Opinion issued August 5, 2021
In The Court of Appeals For The First District of Texas ———————————— NO. 01-19-00018-CV ——————————— LUCRECIA MENDIA, Appellant V. FIESTA MART, L.L.C., Appellee
On Appeal from the 333rd District Court Harris County, Texas Trial Court Case No. 2017-63727
MEMORANDUM OPINION
Appellant Lucrecia Mendia appeals from the trial court’s default summary
judgment granted in favor of appellee Fiesta Mart, Inc. In two issues, Mendia
contends that the trial court (1) abused its discretion by failing to grant her motion
for leave to file a late summary-judgment response and motion for new trial and (2) erred by granting Fiesta Mart’s summary-judgment motion. We conclude that the
trial court properly granted summary judgment and did not abuse its discretion by
denying Mendia’s post-judgment motions.
We affirm.
Background
Mendia sued Fiesta Mart, alleging damages resulting from a slip-and-fall
accident at a Fiesta Mart location on September 5, 2016. In her petition, filed
September 26, 2017, Mendia alleged that she slipped and fell as the result of an
unreasonably dangerous condition, a puddle of liquid on the floor of the meat
department, inside Fiesta Mart’s premises, and that Fiesta Mart either knew or
should have known of its existence and failed to correct the condition.
On May 2, 2018, after limited written discovery and Mendia’s deposition,
Fiesta Mart moved for a traditional summary judgment on the knowledge element
of Mendia’s cause of action. Mendia responded to Fiesta Mart’s motion, arguing that
it was essentially a no-evidence motion and, because there had not been adequate
time for discovery, the motion was premature. Fiesta Mart passed the hearing on its
motion, indicating it would reschedule after Fiesta Mart employees were presented
for deposition.
Thereafter, the parties conducted additional discovery, including the
depositions of two Fiesta Mart employees, Oscar Partida (the front-end manager at
2 the Fiesta Mart where Mendia fell) and Doris Rivera (an employee working in the
meat department where Mendia fell). On August 22, 2018, shortly after Partida and
Rivera were deposed, Fiesta Mart filed (1) its first amended motion for summary
judgment, which asserted both traditional and no-evidence grounds, and (2) a notice
of hearing on the hybrid traditional and no-evidence motion for October 8, 2018.
A month before the October 8 summary-judgment hearing, the parties filed an
agreed motion for continuance of the trial, which was also set to begin on October
8. The motion for continuance stated that the parties had been diligent in conducting
discovery, including “significant written discovery, as well as fact witness
depositions,” but that “[a]dditional time was needed to resolve the case by either
motion, settlement, or trial.” The motion also noted that Fiesta Mart had a motion
for summary judgment set to be heard on October 8, but that if the case was not
resolved via motion or mediation, “the parties will need additional time to complete
discovery and prepare for trial.” The trial court granted the continuance and entered
a new scheduling order setting trial for June 10, 2019.
Although Mendia received notice of the October 8 hearing, a legal assistant
to Mendia’s counsel inadvertently calendared the hearing for October 8, 2019, rather
than 2018, and therefore, Mendia did not file a response to the first amended motion
for summary judgment and did not appear at the hearing. The trial court granted the
first amended motion for summary judgment on October 8, 2018. Mendia’s counsel
3 learned of the missed hearing, and the corresponding missed deadline to file a
response, on the same day when he received an email notification that summary
judgment had been granted.
On November 7, 2018, after Fiesta Mart’s summary-judgment motion had
been granted, Mendia filed a combined motion for leave to file late response,
response in opposition to Fiesta Mart’s first amended motion for summary judgment,
and request for rehearing. Mendia did not request a hearing on the combined motion,
and the trial court did not issue a ruling on the motion. Mendia moved for new trial
on November 6, 2018.1 Mendia did not request a hearing on the motion for new trial,
and that motion was denied by operation of law.
Post-Judgment Motion for Leave and Motion for New Trial
In her first issue, Mendia argues that the trial court abused its discretion by
failing to grant her motion for leave to file a late summary-judgment response. She
argues that this Court should apply the good-cause standard set forth by the Texas
Supreme Court in Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 688
(Tex. 2002). Because Mendia’s failure to file a summary-judgment response was
due to a calendaring error, she argues she has met the requirements of Carpenter and
the trial court abused its discretion in failing to grant her leave to file a late response.
