Court of Appeals of Texas, Fifth District, Dallas
Appeal from the County Court at Law No. 4 Dallas County,
Texas Trial Court Cause No. CC-14-03290-D
Justices Lang, Fillmore, and Schenck.
J. SCHENCK JUSTICE.
Martinez appeals the trial court's grant of summary
judgment in favor of appellee ABC Supply Co.
("ABC"). In three issues, Ms. Martinez argues the
trial court erred in denying her motion for new trial, abused
its discretion in refusing to allow testimony at the hearing
on her motion for new trial, and erred in granting summary
judgment in favor of ABC. We affirm the trial court's
judgment. Because all issues are settled in law, we issue
this memorandum opinion. Tex.R.App.P. 47.4.
& Procedural Background
7, 2012, Ms. Martinez and her husband Oscar Carreon went to
ABC's store to buy some roofing materials for their
construction business. When the couple had completed their
purchases, they drove around to the loading dock at the back
of the store for their purchased materials to be loaded onto
their truck. Mr. Carreon parked the truck on the loading ramp
and then got out and climbed into the back of the truck. Ms.
Martinez got out of the truck, noticed something on the
ground, and bent down to pick it up. At that time, a heavy
coil of metal rolled out from the store and fell on Ms.
Martinez's shoulder, knocking her to the ground and
causing injuries to her "shoulder, back, hip, and right
7, 2014, Ms. Martinez filed suit against ABC for premises
liability and general negligence. ABC filed a no-evidence
motion for summary judgment against both of Ms.
Martinez's claims. On December 8, 2015, the trial court
signed an order granting a take-nothing judgment against Ms.
Martinez on both claims. Ms. Martinez filed a motion
requesting the trial court reconsider its judgment based on
newly discovered evidence, and alternatively requesting a new
trial. On January 25, 2016, the trial court conducted a
hearing on Ms. Martinez's motion, during which the trial
court orally denied the motion, stating that it was
procedurally deficient and that it had failed to establish
the late discovery of the newly discovered evidence was not
due to a lack of diligence. The trial court later signed an
order denying the motion, the request for a new trial, and
the request for reconsideration. Ms. Martinez filed this
of Motion for New Trial
first issue, Ms. Martinez argues the trial court erred in
denying her motion for new trial. Specifically, she complains
the trial court erred by denying the motion on the ground it
was not verified. Appellee responds that at the hearing on
her motion for new trial, the trial court indicated that not
only was the motion not verified but that it also failed to
prove the newly discovered evidence could not have reasonably
been found prior to the summary-judgment hearing.
seeking a new trial based on newly discovered evidence must
show the trial court that (1) the party did not discover the
evidence until after trial; (2) the failure to discover the
evidence was not due to lack of diligence; (3) the evidence
is not cumulative or merely for impeachment; and (4) the
evidence is so material that it would probably produce a
different result if a new trial were granted. Roberts v.
Roper, 373 S.W.3d 227, 235 (Tex. App.-Dallas 2012, no
pet.). We review the trial court's ruling on a motion for
new trial for an abuse of discretion. Id.
motion for new trial, Ms. Martinez alleged she had "just
discovered a witness, Jose Andrade, who is a former employee
of Defendant and who is willing to testify as to the
negligence of Defendant." She alleged that she learned
of Mr. Andrade after summary judgment was granted, her late
discovery of him was not due to a lack of diligence, his
testimony was not cumulative, and his affidavit was material
because it established the elements of Ms. Martinez's
claims. Ms. Martinez attached to her motion for new trial Mr.
Andrade's affidavit in which Mr. Andrade related he was
the acting supervisor at ABC's store when he heard a
customer had been injured. He "ran out to the
location" and spoke with Ms. Martinez and Mr. Carreon
who informed him that a coil had rolled onto Ms. Martinez.
According to Mr. Andrade, he spoke with the employee who had
assisted Mr. Carreon and Ms. Martinez and that same employee
admitted he set down the roll of coil on its side and that it
then rolled down and off the ramp and hit Ms. Martinez. Mr.
Andrade saw Ms. Martinez a few days later, and she informed
him she had been in pain since the incident. He stated he and
two other employees watched a video recording of the incident
and that all agreed the employee assisting with the purchase
did not set down the roll of coil properly that day.
hearing on Ms. Martinez's motion for new trial, the trial
court admitted an affidavit from Ms. Martinez. In her
affidavit, Ms. Martinez stated she met Mr. Andrade a couple
of days after the incident at ABC's store, and that she
visited the store twice more, but he was not there on either
occasion. The second time she visited, on or about November
14, 2013, she learned Mr. Andrade was no longer employed at
ABC's store. She stated she continued looking for him,
but was not able to locate him until December 11, 2015, when
her husband happened to run into Mr. Andrade at another
store. At that time, Mr. Carreon learned from Mr. Andrade
that he had watched a video showing that ABC's employee
who "brought that roll of coil did something
foregoing affidavits establish Ms. Martinez knew of Mr.
Andrade's existence prior to filing her suit against ABC.
She knew his name and that at the time of the incident, he
worked at ABC's store. Neither her motion nor her
affidavit details any attempts to discover more information
about Mr. Andrade from ABC, so that she could then interview
him. Thus, under these facts, the trial court could have
determined Ms. Martinez's failure to timely discover Mr.
Andrade's testimony or the video he claims to have
watched was due to a lack of diligence. We conclude Ms.
Martinez has not shown the trial court abused its discretion
by denying her motion for new trial. We overrule Ms.
Martinez's first issue.
at Hearing on ...