Opinion issued July 29, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00526-CV ——————————— MIRIAN REYES, Appellant V. FIESTA MART, LLC, Appellee
On Appeal from the 55th District Court Harris County, Texas Trial Court Case No. 2022-13268
MEMORANDUM OPINION
In this slip-and-fall case, appellant Mirian Reyes challenges the trial court’s
rendition of summary judgment in favor of appellee Fiesta Mart, LLC, in Reyes’s
suit for premises liability. In two issues, Reyes contends that the trial court erred in
granting Fiesta’s hybrid motion for summary judgment because (1) she presented evidence that Fiesta had actual or constructive knowledge of the premises condition
and (2) adequate time for discovery had not elapsed at the time the trial court granted
the motion.
We affirm.
Background
In her petition, Reyes alleged that on October 30, 2020, she was shopping at
the Fiesta grocery store located at 2877 Rickey Street, in Houston, Texas, when she
slipped and fell on a substance on the floor of the produce department, injuring
herself.
Reyes sued Fiesta asserting claims for negligence and premises liability. She
alleged that her fall and resulting injuries were caused by Fiesta’s failure to properly
maintain its premises in a safe manner. With respect to her premises liability claim,
Reyes alleged that (1) she was an invitee, (2) Fiesta was a possessor of the premises,
(3) a condition on the premises posed an unreasonable risk of harm, (4) Fiesta knew
or reasonably should have known of the danger, (5) Fiesta breached its duty of
ordinary care by failing to (a) adequately warn Reyes of the condition and (b) make
the condition reasonably safe, and (6) Fiesta’s breach proximately caused her
injuries.
Fiesta answered, generally denying the allegations in Reyes’s petition and
asserting certain defenses and limitations on liability and damages.
2 Fiesta filed a hybrid traditional and no-evidence motion for summary
judgment. As to its no-evidence motion, Fiesta asserted that an adequate time for
discovery had elapsed and Reyes could not produce any evidence to support the
notice element of her premises liability claim. As to its traditional motion, Fiesta
asserted that even if Reyes had produced more than a scintilla of evidence to
establish each of the essential elements of her claim, her deposition testimony and
written admissions conclusively established that Fiesta did not have actual
knowledge of a substance on the floor before Reyes fell. It further asserted that to
prove constructive notice, Reyes was required to provide temporal evidence showing
how long the condition existed prior to her fall, but she had failed to do so. It also
asserted that Reyes was barred from bringing a general negligence claim against it.1
Fiesta attached to its summary judgment motion Reyes’s responses to Fiesta’s first
request for admissions, excerpts from Reyes’s deposition transcript, and
photographs taken by Reyes’s daughter.
1 Fiesta argued that Reyes’s general negligence claim was barred because her allegations gave rise solely to a premises liability claim and that negligence and premises liability claims arising from an alleged unreasonably dangerous condition are mutually exclusive. Reyes did not address this ground either in her summary judgment response in the trial court or in her briefing on appeal and has therefore waived it. See D.R. Horton–Tex., Ltd. v. Markel Int’l Ins. Co., Ltd., 300 S.W.3d 740, 743 (Tex. 2009) (concluding failure to present issue to defeat summary judgment in trial court waives issue on appeal); see also TEX. R. APP. P. 38.1(i) (requiring brief on appeal to contain clear and concise argument for contentions made, with appropriate citations to authorities and to record).
3 In her summary judgment response, Reyes asserted that Fiesta had actual and
constructive knowledge of the substance on the floor prior to her fall. According to
Reyes, the evidence showed that (1) Fiesta believed the area in which Reyes fell was
open and obvious and that it had adequately warned her of the conditions, (2) there
were no signs or cones in the area warning her of the condition, and (3) a Fiesta
employee was performing his job duties in the area at the time Reyes fell. As
summary judgment evidence, Reyes attached to her response Fiesta’s original
answer, its initial disclosures and responses to her requests for production,
photographs, and Reyes’s deposition transcript.