Alternatively, she argues that the trial court should have granted a new trial because
1 Mendia also filed the same copy of the motion for new trial on November 7, 2018. 4 she met the requirements of Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124,
126 (Tex. [Comm’n Op.] 1939).
In response, Fiesta Mart argues we should apply the Craddock standard, not
the Carpenter standard urged by Mendia. Fiesta Mart contends Mendia failed to
meet the required elements of Craddock and the trial court therefore did not abuse
its discretion by denying her motions.
A. Standard of Review
We review a trial court’s denial of both a motion for new trial and a motion
for leave to file a late summary-judgment response for abuse of discretion. See In re
R.R., 209 S.W.3d 112, 114 (Tex. 2006) (motion for new trial); Carpenter, 98
S.W.3d. at 686 (motion for leave). The trial court abuses its discretion if it acts
without reference to any guiding principles or acts arbitrarily or unreasonably.
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
Under an abuse-of-discretion standard, we view the evidence in the light most
favorable to the trial court’s actions. Holley v. Holley, 864 S.W.2d 703, 706 (Tex.
App.—Houston [1st Dist.] 1993, writ denied). When we consider whether the trial
court abused its discretion, we may not substitute our judgment for that of the trial
court unless its decision was so arbitrary that it exceeded the bounds of
reasonableness. Clarendon Nat’l Ins. Co. v. Thompson, 199 S.W.3d 482, 494 (Tex.
App.—Houston [1st Dist.] 2006, no pet.). Accordingly, we review the evidence
5 submitted to the trial court in the light most favorable to that court’s ruling, draw all
legitimate inferences from the evidence, and defer to the trial court’s resolution of
conflicting evidence. Id.
B. Application of Craddock or Carpenter
In Craddock, the Texas Supreme Court held that a default judgment should
be set aside when the defendant establishes that (1) the failure to answer was not
intentional or the result of conscious indifference, but the result of an accident or
mistake, (2) the motion for new trial sets up a meritorious defense, and (3) granting
the motion will occasion no undue delay or otherwise injure the plaintiff. Craddock,
133 S.W.2d at 126. There, the defendant was served with citation, which he
forwarded to his insurance agent, who in turn forwarded the citation to the insurance
company whose duty it was to defend him. Id. at 125. Although marked “urgent,”
the citation was mixed up with other mail and was not discovered until the day on
which the default judgment was rendered. Id. Thus, the defendant did not actually
realize its mistake in time to correct it before the default judgment was rendered. Id.
Because the defendant realized his mistake only after judgment, the only potential
relief available was a motion for new trial or to otherwise set aside the judgment. Id.
at 126. This Court has applied Craddock to plaintiffs in the default-summary-
judgment context. See Imkie v. Methodist Hosp., 326 S.W.3d 339, 345 (Tex. App.—
Houston [1st Dist.] 2010, no pet.) (applying Craddock test to motion for new trial
6 filed by pro se plaintiff, who appeared in person at summary-judgment hearing but
failed to file written response to summary judgment motion); Lazare v. Murillo, No.
01-05-00688-CV, 2006 WL 2773486, at *2 (Tex. App.—Houston [1st Dist.] Sept.
28, 2006, pet. denied) (mem. op.) (“Although Craddock involved a default judgment
based on a failure to answer, we apply the same requirements to a motion for new
trial filed after a default summary judgment.”).
In contrast to Craddock, the plaintiff in Carpenter learned two days before the
summary-judgment hearing, well before judgment was rendered, that a timely
response to the motion for summary judgment had not been filed. Carpenter, 98
S.W.3d 682 at 685. The Texas Supreme Court noted that in that situation, the
summary-judgment rules afford a party “an opportunity to obtain additional time to
file a response, either by moving for leave to file a late response or by requesting a
continuance of the summary-judgment hearing.” Id. (citing TEX. R. CIV. P. 166a(c),
251). The plaintiff there actually availed himself of those remedies by filing a motion
for leave to file a late response and motion for continuance on the day of the
summary-judgment hearing, before the trial court ruled on the summary-judgment
motion. Id. at 684–86. Therefore, the Court held that the equitable Craddock test did
not apply. Id. at 683–84. Instead, the Court held that a motion for leave to file a late
summary-judgment response should be granted when the nonmovant establishes
good cause by showing that (1) the failure to timely respond was not intentional or
7 the result of conscious indifference, but the result of an accident or mistake, and (2)
allowing the late response will occasion no undue delay or otherwise injure the party
seeking summary judgment. Id. at 684.
