Opinion filed March 19, 2020




                                       In The

        Eleventh Court of Appeals
                                    __________

                               No. 11-18-00063-CV
                                   __________

                      LEE ANN COLBERT, Appellant
                                          V.
  BRAD SMITH AND HALEY SMITH AND ROLLING PLAINS
  FUNERAL HOMES, INC. D/B/A SMITH FAMILY FUNERAL
                  HOME, Appellees


                     On Appeal from the 39th District Court
                            Haskell County, Texas
                         Trial Court Cause No. 12258


                     MEMORANDUM OPINION
      In this personal injury case, Appellant, Lee Ann Colbert, appeals from the trial
court’s take-nothing judgment rendered in favor of Appellees, Brad Smith and Haley
Smith and Rolling Plains Funeral Homes, Inc. d/b/a Smith Family Funeral Home
(collectively, “Smith”). At trial, Colbert argued that the charge submitted to the jury
should have included an ordinary negligence question, rather than only a premises
liability question. In her sole issue on appeal, Appellant challenges the trial court’s
failure to submit a jury question based on ordinary negligence. We reverse and
remand.
                                 Background Facts
      On September 12, 2014, Colbert was at the Smith Family Funeral Home to
make arrangements for her father’s burial. Smith provided a large picture frame to
Colbert so that she could display family photos during the funeral. The frame had
been stored away from the public in a locked storage room. A funeral home
employee informed Colbert of the frame’s weight and then handed the frame to
Colbert. As Colbert left the building carrying the frame and began descending the
stairs from the front porch of the funeral home, the glass slid out from the casing of
the frame and fell, causing severe injuries to Colbert’s lower leg and foot.
      Colbert sued Smith for both ordinary negligence and premises defect. Colbert
submitted a proposed jury charge and asked the trial court to submit questions based
on ordinary negligence and premises liability. However, the trial court submitted
only a premises liability question. The jury unanimously found that the occurrence
was not attributable to the negligence of Smith. The trial court accepted the verdict
and then rendered a take-nothing judgment against Colbert.
                                       Analysis
      At the outset, we must address Smith’s contention that Colbert’s failure to
strictly adhere to Rule 34.6 of the Texas Rules of Appellate Procedure prevents this
court from assessing the merits of Colbert’s case. Specifically, Smith argues that
the court cannot perform an assessment concerning the existence of a reversible error
because Colbert requested a partial reporter’s record but failed to file a statement of
Colbert’s appellate issues.
      In response, Colbert argues that she verbally notified Smith about her plan to
request a partial reporter’s record. In an appendix to her reply brief, Colbert points
the court to a call log and an e-mail exchange discussing that “the sole issue we are
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taking up is the charge issue related to whether an ordinary negligence question
should have been submitted.” However, it is well settled that documents attached as
appendices to briefs do not constitute part of the record of the case and cannot be
considered by this court on appeal. Hogg v. Lynch, Chappell & Alsup, P.C., 480
S.W.3d 767, 773 (Tex. App.—El Paso 2015, no pet.) (“Documents attached to a
brief as an exhibit or appendix, but not appearing in the appellate record, cannot be
considered on appellate review.”).
      Under the Texas Rules of Appellate Procedure, an appellant can request a
partial reporter’s record and “include in the request a statement of the points or issues
to be presented on appeal.” TEX. R. APP. P. 34.6(c)(1). The statement of points or
issues limits the issues to be presented on appeal and puts the other parties on notice
that the appellate court will presume the designated portions of the record constitute
the entire record for reviewing the stated issues. Id.; Mason v. Our Lady Star of Sea
Catholic Church, 154 S.W.3d 816, 819 (Tex. App.—Houston [14th Dist.] 2005, no
pet.). Any other party may then designate additional portions of the record that they
believe are relevant to the appeal. TEX. R. APP. P. 34.6(c)(2). “When an appellant
appeals with a partial reporter’s record but does not provide the list of points as
required by rule 34.6(c)(1), it creates the presumption that the omitted portions
