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Martinez v. ABC Supply Co.

Court of Appeals of Texas, Fifth District, Dallas

April 27, 2017

SELENE MARTINEZ, Appellant
v.
ABC SUPPLY CO., Appellee

         On Appeal from the County Court at Law No. 4 Dallas County, Texas Trial Court Cause No. CC-14-03290-D

          Before Justices Lang, Fillmore, and Schenck.

          MEMORANDUM OPINION

          DAVID J. SCHENCK JUSTICE.

         Selene 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.

         Factual & Procedural Background

         On July 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 foot."

         On July 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 appeal.[1]

         Denial of Motion for New Trial

         In her 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.

         A party 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.

         In her 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.

         At the 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 wrong."

         The 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.

         Testimony at Hearing on ...


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