Carpenter is distinguishable from this case because the plaintiff in Carpenter
discovered the mistake two days before the summary-judgment hearing and took
advantage of the procedural rules—by filing a motion for leave and motion for
continuance of the summary-judgment hearing—before the trial court ruled on the
summary-judgment motion. Unlike the plaintiff in Carpenter, Mendia admits she
did not discover that she failed to file a response to the summary-judgment motion
until after the motion had already been granted. Mendia did not file her motion for
leave until one month after the trial court granted Fiesta Mart’s motion for summary
judgment. Under these circumstances, we conclude that Craddock, as opposed to
Carpenter, applies here. We now address the Craddock test.
C. Craddock Factors
Because it is dispositive, we address only the second prong of the Craddock
test, which required Mendia to establish a meritorious defense. Setting up a
meritorious defense under Craddock does not require proof “in the accepted sense.”
Dolgencorp of Tex., Inc., v. Lerma, 288 S.W.3d 922, 928 (Tex. 2009) (quoting Ivy
v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966)). This does not mean that the motion
should be granted if it merely alleges that the defendant “has a meritorious defense.”
8 Ivy, 407 S.W.2d at 214. Rather, the motion sets up a meritorious defense if it alleges
facts that in law would constitute a defense to the plaintiff’s cause of action and is
supported by affidavits or other evidence providing prima facie proof that the
defendant has such a defense. Dolgencorp, 288 S.W.3d at 928; Ivy, 407 S.W.2d at
214. Applying this standard in the default-summary-judgment context, a meritorious
defense is established if the movant plaintiff has prima facie evidence of her claim.
See Imkie, 326 S.W.3d at 347.
Mendia argues that the trial court erred in denying her motion for new trial
and refusing to consider her summary-judgment response because she provided
“sufficient competent summary judgment evidence to preclude the rendition of
summary judgment.” Specifically, Mendia points to the following evidence:
• Partida’s testimony that a spill in a grocery store becomes a dangerous condition when the spill occurs.
• Partida’s testimony that employees are instructed to inspect their aisleways in their departments for spills “[e]very time they walk out.”
• Partida’s testimony that it is the store’s responsibility to make sure the aisleways and floors are clean.
• Rivera’s testimony that employees are told to “always be on the lookout” for spills.
• Rivera’s testimony that she and other employees are “often” cleaning up spills, that they are “always wiping,” and that they are cleaning up spills and fruit “just all the time.”
• The surveillance video showing Rivera and another employee entering and leaving the meat section approximately six minutes before Mendia enters the meat section and slips. 9 Fiesta Mart owed Mendia, as an invitee, a duty to exercise reasonable care to
protect her from dangerous conditions in the store that were either known or
reasonably discoverable. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936
(Tex. 1998); Bendigo v. City of Houston, 178 S.W.3d 112, 114 (Tex. App.—Houston
[1st Dist.] 2005, no pet.). This duty does not, however, make the premises owner an
insurer of the invitee’s safety. Gonzalez, 968 S.W.2d at 936; Bendigo, 178 S.W.3d
at 114. To recover damages in a slip-and-fall case, a plaintiff must prove:
(1) Actual or constructive knowledge of some condition on the premises by the owner/operator; (2) That the condition posed an unreasonable risk of harm;
(3) That the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and
(4) That the owner/operator’s failure to use such care proximately caused the plaintiff’s injuries. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). The plaintiff satisfies the
notice element by establishing one of three things: (1) the defendant placed a
substance on the floor; (2) the defendant actually knew the substance was on the
floor; or (3) it is more likely than not that the dangerous condition had existed long
enough to give the premises owner a reasonable opportunity to discover it. Wal-Mart
Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002).
