NUMBER 13-19-00374-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG 

 

JNM EXPRESS, LLC, 

ANCA TRANSPORT, INC., 

OMEGA FREIGHT LOGISTICS, LLC,

JORGE MARIN, AND SILVIA MARIN, Appellants,

v.

LAURO LOZANO JR. AND 

IRENE LOZANO, Appellees.

 

On appeal from the 93rd District Court

of Hidalgo County, Texas.

 

MEMORANDUM OPINION

Before Justices Benavides, Longoria, and Tijerina

Memorandum Opinion by Justice Longoria

Appellees Lauro Lozano and Irene Lozano filed suit against appellants JNM 

Express, LLC, ANCA Transport, Inc., Omega Freight Logistics, LLC (collectively, the 
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Businesses), Jorge Marin, and Silvia Marin for negligence and gross negligence in 

relation to an accident that occurred when Lauro crashed the eighteen-wheeler he was 

driving. The jury returned a verdict in favor of appellees.

By ten issues, appellants argue that: (1) the jury charge improperly defined 

“employee” and “employer”; (2) there was legally and factually insufficient evidence to 

support the finding that each of the Businesses were Lauro’s employers; (3) there was 

legally and factually insufficient evidence to support the finding that appellants were 

negligent; (4) the trial court erred by admitting Lauro’s medical records; (5) the trial court 

erred by admitting appellants’ tax returns; (6) the trial court erred by awarding exemplary 

damages against ANCA and Omega because appellees did not plead for them; (7) the 

trial court erred by awarding damages to Irene; (8) the trial court erred by holding Jorge 

and Silvia jointly and severally liable for the damages, including the exemplary damages; 

(9) the exemplary damages were unsupported and excessive; and (10) cumulative errors 

caused the rendition of an improper judgment. We affirm in part, and we reverse and 

render in part.

I. BACKGROUND

On May 6, 2015, at approximately 1:30 a.m., Lauro fell asleep while driving an 

eighteen-wheeler from Edinburg, Texas to Maryland and crashed into another eighteenwheeler in front of him. Lauro was flown via helicopter to a hospital in Alabama where he 

was treated for his injuries, which included fractured ribs, a shattered pelvis, and a 

shattered left foot.
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In February 2017, the Lozanos filed suit against appellants for negligence and 

gross negligence. According to the Lozanos, appellants were negligent by disregarding 

federal regulations concerning the amount of rest truck drivers are required to receive 

between trips, which led to Lozano undertaking the drive while under-rested. More 

specifically, Lozano alleged that the appellants told him to make the drive even though 

Lozano had informed appellants that he needed more off-duty time per federal 

regulations. The Marins are the sole owners and operators of the Businesses. Lozano 

alleged that he was an employee of all three Businesses when he crashed, but the 

appellants claim that Lozano only worked for JNM at the time of the crash. The Lozanos 

sought to pierce the corporate veil, alleging that the Marins used the Businesses to 

“evad[e] safety regulations.” Lauro sought economic, noneconomic, and exemplary 

damages; Irene only sought noneconomic damages.

Jury trial began in June 2017 with the Lozanos and Marins being the primary 

witnesses. The jury found that the Businesses were all the “employers” of Lauro and that 

the Businesses were all negligent and grossly negligent. The jury awarded the following 

to the Lozanos: $3,880,006.34 for actual damages to Lauro; $156,932.28 for prejudgment 

interest on his past actual damages; $1,125,000 for actual damages to Irene; and 

$45,976.03 to Irene for prejudgment interest on her past actual damages. The Businesses 

and the Marins were jointly and severally liable for these damages. Additionally, the jury 

awarded $25,000,000 against each of the Businesses individually for exemplary 

damages. The Marins were jointly and severally liable on each of the exemplary damage 

awards. The trial court entered judgment in accordance with the jury’s findings. Appellants 
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filed a motion for judgment notwithstanding the verdict, a motion for new trial, and a 

motion to modify the judgment. The trial court granted the motion to modify, reforming the 

judgment as to reduce the exemplary damages down to $2,910,012.68 against each of 

the Businesses, but the trial court denied the other motions. This appeal ensued.

II. JURY CHARGE

In their first issue, appellants argue that the trial court erred by improperly defining 

“employer” and “employee” in the jury charge and by refusing to submit appellants’ 

common-law defenses.

By their sixth issue, appellants complain that the trial court erred by submitting jury 

questions on, and subsequently awarding, exemplary damages against ANCA and 

Omega because appellees did not plead for them against those parties.

A. Standard of Review & Applicable Law

Generally, the trial court has considerable discretion in determining the proper jury 

instructions, and we will only reverse if the trial court abused its discretion. See Columbia 

Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 856 (Tex. 2009); Fluor Daniel, 

Inc. v. Boyd, 941 S.W.2d 292, 295 (Tex. App.—Corpus Christi–Edinburg 1996, writ 

denied). The trial court abuses its discretion if it acts arbitrarily or fails to follow guiding 

rules and principles. See Hawley, 284 S.W.3d at 856; Fluor Daniel, 941 S.W.2d at 295.

“The chief guiding principle the trial court should refer to when submitting 

instructions and definitions is Rule 277.” Fluor Daniel, 941 S.W.2d at 295; see TEX. R.

