Villarreal v. Wal-Mart Stores Texas, LLC

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
JOSE VILLARREAL §
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Plaintiff, §
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VS. § Civil Case No. 7:23-cv-00421
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WAL-MART STORES TEXAS, LLC §
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Defendant. §
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Pending before the Court is the March 6, 2026, Memorandum and
Recommendation (“M&R”) prepared by Magistrate Judge Peter Bray. (Dkt. No. 53).
Judge Bray made findings and conclusions and recommended that Defendant’s Motion
for Summary Judgment, (Dkt. No. 46), be granted, (Dkt. No. 53).
The Parties were provided proper notice and the opportunity to object to the M&R.
See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). On March 10, 2026, Plaintiff filed objections.
(Dkt. No. 54). Defendant responded on March 30, 2026. (Dkt. No. 56).
Plaintiff objects to Judge Bray’s M&R on the grounds that it erroneously evaluated
the case “as a traditional notice-based slip-and-fall involving water on a restroom floor.”
(Dkt. No 54 at 1). Instead, Plaintiff’s objections assert, for the first time, a claim based on
the “dangerous condition inherent in the premises itself.” (Id. at 3). Defendant responds
that M&R objections may not raise new legal theories or arguments that were not
preserved at the summary-judge stage, and therefore, Plaintiffs failure to respond to
United States District Court
Southern District of Texas
ENTERED
May 01, 2026
Nathan Ochsner, Clerk
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Defendant’s summary-judgment motion or otherwise raise the issue constitutes waiver.
(Dkt. No 56 at 2–5).
Defendant is correct. “[A] party who objects to the magistrate judge’s report
waives legal arguments not made in the first instance before the magistrate judge.”
Freeman v. County of Bexar, 142 F.3d 848, 851 (5th Cir. 1998) (citing Cupit v. Whitley, 28 F.3d
532, 535 (5th Cir. 1994)). Plaintiff’s First Amended Petition alleges traditional slip-and-
fall claims arising from a wet bathroom floor. (See Dkt. No. 26). His failure to raise the
independent-dangerous-condition claim in his Petition or otherwise present it at
summary judgment is fatal.
In accordance with 28 U.S.C. § 636(b)(1)(C), the Court is required to “make a de
novo determination of those portions of the [magistrate judge’s] report or specified
proposed findings or recommendations to which objection [has been] made.” After
conducting this de novo review, the Court may “accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.” Id.; see also Fed.
R. Civ. P. 72(b)(3).
The Court has carefully considered de novo those portions of the M&R to which
objection was made, and reviewed the remaining proposed findings, conclusions, and
recommendations for plain error. Finding no error, the Court accepts the M&R and
adopts it as the opinion of the Court. It is therefore ordered that:
(1) Judge Bray’s M&R (Dkt. No. 53) is ACCEPTED and ADOPTED in its
entirety as the holding of the Court; and
(2) Defendant’s Motion for Summary Judgment, (Dkt. No. 46), is GRANTED.
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It is SO ORDERED.
Signed on May 1, 2026.
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DREW B. TIPTON
UNITED STATES DISTRICT JUDGE
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