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 1 and Multi-Building, Inc. (“Multi-Building”) based on injuries sufferedby Olivares while working on the constructionof

an apartment complex (the “project”). Following ajury 

### trial, the trial court renderedjudgment that Olivares recover $61,225 from Multi-Building and $146,940 from Mares, plus interest and a percentage ofcourt costs. in fourissues on appeal, Olivares asserts the trial courtreversibly erredby (1) excluding from evidence awritten subcontract (the “subcontract”) between Multi-Building andtheproject’s general

I No briefhas 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 submittedto the jury; and(4) reducing thejury’s award ofpast 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 ifthe trial court’s reduction ofthejury’s award ofpast lost wages was error, (1) the trial court erred by not grantingjudgment 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’sjudgment 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.” 2 Olivares asserted that while on the job site ofthe project (the “premises”) during the course and scope ofhis employment, he was directed by his supervisorto obtain ajoist 3 forinstallation, Olivares statedthat indoing so, he “was requiredto step atop ofeachjoist ofthe second floor, stepping on each one, in order to traverse across the second floor ofthe apartment complex.” According to Olivares, “[t]his method and manner oftraversing 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 ofvarying length, eighteen or twenty-four inches wide and four inches thick, that were being installed in the ceiling ofthe building’s first story to support the floor ofthe second story. The parties dispute the proper designation for the beams with which Olivares was working. For purposes ofthis opinion, we refer to them as “joists”

### Building]” Olivares 

### contended that as he was stepping on ajoistthat “had notbeen properlybraced, banded orproperly secured,” the

### joist “toppled over,” causing him to fall on his side. He stated that

as a result ofhis 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 atthejob sitebeingmanaged and controlledby [d]efendants.” According to Olivares, “[d]efendants

were careless in theirmanagement ofthejob 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 installationofjoists andtrusses. 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 otherOSHArules andregulations on all aspects oftheworkto be performed, which [Multi-Building] failed to do. Nor did Defendantproperlybrace thejoists and trusses as requiredbylocal 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-contractwork. As the general contractor, [Limestone] managed and controlled the premises in orderto construct anew apartment complex onbehalf of[the generalpartnerandthepremises owner]. Inturn, [Limestone] contractedwith [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 affirmativedefenses included, inpart, (1) Olivares’s injuries

—3—

### were caused, in whole or in part, by the negligence ofMares, over whom Multi-Building had “no right oforactual 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 notparties to the [subcontract], and the [subcontract] has no relevancyto the duties and responsibilities ofMulti-Building to Mares and/or Olivares.” Also, Multi-Building contended the subcontract “would be cumulative and would confuse thejury and unfairlyprejudice [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 forOlivares statedhe hadnot. The trial court granted Multi-Building’s motion in limine as to the subcontract. Duringtrial, SamuelMarkLeComte, an ownerofMulti-Building, testifiedinpartthatMulti Building hired Mares as a subcontractorto 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 thejobsite” was Multi-Building.

—4-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 ofthejoists 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 ofit. As to past lost wages, Olivares testified he was paid $300 per week for his work at thejob site and he missed 240 weeks ofwork as aresult 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 thejury 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. Wouldyou agree thatyou are making about40 percent ofthe income thatyou had made in the past? A. More or less. Following Olivares ‘S testimony, counsel forOlivares offeredinto evidence excerpts fromthe deposition testimony ofWilliam Whitford 111, who worked as a superintendent for Multi-Building. Counsel for Multi-Building objected to the admission ofcertain portions ofWhitford’s deposition testimony on the ground that such testimony referred to the subcontract. The trial court sustained Multi-Building’s objection. Outside the presence ofthejury, counsel for Olivares made an offer ofproof

### respecting the 

### excluded testimony. The 

### subcontract was proffered by Olivares as part ofthat offer ofproof. Later in the trial, during the testimony 

### ofan 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 thejury 

### to see that the ultimate responsibilitywas with Multi-Building, we feel that we were 

### prevented from adequately presenting our case to thejury 

### 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 andMulti-Building” and “whatever contractualdutiesback and forthto 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 ofproofdescribed above. Atthe charge conference, counsel for Olivares asserted, inpart, thathe had “neverpresented 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 ofinstructions, definitions and questions proposed by him pertaining to his claims against Multi-Building for “straight negligence.” Those objections were overruledby the trial court.