CIV. P. 277. According to Rule 277, the trial court should give “such instructions and 

definitions as shall be proper to enable the jury to render a verdict.” TEX. R. CIV. P. 277. 
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An instruction is proper if it “(1) assists the jury, (2) accurately states the law, and (3) finds 

support in the pleadings and evidence.” Hawley, 284 S.W.3d at 856; see Ohrt v. Union 

Gas Corp., 398 S.W.3d 315, 338 (Tex. App.—Corpus Christi–Edinburg 2012, pet. 

denied).

However, “an appellate court will not reverse a judge for a charge error unless that 

error was harmful because it probably caused the rendition of an improper judgment or 

probably prevented the petitioner from properly presenting the case to the appellate 

courts.” Thota v. Young, 366 S.W.3d 678, 687 (Tex. 2012) (internal quotations omitted);

see TEX. R. APP. P. 44.1. Charge error is considered harmful “if it relates to a contested, 

critical issue.” Thota, 366 S.W.3d at 687 (quoting Hawley, 284 S.W.3d at 856).

“A party objecting to a charge must point out distinctly the objectionable matter and 

the grounds of the objection.” TEX. R. CIV. P. 274. Additionally, if no objection was made 

to the trial court that matches the complaint on appeal, then the issue has not been 

preserved for appellate review. TEX. R. APP. P. 33.1; Saenz-Guerrero v. Gardner, 587 

S.W.3d 191, 194 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (“Objections to the 

charge and requests for instructions must comport with the arguments made on appeal.”). 

A complaint regarding legal sufficiency may be made for the first time on appeal only in a 

civil nonjury trial. TEX. R. APP. P. 33.1(d).

B. Analysis

1. Employer/Employee Question

Question 1 of the jury charge read as follows:

You are instructed that an “employee” means any individual who is 

employed by an employer and who in the course and scope of employment 
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directly affects commercial motor vehicle safety. “Employee” includes a 

driver of a commercial motor vehicle, including an independent contractor

while in the course of operating a commercial motor vehicle.

You are further instructed that an “employer” means any person engaged 

in a business affecting interstate commerce who owns or leases a 

commercial motor vehicle in connection with that business, or assigns 

employees to operate it.

You are further instructed that a person may be considered the employee 

of more than one employer at one time as to the same act, if the service to 

one does not involve the abandonment of the service to the other.

These definitions for employer and employee are pulled from the Federal Motor Carrier 

Safety Regulations (FMCSR). Concerning these definitions, appellants made the 

following objection to the trial court: “Omega Freight, which is the last one on the list, is 

not a motor carrier. It’s not a driver. It’s a broker. So these definitions would not apply to 

Omega Freight.” The objection made no mention of ANCA or JNM. Appellants also did 

not complain that the definitions were erroneous; rather, they complained that the 

definition did not apply to Omega. In contrast, appellants make the following argument on 

appeal: “Congress did not intend drivers to benefit from the ‘employment’ definitions of 

the [FMSCR] in lawsuits against the motor carriers who hired them.” In other words, they 

argue that the definitions are improper because the FMCSR is intended to protect thirdparty members of the public, not the employees themselves. They additionally argue on 

appeal that the FMSCR definitions “do not alter state-law employment relationships.” 

However, none of the objections to the charge raised on appeal comport with the 

objections appellants made to the trial court. See Saenz-Guerrero, 587 S.W.3d at 194. 

Therefore, this issue is not preserved for our review. See id.; see also TEX. R. APP. P.

33.1.; TEX. R. CIV. P. 272 (stating that any objections to the charge that are not presented 
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to the trial court in writing or dictated to the court reporter in the court’s presence before 

the charge is read to the jury “shall be considered waived”).

Appellants additionally assert as part of their first issue that the trial court erred by 

failing to submit jury questions on the common-law defenses of sole proximate cause and 

comparative fault. However, a trial court is not required to submit any question or 

instruction to the jury unless it is first offered in writing and in “substantially correct 

wording.” See TEX. R. CIV. P. 278; Pittman v. Lightfoot, 937 S.W.2d 496, 514 (Tex. App.—

San Antonio 1996, writ denied). Additionally, appellants need to demonstrate that the 

proposed questions assist the jury, accurately state the law, and find support in the 

pleadings and evidence. See Hawley, 284 S.W.3d at 856; Ohrt, 398 S.W.3d at 338. 

Appellants’ proposed charge included the following definition for sole proximate cause:

There may be more than one proximate cause of an occurrence, but if an 

act or omission of any person not a party to the suit was the ‘sole proximate 

cause’ of an occurrence, then no act or omission of any party could have 

been a proximate case [sic].

(emphasis added). But there were no allegations or evidence produced at trial showing 

that any nonparty acted or failed to act in such a way as to be the proximate cause of 

Lauro’s injuries. Thus, appellants have failed to demonstrate that their proposed question 

on sole proximate cause accurately stated the law and was supported by the evidence. 

See Hawley, 284 S.W.3d at 856; Ohrt, 398 S.W.3d at 338. The trial court did not err in 

failing to submit a question on sole proximate cause.

Likewise, appellants complain that the trial court erroneously declined to submit a 

question on comparative fault. However, “a nonsubscribing employer is not entitled to a 

jury question on its employee’s alleged comparative responsibility.” Kroger Co. v. Keng, 
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23 S.W.3d 347, 352 (Tex. 2000). Because appellants do not dispute that the Businesses 

are nonsubscribing employers, the trial court did not err in failing to submit a question on 

comparative fault. See id. We overrule appellants’ first issue.

