                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00304-CV


TAMMIE JONES                                                         APPELLANT

                                        V.

NATALIA FERNANDEZ CORTES                                               APPELLEE


                                     ----------

          FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

                                     ----------

                         MEMORANDUM OPINION1
                                     ----------

      Following a jury verdict in favor of appellee Natalia Fernandez Cortes,

appellant Tammie Jones appeals the trial court‘s take-nothing judgment on her

negligence and gross negligence claims, which she brought as a result of injuries

she says she sustained by falling in appellee‘s home. In appellant‘s first issue,

she contends that the trial court erred by charging the jury based on her status as

a licensee rather than an invitee and by stating in a supplemental jury charge that

      1
       See Tex. R. App. P. 47.4.
appellee‘s knowledge of potential danger to appellant was required to exist ―at

the time of the occurrence in question.‖ In her second issue, appellant argues

that the trial court erred by denying her motion for leave to join Carolina Cortes,

appellee‘s sister-in-law, as an additional party and by striking appellant‘s fifth

amended petition, which attempted to join Carolina. We affirm.

                                Background Facts

      Appellant is a licensed vocational nurse. In 2004, she contracted to work

at homes where she cared for critically ill children. According to appellant, in

March of that year, while she was in appellee‘s house to care for Carolina‘s infant

son, who had just been released from a hospital, appellant slipped and fell on a

wet, slick floor.2 At the time of the slip-and-fall incident, appellee was not at

home.     Over the course of the next several months, medical professionals

treated injuries to appellant‘s feet, neck, and shoulders.

      In March 2006, appellant sued appellee, alleging that the floor of

appellee‘s home had been recently mopped when appellant fell and that

appellee‘s negligence proximately caused appellant‘s injuries.3           Appellee

answered by asserting a general denial and pleading that appellant‘s own

negligence caused her injuries.


      2
      Appellant testified that when she fell, her ―whole body came down on [her]
shoulder.‖
      3
        Appellant later amended her petition several times. The fourth amended
petition added a claim for gross negligence and sought punitive damages.


                                          2
      After the jury heard evidence regarding appellant‘s claims, the trial court

charged the jury through the following language:

            QUESTION NO. 1:

            Did the negligence, if any, of [appellee or appellant]
      proximately cause the occurrence in question?

            ―Ordinary care,‖ when used with respect to the conduct of
      [appellee], as an owner or occupier of a premises, means that
      degree of care that would be used by an owner or occupier of
      ordinary prudence under the same or similar circumstances.

            With respect to the condition of the premises, [appellee] was
      negligent if:

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

            b.    [appellee] had actual knowledge of the danger, and

            c.    [appellant] did not have actual knowledge of the danger;
      and

            d.      [appellee] failed to exercise ordinary care to protect
      [appellant] from the danger . . . .[4]




      4
        This is the standard of care owed to a licensee rather than an invitee.
―An owner or occupier of land must use reasonable care to protect an invitee
from known conditions that create an unreasonable risk of harm and conditions
that should be discovered by the exercise of reasonable care.‖ Mayer v.
Willowbrook Plaza Ltd. P’ship, 278 S.W.3d 901, 910 (Tex. App.—Houston [14th
Dist.] 2009, no pet.) (emphasis added). On the other hand, ―[a]n owner or
occupier of land must refrain from injuring a licensee willfully, wantonly, or
through gross negligence; the owner or occupier who has actual knowledge of a
dangerous condition unknown to the licensee must warn of or make safe the
dangerous condition.‖ Id.; see State Dep’t of Highways & Pub. Transp. v. Payne,
838 S.W.2d 235, 237 (Tex. 1992) (op. on reh‘g) (―[A] licensee must prove that the
premises owner actually knew of the dangerous condition, while an invitee need
only prove that the owner knew or reasonably should have known.‖).


                                       3
      After receiving the charge, the jury asked the trial court in writing,

―Q[uestion] 1, Part B & C: Actual knowledge of the danger: pertain to that

specific date?‖   The court responded by issuing a supplemental charge that

stated, ―With regard to elements b & c, ‗knowledge‘ pertains to the time of the

occurrence in question.‖

      After deliberating, the jury found that neither appellee‘s nor appellant‘s

negligence proximately caused appellant‘s injuries. Based on the jury‘s verdict,

the trial court entered a take-nothing judgment and taxed appellee‘s costs

against appellant. Appellant brought this appeal.

