced, banded or properly secured” and the joist “toppled over,” causing him to fall on his side.

Additionally, Olivares testified at trial, in part, “Well, and what happened. I was going, and the last

[joist] either wasn’t nailed down or wasn’t firm. And I stepped on it, and it turned, and 1 fell on top

of it.”

“Recovery on a negligent activity theory requires that the person have been injured by or as

a contemporaneous result of the activity itself rather than by a condition created by the activity.”

Timherwaik, 972 S.W.2d at 753 (quoting Keetch, $45 S.W.2d at 264). Negligence in the latter

context means “failure to use ordinary care to reduce or eliminate an unreasonable risk of harm

created by a premises condition which the owner or occupier [ofland] knows about or in the exercise

of ordinary care should know about.” Id.

In Timherwalk, an apartment tenant, Tammy Rene Cain, was raped in her apartment by an

intruder, Peter Saenz. Id. at 751. Cain sued the owners of the apartment complex, alleging they

negligently failed to provide adequate security. id. The jury found Cain’s injuries were caused only

by her own negligence, and the trial court rendered judgment on the verdict for defendants. Id. at

752. The court of appeals reversed and remanded for a new trial, holding in part that the trial court

erred in defining negligence with respect to defendants as in a premises liability case. Id. In an

appeal to the supreme court, the defendants contended the trial court “did not err in charging the jury

as on a premises liability claim rather than a negligent activity claim.” Id. at 753. The supreme court

agreed, reasoning as follows:

Cain does not assert that she was injured by or as a contemporaneous result of any

activity of defendants. The only activity that injured Cain was Saenz’s. Rather, Cain

asserts that defendants’ failure to provide adequate security measures created an

unreasonable risk of harm that defendants knew or should have known about and yet

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failed to correct, This is a premises liability claim on which the district court

correctly charged the jury. The court properly refused Cain’s request to charge the

jury as in a negligent activity case.

Id,; see also Clayton W Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997) (where

employee of independent contractor at oil and gas drilling site slipped while on catwalk and was

injured when he landed on equipment left on ground, case was “premises defect case” rather than

negligent activity case); Keetch, 845 S.W.2d at 264 (trial court “properly did not submit a negligent

activity theory of liability” where grocery store customer who slipped and fell was injured by

condition created by store’s spraying of chemical thirty minutes prior to customer’s fall and was not

injured by “activity of spraying”); Lucas, 964 S.W.2d at 1 53 (premises liability submission was

proper because cause of action was based upon plaintiff being injured by condition created when

hospital negligently put broken chair in waiting room and not by hospital’s activity when putting

chair in room); Stan/ei; Stores, inc. v. Veazev, 838 S.W.2d 884, 886 (Tex. App.—13eaumont 1992,

writ denied) (evidence in record did not support “simple negligence” theory of liability where cup

of liquid that apparently caused supermarket customer to slip and fall came from soft drink

promotional activity in another area ofstore and therefore customer slipped as result of “condition

created by the activity”).

In the case before us, the record contains no evidence that Olivares was injured by or as a

contemporaneous result of any activity of Multi-Building. See Timberwalk, 972 S.W.2d at 753;

Keetch, 845 S.W.2d at 264. However, there was some evidence that Olivares was injured by a

condition created on the premises, i.e., the joist that “wasn’t nailed down or wasn’t firm.” See

Timberwalk, 972 S.W.2d at 753; Keetch, 845 S.W.2d at 264. Therefore, we conclude the trial court

correctly charged the jury as to premises liability and properly refused Olivares’s request to charge

the jury as to “straight negligence” ofMulti-Building. See Timberwalk, 972 S.W.2d at 753; Keetch,

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845 S.W.2d at 264; see aLvo Park N. Serv, Ctr., 338 S.W.3d at 721; TEx. R. Civ, P. 278.

We decide against Olivares on his second and third issues.