2. Gross Negligence Question

In two paragraphs, appellants argue that the trial court erred by including ANCA 

and Omega in jury questions seven and eight regarding gross negligence and the award 

of exemplary damages. More specifically, appellants complain that it was improper to 

include ANCA and Omega on these questions because appellees did not plead 

exemplary damages against ANCA and Omega, and during a pre-trial hearing on the 

parties’ motions in limine, the parties agreed not to submit any issues not specifically 

pleaded. However, appellants raised none of these issues below; they completely failed 

to bring any objections they had concerning questions seven and eight to the trial court’s 

attention. Appellants have waived this issue. See TEX. R. APP. P. 33.1; TEX. R. CIV. P. 272;

Saenz-Guerrero, 587 S.W.3d at 194. We overrule appellants’ sixth issue.

III. SUFFICIENCY OF THE EVIDENCE

Appellants argue that there is legally and factually insufficient evidence to support: 

the finding that the Businesses were all Lauro’s employers (issue two); the finding that 

the Businesses were negligent (issue three); and the award of damages to Irene (issue 

seven).

A. Standard of Review & Applicable Law

“The starting point generally of a legal or factual sufficiency review is the charge 

and instructions to the jury.” TXU Portfolio Mgmt. Co., L.P. v. FPL Energy, LLC, 529 
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S.W.3d 472, 492 (Tex. App.—Dallas 2016, no pet.) (Evans, J., dissenting); see Golden 

Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 762 (Tex. 2003) (observing that the 

starting point in a sufficiency review is generally the charge and instructions to the jury so 

that the reviewing court may have a “clear understanding of the evidence that is pertinent 

to its inquiry”). “Even if another legal theory was argued to the jury and explained by the 

lawyers in argument, we are bound by the instructions given to the jury and presume that 

the jury followed those instructions.” Seger v. Yorkshire Ins. Co., 503 S.W.3d 388, 407 

(Tex. 2016).

The evidence is legally insufficient if:

(1) the record discloses a complete absence of evidence of a vital fact; (2) 

the court is barred by rules of law or of evidence from giving weight to the 

only evidence offered to prove a vital fact; (3) the evidence offered to prove 

a vital fact is no more than a mere scintilla; or (4) the evidence establishes 

conclusively the opposite of a vital fact.

Bustamante v. Ponte, 529 S.W.3d 447, 455–56 (Tex. 2017); see City of Keller v. 

Wilson, 168 S.W.3d 802, 810 (Tex. 2005). More than a scintilla of evidence exists when 

the evidence supporting the finding, as a whole, “rises to a level that would enable 

reasonable and fair-minded people to differ in their conclusions.” Merrell Dow Pharms. v. 

Havner, 953 S.W.2d 706, 711 (Tex. 1997); Transp. Ins. v. Moriel, 879 S.W.2d 10, 25 (Tex. 

1994).

If the evidence is so weak as to do no more than create a mere surmise or 

suspicion of its existence, its legal effect is that it is no evidence. See Haynes & Boone v. 

Bowser Bouldin, Ltd., 896 S.W.2d 179, 182 (Tex. 1995), abrogated on other grounds by

Ford Motor Co. v. Ledesma, 242 S.W.3d 32 (Tex. 2007). Conversely, evidence 
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conclusively establishes a vital fact when the evidence is such that reasonable people 

could not disagree in their conclusions. See City of Keller, 168 S.W.3d at 814–17. In 

conducting a legal sufficiency review, we must consider the evidence in the light most 

favorable to the trial court’s findings and indulge every reasonable inference that would 

support them. See Bustamante, 529 S.W.3d at 456; City of Keller, 168 S.W.3d at 822.

Under a factual sufficiency review, we consider and weigh all of the evidence and 

set aside the judgment below only if it is so against the great weight and preponderance 

of the evidence so as to be wrong and unjust. See City of Keller, 168 S.W.3d at 826.

“Negligence actions in Texas require a legal duty owed by one person to another, 

a breach of that duty, and damages proximately caused by the breach.” Nabors Drilling, 

U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009) (internal quotations omitted). 

B. Analysis

1. Finding the Businesses to be Lauro’s Employers

As discussed above, appellants did not argue to the trial court that the definitions 

of “employer” and “employee” were incorrect; they only argued that the definition did not 

apply to Omega. Therefore, we are bound by the instructions given to the jury and

presume that the jury followed those instructions. See Seger, 503 S.W.3d at 407; Golden

Eagle Archery, 116 S.W.3d at 762.

Appellants argue that Lauro was only working for JNM at the time of the accident. 

Indeed, the evidence reflected that JNM owned the eighteen-wheeler that Lauro crashed 

and that JNM was the one paying Lauro; however, ANCA was the entity that originally 

hired Lauro. At the time of the crash, JNM was leasing the vehicle to ANCA, using ANCA’s 
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permits, and pulling a trailer owned by Allegiance.1 Additionally, Lauro wrote “ANCA” at 

the top of all his logs. Omega, as the dispatcher, had the opportunity to assign a different 

driver to this particular drive but instead assigned Lauro. The crash report generated by 

the Alabama police investigators listed Omega as the employer and listed Omega’s 

unique Department of Transportation number.