                                Jury Charge Issues

      In part of her first issue, appellant argues that the trial court erred by

charging the jury about a standard of care that was based on her status as a

licensee rather than an invitee. She contends that throughout the litigation, she

had asserted her status as an invitee. Appellee contends that appellant waived

this part of her first issue, and we agree.

      The trial court must submit instructions and definitions that properly enable

the jury to render a verdict. Tex. R. Civ. P. 277. As we have stated many times,

however,

            To preserve a complaint for our review, a party must have
      presented to the trial court a timely request, objection, or motion that
      states the specific grounds for the desired ruling, if they are not
      apparent from the context of the request, objection, or motion. If a
      party fails to do this, error is not preserved, and the complaint is
      waived. The objecting party must get a ruling from the trial court.
      This ruling can be either express or implied.


                                          4
Magnuson v. Mullen, 65 S.W.3d 815, 829 (Tex. App.—Fort Worth 2002, pet.

denied) (footnotes and citations omitted); see Tex. R. App. P. 33.1(a); Faust v.

BNSF Ry. Co., 337 S.W.3d 325, 330 (Tex. App.—Fort Worth 2011, pet. filed)

(―An objection to the jury charge must timely and plainly make the trial court

aware of the complaint, and the complaining party must obtain a ruling.‖);

see also Tex. R. Civ. P. 274 (―A party objecting to a charge must point out

distinctly the objectionable matter and the grounds of the objection.

Any complaint . . . is waived unless specifically included in the objections.‖).

      ―There should be but one test for determining if a party has preserved error

in the jury charge, and that is whether the party made the trial court aware of the

complaint, timely and plainly, and obtained a ruling.‖ Payne, 838 S.W.2d at 241.

If a party fails to do this, error is not preserved, and the complaint is waived.

See Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh‘g).

      On April 5, 2010, appellant filed a document titled, ―Plaintiff‘s Supplemental

Proposed Instructions and Jury Questions.‖          This document requested the

inclusion of language that would have required the jury to apply a standard of

care associated with appellant‘s alleged status as an invitee while she worked in

appellee‘s home.5 But during a charge conference on April 7, 2010, appellant did



      5
       The proposed language would have instructed the jury to find appellee
negligent if appellee knew or reasonably should have known of a danger and
failed to adequately warn appellant of the danger or make the condition
reasonably safe.


                                          5
not mention the charge that she had proposed; instead, the following exchange

occurred:

              THE COURT: Back on the record. Let the record reflect that
        the attorney for the plaintiff and the attorney for the defense have
        both been provided copies of the proposed charge of the Court.
        They have had an opportunity to review the same. And outside the
        hearing and the presence of the jury, is there any objection to the
        Court‘s charge from the Plaintiff‘s perspective?

               [APPELLANT‘S COUNSEL]:          Your Honor, I would object to
        [appellant] being down as far as --   as being negligent. I don‘t think
        there is any evidence that she was    negligent. And other than that, I
        don’t think I have any, Your Honor.   [Emphasis added.]

The trial court overruled appellant‘s objection and submitted its charge to the

jury.

        There is no indication in the record that has been made available to us that

the trial court ever noticed or considered appellant‘s written proposed charge.

Appellant seems to suggest in a footnote in her brief either that part of her

objections to the jury charge were not recorded or that only part of the record

related to her objections to the jury charge has been filed.6 Appellee represents

in her brief, however, that appellant ―never objected to the court‘s charge on the

grounds that it applied the standard applicable to licensees rather than invitees.‖

―We cannot look outside the record in an effort to discover relevant facts omitted

by the parties; rather, we are bound to determine this case on the record as


        6
       During oral argument, however, appellant‘s counsel said that the ―reason
we . . . asked for a partial record is because there was no indication as far an
objection to the charge.‖


                                          6
filed.‖ Quorum Int’l. v. Tarrant Appraisal Dist., 114 S.W.3d 568, 572 (Tex. App.—

Fort Worth 2003, pet. denied) (citing Dominguez v. Gilbert, 48 S.W.3d 789, 794

(Tex. App.—Austin 2001, no pet.)).7

      Rule of civil procedure 276 provides in part, ―When an instruction,

question, or definition is requested and the provisions of the law have been

complied with and the trial judge refuses the same, the judge shall endorse

thereon ‗Refused,‘ and sign the same officially.‖ Tex. R. Civ. P. 276. Appellant‘s

proposed charge does not contain any such endorsement. And although an

endorsement is not the only means of obtaining a ruling, if there is no

endorsement, the record must establish that the trial court otherwise ruled on the

request, expressly or implicitly, for potential error to be preserved. See Tex. R.