Here, Fiesta Mart challenged the notice element of Mendia’s slip-and-fall
claim. Thus, Mendia was required to present prima facie evidence that Fiesta Mart
10 either placed the substance on the floor or had actual or constructive knowledge of
the substance. Mendia presented no evidence that a Fiesta Mart employee placed the
substance on the floor, nor did she present evidence that a Fiesta Mart employee
actually knew the substance was on the floor. Therefore, she was required to present
evidence of constructive knowledge or evidence that the “spill had been on the floor
for a sufficient period of time that [Fiesta Mart] had a reasonable opportunity to
discover it.” Id.
Temporal evidence, i.e., evidence of the length of time the dangerous
condition existed, is the best indication of whether the premises owner had a
reasonable opportunity to discover and remedy the condition. Id. at 816 (citing CMH
Homes, Inc. v. Daenen, 15 S.W.3d 97, 102–03 (Tex. 2000)). “An employee’s
proximity to a hazard, with no evidence indicating how long the hazard was there,
merely indicates that it was possible for the premises owner to discover the
condition, not that the premises owner reasonably should have discovered it.” Id.
(emphasis in original). Temporal evidence is necessary for the factfinder to
reasonably assess the opportunity that the premises owner had to discover the
condition. Id. A reasonable time for the owner to discover the condition varies
depending upon the facts and circumstances of each case, and evidence of an
employee’s proximity to the hazard “will often be relevant to the analysis.” Id. For
example, if a dangerous condition is conspicuous, or an employee was in close
11 proximity to a less conspicuous hazard for a “continuous and significant period of
time,” an employee’s proximity might shorten the time period in which the factfinder
could find that the premises owner should have reasonably discovered the condition.
Id. Regardless, “there must be some proof of how long the hazard was there before
liability can be imposed on the premises owner for failing to discover and rectify, or
warn of, the dangerous condition.” Id.
As the Texas Supreme Court held in Reece, the mere proximity of an
employee to the site of an accident does not raise a fact issue on constructive notice
of a dangerous condition. Id. at 816; Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d
566, 567 (Tex. 2006) (per curiam). The plaintiff must present some evidence of how
long the hazard existed to impose liability on the premises owner. Reece, 81 S.W.3d
at 816. Mendia presented no evidence of how long the substance was on the floor
before she fell. She presented no evidence that a Fiesta Mart employee saw the spill
before she fell or that it was there when Rivera was stocking in the meat department
approximately six to seven minutes before the fall. In fact, Partida testified that
Rivera told him she did not see the substance before Mendia fell. And Rivera herself
testified at her deposition that she did not recall the incident involving Mendia at all.
See Coburn v. Toys R Us-Del., Inc., No. 01-09-00871-CV, 2011 WL 345936, at *5
(Tex. App.—Houston [1st Dist.] Feb. 3, 2011, no pet.) (mem. op.) (holding plaintiff
failed to present fact issue as to constructive knowledge because plaintiff presented
12 no evidence of how long substance was on the floor before she fell, no evidence that
a Toys R Us employee saw the spill before she fell, and no evidence that substance
was there when employee made her rounds of store about fifteen to twenty minutes
before plaintiff fell); Brookshire Food Stores, L.L.C. v. Allen, 93 S.W.3d 897, 901
(Tex. App.—Texarkana 2002, no pet.) (holding evidence legally insufficient to
establish constructive knowledge when employee walked through area
approximately fifteen minutes before fall and did not notice grapes on floor and
plaintiff presented no evidence that others saw grapes before her fall).
Additionally, in Partida’s deposition, he testified that Rivera cleaned up a
white liquid off the floor after Mendia fell. As can be seen on the surveillance video,
the tile floor in the meat department is white or a light color. Thus, there is no
evidence that the substance on the floor was conspicuous. Reece, 81 S.W.3d at 816
(“There was no evidence that the spill was conspicuous—it was not large and
consisted of a clear liquid on a light tile floor.”). The fact that Fiesta Mart employees
were instructed to clean up their aisleways and be on the lookout for spills does not
equate to actual or constructive knowledge of the spill that allegedly caused Mendia
to slip and fall. See Reece, 81 S.W.3d at 817 (concluding that evidence of store’s
policy requiring employees to intervene whenever there was a known hazard in store
was “immaterial to the constructive-notice issue” because it was “undisputed that
13 [the employee] did not notice the hazard that he purportedly walked past; thus, the
hazard was not known and the store’s policy was not implicated”).