support the trial court’s findings.” Richards v. Schion, 969 S.W.2d 131, 133 (Tex.
App.—Houston [1st Dist.] 1998, no pet.).
      But in Bennett v. Cochran, the supreme court held that the statement of points
or issues need not be included in the request for the reporter’s record so long as the
statement is made at such a time that the other side’s appellate posture is not
impaired. 96 S.W.3d 227, 229 (Tex. 2002). Bennett’s tardy statement of points or
issues was sufficient to satisfy Rule 34.6(c) because Cochran had more than two
months after he first received notice of Bennett’s statement of issues to file his
appellee’s brief, and Cochran did not argue that Bennett’s delay prevented him from
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identifying the relevant issues or supplementing the reporter’s record or that he had
insufficient time to adequately prepare his appellate arguments. Id. at 229–30. The
supreme court thus “adopted a more flexible approach in certain cases . . . when a
rigid application of Rule 34.6 would result in denying review on the merits, even
though the appellee has not established any prejudice from a slight relaxation of the
rule.” Id. at 229.
      Here, despite requesting a partial reporter’s record, Colbert failed to file a
statement of points or issues.     But Colbert filed her motion for new trial on
December 27, 2017. The partial reporter’s record was filed on April 23, 2018.
Colbert also unambiguously identified her intent to challenge the trial court’s failure
to include an ordinary negligence question in the jury charge when she filed her
appellate brief on May 23, 2018. Oral argument in this case did not occur until
May 16, 2019, almost a year after Colbert filed her appellate brief. Thus, Smith had
an opportunity to request that the reporter’s record be supplemented with additional
trial court proceedings. See Brawley v. Huddleston, No. 02-11-00358-CV, 2012 WL
6049013, at *2 (Tex. App.—Fort Worth Dec. 6. 2012, no pet.) (mem. op).
Moreover, Smith does not argue that Smith had insufficient time to prepare its
arguments or that it was otherwise prejudiced. See id. Accordingly, Colbert’s failure
to strictly comply with Rule 34.6(c)(1) does not prevent this court from considering
the merits of Colbert’s case. However, we do agree with Smith that, in the absence
of a statement of issues to be presented on appeal, we must presume that the omitted
portions of the record support the trial court’s judgment. See Richards, 969 S.W.2d
at 133.
      Smith also argues that affirmance is necessary because Colbert did not
challenge an independent ground for upholding the judgment. Smith urges that we
must affirm because Colbert did not raise an issue concerning the “no-negligence
findings made in answer to the premises-condition issue.” We acknowledge the
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“rule requiring an appellant to attack all independent grounds supporting a
judgment.” R.B. Hardy & Sons, Inc. v. Hoyer Glob. (USA), Inc., No. 01-09-00041-
CV, 2010 WL 2305753, at *2 (Tex. App.—Houston [1st Dist.] June 10, 2010, pet.
denied). However, we do not find this argument applicable to the case at hand. In
this case, the jury merely found that Smith was not liable for premises liability. The
jury did not make any finding on ordinary negligence. As discussed more fully
below, negligence and premises liability claims are separate and distinct theories of
recovery. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 775–76 (Tex. 2010).
Accordingly, Colbert was not required to attack the jury’s premises liability finding
in order to argue that the jury should have been able to consider a question on
ordinary negligence.
      Regarding the main issue before this court, Colbert appeals on the sole ground
that the trial court erred when it refused to include an ordinary negligence question
in the jury charge.
      A trial court must submit jury questions, instructions, and definitions that “are
raised by the written pleadings and the evidence.” TEX. R. CIV. P. 278; see also
Hyundai Motor Co. v. Rodriguez ex rel. Rodriguez, 995 S.W.2d 661, 663 (Tex.
1999). In reviewing alleged error in a jury submission, we consider “the pleadings
of the parties and the nature of the case, the evidence presented at trial, and the charge
in its entirety.” Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851,
862 (Tex. 2009) (citing Sterling Tr. Co. v. Adderley, 168 S.W.3d 835, 843 (Tex.
2005); Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass’n, 710 S.W.2d
551, 555 (Tex. 1986)). The alleged charge error “will be deemed reversible only if,