2. Exclusion of Subcontract

Next, we address Olivares’s first issue, in which he contends the trial court reversibly erred

by excluding the subcontract from evidence “where that subcontract demonstrated Multi-Building’s

responsibility for the work and work place and prohibited Multi-Building from passing its

responsibility on to a sub-subcontractor like Alfonso Mares.” Olivares argues the subcontract was

“highly relevant to and probative ofthe issues presented in this suit.” Further, Olivares contends the

trial court’s error in excluding the subcontract “probably caused the rendition of an improper

judgment.”

Multi-Building argues, in part, (1) Olivares has failed to properly preserve this complaint

because he never offered the subcontract into evidence at trial; (2) the subcontract “was not relevant

to establish the necessary right to control the manner, means, or methods of the specific activity

which caused [Olivares’s] injury as required by applicable law to create a duty flowing from MultiBuilding to [Olivares]”; and (3) “the absence of the subcontract from evidence was harmless since

it is not controlling on the issue of control, and the jury found that Multi-Building had the right to

control the work anyway.”

Assuming without deciding that Olivares properly preserved this complaint for appellate

review, we cannot agree with Olivares that the record shows he was harmed by the error alleged.

See TEx. R. App. P. 44.1(a). Olivares contends the subcontract was “not cumulative” and was

controlling as to (1) “Multi-Building’s retention of the right to control the details of the work” and

(2) “the jury’s apportionment offault among the parties.” However, the record shows the jury found

in response to question number one of the charge of the court that Multi-Building “exercise[d] or

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retain[ed] some control over the manner in which the injury causing activity was performed”

Therefore, we cannot agree with Olivares that the exclusion of the subcontract was harmful to him

respecting the issue of “Multi-Buildmg’s retention of the right to control the details of the work.”

See Cent. FZtpressway Sign Assocs., 302 S.\V.3d at $70. Further, with respect to the jury’s

“apportionment of fault among the parties,” Olivares argues in his brief in this Court

Based on scant evidence, the jury found that Multi-Building was 25% responsible for

the injuries [Olivares] sustained. Thus, the jury believed that Multi-Building was

somewhat responsible for the events in which Olivares was injured.

The only logical conclusion is that if the jury had been allowed to learn of

Multi-Building’s voluntary assumption of responsibility for the work done by

Olivares and had Olivares been allowed to explore this voluntary assumption through

testimony and argument, the jury’s appraisal ofMulti-Building’s responsibility would

have dramatically increased. Stated otherwise, as a result of the exclusion of this

evidence, the jury’s apportionment ofliability to Multi-Building and the Trial Court’s

judgment based on that apportionment is in all logic and common sense, grossly

understated in comparison to what it would be were the subcontract effectively

presented to the jury for its consideration.

The record does not show the “testimony and argument” through which Olivares planned to “explore

this voluntary assumption.” Nor does the record show the trial court was made aware of the

apportionment issue about which Olivares complains. See TEx. R. App. P.33.1(a); cf Wackenhut

Corrections Coip. v. de La Rosa, 305 S.W.3d 594, 621 (Tex. App.—Corpus Christi 2009, no pet.)

(where party objected to liability questions in jury charge, but did not make trial court aware of

complaint as to apportionment question, party “failed to preserve its complaint and has failed to

show harm” as to apportionment). Moreover, while Olivares asserts the jury’s appraisal of MultiBuilding’s responsibility would have “dramatically increased” ifthe subcontract had been admitted,

he does not explain, or provide citation to the record for, the specific bases for such an increase or

describe how the jury’s calculation would change. Consequently, we cannot conclude Olivares has

shown harm as to the jury’s “apportionment of fault.” See Muhs v. Whataburger, Inc., No. 13-09-

00434-CV, 2010 WL 4657955, at *8 (Tex. App.----Corpus Christi Nov. 18,2010, pet. denied) (mem.