App. P. 33.1(a); Marshall v. Harris Cnty. Mun. Util. Dist. No. 358, No. 01-07-

00910-CV, 2011 WL 286167, at *11–12 (Tex. App.—Houston [1st Dist.]

Jan. 20, 2011, pet. filed) (mem. op.) (holding that although the appellant filed a

proposed jury charge, the appellant did not preserve error because the trial court

did not endorse the proposed charge, and the appellant did not call the trial

      7
        We also note that in her request for the preparation of a partial reporter‘s
record, appellant did not include a statement of the points or issues she intended
to present. See Tex. R. App. P. 34.6(c)(1). And in her notice of appeal,
appellant did not state that she intended to appeal any issues related to the
court‘s initial jury charge. We must therefore presume that any omitted portions
of the reporter‘s record support the trial court‘s judgment on this issue.
See Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (explaining that
the burden is on an appellant to ensure that a sufficient record is presented to
show error); CMM Grain Co. v. Ozgunduz, 991 S.W.2d 437, 440 (Tex. App.—
Fort Worth 1999, no pet.).


                                         7
court‘s attention to the portions of the proposed charge that were complained

about on appeal); Coates v. Coates, No. 05-08-00440-CV, 2009 WL 679592,

at *2 (Tex. App.—Dallas Mar. 17, 2009, pet. denied) (mem. op.) (―Appellants do

not refer us to any place in the record where they drew the court‘s attention to

their pretrial jury charge in any way, so the filing of that document preserved no

error.‖); Munoz v. Berne Group, Inc., 919 S.W.2d 470, 472 (Tex. App.—San

Antonio 1996, no writ) (―Tendering this instruction to the court in the form of an

entire proposed charge, with nothing more, was insufficient to preserve error.‖).

      Appellant has not established that she called the trial court‘s attention to

her proposed jury charge and obtained a ruling on it.         In the brief charge

conference that has been made available to us, appellant represented that she

had no objections to the trial court‘s charge other than to the jury being asked to

determine whether she was negligent.          Under the authority cited above,

therefore, we hold that appellant waived her complaint about whether the jury

charge should have included a standard of care related to her alleged status as

an invitee rather than a licensee. See Tex. R. App. P. 33.1(a). We overrule that

part of appellant‘s first issue.

      In the second part of her first issue, appellant contends that the trial court

erred by giving the jury the supplemental charge described above. The record

does not establish that appellant objected to the supplemental charge.

In appellant‘s brief, she stated that she ―objected that the Court‘s proposed




                                         8
‗supplemental charge‘ to the jury . . . constituted a comment on the evidence.‖ 8

But during oral argument, appellant‘s counsel conceded, ―I don‘t believe that

there was an objection on the record to . . . the judge‘s . . . explanation to the jury

that . . . the defendant would have to . . . have knowledge of the occurrence at

the time of the incident.‖

      The    principles      of   error    preservation   discussed   above   apply   to

supplemental jury instructions.           See Bayer Corp. v. DX Terminals, Ltd., 214

S.W.3d 586, 602 (Tex. App.—Houston [14th Dist.] 2006, pet. denied); Golden v.

First City Nat’l. Bank in Grand Prairie, 751 S.W.2d 639, 642–43 (Tex. App.—

Dallas 1988, no writ). Because appellant has not shown that she timely objected

to the trial court‘s supplemental charge, we hold that she failed to preserve her

complaint about it, and we overrule the remainder of her first issue.

             Appellant’s Attempts to Join Carolina as a Defendant

      In her second issue, appellant argues that the trial court erred by refusing

to allow her to join Carolina as a defendant and by striking her fifth amended

petition, which attempted to join Carolina. A trial court is given a great deal of

discretion in matters of joinder, and ―its decision on such procedural issues will

not be disturbed on appeal absent an abuse of discretion.‖ Varme v. Gordon,

881 S.W.2d 877, 882 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (citing

Allison v. Ark. La. Gas Co., 624 S.W.2d 566, 568 (Tex. 1981)). A trial court‘s

      8
       Appellant made this claim in her motion for new trial, but the record does
not establish that she made the claim during the trial.


                                               9
enforcement of its scheduling orders is likewise reviewed for abuse of discretion.