### After the jury returned a verdict, 4 Multi-Building moved forjudgment notwithstanding the

The fury responded as follows to the questions in the charge ofthe court: SfIN1: Did any ofthe 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 ofthe following:

a. Multidluilding, Inc. Yes h. Alfbnso Mares Yes Ifyou 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 ofthe following proxtrnately cause the oecrtrrence in question? With respect to the condition ofthe premises, Alfdnso Mares was negligent if: a. the condition posed au unreasonable risk ofharm, atid h. he knew or reasonably should have known ofthe danger, and c. fiuled to exercise ordinary care to protect Emilio Olivares from the danger, by failing to adequately warn Emilio Olivares ofthe condition and failirtg to make that condition reasonably safe. With respect to the condition ofthe premises, MultiBuilding, Inc., was negligent if: a. the condition posed an unreasonable risk ofharm, and b. it knesv or reasonably should have known ofthe danger, and c. failed to exercise ordittary care to protect I2rnilio Olivares from the danger, by f/tiling to adequately svam Emilio Olivares ofthe 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 ofthe pretnises. means that degree ofcare that would he used by an owner or occupier ofordinary 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 ofthe 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 ofacts 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, ifany, ofthose named below proximately cause the occurrence or injury in question? Answer “Yes” or “No” for each ofthe following: “Ordinary Care,” when used with respect to the conduct ofAlfonso Mares as an occupier ofa premises, means that degree ofcare that would be used by an occupier ofordinary prudence under the same or similar circumstances. “Negligence,” when used with respect to the conduct ofAlfonso Mares, means failure to use ordinary care, that is, failing toverdict, In its motion, Multi-Building (1) requested that the trial court “disregard thejury’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 thejury’s findings as to those questions

do that which a person or entity ofordinary prudence would have done under the same or similar circumstances or doing that which a person or entity ofordmary prudence would not have done under the same or similar circumstances.

a. Allouso Mares Yes h. Emilio Olivares Yes QUESTION 5. What percentage ofthe negligence that caused the occurrence do you find to he 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. The negligence attributable to any one named below is not necessarily measured by the nutiiber ofacts 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 ofdamages 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 ofdamages 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, ifany. 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, ifany, 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 ofwages 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-

—8---

### and (2) asserted “thejury’s finding of$70,000 forpast lost wages should be reduced to $42,000 (60% of$70.000)”becausetheuncontradictedtestimony

### wasthatOlivareswasmakingfortypercent 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 ifhe “[v]ouLd

... 

### agree that” he is “making about 40 pcrcent ofthe income that” he “had made in the past,” Plaintiff answered, “More or less.” However, that calculation is clearly a mistake because 600 pesos perweek is only $41.32, and 1,000 pesos is $68.87 in the United States. Since $68.87 is only23.0% of $300.00 and $41.32 is only 13.8% of $300.00, there is insufficient credible evidence for this Court to reduce thejury’s award ofpast lost wages by 40.0%. Accordingly, ifthis Courtreducesthe $72,000.00 awardedbythejuryforPlaintifFs pastlostwagesbyanysum, itshouldbebynomorethan 18.4%, whichistheaverage of23.0% and 13.8%. (citations to record and exhibit omitted). After ahearing, thetrial court granted Multi-Building’s motion for

### judgment notwithstandingthe verdict as to the reduction ofpast lostwages to $42.000. Followingthetrialcourt’srenderingof thejudgmentdescribedabove,thisappealwastimely filed. 11. APPELLANT’S ISSUES A. Standardof Review We review a trial court’s admission orexclusion ofevidence 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 of

### discretion standard is 

### appliedto review ofclaimed errorin thejury charge. See Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006). Atrialcourtabuses itsdiscretionbyfailingtofollowguiding

### rulesandprinciples. 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)); seeDownerv. AquamarineOperators, Inc., 701 S.W.2d 238,24142 (fex. 1985).

-9-We review a party’s challenge to the trial court’s grant or denial ofa 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 inthe lightmost 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 ofevidence to support thejury’s findings, the motion forjudgment notwithstanding the verdict was properly denied. Id. Additionally, pursuant to Texas Rule ofAppellate Procedure 44.1(a), nojudgment may be reversed on appeal on the ground that the trial court made an error oflaw unless the court ofappeals concludes the error complained of“probably caused the rendition ofan improperjudgment; or.. probably prevented the appellant from properly presenting the case to the court ofappeals.” 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 ofevidence is likely harmless ifthe evidence was cumulative, or the rest ofthe evidence was so one-sided that the error likely made no difference in thejudgment. 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 iferroneously admitted or excluded evidence was crucial to a key issue, the error is likelyharmful. Id.; seeBoulle

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

—10—excluding evidence requires reversal ifthe 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 byboth the pleadings and the evidence. See TEx. R. Civ. p. 278. A trial court 

### may refuse to submit a question ifthere 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 ofharm due to the condition ofpremises as follows: “Recovery on a negligent activity theory requires that the person have been injured by or as a contemporaneous result ofthe activity itselfrather than by a condition created by the activity.” Negligence in the former context means simply doing or failing to do what aperson ofordinaryprudence in the same or similarcircumstances 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 ofordinary 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)). Ifan injury was caused by a condition created by an activity rather than the activity itse1f a plaintiffis limited to a premises liability theory ofrecovery. 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 ofland 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

—11—context ofpremises liability, a general contractor on a Construction site, who is in control ofthe 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 ofconcealed hazards the

ownerknows or should have known about. 