In its summary judgment reply, Fiesta asserted that Reyes’s premises liability
claim failed because she had not presented legally sufficient evidence of Fiesta’s
actual or constructive knowledge of the substance on the floor. Fiesta asserted that
Reyes presented no evidence (1) that the Fiesta employee who was stocking nearby
knew there was a substance on the floor, (2) that any Fiesta employee was aware of
a substance on the floor prior to Reyes’s fall, and (3) of the length of time the
substance had been on the floor prior to her fall. Rather, it asserted, Reyes admitted
that she had no evidence that Fiesta had actual or constructive knowledge of the
substance on the floor where Reyes slipped.
Reyes filed a supplemental summary judgment response, asserting that Fiesta
had deliberately withheld discovery responses that would have led to evidence of
4 Fiesta’s actual and constructive knowledge of the premises condition, and that it had
failed to preserve evidence that could potentially prove Reyes’s premises liability
claim. She asserted that Fiesta’s original interrogatory responses, stating that a
Fiesta employee had been cleaning the floor at the time that Reyes fell and that Fiesta
had placed a “wet floor” sign in the area being cleaned, contradicted Fiesta’s
assertion in its summary judgment motion that it did not have knowledge of the
condition that caused the fall. Reyes attached to her supplemental response Fiesta’s
discovery responses, her deposition transcript, and her affidavit. In her affidavit,
Reyes stated that there was a Fiesta employee stocking fruit nearby when she fell,
and she did not see any signs warning of a dangerous condition.
Reyes filed an amended petition, alleging that Fiesta had engaged in spoliation
of evidence and requesting that the trial court grant a spoliation presumption in her
favor.
Fiesta filed a supplemental reply in support of its motion for summary
judgment. It argued that Reyes’s failure to conduct discovery was due to her own
inaction rather than the result of nondisclosure by Fiesta. Fiesta reiterated its
assertion that Reyes’s premises liability claim failed because she could not establish
Fiesta’s actual or constructive knowledge of the premises condition. With respect
to Reyes’s spoliation request, Fiesta argued that Reyes had not shown that Fiesta
should have anticipated litigation and so was not entitled to a spoliation instruction.
5 Fiesta asserted that it had complied with its duty to amend its answer and discovery
responses once it obtained additional information related to Reyes’s fall. It attached
the declaration of Luis Amaro, the Fiesta store manager, to its supplemental reply.
Amaro stated that he did not know there was anything on the floor prior to Reyes’s
fall, and he was neither aware of, nor able to identify, anyone who knew there was
anything on the floor prior to her fall. Amaro further stated that he had reviewed the
store’s videotape surveillance recording which showed a Fiesta employee cleaning
the general produce department and that a cone had been placed in the area after
Fiesta was notified of Reyes’s fall. Amaro explained that there was no videotaped
recording of Reyes’s fall or the area itself. Fiesta objected to Reyes’s summary
judgment affidavit and moved to strike it as untimely.
On June 12, 2023, the trial court held a hearing on Fiesta’s summary judgment
motion which was continued to July 17, 2023. Following the hearing, on July 17,
2023, the trial court signed an order granting Fiesta summary judgment on Reyes’s
claims against it. This appeal followed.
Summary Judgment
In her first issue, Reyes contends that the trial court erred in granting Fiesta
summary judgment on her premises liability claim because she presented more than
a scintilla of evidence to support each element of her claim.
6 A. Standard of Review
We review a trial court’s decision to grant a motion for summary judgment de
novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A party
seeking summary judgment may combine in a single motion a request for summary
judgment under the no-evidence standard with a request under the traditional
summary judgment standard. Binur v. Jacobo, 135 S.W.3d 646, 650 (Tex. 2004).
When, as here, a party has sought summary judgment on both grounds and the order
does not specify which motion was granted, we typically first review the propriety
of the summary judgment under the no-evidence standard. See TEX. R. CIV. P.
166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the
nonmovant fails to meet her burden to adduce evidence in response to the no-
evidence motion, there is no need to address the challenge to the traditional motion
because it necessarily fails. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248
(Tex. 2013).
After an adequate time for discovery, a party may move for no-evidence
summary judgment on the ground that no evidence exists of one or more essential
elements of the claim on which the adverse party bears the burden of proof at trial.
TEX. R. CIV. P. 166a(i); see LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006).
