Mirian Reyes v. Fiesta Mart, L.L.C.

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.

25