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op.) (although plaintiff contended apportionment of liability would have changed if excluded

evidence had been admitted, no harm was shown where plaintiff “fail[edl to explain how the jury’s

proportionate responsibility calculations would change”): see (115(1 ftx. R. APP. P. 38. 1(i)

(appellant’s brief must contain clear argument for contentions made, with appropriate citations to

authorities and record)

We decide Olivares’s first issue against him.

3. Granting ofJudgment Notwithstanding the Verdict as to Past Lost Wages

In his fourth issue, Olivares asserts the trial court reversibly erred by reducing the jury’s

award of past lost income on Multi-Building’s motion for judgment notwithstanding the verdict

when there was some evidence to support the amount awarded by the jury. According to Olivares,

“there is testimony that supports the amount awarded by the jury” and “Ft jhat testimony cannot be

disregarded in fhvor of the ambiguous testimony relied on by Multi—Building to urge that the award

be reduced.”

Multi-Building asserts the trial court correctly reduced the amount awarded to Olivares for

past lost wages “based upon his own undisputed testimony.”

As described above, the record shows Olivares testified his past lost wages total $72,000.

Further, he testified he is currently selling clothes and making about forty percent of the income he

“had made in the past.” However, Olivares argues

[T]he time frame “in the past” is not described or identified. That is, there is nothing

to indicate that the “in the past” refers to the period when he worked with Mr. Mares.

Thus, this evidence does not support the conclusion that [Olivares] had been earning

40% ofthe income he was earning at time of his injury (in fact, given that [Olivares]

had also testified that he had his own business selling clothes for approximately 10

to 12 years before he “came here” in 2003, it is just as reasonable to assume that he

had this period in mind when he answered the question regarding how much he was

earning on his business selling clothes currently—that is, his answer in full would be

“[selling clothes he is] making about 40 percent ofthe income that [he] had made in

the past [selling clothes]”).

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(citations to record omitted). The record does not show Olivares asserted this particular argument

set out above in the trial court. See TEx. R. APP. P. 33.1(a). Moreover, the record shows the specific

testimony quoted directly above respecting Oilvares’s “business selling clothes” includes references

by him to numerous jobs he has held throughout his life. 5 Additionally, the testimony that uses the

phrase “in the past” appears more than forty pages after Olivares’s testimony respecting his pre-2003

“business selling clothes.” Finally, the phrase “in the past” was included in a question posed by

Multi-Building’s counsel which, read in context, asked Olivares to compare his lost wages claim of

$72,000 with his current income from selling clothes. We cannot conclude the record shows that

“in the past” refers to any time period other than the time of Olivares’s injury. Accordingly, we

conclude the trial court did not err by reducing the jury’s award of past lost income.

The testimony cited by Olivares on appeal respecting his “business selling clothes” reads as follows:

Q. Now, what type of work have you done most of your life?

A. Well, in Monterrey up until I was 31 years old, I worked in construction as a carpenter.

Q Anything else?

A. Well, that was until I was 32. And then I went to work at a factory as a watchman for 14 years.

Q. All right. 5o for 32 years you were in the construction business as a carpenter; then, thereafter, for 14 years you were a

watchman?

A. I didn’t work for 32 years. I worked until I was 32. From 18 to 32 in construction as a carpenter.

Q. And thereafter you were a watchman for 14 years?

A. That’s right.

Q. All right. flow old were you when you stopped doing the watchman work?

A. Forty$our years old.

Q. And then what type of work did you do?

A. Business.

Q. Okay. What type?

A. I sold clothing.

Q. From the age of 44 until when?

A. Well, I still do that, but, like, until I came here in 2003.

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We decide against Olivares on his fourth issue.

Ill. MULTI-BUILDING’S “CROSS-POINTS”

hi its two “cross-points,” Multi-Building contends that ifthe trial court’s reduction ofthe

july’s award of past lost wages was error, (1) the trial court erred by not granting judgment

notwithstanding the verdict “that [Olivares] take nothing on his claims against Multi-Building” and

(2) the evidence was legally and factually insufficient to support an award of past lost wages to

Olivares. During oral argument in this Court; appellant contended that because Multi-Building did

not file a notice of appeal in this case, its “cross-points” are not properly before this Court.