The burden then shifts to the nonmovant to produce evidence raising a genuine issue
of material fact on the elements specified in the motion. TEX. R. CIV. P. 166a(i);
7 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). A no-evidence
summary judgment is improper if the nonmovant brings forth more than a scintilla of
probative evidence to raise a genuine issue of material fact. Forbes, Inc. v. Granada
Bioscis., Inc., 124 S.W.3d 167, 172 (Tex. 2003). “Less than a scintilla of evidence
exists when the evidence is so weak as to do no more than create a mere surmise or
suspicion of a fact.” Id. at 172 (quoting King Ranch v. Chapman, 118 S.W.3d 742,
751 (Tex. 2003) (internal quotations omitted)). More than a scintilla exists if it
would allow reasonable and fair-minded people to differ in their conclusions. Id.
Unless the nonmovant raises a genuine issue of material fact, the trial court must
grant summary judgment. TEX. R. CIV. P. 166a(i).
A party who files a no-evidence summary judgment motion pursuant to Rule
166a(i) essentially requests a pretrial directed verdict. Mack Trucks, 206 S.W.3d at
581. We review the evidence presented by the summary judgment record in the light
most favorable to the party against whom summary judgment was rendered,
crediting evidence favorable to that party if reasonable jurors could and disregarding
contrary evidence unless reasonable jurors could not. Id. at 582 (citing City of Keller
v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)).
When reviewing a traditional summary judgment motion, we take as true all
evidence favorable to the nonmovant, and we indulge in every reasonable inference
and resolve any doubts in the nonmovant’s favor. Valence Operating, 164 S.W.3d
8 at 661 (citing Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215
(Tex. 2003)). To prevail on a traditional summary judgment motion, the movant
must establish that no genuine issues of material fact exist and that it is entitled to
judgment as a matter of law. TEX. R. CIV. P. 166a(c).
B. Applicable Law
Generally, premises owners owe a duty to protect invitees2 from, or warn them
of, conditions posing unreasonable risks of harm if the owners knew of the
conditions or, in the exercise of reasonable care, should have known of them. Henkel
v. Norman, 441 S.W.3d 249, 251 (Tex. 2014). To prevail on a premises liability
claim against a property owner, an injured invitee must establish that (1) a premises
condition created an unreasonable risk of harm to the invitee; (2) the owner knew or
reasonably should have known of the condition; (3) the owner failed to exercise
ordinary care to protect the invitee from the danger; and (4) the owner’s failure was
a proximate cause of injury to the invitee. Fort Brown Villas III Condo. Ass’n, Inc.
v. Gillenwater, 285 S.W.3d 879, 883 (Tex. 2009); CMH Homes, Inc. v. Daenen, 15
S.W.3d 97, 99 (Tex. 2000). The threshold requirement in a premises liability claim
is the existence of actual or constructive knowledge of an unreasonably dangerous
2 An invitee is “one who enters on another’s land with the owner’s knowledge and for the mutual benefit of both.” Hillis v. McCall, 602 S.W.3d 436, 440 n.6 (Tex. 2020) (internal quotations omitted).
9 condition on the premises. See Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex.
1996).
The standard of care required of the owner toward its invitees is the ordinary
care that a reasonably prudent person would exercise under the same or similar
circumstances. Farrar v. Sabine Mgmt. Corp., 362 S.W.3d 694, 699 (Tex. App.—
Houston [1st Dist.] 2011, no pet.) (citing Corbin v. Safeway Stores, Inc., 648 S.W.2d
292, 295 (Tex. 1983)). While a premises owner is not an insurer of its invitees’
safety, it must protect invitees from conditions on the property that present an
unreasonable risk of harm. Brinson Ford, Inc. v. Alger, 228 S.W.3d 161, 162–63
(Tex. 2007).
C. Notice
In its summary judgment motion, Fiesta challenged the notice element of
Reyes’s premises liability claim. To avoid summary judgment, Reyes was therefore
required to present evidence that Fiesta had notice of the premises condition, i.e., the
substance on the floor.
In the context of slip-and-fall cases, a 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.