when viewed in the light of the totality of these circumstances, it amounted to such
a denial of the rights of the complaining party as was reasonably calculated and
probably did cause the rendition of an improper judgment.” Island Recreational,
710 S.W.2d at 555; see also Reinhart v. Young, 906 S.W.2d 471, 473 (Tex. 1995).
                                            5
Whether the condition that allegedly caused the plaintiff’s injury is a premises defect
is a legal question, which we review de novo. See Sampson v. Univ. of Tex. at Austin,
500 S.W.3d 380, 385 (Tex. 2016); Reliance Nat’l Indem. Co. v. Advance'd Temps.,
Inc., 227 S.W.3d 46, 50 (Tex. 2007); Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d
864, 866 (Tex. 2002) (per curiam); State v. Burris, 877 S.W.2d 298, 299 (Tex. 1994)
(per curiam); State Dep’t of Highways v. Payne, 838 S.W.2d 235, 238 (Tex. 1992).
      As stated on page three of Smith’s brief, Smith states that Colbert
“subsequently brought a suit alleging that she sustained her injury when unsecured
glass fell from the picture frame and struck her ankle.” Smith also states, “Colbert
pleaded claims based on premises-condition and negligent-activity allegations.”
Smith also alleges that “[t]he charge proposed by Colbert similarly asked the court
to submit premises-condition and negligent-activity issues.”
      In this appeal, Colbert urges that her injury was the result of a
contemporaneous, negligent activity—Smith providing the frame to Colbert.
Negligence and premises liability claims are separate and distinct theories of
recovery, requiring plaintiffs to prove different, albeit similar, elements to secure
judgment in their favor. Smith, 307 S.W.3d at 775–76. The elements of a premises
liability cause of action are (1) actual or constructive knowledge of a condition on
the premises by an owner or occupier; (2) the condition poses an unreasonable risk
of harm; (3) the owner or occupier fails to exercise reasonable care to protect against
the harm; and (4) the owner or occupier’s failure proximately caused the injuries.
Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983). Alternatively, to
recover under a theory of negligent activity, one must show that he was injured by
an activity or as a contemporaneous result of an activity and not by a condition
created by the activity. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992).
      Many courts have wrestled with the distinction between a condition and a
contemporaneous result of an activity. E.g., Skaggs Alpha Beta, Inc. v. Nabhan, 808
                                           6
S.W.2d 198, 200–01 (Tex. App.—El Paso 1991, no writ); Sibai v. Wal-Mart Stores,
Inc., 986 S.W.2d 702, 705–06 (Tex. App.—Dallas 1999, no pet.). One of the most
notable of these cases is Keetch v. Kroger. In Keetch, Linda Keetch sued after she
slipped and fell on a floral overspray that had collected on the floor of a Kroger
grocery store. 845 S.W.2d at 263. Keetch sought to hold Kroger liable on both a
negligent activity theory and a premises liability theory. Id. at 264. The trial court,
however, only submitted a question regarding premises liability to the jury. Id.
Keetch argued that the spraying that exposed her to the risk was the negligent
activity. The Texas Supreme Court disagreed. The court noted that the activity of
the spraying was not ongoing and had stopped half an hour before the accident. Id.
Thus, Keetch had not been injured by the activity of spraying. Instead, the overspray
on the floor became a condition of the premises and ceased to be a contemporaneous
result of the spraying.
      Keetch emphasized the time that elapsed between the spraying and the
accident in determining that the overspray had become a condition of the premises.
This suggests some permanence regarding the condition of a premises.              The
overspray had been on the ground long enough to become a condition.
      Comparatively, in Alamo Lumber Co. v. Pena, the Thirteenth Court of
Appeals made a similar distinction. 972 S.W.2d 800 (Tex. App.—Corpus Christi–
Edinburg 1998, pet. denied). When distinguishing between a negligent activity and
a premises defect, the court focused on the mobility of the instrumentality that
caused the injury. Id. at 804. In Alamo, the instrumentality was a tire that had been
driven while flat. Id. at 802. The inherent mobility of the tire prevented it from
becoming a premises defect. Id. at 804. Moreover, the tire was only a danger to the
man who was asked to work on it. Id. In contrast, something that posed a danger to
all working on the premises, such as a well, would be more reasonably seen as a