Rule ofappellate procedure 25.1 providesin relevant part that “[t]he appellate court may not

grant a party who does not file a notice ofappeal more favorable reliefthan did the trial court except

forjust cause.” Thx. it An. P. 25.1(c). Rule of appellate procedure 38.2 states, in part,

When the trial court renders judgment notwithstanding the verdict on one or more

questions, the appellee must bring forward by cross-point any issue or point that

would have vitiated the verdict or that would have prevented an affirmance ofthe

judgment ifthe trial court had rendered judgment on the verdict Failure to bring

forward by cross-point an issue or point that would vitiate the verdict or prevent an

aflirmance ofthe judgment waives that complaint Included in this requirement is

a point that:

(A) the verdict or one or more jury findings have insufficient evidentiaiy

support or are agnint the overwhelming preponderance ofthe evidence as a

matter offact; or

(B) the verdictshould be set aside because ofimproper argument ofcounsel.

TEX. it An. P. 38.2(bXl); see Thx. it Civ. P. 324(c).

During oral argument in this Court, Multi-Building contended it was not required to file a

notice of appeal to assert the complaints in question in this Court because “cross-points” pursuant

to rule 38.2(bXl) can properly include requestsforreliefmore favorable than that granted in the trial

court Multi-Building cited no authority; and we have found none, to support that positioa Cf

Helton v. KR. Comm ¶n, 126 S.W.3d 111, 119—20 (Ta. App.—Houston [1st Dist] 2003, pet

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denied) (noting distinction between cross-points that require separate notice of appeal and claims that

merely seek to raise alternate grounds opposing recovery by appealing party); TEx. R. APP. P.

25.1(c). Moreover, as described above, we did not conclude “the trial court’s reduction ofthe jury’s

award of past lost wages was error.” Therefore, Multi-Building’s “cross-points,” which were

specifically conditioned on a such a conclusion of error, are moot. See In re Estate of Clifton, No.

13-I 1-00462-CV. 2012 WL 3139864, at *8 n.9 (Tex. App.—Corpus Christi Aug. 2, 2012, no pet.)

(mem. op.) (“cross-point” of appellee that was conditioned on appellate court’s reversal of trial

court’s JNOV was “moot” where appellate court concluded trial court’s JNOV was not erroneous);

Underwriteic at Lloyd’s of London v. Nat ‘I Union Fire Ins. Co. of Pittsburgh, Pa., No.

05-96-0008l-CV, 1997 WL 714282, at * 7 (Tex. App.—Dallas Nov. 17, 1997, no pet.) (not

designated for publication) (cross-point denied as “moot” where it was conditioned on reversal of

trial court’s judgment and such judgment was affirmed by appellate court). Accordingly, we decide

against Multi-Building on its two “cross-points.”

IV. CONCLUSION

We decide Olivares’s four issues against him. Additionally, we decide against MultiBuilding on its two “cross-points.”

The trial court’s judgment is affirmed.

DOUGLj S. LANG

JUSTKZ

101486F.P05

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FIftI! istrirt nf iJixas at Oafta%

JUDGMENT

EMILIO OLIVARES, Appellant Appeal from the County Court at Law No. 3

of Dallas County, Texas. (Tr,Ct.No, CC-06-

No. 05-l0-01486-CV V. 01800-C).

Opinion delivered by Justice Lang, Justices

ALFONSO MARES AND MULTI- Bridges and Richter participating.

BUILDING, INC., Appellees

In accordance with this Court’s opinion of this date, the judgment of the trial court is

AFFIRMED. It is ORDERED that appellees Alfonso Mares and Multi-Building, Inc. recover

their costs of this appeal from appellant Emilio Olivares.

Judgment entered November 27, 2012.

DOUGLiS. LANG /

JUSTl”