10 Reece, 81 S.W.3d 812, 814 (Tex. 2002). The “actual knowledge” required for
premises liability is of the dangerous condition at the time of the incident. City of
Dallas v. Thompson, 210 S.W.3d 601, 603 (Tex. 2006). “Constructive knowledge
is a substitute in the law for actual knowledge.” CMH Homes, 15 S.W.3d at 102.
Constructive knowledge is “what a person after a reasonable inspection ought to
know or have reason to know.” Mendia v. Fiesta Mart, L.L.C., No. 01-19-00018-
CV, 2021 WL 3412175, at *4–5 (Tex. App.—Houston [1st Dist.] Aug. 5, 2021, no
pet.) (mem. op.). Reyes did not present any summary judgment evidence showing
that a Fiesta employee placed the substance on the floor. Therefore, she was required
to present evidence that Fiesta had either actual or constructive knowledge of the
premises condition. We first consider whether Reyes presented more than a scintilla
of evidence that Fiesta had actual knowledge.
1. Actual Knowledge
In its summary judgment motion, Fiesta asserted that Reyes had presented no
evidence that it had actual knowledge of the substance on the floor prior to her fall.
It pointed to Reyes’s deposition testimony and admission that she was not aware of
any Fiesta employee who knew there was a substance on the floor prior to her fall
or who knew the source of the substance. It further asserted that there was no
evidence that the Fiesta employee whom Reyes testified was placing produce on a
display nearby or any other Fiesta employee knew there was a substance on the floor
11 prior to Reyes’s fall.3 Fiesta also pointed to Reyes’s admission that she had no
evidence that Fiesta knew about the substance on the floor prior to her fall:
REQUEST FOR ADMISSION NO. 22: Admit that [y]ou have no evidence that Fiesta had actual knowledge that the alleged substance was present on the floor before your fall.
RESPONSE: ADMIT.
In her supplemental summary judgment response, as on appeal, Reyes
asserted that the evidence showed that Fiesta had actual knowledge that the floor
was wet. She pointed to Fiesta’s original interrogatory response stating “[Reyes]
ignored a wet floor sign and proceeded through an area where a produce clerk was
cleaning the floor, causing her[] to slip and fall.” Reyes asserted that Fiesta amended
its interrogatory response more than a year later to state that a cone was placed in
the area after Fiesta was notified of Reyes’s fall and while an employee began
cleaning the general department. According to Reyes, Fiesta amended its response
“only to match” the assertion in its summary judgment motion that it had no
knowledge of the substance on the floor.
Fiesta responded that it had minimal information regarding the facts
surrounding the fall when it first responded to Reyes’s suit. According to Fiesta, it
amended its discovery responses once it learned from Amaro, the Fiesta store
3 In her deposition, Reyes testified that the cart used by the Fiesta employee who appeared to be “cleaning” the produce before placing it out on display was not a mopping or janitorial-type cart but rather a regular shopping cart.
12 manager, that the warning cone had, in fact, been placed in the general area while an
employee was cleaning the entire area as a precaution after Fiesta became aware of
the fall. Fiesta correctly points out that it had a duty to amend or supplement its
written discovery responses upon obtaining this additional information.4 Notably,
Fiesta’s amended discovery responses are consistent with Reyes’s own admission as
well as her deposition and affidavit testimony that there were no warning cones or
wet floor signs in the area when she fell.
Reyes cites Coffee v. F.W. Woolworth Co. to argue that Fiesta’s actual
knowledge could be inferred from the fact that a store employee was placing produce
on a display nearby. 536 S.W.2d 539 (Tex. 1976). In Coffee, the plaintiff was
injured when she tripped over an empty display pallet on the floor of a Woolworth
store used to hold merchandise. See id. at 540. The jury found that Woolworth had
created the dangerous condition and knew or should have known of it. Id. The court
of appeals reversed, finding that the record contained no direct evidence that
Woolworth had actual knowledge that the display pallet was empty. Coffee v. F.W.
Woolworth Co., 526 S.W.2d 793, 795 (Tex. Civ. App.—Corpus Christi–Edinburg
1975), rev’d, 536 S.W.2d at 539. The Texas Supreme Court disagreed with the court
4 See TEX. R. CIV. P. 193.5 (stating party must amend or supplement written discovery if it “learns that the party’s response to written discovery was incomplete or incorrect when made, or, although complete and correct when made, is no longer complete and correct”).