Mendia also presented no evidence of “when or how the spill came to be on
the floor.” See id. Mendia acknowledged in her deposition that she did not know
how long the substance had been on the floor before her fall, and she did not present
such temporal evidence from any other source. And the surveillance video neither
shows a substance on the floor nor the spill actually occurring. See Gonzalez, 968
S.W.2d at 937–38 (holding evidence legally insufficient to establish constructive
knowledge when “[t]he witnesses had not seen the macaroni salad prior to the fall
and had no personal knowledge of the length of time it had been on the floor”);
Molina v. HEB Grocery Co., L.P., No. 03-17-00343-CV, 2017 WL 4766655, at *4
(Tex. App.—Austin Oct. 19, 2017, no pet.) (mem. op.) (affirming summary
judgment in favor of defendant where it was undisputed employee did not see liquid
on the floor until after plaintiff fell, video surveillance did not show any substance
on the floor, but instead showed numerous people walking in same area in minutes
leading up to plaintiff’s fall, without anyone showing signs of noticing liquid on the
floor); Cox v. H.E.B. Grocery, L.P., No. 03-13-00714-CV, 2014 WL 4362884, at *3
(Tex. App.—Austin Aug. 27, 2014, no pet.) (mem. op.) (holding there was legally
insufficient temporal evidence where video surveillance did not show peach piece
14 on floor, either before or after plaintiff’s fall, and therefore, it was “equally probable
that the peach piece was on the floor for two minutes or two hours”).
Because Mendia presented no evidence regarding how long the substance had
been on the floor before her fall, or any evidence of Fiesta Mart employees’ actual
knowledge of the substance, we conclude that she failed to present prima facie
evidence of whether Fiesta Mart had actual or constructive notice of the allegedly
dangerous condition. Therefore, Mendia failed to satisfy the meritorious defense
element of Craddock, and the trial court properly denied her motion for new trial.
We overrule Mendia’s first issue.
Motion for Summary Judgment
In her second issue, Mendia argues that the trial court erred in granting Fiesta
Mart’s summary-judgment motion because (1) Fiesta Mart’s no-evidence motion for
summary judgment was premature and (2) Fiesta Mart failed to carry its burden on
the traditional motion for summary judgment.
When, as here, a party moves for summary judgment on both traditional and
no-evidence grounds, we first address the no-evidence grounds. Merriman v. XTO
Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). If the nonmovant fails to produce
legally sufficient evidence to meet its burden as to the no-evidence motion, there is
15 no need to analyze whether the movant satisfied its burden under the traditional
motion. Id.
We review a trial court’s summary judgment de novo. Nathan v. Whittington,
408 S.W.3d 870, 872 (Tex. 2013) (per curiam). When the trial court does not specify
the grounds for the summary judgment, we must uphold the summary judgment if
any of the grounds asserted in the motion and preserved for appellate review are
meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.
2003).
A movant seeking a no-evidence summary judgment must assert that there is
no evidence to support an essential element of the nonmovant’s claim on which the
nonmovant would have the burden of proof at trial. See TEX. R. CIV. P. 166a(i); Hahn
v. Love, 321 S.W.3d 517, 523–24 (Tex. App.—Houston [1st Dist.] 2009, pet.
denied). Once the motion is filed, the burden shifts to the nonmovant to present
evidence raising a genuine issue of material fact as to each of the elements
challenged in the motion. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.
2009); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). A no-evidence
motion should be granted “when (a) there is a complete absence of evidence of a
vital fact, (b) the court is barred by rules of law or of evidence from giving weight
to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a
vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes
16 the opposite of the vital fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751
(Tex. 2003) (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711
(Tex. 1997)).
Absent a timely response, a trial court must grant a no-evidence motion for
summary judgment that meets the requirements of Rule 166a(i). Imkie, 326 S.W.3d
at 343; see also TEX. R. CIV. P. 166a(i). If a nonmovant wishes to assert that, based
on the evidence in the record, a fact issue exists to defeat a no-evidence motion for
summary judgment, the nonmovant must timely file a response to the motion raising
this issue before the trial court. Id.
