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Rainer v. Foot Locker, Inc.

Court of Appeals of Texas, First District

June 26, 2018

SHERRY RAINER, Appellant
v.
FOOT LOCKER, INC. D/B/A CHAMPS SPORTS, Appellee

          On Appeal from the 400th District Court Fort Bend County, Texas Trial Court Case No. 14-DCV-215261

          Panel consists of Justices Higley, Brown, and Caughey.

          MEMORANDUM OPINION

          Laura Carter Higley Justice

         Sherry Rainer suffered injuries to her foot when a mannequin fell on it in a Champ Sports store in Sugar Land, Texas. She filed suit against Foot Locker, Inc. for the injuries, alleging a premises defect. Foot Locker filed a no-evidence motion for summary judgment, which the associate judge and then the trial court granted. In three issues on appeal, Rainer argues (1) the associate judge improperly asked about the results of mediation; (2) she was not allowed to complete the discovery process before the entry of the judgment; and (3) the associate judge and trial court refused to consider evidence properly before them.

         We affirm.

         Background

         Rainer entered a Champ Sports store in Sugar Land, Texas, on April 27, 2013. Rainer asserts that a child playing in the store knocked over a mannequin, which subsequently fell on her foot. Rainer suffered an injury to her foot from the mannequin landing on it.

         Rainer filed suit on June 7, 2014, against Foot Locker, the company operating the store. Rainer asserted a premises liability claim against Foot Locker. Foot Locker answered the suit on August 27, 2014, and submitted discovery requests on Rainer. Near the end of 2014, Foot Locker sent Rainer video-surveillance footage depicting the incident.

         Nearly a year later, the parties submitted to the trial court a "Joint Motion for Entry of Agreed Docket Control Order." In it, they asked the trial court to set the case for trial no earlier than May 16, 2016. They further asked the trial court to end the discovery period 30 days before trial. And they asked the trial court to set the deadline to file dispositive motions on April 18, 2016. The trial court granted the motion, setting trial for June 21, 2016.

         On April 1, 2016, Foot Locker filed a no-evidence motion for summary judgment, asserting Rainer lacked sufficient evidence for each element of her premises-liability claim. Foot Locker sent Rainer notice of a submission date of April 25, 2016, on the motion. Rainer's deadline to respond to the motion was April 18, 2016.

         On April 22, 2016, Rainer submitted her first discovery requests on Foot Locker. Three days later-the date Foot Locker's motion had been set for submission-Rainer filed a motion for leave to file a late response to Foot Locker's no-evidence motion for summary judgment. Rainer explained that she was late in responding to Foot Locker's motion because her attorney moved offices in March 2016 and the motion was misplaced. She attached her deposition to the motion for leave. She highlighted two portions of her deposition testimony. In one portion, she testified that there had been some kids playing in the store around the time of the incident and that one of those kids knocked the mannequin over. In another portion, Rainer testified that, when the mannequin fell, a manager of the store told her that the kids had been "coming back and forth" and playing in the store all morning. Rainer argued that this testimony was sufficient to create a fact issue to survive summary judgment.

         On June 6, 2016, the parties met with the trial court for a pretrial hearing. Foot Locker asked the trial court to rule on its no-evidence motion for summary judgment. The trial court reset the hearing date on the motion for July 18, 2016. Foot Locker sent a notice to Rainer of the new date. In the notice, Foot Locker asserted, "As instructed by the Court, no further evidence in support or opposition of the No-Evidence Motion for Summary Judgment will be considered at the hearing."

         Rainer filed a motion to continue the July 18 hearing on July 8. The sole ground for the continuance was that Rainer's attorney had scheduling conflicts with that date. On July 14, Rainer withdrew the motion for continuance on the basis that the scheduling conflicts had been resolved.

         Also on July 14, Rainer filed a "supplemental response" to Foot Locker's motion. She attached to it four stills of the surveillance video Foot Locker had sent to her. The stills depicted the incident before and after the mannequin fell. She ...


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