Roskey v. Cont’l Cas. Co., 190 S.W.3d 875, 879 (Tex. App.—Dallas 2006, pet.

denied); G.R.A.V.I.T.Y. Enters., Inc. v. Reece Supply Co., 177 S.W.3d 537, 542

(Tex. App.—Dallas 2005, no pet.); see Clanton v. Clark, 639 S.W.2d 929, 930

(Tex. 1982) (stating that a trial court has a duty to expeditiously dispose of its

cases and explaining that the court therefore has ―wide discretion in managing its

docket‖).

      To determine whether a trial court abused its discretion, we must decide

whether the trial court acted without reference to any guiding rules or principles;

in other words, we must decide whether the act was arbitrary or unreasonable.

Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d

835, 838–39 (Tex. 2004).     We cannot conclude that a trial court abused its

discretion merely because we would have ruled differently in the same

circumstances. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549,

558 (Tex. 1995); see also Low, 221 S.W.3d at 620.

      Appellant filed her original petition in March 2006 (based on the slip-and-

fall accident that occurred in March 2004). She amended her petition several

times in the following months, but she did not join Carolina through any of those

amendments.9 In November 2006, the trial court entered a scheduling order that

established a pleading amendment deadline of June 11, 2007 and a trial date of

      9
        Appellant amended her petition in March 2006 (four days after filing the
original petition), March 2007, May 2007, and June 2007.


                                        10
June 25, 2007.     The day after the trial court signed the scheduling order,

appellee provided appellant with answers to interrogatories, including Carolina‘s

address.10

      In May 2007, appellant‘s counsel wrote a letter to appellee‘s counsel

stating that the address that appellee had provided for Carolina was incorrect.

Days later, appellee‘s counsel wrote a letter to appellant‘s counsel that stated in

part, ―[W]ith respect to the address of Carolina Cortes, you have as much

information as we have. I have confirmed once again that the address provided

is the only address my client has for [Carolina].‖

      The June 11, 2007 pleading amendment deadline passed without

appellant suing Carolina. On June 18, 2007, appellant filed a motion to compel

appellee to provide Carolina‘s current address. The trial did not begin on June

25, 2007; instead, on August 2, 2007, the trial court entered an amended

scheduling order that established a new pleading amendment deadline of August

3, 2007 and a trial date of October 15, 2007. The amended scheduling order

also contained a handwritten instruction stating, ―No additional parties may be

joined without approval of the Court.‖11      Counsel for appellant and appellee

signed the amended scheduling order.          Like the first pleading amendment



      10
        Carolina and her son stopped living with appellee in December 2004.
      11
        Appellant did not formally object to the handwritten instruction or any
other part of the scheduling order.


                                         11
deadline, the second deadline of August 3, 2007 passed without appellant joining

Carolina as a defendant.

      In September 2007, however, about a month before the scheduled trial

date, appellant sought leave to join Carolina. Appellant contended that she had

been ―prevented from discovering the whereabouts of Carolina‖ because

appellee had still not provided a valid address for her. Appellee responded to the

motion, contending that it was not timely and that the address provided for

Carolina was indeed valid. Appellant did not, however, initially obtain a hearing

on her motion for leave or a ruling on it. Instead, she requested a continuance.12

In March 2008, the trial court entered a second amended scheduling order that

established a new pleading amendment deadline of July 18, 2008 and a trial date

of September 29, 2008. Like the first amended scheduling order, the second

amended scheduling order also stated that no additional parties could be joined

without approval of the trial court.

      Once again, appellant did not join Carolina as a defendant before the

pleading amendment deadline. But she continued to ask the trial court to grant

leave to join Carolina, and she insisted that appellee had abused the discovery

process by not disclosing Carolina‘s correct address. Appellee, still opposing the




      12
       The motion for continuance was based in part on appellant‘s desire to
schedule a deposition for her surgeon.


                                       12
motion for leave, persisted in her argument that appellant had a valid address for

Carolina.13

          Following a hearing on July 31, 2008, the trial court denied appellant‘s

motion for leave.14 Nonetheless, in August 2008, appellant filed a fifth amended

petition that named Carolina as a defendant.         In response, appellee filed a

motion to strike the fifth amended petition. Appellant responded to the motion to

strike, and she filed a motion for reconsideration of her motion for leave, but the

trial court denied her motion for reconsideration and granted appellee‘s motion to

strike.