                                          7
condition of the premises. See id. (discussing Clayton W. Williams, Jr., Inc. v. Olivo,
952 S.W.2d 523, 526–27 (Tex. 1997)).
      In this case, the frame was not a condition of the premises. “The word
‘premises’ is commonly defined as ‘a building or part of a building with its grounds
or other appurtenances.’” Tex. Dep’t of Transp. v. Henson, 843 S.W.2d 648, 652
(Tex. App.—Houston [14th Dist.] 1992, writ denied) (quoting Billstrom v. Mem’l
Med. Ctr., 598 S.W.2d 642, 646 (Tex. App.—Corpus Christi–Edinburg 1980, no
writ)). “A legal definition of premises is ‘[l]ands and tenements; an estate, including
land and buildings thereon; . . . . Land and its appurtenances.’” Id. (quoting
Billstrom, 598 S.W.2d at 646).        The instrumentality—the frame—that caused
Colbert’s injury was inherently mobile, moveable, and portable. See id. at 653. This
is most plainly shown by the fact that Colbert was injured as she was carrying the
frame away from the funeral home. To that end, Colbert’s injury would not have
differed if she had actually left the funeral home before her foot was cut by the glass.
Additionally, the frame was not tied or attached to real property as a fixture. See
Alamo, 972 S.W.2d at 804. It is possible that this case would have had a different
result had Colbert been injured by a picture frame that was affixed to a wall in the
funeral home, but we need not consider that here. Moreover, similar to the tire in
Alamo, the frame did not pose a danger to all on the premises. The frame only posed
a danger to Colbert, and the danger to Colbert was directly attributable to the
contemporaneous activity of Smith.        Further, Colbert’s pleadings indicate that
liability theories beyond the realm of premises defects exist in this case. Colbert
alleged in her live petition at trial that Smith was negligent for “[f]ailing to warn
[Colbert] of the danger created by the unsafe frame,” for “[o]ffering the unsafe frame
to [Colbert],” and for “[p]ermitting [Colbert] to carry the unsafe frame.” We believe
the foregoing allegations are tantamount to “contemporaneous activity” allegations.
See Alamo, 972 S.W.2d at 804. In sum, Smith’s negligence, if any, arose from a
                                           8
contemporaneous activity and/or an instrumentality. Colbert’s injuries were not in
any way connected with the premises.
      The very nature of the allegation shows that an activity had to occur for
Colbert to be injured. Colbert’s injury resulted from the contemporaneous activity
of providing the frame to Colbert, rather than by a condition created by the activity.
See Wal-Mart Stores, Inc. v. Garza, 27 S.W.3d 64, 67 (Tex. App.—San Antonio
2000, pet. denied).
      In light of this holding, we must consider whether the trial court erred by
refusing to submit an ordinary negligence question to the jury. Rule 278 of the Texas
Rules of Civil Procedure provides that “[t]he court shall submit the questions,
instructions and definitions in the form provided by Rule 277, which are raised by
the written pleadings and the evidence.” This rule requires trial courts to submit
requested questions to the jury if the pleadings and any evidence support them.
Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992). To determine whether legally
sufficient evidence supported Colbert’s ordinary negligence submission, we must
examine the record for evidence supporting Colbert’s question and ignore all
evidence to the contrary. See id. “A trial court may refuse to submit an issue only
if no evidence exists to warrant its submission.” Id. However, in this instance, we
must presume the omitted parts of the record support the judgment of the trial court,
as Colbert failed to request an entire reporter’s record or file a statement of issues to
be presented on appeal. See Garcia v. Sasson, 516 S.W.3d 585, 591 (Tex. App.—
Houston [1st Dist.] 2017, no pet.).
      In order to determine whether Colbert’s question should have been presented
to the jury, we must examine the record to see if there is some evidence that Smith