Thus, there was ample evidence that JNM and ANCA were engaged in a business 

affecting interstate commerce and that each of them either owned or leased a commercial 

motor vehicle in connection with that business. Likewise, there was sufficient evidence to 

demonstrate that Omega assigned employees to operate said motor vehicle. Thus, based 

on the instruction provided to the jury in this case, we hold that the evidence was legally 

and factually sufficient to support the jury’s finding that all three of the Businesses were 

the employers of Lauro. See Port Elevator-Brownsville v. Casados, 358 S.W.3d 238, 242 

(Tex. 2012) (observing that for worker’s compensation negligence claims, an employee

may have more than one employer); Wingfoot Enters. v. Alvarado, 111 S.W.3d 134, 143 

(Tex. 2003) (holding that an individual was the employee of both the temporary staffing 

agency and the client company that directed the details of his work). We overrule the 

appellants’ second issue.

2. Finding the Businesses to be Negligent

Even though appellants do not dispute that Lauro suffered actual harm, they 

challenge the existence of a legal duty, whether they breached any duty, and the 

existence of proximate cause.

1 Although not a party to this appeal, Allegiance is another business entity owned by the Marins.
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Appellants first contest the jury’s finding on the legal duty, alleging that Lauro’s 

decision to drive was voluntary and that they have no duty to protect employees from 

“hazards that are commonly known or already appreciated by employees.” Nabors 

Drilling, 288 S.W.3d at 412. In Nabors Drilling, the Texas Supreme Court concluded: “we 

do not impose a duty to train employees regarding the commonly-known dangers of 

driving while fatigued.” Id. at 413. Lauro admitted that he was tired and that he was aware 

that driving an eighteen-wheeler while fatigued was “careless.” However, appellants 

admitted at trial that under federal law, they were obligated to ensure that drivers follow 

the federal regulations to prevent driver fatigue.

The Marins and their drivers are required under federal regulation to keep accurate 

logs to record their driving hours. Drivers must go off-duty for thirty-four consecutive hours 

after sixty consecutive hours on the road in a seven-day period, or after driving seventy 

consecutive hours in an eight-day workweek (the “thirty-four-hour rule”). Lauro testified 

that he ignored the thirty-four-hour rule by order of the Marins because he was afraid of 

losing his job if he declined. Another driver who previously worked for the Marins, Alberto 

Ybarra, also testified that the Marins regularly pushed their drivers to ignore the thirtyfour-hour rule.

Lauro claimed that on May 4, 2015, he was completing a roundtrip from the Rio 

Grande Valley to Jessop, Maryland. According to Lauro, this roundtrip is long enough that 

a driver would ordinarily need a thirty-four-hour rest upon coming home before heading 

back out to comply with federal regulations. However, Lauro testified that Jorge called 

him as he was completing the trip and asked Lauro to go immediately back to Jessop. 
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Lauro told Jorge that he needed rest and that his logbook would show that he legally 

cannot be on the road. However, according to Lauro, Jorge told him to “move [his] logbook 

back.” Lauro began his drive back to Jessop, Maryland at 5 a.m. on May 5, meaning it 

was impossible to have gotten the thirty-four hours of required rest. Lauro crashed while 

on this drive.

While it is true that employers do not need to generally protect or warn employees 

of commonly known hazards, it is also true that employers have a duty to ensure their 

employees follow applicable regulations. See 49 C.F.R. § 390.11 (“Whenever in part 325 

of subchapter A or in this subchapter a duty is prescribed for a driver or a prohibition is 

imposed upon the driver, it shall be the duty of the motor carrier to require observance of 

such duty or prohibition.”); N. Am. Van Lines, Inc. v. Emmons, 50 S.W.3d 103, 113 (Tex. 

App.—Beaumont 2001, pet. denied) (finding the employer had a legal duty when they 

“had the right to inspect records to ensure [employees’] compliance with the law and with 

their driver requirements and safety regulations,” and when the employer had the 

authority to administer discipline for violation of those regulations, and they had the ability 

to prevent drivers from “making further hauls for them”); D. Houston, Inc. v. Love, 92 

S.W.3d 450 (Tex. 2002) (concluding that even though drinking while driving is a 

commonly known hazard, the employer “has a duty to take such action as a reasonably 

prudent employer under the same or similar circumstances would take to prevent the 

employee from causing an unreasonable risk of harm to others”); see also Sentry Select 

Ins. Co. v. Drought Transp., LLC, 15-CV-890 (RCL), 2017 WL 5382168, at *2 (W.D. Tex. 

May 3, 2017) (mem. op.) (observing that a motor carrier has a duty to require its drivers 
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to observe duties proscribed under federal law, and that if an employer “fails to enforce 

those duties, it may be liable for its own negligence in failure to follow the FMSCR”). 

Therefore, appellants owed Lauro a duty to ensure he followed federal regulations 

regarding driver fatigue and did not cause an unreasonable risk of harm to others.

Appellants next argue that there is no evidence of breach when an employer simply 

requires an employee to do his job. See Great Atlantic & Pac. Tea Co. v. Evans, 175 

S.W.2d 249, 251 (Tex. 1943). However, the evidence at trial established that appellants 

went beyond simply requiring Lauro to perform his job. If they simply required him to 

perform his job, they would have followed federal regulations and allowed him to rest for 

thirty-four hours before heading back out. Instead, according to evidence produced at 

trial, they insisted on Lauro taking another driving trip without taking the required off-time 

in between. Likewise, despite the federal requirement to maintain accurate logbooks, the 

evidence showed that appellants did not maintain accurate logbooks and encouraged 

their employees to falsify log entries to avoid violations of the thirty-four-hour rule. In other 

words, instead of ensuring Lozano followed federal regulations, appellants actively 

encouraged Lozano to violate federal regulations. Therefore, we conclude there was 

sufficient evidence of a breach of duty.