          To summarize these facts, the trial court‘s scheduling orders established

specific pleading amendment deadlines. All of these deadlines expired without

appellant amending her petition to join Carolina.         Under the rules of civil

procedure, ―necessary or proper parties to the suit . . . may be brought in, either

by the plaintiff or the defendant, upon such terms as the court may prescribe; but


          13
         Appellant‘s claim that appellee had not provided a correct address
ultimately proved to be false. Appellant had attached a copy of a returned
certified mail envelope dated January 2007 to her September 2007 motion for
leave to join Carolina. The envelope was addressed to Carolina at an address in
Greensboro, North Carolina. But in August 2008, the Secretary of State
delivered, through certified mail, a copy of a citation and appellant‘s fifth
amended petition to Carolina at the same address, in Greensboro, that appellee
had provided in 2006. Carolina signed the return receipt.
          14
         We do not have a record of that hearing. Appellant represents that the
trial court denied leave for her to join Carolina as a defendant at the July 31,
2008 hearing because the court was concerned about protecting Carolina‘s due
process rights since she had not been served with citation.


                                          13
not at a time nor in a manner to unreasonably delay the trial of the case.‖ Tex. R.

Civ. P. 37 (emphasis added). Here, appellant failed to sue Carolina under the

terms prescribed by the trial court.

      Also, both of the trial court‘s rulings concerning whether appellant could

join Carolina came within sixty days of dates that the trial court had set for the

trial to begin. When appellant finally secured a hearing on her September 2007

motion for leave to join Carolina on July 31, 2008, trial had been set for

September 29, 2008. The trial was also scheduled to begin within sixty days of

January 8, 2009, the date that appellant obtained a hearing on her motion for

reconsideration of her motion for leave. During the January 8, 2009 hearing, the

trial court seemed to express concern that allowing Carolina to be joined would

delay the trial. The judge stated,

      Last time . . . we were here on this matter we were inside 60 days
      before trial and I said I wasn‘t going to add any new parties to a case
      that‘s two and a half years old on the eve of trial. And once again,
      we are inside 60 days before trial and now the case is three years
      old and my position is unchanged.

      We conclude that the trial court‘s concern about adding Carolina as a

defendant within sixty days of the trial was reasonable because doing so could

have delayed the trial date, which had already been rescheduled several times,

even if appellant represented that it would not have. In appellee‘s motion to

strike appellant‘s fifth amended petition, appellee represented that if Carolina

was added to the suit, appellee would have desired to ―develop substantial




                                        14
factual evidence through additional discovery.‖15 Also, Carolina might have

wanted to propound her own discovery or to file dispositive motions.

      Thus, based on the trial court‘s reasonable concern about adding Carolina

within sixty days of trial and on appellant‘s overall lack of diligence in following

the trial court‘s scheduling orders and in timely seeking to join Carolina as a

defendant, we hold that the trial court did not abuse its discretion by refusing to

allow appellant to join Carolina.16 See Lindley v. Johnson, 936 S.W.2d 53, 55

(Tex. App.—Tyler 1996, writ denied) (op. on reh‘g) (―[A] trial court is empowered

to establish pretrial schedules to govern the course of litigation.‖); see also In re

Arthur Andersen LLP, 121 S.W.3d 471, 483 (Tex. App.—Houston [14th Dist.]

2003, orig. proceeding [mand. denied]) (―A court‘s decision on joinder should be

based on practical considerations with a view to what is fair and orderly.‖);

Fireman’s Fund Ins. Co. v. McDaniel, 327 S.W.2d 358, 373 (Tex. Civ. App.—

Beaumont 1959, no writ) (―A court has great discretion as to whether or not to

permit joinder of additional parties, and its decision in such matters is generally

based on practical considerations with a view to fair, orderly and timely



      15
        During the January 8, 2009 hearing, appellee attempted to respond to
appellant‘s assertion that adding Carolina would not delay the trial, but the trial
court told appellee that no response was necessary. Appellee had, however,
argued at the July 31, 2008 hearing that adding Carolina would delay the trial.
      16
         Although the trial did not actually begin until April 2010, the record does
not indicate that appellant raised the issue of joining Carolina again after the trial
court‘s ruling in January 2009.


                                         15
prosecution and disposal of pending litigation.‖). We overrule appellant‘s second

issue.

                                    Conclusion

         Having overruled both of appellant‘s issues, we affirm the trial court‘s

judgment.




                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT, J.; and WILLIAM BRIGHAM (Senior
Justice, Retired, Sitting by Assignment).

DELIVERED: September 8, 2011




                                        16