13 of appeals, reasoning that the jury could have found that Woolworth had actual
knowledge of the dangerous condition because store employees were actually
working on the display stand in question thereby creating the dangerous condition.
See 536 S.W.2d at 540–41. Here, by contrast, there is no evidence that a Fiesta
employee created the condition that caused Reyes to fall. And while Reyes testified
that a Fiesta employee was nearby stocking fruit from a cart onto a display shelf at
the time she fell, Reyes does not claim that she fell on the fruit. Coffee does not
support Reyes’s actual knowledge argument.
No evidence established that Fiesta actually knew of the substance on the
floor. Thus, we conclude that Reyes failed to meet her burden of producing a
scintilla of evidence showing actual knowledge of the condition.
2. Constructive Knowledge
We next consider whether Reyes presented more than a scintilla of evidence
that Fiesta had constructive knowledge of the substance on the floor. Courts analyze
the combination of proximity, conspicuity, and longevity of the dangerous condition
in determining whether to attribute constructive knowledge. Wal–Mart Stores, Inc.
v. Spates, 186 S.W.3d 566, 567–68 (Tex. 2006).
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. Reece, 81 S.W.3d at
14 816. “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. 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 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. However,
evidence of close proximity and conspicuousness of a condition are insufficient,
alone, to prove constructive knowledge; temporal evidence “of how long the hazard
was there” is required. Id.
Reyes presented no evidence of how long the substance had been on the floor
before she fell. In her deposition testimony and discovery responses, Reyes stated
that she did not know how long the substance had been on the floor prior to her fall,
and she was not aware of anyone who knew how long the substance had been on the
floor before she fell. Reyes further stated that she did not know the last time the area
15 had been inspected prior to her fall nor was she aware of any statement by a Fiesta
employee indicating when the area had last been inspected. 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 no evidence of how
long substance was on the floor before she fell, no evidence that store employee saw
spill before fall, and no evidence that substance was there when employee made her
store rounds about fifteen to twenty minutes before plaintiff fell). Reyes also
admitted that she had no evidence showing that Fiesta had constructive knowledge
of the substance on the floor prior to her fall:
REQUEST FOR ADMISSION NO. 22: Admit that [y]ou have no evidence that Fiesta had constructive knowledge that the alleged [s]ubstance was present on the floor before [y]our fall.
A: ADMIT.
We conclude that Reyes did not meet her burden to produce a scintilla of
evidence showing that Fiesta had constructive knowledge of the condition. We
therefore hold that the trial court did not err by granting summary judgment in favor
of Fiesta on Reyes’s premises liability claim against it.
We overrule Reyes’s first issue.
16 Adequate Time for Discovery
In her second issue, Reyes contends that the trial court erred in granting
Fiesta’s no-evidence motion for 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 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. Mendia, 2021 WL 3412175, at *6.
A. Nature of Case and Evidence Necessary to Controvert Motion
Reyes alleged that she slipped and fell on a substance on the floor of a Fiesta
grocery store. The case involves two parties and concerns the threshold issue of
whether Fiesta had actual or constructive knowledge of an unreasonably dangerous
17 condition on the premises. This case is not of a nature that would require extensive
or complex discovery. See McClure v. Attebury, 20 S.W.3d 722, 729 (Tex. App.—
Amarillo 1999, no pet.).
As to the nature of the evidence necessary to controvert Fiesta’s no-evidence
motion, Reyes asserts that she was unable to obtain a videotape surveillance
recording of her fall. According to Reyes, the Fiesta store manager told her sister
that the entire incident had been captured by the store’s videotape surveillance
camera but Fiesta refused to produce the videotape recording in discovery and later
stated that it did not have a recording of the incident.
The record does not support Reyes’s assertion. In her deposition, Reyes
testified that the Fiesta store manager told her sister that he would review the nearby
videotape surveillance camera to see what had occurred. In his sworn declaration,
the store manager stated that he had reviewed the recording from the store’s nearest
videotape surveillance camera and determined that the camera had not captured the
fall or the incident area, and therefore there was no videotape recording of the
incident.