Lastly, appellants argue that there is insufficient evidence of proximate causation. 

They argue that their own failure to keep accurate logbooks did not cause the accident in 

question. Likewise, they argue the accident was not caused by the allegedly falsified 

logbook entries or appellants’ alleged insistence on breaking federal regulations. Instead, 

they assert that the accident was proximately caused by Lauro’s voluntary decision to 
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“intentionally ignore the known risks of driving while fatigued.” However, if appellants had 

followed federal regulations, Lauro would not have been on the road at all. Lauro informed 

appellants that he needed more rest time according to his log book. The only reason 

Lauro was driving at all was because of appellants’ insistence that he falsify his logs and 

break the thirty-four-hour rule. Being involved in a motor-vehicle accident is a foreseeable 

danger of asking Lauro to drive without the required off-time, encouraging Lauro to falsify 

his logs, and then requiring him to drive across country. See Emmons, 50 S.W.3d at 113. 

Lauro additionally testified that he was afraid to disobey the appellants’ requests for fear 

of being fired. There was sufficient evidence that appellants proximately caused Lauro’s 

damages.

In summary, appellants owed their drivers a duty to ensure that they did not drive 

in violation of federal regulations concerning driver fatigue. There was evidence that 

federal regulations require employers to keep accurate logs and to enforce the thirty-fourhour rule with their drivers. According to Lauro and Ybarra, appellants consistently 

encouraged their drivers to ignore federal regulations and actively insisted that the 

employees falsify their logbooks so as to avoid compliance with the thirty-four-hour rule. 

Appellants conceded that they were required to know and follow federal regulations, yet 

the evidence also suggested that appellants failed to maintain accurate logs. The record 

reflects that Jorge was fully aware that Lauro would be unable to comply with the thirtyfour-hour rule and yet asked him to complete this trip. Additionally, the record reflects that 

Lauro would not have been driving but for appellants’ insistence. And this sort of accident 

was foreseeable because the federal regulations concerning driver fatigue were designed 
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to prevent this type of accident. Therefore, we conclude that that there was legally and 

factually sufficient evidence to support a negligence finding. See Bustamante, 529 

S.W.3d at 455. We overrule appellants’ third issue.

3. Damages for Irene

In their seventh issue, appellants argue that there was legally and factually 

insufficient evidence concerning Irene’s damages. Appellants also assert that it was error 

to even submit question four concerning damages to Irene, let alone award her damages, 

because she was not defined as a plaintiff in the petition.

The jury awarded Irene $100,000 for loss of past household services, $200,000 

for loss of future household services, $275,000 for past loss of consortium, and $550,000 

for future loss of consortium. Appellants complain that question four should not have been 

submitted to the jury because the petition never specifically sought consortium damages 

for Irene. However, the petition did ask for loss of consortium damages, which would by 

necessity be meant for Irene because Lauro cannot recover loss of consortium in this 

case. And the petition prayed that Irene recover actual damages from appellants. We 

conclude the trial court did not err in submitting question four.

Additionally, concerning the sufficiency of the evidence supporting the award of 

damages to Irene, appellants simply assert:

Appellees testified that, since his accident, Lozano no longer cuts the grass, 

takes out the trash, uses a ladder, or changes the oil in his truck. “[N]o 

reasonable view of the evidence (or common knowledge and experience)” 

supports a finding of $100,000 in the past and $200,000 in the future for 

loss of these household services based on this testimony
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Appellants fail to cite the record at all during this argument, and they only cite a single 

case, without any explanation as to how the case supports their position. Appellants fail 

to explain why the damages awarded to Irene are insufficient legally and factually. Thus, 

this part of the issue is inadequately briefed. See TEX. R. APP. P. 38.1(i). We overrule 

appellants’ seventh issue.

IV. ADMISSION OF EVIDENCE

In their fourth issue, appellants claim that the trial court erred by admitting Lauro’s

medical and insurance records. In their fifth issue, appellants argue that the trial court 

erred by admitting appellants’ tax returns and a release of lien during the liability phase 

of trial.

A. Standard of Review & Applicable Law

To obtain reversal of a judgment based on error in the admission or exclusion of 

evidence, an appellant must show that the trial court’s ruling was in error and that the 

error was calculated to cause, and probably did cause, the rendition of an improper 

judgment. See TEX. R. APP. P. 44.1(a)(1).

“If a party objects to certain evidence, but later does not object when the same 

evidence is introduced, the party waives its objection.” Duperier v. Tex. State Bank, 28 

S.W.3d 740, 755 (Tex. App.—Corpus Christi–Edinburg 2000, pet. dism’d by agr.); see 

Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004) (“The general rule 

is error in the admission of testimony is deemed harmless and is waived if the objecting 

party subsequently permits the same or similar evidence to be introduced without 

objection.”). However, even when similar evidence is introduced without objection, the 
18

error may be preserved if a party obtained an earlier running objection. See Katy Intern., 

Inc. v. Jinchun Jiang, 451 S.W.3d 74, 94 (Tex. App.—Houston [14th Dist.] 2014, pet. 

denied) (“If a party later permits the same or similar evidence to be introduced without 

objection, the error in the admission of testimony generally is harmless and is waived, 

unless the party obtains a running objection.”). “A properly framed running objection can 

extend to testimony by all witnesses pertaining to the same type of evidence.” Huckaby 

v. A.G. Perry & Son, Inc., 20 S.W.3d 194, 203 (Tex. App.—Texarkana 2000, pet. denied). 