B. Adequate Time for Discovery
Mendia argues that the trial court erred in granting the no-evidence summary
judgment because she did not have adequate time for discovery and thus the motion
was premature. A party may move for a no-evidence summary judgment only
“[a]fter adequate time for discovery.” TEX. R. CIV. P. 166a(i). The rule does not
require that discovery must have been completed, only that there was “adequate
time.” Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.—Houston
[14th Dist.] 2000, pet. denied). In determining whether the trial court has permitted
an adequate time for discovery, we generally consider the following non-exclusive
factors: (1) the nature of the cause of action; (2) the nature of the evidence necessary
to controvert the no-evidence motion; (3) the length of time the case has been active
17 in the trial court; (4) the amount of time the no-evidence motion has been on file;
(5) whether the movant has requested stricter time deadlines for discovery; (6) the
amount of discovery that has already taken place; and (7) whether the discovery
deadlines that are in place are specific or vague. Madison v. Williamson, 241 S.W.3d
145, 155 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).
In support of her contention that an adequate time for discovery had not yet
passed, Mendia points to the fact that, after Fiesta Mart filed its amended motion for
summary judgment, the parties filed a joint agreed motion for continuance and
request for a new docket control order. She argues that because the parties jointly
requested additional time to conduct discovery in the motion for continuance, this
demonstrates adequate time for discovery had not passed, and therefore, the
no-evidence motion for summary judgment was premature.
We disagree. Although Mendia notes that the parties requested additional time
for discovery in their motion for continuance, she does not address the fact that the
parties were requesting a continuance of the trial, not the summary-judgment
hearing, both of which were set for October 8, 2018. She also does not address the
fact that the parties stated in their motion that they had been diligent in conducting
discovery, including significant written discovery and fact witness depositions, but
that “[a]dditional time was needed to resolve the case by either motion, settlement,
or trial.” The parties also noted in the motion that Fiesta Mart’s summary judgment
18 was set for October 8 and that the parties were in the process of scheduling
mediation, but “[s]hould the case not be resolved, the parties will need additional
time to complete discovery and prepare for trial.” The trial court granted the motion
and entered a new scheduling order, which extended the discovery period to May
2019 and reset the trial for June 2019.
Thus, it is clear from reviewing the entire motion for continuance that the
parties were aware of the pending motion for summary judgment at the time they
moved for a continuance. In fact, the motion for continuance reflects that the parties
sought a continuance of the trial, which was set on the same day as the summary-
judgment hearing, to allow the trial court to rule on the pending summary-judgment
motion, or to permit the parties to pursue resolution through mediation. If the case
was not resolved, it was then that the parties requested additional time to “complete
discovery and prepare for trial.” Fuqua, 29 S.W.3d at145 (Rule 166a(i) does not
require discovery to be completed before a no-evidence motion is filed, just that
there was an “adequate time” for discovery).
Further, “[w] hen a party contends that it has not had an adequate opportunity
for discovery before a summary judgment hearing, it must file either an affidavit
explaining the need for further discovery or a verified motion for continuance.”
Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996); see also
Lindsey Constr., Inc. v. AutoNation Fin. Servs., LLC, 541 S.W.3d 355, 360 (Tex.
19 App.—Houston [14th Dist.] 2017, no pet.) (same). Mendia has made no effort to
identify, either on appeal or to the trial court, any specific evidence she needed to
respond to Fiesta Mart’s no-evidence motion. Neither did she move for a
continuance of the summary-judgment hearing in the trial court to allow for
additional time for discovery. We do not construe the agreed motion for continuance
of the trial, which was filed in part to allow the trial court an opportunity to rule on
the pending motion for summary judgment, to be sufficient to preserve the issue of
adequate time for discovery.