B. Length of Time Case and Motion on File
Reyes filed suit against Fiesta on March 3, 2022. On January 27, 2023, the
trial court granted Fiesta’s agreed motion for continuance extending all deadlines by
18 180 days.5 The case had been active for approximately fourteen months when Fiesta
filed its summary judgment motion on May 8, 2023. The summary judgment
hearing on Fiesta’s motion that was held on June 12, 2023 was continued to July 17,
2023, allowing the parties an additional month of discovery. The trial court granted
Fiesta’s summary judgment motion on July 17, 2023. Fiesta’s no-evidence motion
had been on file more than two months at the time of the trial court’s ruling. Courts
have held that shorter periods of time provided an adequate time for discovery. See,
e.g., Gomes v. Casey, No. 02-22-00003-CV, 2022 WL 3464611, at *3 (Tex. App.—
Fort Worth Aug. 18, 2022, no pet.) (mem. op.) (holding plaintiff had had adequate
time for discovery because defendants’ summary judgment motion had been filed
more than six months after commencement of lawsuit and had been on file for
twenty-seven additional days before it was granted); Barton Food Mart, Inc. v.
Botrie, No. 03-17-00292-CV, 2018 WL 5289538, at *4 (Tex. App.—Austin Oct. 25,
2018, pet. denied) (mem. op.) (concluding adequate time for discovery had passed
where case had been on file for thirteen months when summary judgment motion
was filed and trial court granted motion in part following month); Rest. Teams Int’l,
Inc. v. MG Secs. Corp., 95 S.W.3d 336, 340 (Tex. App.—Dallas 2002, no pet.)
(finding adequate time for discovery had passed where case had been on file for
5 The record does not contain the trial court’s May 11, 2022 scheduling and docket control order. According to the parties, the order granting the continuance extended the discovery and dispositive motion deadlines to August 4, 2023.
19 seven months at time motion was filed and motion had been on file for twenty-six
days before it was granted).
C. Amount of Discovery and Deadlines
We also consider the amount of discovery that took place, whether Fiesta
requested stricter deadlines for discovery, and whether the discovery deadlines that
were in place were specific or vague.
The parties had propounded and responded to discovery and Reyes’s
deposition had been taken at the time Fiesta filed its summary judgment motion.
Reyes complains that Fiesta requested several extensions of the written discovery
deadlines, but the record does not show that Fiesta’s requests for extensions or that
subsequent written responses and objections were opposed or untimely. Reyes also
asserts that she emailed Fiesta’s counsel in June and October 2022 to discuss
scheduling depositions but received no response. The emails are not included in the
record. The record shows that Fiesta provided the names of its two employees
involved in the investigation of the fall—the employee who first responded and the
store manager to whom Reyes referred in her deposition—on May 2, 2022, when its
initial disclosures were served. Thus, Reyes had more than a year to request their
depositions prior to the filing of summary judgment but the record is void of
evidence showing that she did. Further, the record does not show that Reyes
requested or attempted to notice any depositions between the original June 12, 2023
20 summary judgment hearing and the filing of her supplemental summary judgment
response on July 10, 2023.
Fiesta did not request stricter discovery deadlines. Rather, it sought a 180-day
extension of all deadlines which the trial court granted. Finally, the discovery
deadlines in this case were specific. The trial court ordered that “the deadlines set
forth in the Scheduling and Docket Control Order dated May 11, 2022 and
previously entered in this case be extended by 180 days.”
Under these circumstances, we hold that Reyes 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.
D. Spoliation
In a sub-issue, Reyes asserts that the trial court erred in granting summary
judgment because Fiesta spoliated evidence.
1. Applicable Law
Spoliation of evidence occurs when a party (1) deliberately destroys or fails
to preserve relevant evidence or (2) when it fails to produce relevant evidence or to
explain its non-production. Wal–Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 721
(Tex. 2003). Under the first scenario, a party who deliberately destroys evidence “is
presumed to have done so because the evidence was unfavorable to its case.” Id.
21 Under the second scenario, “the presumption arises because the party controlling the
missing evidence cannot explain its failure to produce it.” Id. at 722.
Whether a party has engaged in spoliation of evidence is a preliminary
evidentiary question for the court and not for a jury. Brookshire Bros., Ltd. v.