For a running objection to apply to multiple witnesses, the objection must plainly identify 

the source of the objectionable testimony, the subject matter of the expected 

objectionable testimony, and “the ways the testimony would be brought before the jury.” 

Ramirez, 159 S.W.3d at 907; see Katy Intern., 451 S.W.3d at 94 (finding that error was 

not preserved when one party obtained a running objection to an individual’s testimony 

regarding the value of stock, but the party did not object later at trial when a different 

individual testified as to the value of stock); Huckaby, 20 S.W.3d at 203 (finding that error 

was not preserved when the party requested: “Judge, may we have a running objection 

to any—this officer testifying about any problems with the design of the road” but the party 

did not object to similar testimony from another witness).

B. Analysis

1. Insurance and Medical Records

Eleven days before trial, appellees filed their notice of filing of medical records 

affidavit and notice of filing of billing record affidavits. Appellants objected based on 

untimeliness, and the trial court sustained the objection. At trial, Lauro offered a letter 
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from his insurer, Blue Cross Blue Shield (BCBS), with an attached statement of benefits. 

Outside of the presence of the jury, appellants objected to the BCBS records, arguing 

that they failed the authenticity test and they constituted hearsay. The trial court overruled 

the objections. Lauro also offered medical records, which appellants objected to on 

hearsay grounds. Appellants also asserted that the trial court had in essence already 

sustained this objection by excluding Lauro’s medical record affidavits as untimely. The 

trial court overruled the objection and told appellants that they can have a running 

objection “when they offer them in front of the jury.” When Lauro discussed the medical 

records in front of the jury, appellants objected by stating, “Same objection as before.” 

When Lauro testified concerning the BCBS records, appellants objected “on grounds of 

hearsay and authenticity,” which the trial court overruled.

Later at trial, Irene testified concerning the same BCBS records. She testified that 

these records reflected “the medical charges because of [the] accident.” She testified that 

the records showed how much BCBS had paid—$184,000.34—and the total amount 

billed—$609,680.49. Appellants did not object to this testimony. We find that the running 

objection made during trial was not specific enough as to apply to other witnesses such 

as Irene. See Huckaby, 20 S.W.3d at 203. And because appellants did not object when 

similar evidence was introduced through Irene, appellants have waived this issue. See 

Duperier, 28 S.W.3d at 755. We overrule appellants’ fourth issue.

2. Tax Returns and Release of Lien

Because appellees sought exemplary damages, appellants moved to bifurcate the 

trial. The trial court granted the motion to bifurcate. During trial, appellees offered 
20

appellants’ tax returns, including the personal tax returns for the Marins. Appellants 

objected, citing the bifurcation order and asserting that the evidence constituted improper 

net worth evidence. Appellees argued in response that appellants had opened the door 

to net worth evidence by suggesting that they do not make much money as a small “mom 

and pop” business. The trial court overruled appellants’ objection. Appellees also offered 

a release of lien, which showed that the Marins could not have repaid a construction loan 

without using business assets. The Lozanos offered the release of lien to support piercing 

the corporate veil; the Lozanos argued that the release of lien demonstrated that the 

Marins used business assets for personal use. Appellants objected to the release of lien 

as irrelevant, inflammatory, prejudicial, and inadmissible during the liability phase of trial. 

The trial court overruled appellants’ objections.

However, before the tax returns or the release of lien were offered, Ybarra testified, 

estimating appellants’ potential wealth, size, and income as of 2015. Appellants did not 

object to this testimony. Because appellants did not object when similar net worth 

testimony was offered through Ybarra, appellants have waived this issue. See id.

Additionally, even if the issue was preserved, appellants have not adequately 

demonstrated that this alleged error was calculated to cause, and probably did cause, the 

rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1). Appellants argue that 

the jury’s award of excessive damages suggests that the jury was unfairly prejudiced by 

the introduction of the net worth testimony. However, appellants fail to explain how or why 

approximately $5,000,000 in actual damages is excessive for a case involving a major 

eighteen-wheeler accident in which Lauro was seriously injured. We overrule appellants’ 
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fifth issue.

V. EXEMPLARY DAMAGES

In their eighth issue, appellants argue the trial court erred by holding the Marins

jointly and severally liable for the damages, including the exemplary damages. By their 

ninth issue, appellants argue that the exemplary damages were unsupported by the 

evidence and excessive.

A. Standard of Review and Applicable Law

“Gross negligence consists of both objective and subjective elements.” Goodyear 

Tire & Rubber Co. v. Rogers, 538 S.W.3d 637, 644 (Tex. App.—Dallas 2017, pet. denied).

To prevail on a gross negligence claim, the plaintiff must prove by clear and convincing 

evidence that:

(1) when viewed objectively from the defendant’s standpoint at the time of 

the event, the act or omission involved an extreme degree of risk, 

considering the probability and magnitude of the potential harm to others, 

and (2) the defendant had actual, subjective awareness of the risk involved, 

but nevertheless proceeded with conscious indifference to the rights, safety, 

or welfare of others.