Mendia did file an objection and response to Fiesta Mart’s original motion for
summary judgment, in which she asserted that she had not been afforded adequate
time for discovery. She argues on appeal that these objections may be considered
and applied to Fiesta Mart’s first amended motion for summary judgment. But
Mendia’s objection and response, even if applicable to the first amended motion for
summary judgment, was neither verified nor included an affidavit setting forth any
necessary evidence outstanding. See Muller v. Stewart Title Guar. Co., 525 S.W.3d
859, 866–67 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (noting that
nonmovant failed to provide any explanation for why any of the requested additional
discovery was necessary or material); Doe v. Roman Catholic Archdiocese of
Galveston–Hous. ex rel. Dinardo, 362 S.W.3d 803, 809 (Tex. App.—Houston [14th
Dist.] 2012, no pet.) (“The affidavit must explain why the continuance is necessary;
20 conclusory allegations are insufficient.”). Moreover, as Mendia states in her brief,
Fiesta Mart passed on its original summary-judgment hearing to allow for two of its
employees to be deposed. Fiesta Mart did not file its amended motion for summary
judgment until after those two depositions were conducted.
Here, Mendia filed her petition in September 2017. Almost a year later, in
August 2018, Fiesta Mart filed its first amended motion for summary judgment. The
trial court heard the motion in October 2018, thirteen months after Mendia filed suit.
In that time, the parties were “diligent in conducting discovery,” which included
“[s]ignificant written discovery” and the depositions of Mendia and two Fiesta Mart
employees. Mendia did not specify below, or on appeal, any particular evidence that
she was unable to obtain during the thirteen months the suit was on file before the
trial court ruled on Fiesta Mart’s no-evidence motion. Under these circumstances,
we conclude that Mendia has failed to show that the trial court erred in granting the
no-evidence summary judgment because she did not have an adequate time for
discovery.
C. The Trial Court Properly Granted Fiesta Mart’s No-Evidence Motion for Summary Judgment
We first address the no-evidence portion of Fiesta Mart’s first amended
summary judgment motion. See Merriman, 407 S.W.3d at 248. Fiesta Mart
identified the elements of Mendia’s premises liability claim for which there was no
evidence, and the motion was neither conclusory nor a general no-evidence
21 challenge. See TEX. R. CIV. P. 166a(i); Imkie, 326 S.W.3d at 343. Fiesta Mart
asserted it was entitled to a summary judgment on Mendia’s premises liability claim
because there was no evidence that Fiesta Mart had actual or constructive knowledge
of an unreasonably dangerous condition.
This no-evidence motion for summary judgment challenged the knowledge
element of a premises liability claim. See Gonzalez, 968 S.W.2d at 936 (in
slip-and-fall case plaintiff must prove: (1) actual or constructive knowledge of some
condition on the premises by the owner/operator; (2) that the condition posed an
unreasonable risk of harm; (3) that the owner/operator did not exercise reasonable
care to reduce or eliminate the risk; and (4) that the owner/operator’s failure to use
such care proximately caused the plaintiff's injuries). The record shows Mendia
received timely notice of Fiesta Mart’s first amended summary judgment motion,
and Mendia admits as much in her brief. Mendia failed to file a timely written
response to Fiesta Mart’s no-evidence motion for summary judgment, as required
by the rules governing summary judgments. See TEX. R. CIV. P. 166a(i).2
Furthermore, although Mendia moved for leave to file a late response, she did so a
2 The nonmovant has no burden to respond to a traditional motion for summary judgment unless the movant conclusively establishes its cause of action or defense. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). Here, however, Fiesta Mart moved for both traditional and no-evidence summary judgment. The trial court thus was required to grant the no-evidence motion for summary judgment if it met the requirements of Rule 166a(i), in the absence of a timely response by Mendia. See Imkie, 326 S.W.3d at 343. 22 month after the trial court ruled on the amended motion for summary judgment and
the trial court never ruled on her motion for leave. Because Mendia failed to file a
timely response to Fiesta Mart’s no-evidence motion for summary judgment, we
hold the trial court properly rendered summary judgment in favor of Fiesta Mart.
Imkie, 326 S.W.3d at 343–44 (holding trial court did not err in granting no-evidence
motion for summary judgment in absence of timely response).
We overrule Mendia’s second issue.3
Conclusion
We affirm the judgment of the trial court.
Amparo Guerra Justice
Panel consists of Justices Kelly, Guerra, and Farris.
3 Because we conclude the trial court properly granted Fiesta Mart’s motion for summary judgment on no-evidence grounds, we do not address Mendia’s challenge to the trial court’s ruling on the traditional grounds asserted in the first amended motion for summary judgment. See TEX. R. APP. P. 47.1; Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). 23