was negligent in providing Colbert with the frame. If we find such evidence, then
we must conclude that the trial court should have submitted Colbert’s requested
ordinary negligence question, and accordingly, we must reverse. See id.
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      At trial, Colbert put forth evidence that the frame was dangerous to send home
with customers. Martha Sue McCurley, an employee of Smith, testified that the
frame was kept in a locked storage room. McCurley also testified that she warned
Colbert that the frame was heavy before giving it to Colbert and that she did not
inspect the frame to make sure it was safe. Brad Smith, the owner of Smith Family
Funeral Home, also testified that he would not have given the frame to Colbert but
that he never told his employees not to send the frame home with customers.
Although McCurley and Smith testified that they believed that Colbert was injured
because she fell, Colbert’s brother testified that Colbert did not fall but, rather, that
the glass slid out of the frame and cut Colbert’s foot. Taken together, this evidence
amounts at least to some evidence supporting Colbert’s assertion of Smith’s
negligence. Accordingly, the trial court should have submitted it to the jury. See
Sw. Bell Tel. Co. v. Thomas, 554 S.W.2d 672, 674 (Tex. 1977) (trial court must
submit issues if there is “some evidence” of contributory negligence).
      Additionally, Colbert properly preserved error regarding the trial court’s
wrongful refusal to include the ordinary negligence question in the jury charge.
Colbert objected during the charge conference that the court’s submission failed to
include an ordinary negligence question.         Colbert also submitted an ordinary
negligence question in “substantially correct wording” as required by Rule 278. See
TEX. R. CIV. P. 278.      Specifically, Colbert’s proposed question was “Did the
negligence, if any, of those named below proximately cause the occurrence in
question?” See STATE BAR      OF   TEX., TEXAS PATTERN JURY CHARGES—GENERAL
NEGLIGENCE PJC 4.1 (2018).
      Because the trial court erred in failing to include Colbert’s proposed ordinary
negligence question, we must determine whether this was reversible error. Charge
error requires reversal when it “probably caused the rendition of an improper
judgment.” TEX. R. APP. P. 44.1(a)(1). When determining whether charge error
                                           10
probably caused an improper judgment, we examine the entire record. Transcon.
Ins. Co. v. Crump, 330 S.W.3d 211, 225 (Tex. 2010). “Charge error is generally
considered harmful if it relates to a contested, critical issue.” Hawley, 284 S.W.3d
at 856.
        Here, in consideration of the standards set forth above, we find that this charge
error was harmful. Whether Colbert’s claim sounded in ordinary negligence or
premises liability was a contested, critical issue in this case. Moreover, negligence
and premises liability claims are not interchangeable. United Scaffolding, Inc. v.
Levine, 537 S.W.3d 463, 471 (Tex. 2017).                         By not submitting the ordinary
negligence question, the trial court denied the jury the opportunity to consider
whether Smith was negligent in that context. Because this case is not a premises
defect case, the charge to the jury was erroneous, and the jury’s answer was not
supported by the evidence. In this case, even though we have presumed the omitted
portions of the record are relevant and support the judgment of the trial court, the
partial record submitted by Colbert demonstrates error. Accordingly, we sustain
Colbert’s sole issue.
                                         This Court’s Ruling
        We reverse the judgment of the trial court and remand the cause for further
proceedings.


March 19, 2020                                                     KEITH STRETCHER
Panel consists of: Bailey, C.J.,                                   JUSTICE
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.


        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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