Aldridge, 438 S.W.3d 9, 20 (Tex. 2014). The “spoliation analysis involves a
two-step judicial process: (1) the trial court must determine, as a question of law,
whether a party spoliated evidence, and (2) if spoliation occurred, the court must
assess an appropriate remedy.” Id. at 14. To find that a party spoliated evidence,
“the court must find that (1) the spoliating party had a duty to reasonably preserve
evidence, and (2) the party intentionally or negligently breached that duty by failing
to do so.” Id.
The doctrine of spoliation can apply in the summary judgment context. See
Clark v. Randalls Food, 317 S.W.3d 351, 356 (Tex. App.—Houston [1st Dist.] 2010,
pet. denied). If a trial court concludes that the movant in a motion for summary
judgment engaged in spoliation of evidence, the court may, but is not required to,
draw an inference that the evidence would have been favorable to the non-movant.
Adobe Land Corp. v. Griffin, L.L.C., 236 S.W.3d 351, 356 (Tex. App.—Fort Worth
2007, pet. denied). When a trial court grants summary judgment against a party
arguing spoliation, it is implied that the trial court denied the request for a spoliation
presumption. See id. at 356–57 (presuming trial court considered and rejected
22 plaintiffs’ request for spoliation presumption where plaintiffs raised issue of
entitlement to presumption in response to defendant’s no-evidence summary
judgment motion and trial court nonetheless granted no-evidence motion). A ruling
denying a spoliation request is reviewed for abuse of discretion. Id. at 357. Because
Reyes argued that Fiesta’s summary judgment motion should be denied because it
spoliated evidence crucial to her claim, and the trial court nevertheless granted
summary judgment in favor of Fiesta, we presume the trial court considered and
rejected Reyes’s spoliation request. See id. at 356–57.
2. Breach of Duty
To determine whether Reyes was entitled to a spoliation presumption, we
consider whether (1) there was a duty to preserve evidence, (2) the alleged spoliator
breached that duty, and (3) the spoliation prejudiced the non-spoliator’s ability to
present its case or defense. Clark, 317 S.W.3d at 356. The duty to preserve evidence
“arises only when a party knows or reasonably should know that there is a substantial
chance that a claim will be filed and that evidence in its possession or control will
be material and relevant to that claim.” Brookshire Bros., 438 S.W.3d at 20. A duty
to preserve evidence arises when a reasonable person would conclude from the
severity of an accident or other circumstances that a substantial chance of litigation
exists. See In re Advanced Powder Sols., Inc., 496 S.W.3d 838, 854 (Tex. App.—
Houston [1st Dist.] 2016, no pet.). Further, “[a] party must preserve what it knows
23 or reasonably should know is relevant in the action, is reasonably calculated to lead
to the discovery of admissible evidence, is reasonably likely to be requested during
discovery, or is the subject of a pending discovery sanction.” Clark, 317 S.W.3d at
357. The party alleging spoliation bears the burden of establishing the alleged
spoliator had a duty to preserve the evidence in question and breached that duty. See
Brookshire Bros., 438 S.W.3d at 20.
Assuming without deciding that Fiesta had a duty to preserve any existing
videotape surveillance recording of the incident, Reyes did not establish that Fiesta
breached its duty. An alleged spoliator can defend against an assertion of negligent
or intentional destruction by providing other explanations to justify its failure to
preserve evidence. Clark, 317 S.W.3d at 358; Adobe Land Corp., 236 S.W.3d at
359. Here, Amaro, the Fiesta store manager, stated in his sworn declaration that
upon reviewing the videotape surveillance recording from the closest store camera,
he determined that the camera did not capture the incident or the incident area.
Reyes failed to meet her burden to establish that Fiesta intentionally or negligently
breached its duty to preserve a videotape surveillance recording of the incident
because such a recording did not exist. We hold that the trial court did not abuse its
discretion in refusing to grant a spoliation presumption in Reyes’s favor.
We overrule Reyes’s second issue.
24 Conclusion
We affirm the trial court’s judgment.
Kristin Guiney Justice
Panel consists of Chief Justice Adams and Justices Gunn and Guiney.