### Shell Oil C’o. v Khan, 138 S.W.3d 288, 295 (Tex. 2004), With respectto defects arising later, an ownerhas no duty unless it retains a rightto control the work that created the defect. Id. Pursuant to Texas Rule ofAppellate 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 ofthe 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” ajury submission on a premises conditionliabilitytheorywhen Olivares “was seeking onlyanegligentactivity submission” and (2) “failing to include Multi-Building in the negligent activity question submitted to thejury.” 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 ofa negligent activity itself,” the trial court’s submission to the

### jury was proper. In his briefin this Court, Olivares asserts the evidence showed Multi-Building “failed to instruct [Olivares] as to the proper and safe way ofmaneuvering when there werejoists present.” Therefore, Olivares argues, a “straightnegligence” submission as to Multi-Building was warranted

I2-and apremises liability submission was notwarranted, However, the record shows Olivares alleged 

### in his live petition that his injury occurred 

### when he stepped on ajoist that “had not been properly braced, banded or properly secured” and thejoist “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 ofit.” 

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

a contemporaneous result ofthe activity itselfrather 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 ofharm createdby apremises conditionwhichthe owneroroccupier [ofland] knows aboutor

### inthe exercise ofordinary 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 ofthe apartment complex, alleging they negligently failed to provide adequate security. id. 

### Thejury found Cain’s injuries were caused only by her own negligence, and the trial court renderedjudgment on the verdict for defendants. Id. 

### at 752. 

### The court ofappeals 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 contendedthe trial court “didnoterrin charging thejury

as on apremises liabilityclaimratherthan anegligent 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 ofany activity ofdefendants. The only activity that injured Cain was Saenz’s. Rather, Cain asserts that defendants’ failure to provide adequate security 

### measures created an unreasonable risk ofharmthat defendants knew or should have known about andyet

—13—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 ofindependent 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 createdby store’s spraying ofchemical thirty minutes priorto 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 ofaction was based upon plaintiffbeing 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 ofliability 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 ofany activity ofMulti-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., thejoist 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 thejury as to premises liability and properly refused Olivares’s request to charge thejury as to “straightnegligence” ofMulti-Building. 

### See Timberwalk, 972 S.W.2d at 753; 

### Keetch,

—14845 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 ofSubcontract 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 “highlyrelevant 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 attrial; (2) the subcontract “was not relevant to establish the necessary right to control 

### the manner, means, or methods ofthe 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 ofthe subcontract from evidence was harmless since it is not controlling on the issue ofcontrol, 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 ofthe right to control the details ofthe work” and (2) “thejury’s apportionmentoffault among theparties.” However, the record shows thejury found in response to question number one ofthe charge ofthe court that Multi-Building “exercise[d] or

—I5—retain[ed] some control over the manner in which the 

### injury causing activity was performed” Therefore, we cannot agree 

### with Olivares that the exclusion ofthe subcontract was harmful to him respecting the issue 

### of“Multi-Buildmg’s retention ofthe right to control the details ofthe work.” See Cent. FZtpressway Sign Assocs., 302 S.\V.3d at $70. Further, with respect to the jury’s “apportionment offault among 

### the parties,” Olivares 

### argues in his briefin this Court Based on scantevidence, the

### juryfound 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 ifthejury had been allowed to learn of Multi-Building’s voluntary assumption of responsibility for the work done by Olivares and had Olivaresbeen allowedto explorethis voluntary assumptionthrough testimony and argument, thejury’ s appraisal ofMulti-Building’s responsibilitywould have dramatically increased. Stated otherwise, as a result ofthe exclusion ofthis evidence, thejury’s apportionmentofliabilityto Multi-Building andtheTrial 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 thejury for its consideration. The record does not show the “testimonyand argument” throughwhich Olivares plannedto “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 injury 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 thejury’s appraisal ofMultiBuilding’s responsibilitywouldhave “dramatically increased” ifthe subcontracthadbeen admitted, he does not explain, or provide citation to the record for, the specific bases for such an increase or describe how thejury’s calculation would change. Consequently, we cannot conclude Olivares has shown harm as to thejury’s “apportionment offault.” SeeMuhs v. Whataburger, Inc., No. 13-09- 00434-CV, 2010 WL4657955, at *8 (Tex. App.----Corpus Christi Nov. 18,2010, pet. denied) (mem.