Id. Clear and convincing means “the measure or degree of proof that will produce in the 

mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought 

to be established.” Id.

We review the excessiveness of an exemplary damages award as a factual 

sufficiency challenge. See Barnhart v. Morales, 459 S.W.3d 733, 749 (Tex. App.—

Houston [14th Dist.] 2015, no pet.).

We will not set aside an exemplary damages award unless, after reviewing 

the entire record, we determine the exemplary damages award is so 

contrary to the overwhelming weight and preponderance of the evidence as 
22

to be clearly wrong and manifestly unjust. When determining whether 

an exemplary damage award is excessive, we consider the following 

factors: (1) the nature of the wrong; (2) the character of the conduct 

involved; (3) the degree of culpability of the wrongdoer; (4) the situation and 

sensibilities of the parties; and (5) the extent to which such conduct offends 

a public sense of justice and propriety.

Id. (internal citations omitted); see Alamo Nat. Bank v. Kraus, 616 S.W.2d 908, 910 (Tex. 

1981).

Exemplary damages must be reasonably proportioned to the actual damages. See 

Alamo Nat. Bank, 616 S.W.2d at 910. While there is no bright-line, concrete limit on 

exemplary damages, “in practice, few awards exceeding a single-digit ratio between 

punitive and compensatory damages, to a significant degree, will satisfy due process.” 

See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003). 

B. Analysis

1. Joint and Several Liability for the Marins

Appellants argue that the Marins should not have been held jointly and severally 

liable for any of the damages awarded against the Businesses because there was 

insufficient evidence to support a finding that the Marins were the alter ego of the 

Businesses.

Jury questions five and six asked whether the Marins were “responsible” for the 

conduct of the Businesses. These questions were submitted because appellees asserted 

that the Marins were the alter egos of the Businesses, and thus, these questions sought 

to pierce the corporate veil to hold the Marins personally responsible for the actions of the 

Businesses.
23

Under Texas law, corporations are presumed to be separate entities from their 

officers and shareholders. See Richard Nugent and CAO, Inc. v. Estate of Ellickson, 543 

S.W.3d 243 (Tex. App.—Houston [14th Dist.] 2018, no pet.). However, the alter ego 

theory, which is an equitable doctrine, “is a basis for disregarding the corporate fiction, 

where a corporation is organized and operated as a mere tool or business conduit of 

another corporation.” Dominguez v. Payne, 112 S.W.3d 866, 869 (Tex. App.—Corpus 

Christi–Edinburg 2003, no pet.) (internal quotations omitted).

Alter ego is shown from the total dealings of the corporation and the 

individual, including the degree to which . . . corporate and individual 

property have been kept separately, the amount of financial interest, 

ownership and control the individual maintains over the corporation, and 

whether the corporation has been used for personal purposes.

Id. at 870.

The evidence at trial established that Jorge was the sole owner and operator of 

ANCA and JNM. Likewise, he and Silvia were the sole operators of Omega. All decisions 

concerning the Businesses, including income and capital flow, were controlled by the 

Marins. According to testimony at trial, Silvia was involved in all three of the Businesses. 

She handled paperwork, paid the employees, and verified driver logs and fuel receipts. 

Silvia specifically had control over reviewing how many hours Lauro had been on the road 

and whether he should be allowed to drive under the FMSCR. Additionally, evidence 

produced at trial suggested that the Marins used business funds to purchase real 

property. Based on the tax returns and release of lien, the record shows that in July 2015, 

the Marins borrowed $191,400 to purchase a new house. However, the record reflected 

that Jorge’s income in 2015 was only $35,000. Jorge filed an individual tax return and 
24

included JNM on the tax return. Approximately six months later, the entirety of the house 

loan was paid off and the lien was released. Silvia testified that they had financing on the 

home but she provided no evidence. Weighing the evidence before it, the jury could have 

concluded that it was impossible for the Marins to pay off the entire house loan without 

using corporate funds. We conclude that the evidence was legally and factually sufficient 

to support the jury’s alter ego finding and hold the Marins jointly and severally responsible 

for the actions of the Businesses. See Dominguez, 112 S.W.3d at 869; see also Tryco 

Enterprises, Inc. v. Robinson, 390 S.W.3d 497, 509 (Tex. App.—Houston [1st Dist.] 2012, 

pet. dism’d) (finding that there was sufficient evidence to support a finding of joint and 

several liability against a married couple when they were the sole owners of several 

corporations, exercised absolute control over those corporations, shared employees 

between the corporations, used the same offices for the corporations, maintained a 

significant financial interest in the corporations, and used the corporations for personal

purposes).

Jury question seven asked the jury to determine whether Lauro’s harm resulted 

from the gross negligence of JNM, Omega, and/or ANCA. During the charge conference, 

appellees stated: “we’re not seeking punitive damages against either of [the Marins] 

individually, and their names were dropped [from jury question seven].” No negligence or 

gross negligence questions were submitted to the jury concerning the Marins. 

Nevertheless, the trial court’s judgment awarded exemplary damages against the Marins 

jointly and severally along with the Businesses. On appeal, appellees do not address the 

propriety of awarding exemplary damages against the Marins jointly and severally. 
25

Concerning the award of exemplary damages against multiple defendants: “In any 

action in which there are two or more defendants, an award of exemplary damages must 

be specific as to a defendant, and each defendant is liable only for the amount of the 

award made against that defendant.” TEX. CIV.PRAC. & REM. CODE ANN. § 41.006. Several 

courts have interpreted this to unambiguously mean that there can be no joint and several 

liability on exemplary damages. See Horizon Health Corp. v. Acadia Healthcare Co., Inc., 

520 S.W.3d 848, 873 (Tex. 2017); Computek Computer & Office Supplies, Inc. v. Walton, 

156 S.W.3d 217, 224 (Tex. App.—Dallas 2005, no pet.). Therefore, the trial court erred 

by awarding exemplary damages against the Marins jointly and severally. We reverse the 

portion of the trial court’s judgment that awards exemplary damages against the Marins 

jointly and severally. We partially sustain appellants’ eighth issue.

2. Sufficiency and Excessiveness of the Damages

By three paragraphs, the appellants argue that the jury’s award of actual damages 

was excessive and unsupported by the evidence because the “ratio of non-economic 

damages to economic damages [was] approximately 17:1.” However, appellants cite no 

authority for the proposition that any such ratio between non-economic damages and 

economic damages is improper. We consider this portion of their ninth issue to be 

inadequately briefed. See TEX. R. APP. P. 38.1(i).

Appellants also complain that the jury’s award of exemplary damages was 

unsupported and excessive. To be entitled to exemplary damages, appellees needed to 

prove, by clear and convincing evidence, both the objective and subjective prongs of 

gross negligence. See Rogers, 538 S.W.3d at 644. In other words, appellees needed to 
26

show that appellants’ actions objectively involved an extreme degree of risk and that 

appellants proceeded to act with indifference to the safety of others, despite subjective 

awareness of said risk. See id.

Appellants acknowledged at trial that the purpose of the federal regulations was to 

prevent fatigued drivers from driving because of the serious risk they posed to themselves 

and others. See 49 C.F.R. § 395.3. The evidence also showed that appellants regularly 

asked their drivers to falsify their logs to circumvent the regulations and drive excessive 

hours. According to Lauro, appellants specifically pushed him to drive on the crosscountry trip that resulted in his accident, despite being aware that he did not have 

sufficient off-duty time, per federal regulations, to prevent fatigue. Appellants even asked 

Lauro to falsify his logs so that he could go on this trip. We conclude that the evidence 

was sufficient to support a finding of gross negligence. See Elbar, Inc. v. Claussen, 774 

S.W.2d 45, 51 (Tex. App.—Dallas 1989, writ dism’d) (finding that there was sufficient 

evidence to support a gross negligence finding when the evidence showed that the 

company was aware that the driver’s logs did not comply with federal regulations); see 

also Andrews Transp., Inc. v. Ellison, No. 09-92-304 CV, 1994 WL 485745, at *4 (Tex. 

App.—Beaumont Sept. 8, 1994, no writ) (not designated for publication) (concluding that 

the facts supported an award of exemplary damages when a company “required or 

permitted its drivers to falsify logs in order to drive excess hours,” and the company was 

aware that “this policy would put drivers on the road who could hurt or kill fellow motorists 

just from fatigue”).
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Appellants further argue that the exemplary damages awarded were excessive. 

Appellees’ actual damages awarded totaled $5,005,006. Appellants compare this to the 

exemplary damages awarded by the jury, which was a total of $75,000,000, arguing that 

a 15:1 ratio is excessive. However, that is not the amount of exemplary damages awarded 

in the final judgment. The trial court reduced the exemplary damages from $25,000,000 

down to $2,910,012.68 for each business, for a total of $8,730,038.04. Because 

appellants make no arguments concerning whether $2,910,012.68 per business is 

excessive, we consider this issue to be inadequately briefed. See TEX. R. APP. P. 38.1(i). 

We overrule appellants’ ninth issue.2

VI. CUMULATIVE ERROR

By their tenth and final issue, appellants argue that even if we find none of the 

previous errors sufficient to warrant a new trial, the above errors cumulatively combine to 

create sufficient grounds for reversal and new trial.

It is true that a number of errors, although harmless when considered 

independently, may be harmful in their cumulative effect. See Gregory v. Chohan, 615 

S.W.3d 277 (Tex. App.—Dallas 2020, no pet. h.). To support reversal based 

on cumulative error, a complaining party must show that “based on the record as a whole, 

but for the alleged errors, the jury would have rendered a verdict favorable to it.” Id. We 

held that the trial court erred in holding the Marins jointly and severally liable on the 

exemplary damages, but otherwise, the trial court committed no error. Appellants have 

2 Even if appellants adequately briefed the issue, we note that using the actual exemplary damages 

awarded, the ratio between exemplary damages and actual damages is approximately 1.7:1. This is an 

amount that is unlikely to be found excessive. See Horizon Health Corp. v. Acadia Healthcare Co., Inc., 

520 S.W.3d 848, 880 (Tex. 2017).
28

not shown that but for that error, the jury would have rendered a verdict in their favor. See 

id. We overrule appellants’ tenth issue.

VII. CONCLUSION

We reverse the portion of the trial court’s judgment holding the Marins jointly and 

severally liable for the exemplary damages awarded against each of the Businesses and 

render judgment holding the Marins not jointly and severally liable on the exemplary 

damage awards. We affirm the remainder of the judgment.

NORA L. LONGORIA

Justice

Delivered and filed on the

22nd day of April, 2021.