—16--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 briefmust 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 thejury’s award ofpast lost income on Multi-Building’s motion for judgment notwithstanding the verdict when there was some evidence to support the amount awarded by thejury. According to Olivares, “there is testimony that supports the amount awarded by the jury” and “Ftjhat testimony cannot be disregarded in fhvor ofthe 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 ofthe 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 whenhe worked with Mr. Mares. Thus, this evidence does not support the conclusionthat [Olivares] had been earning 40% ofthe income he was earning at time ofhis 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 isjust 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—thatis, his answer in full wouldbe “[selling clothes he is] making about 40 percent ofthe income that [he] had made in the past [selling clothes]”).

-- I 7(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 

### numerousjobs 

### he has held throughout his life. 5 Additionally, the testimony that uses the phrase “in the past” appears more than fortypages afterOlivares’s testimonyrespecting 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 ofOlivares’s injury. Accordingly, we conclude the trial court did not err by reducing thejury’s award ofpast lost income.

The testimony cited by Olivares on appeal respecting his “business selling clothes” reads as follows: Q. Now, what type ofwork have you done most ofyour 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 ofwork did you do? A. Business. Q. Okay. What type? A. I sold clothing. Q. From the age of44 until when? A. Well, I still do that, but, like, until I came here in 2003.

—18—

### We decide againstOlivares 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 ofpast lost wages was error, (1) the trial court erred by not grantingjudgment 

### notwithstandingthe

### verdict“that [Olivares] 

### takenothingonhis claims againstMulti-Building”and (2) the 

### evidence was legally and factually insufficient to support an award of

### past lost wages to Olivares. During

### oralargumentinthis Court; 

### appellantcontendedthatbecauseMulti-Buildingdid notfile anotice ofappeal inthis case, 

### its “cross-points” are not

### properlybefore

### this Court. Ruleof

### appellateprocedure25.1 providesinrelevantpart

### that“[t]heappellatecourtmaynot grantapartywhodoesnotfileanoticeofappealmore

### favorablereliefthandidthetrialcourtexcept forjustcause.” Thx. itAn. P. 25.1(c). Rule of

### appellateprocedure 38.2 states, inpart, When the trial courtrendersjudgment notwithstandingthe verdict on 

### one ormore questions, the appellee must bring forward by 

### cross-point any issue or point that wouldhave vitiatedthe verdict orthat would have prevented an 

### affirmance ofthe judgment ifthe trial court had rendered

### judgment on the 

### verdict Failure to 

### bring forwardby

### cross-pointan

### issue orpoint

### thatwould

### vitiatethe

### verdictorpreventan aflirmance ofthejudgmentwaives that complaint 

### Included in this 

### requirement is apointthat: (A) the verdict or one or more

### jury findings have 

### insufficient evidentiaiy supportorare agninttheoverwhelmingpreponderance oftheevidence as a matteroffact; or 

### (B)theverdictshouldbe set

### asidebecauseofimproper

### argumentofcounsel. TEX. itAn. P. 38.2(bXl); 

### seeThx. itCiv. P. 324(c). During oral 

### argumentinthis Court, Multi-Building

### contended itwas notrequiredto 

### file a 

### notice ofappealto assertthe 

### complaints inquestionin

### this Courtbecause “cross-points”pursuant to

### rule38.2(bXl)canproperlyincluderequestsforreliefmore

### favorablethanthatgrantedin

### thetrial court Multi-Building cited no 

### authority; and we have found none, to 

### supportthatpositioa Cf Helton v. KR. Comm¶n, 126 S.W.3d 111, 119—20 (Ta. App.—Houston 

### [1st Dist] 2003, pet



### -19-denied) (noting distinction between cross-points thatrequire separate notice ofappeal 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 ofthejury’s award of past lost wages was error.” Therefore, Multi-Building’s “cross-points,” which were specifically conditioned on a such a conclusion oferror, are moot. See 

### In re Estate 

### ofClifton, 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 oftrial 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 suchjudgment 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’sjudgment is affirmed.

DOUGLj S. LANG JUSTKZ

101486F.P05

—20—

# 0

nitrt uf Appia1s 

## FIftI! istrirt nf 

## iJixas at Oafta% JUDGMENT EMILIO OLIVARES, Appellant Appeal 

### from the County Court at Law No. 3 ofDallas 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 ofthis date, thejudgment ofthe trial court is AFFIRMED. It is ORDERED that appellees Alfonso Mares and Multi-Building, Inc. recover their costs ofthis appeal from appellant Emilio Olivares. Judgment entered November 27, 2012.

DOUGLiS. LANG 

### / JUSTl”