Selene Martinez v. ABC Supply Co., 05-16-00157-CV

On July 7, 2012, Selene Martinez was struck and injured by a heavy metal coil that rolled off ABC Supply’s loading dock while she and her husband were having purchased roofing materials loaded onto their truck.
Martinez sued ABC for negligence and premises liability on July 7, 2014.
ABC moved for no-evidence summary judgment on both claims; the trial court granted a take-nothing judgment on December 8, 2015.
Martinez moved for reconsideration or a new trial based on newly discovered evidence (former employee Jose Andrade and a video); the trial court denied the motion as procedurally deficient and for lack of diligence.
Martinez also attempted to file multiple amended summary-judgment responses and affidavits from her husband Oscar Carreon; the court sustained some objections and overruled others and ultimately granted ABC’s no-evidence motion.
Martinez appealed, raising three issues: denial of the new-trial motion, exclusion of witness testimony at the new-trial hearing, and the grant of ABC’s no-evidence summary judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Denial of motion for new trial based on newly discovered evidence	Martinez argued she newly discovered ex-employee Jose Andrade (and a video) after summary judgment and met the new-evidence requirements	ABC argued the motion was unverified and Martinez failed to show due diligence in discovering Andrade earlier	Court held Martinez failed to show diligence (she knew Andrade’s identity earlier and made no effort to obtain his information); no abuse of discretion in denying new trial
Exclusion of witnesses/attorneys at new-trial hearing	Martinez contended the court abused discretion by not allowing live testimony at the hearing	ABC and court noted no offer of proof or bill of exceptions was made preserving the complaint	Court held Martinez failed to preserve complaint for appeal; no reversible error established
Grant of no-evidence summary judgment on negligence and premises-liability	Martinez argued Carreon’s affidavit and other filings raised fact issues on duty, breach (coil improperly set and rolled), notice, and proximate cause	ABC argued the affidavit was conclusory, untimely in part, and insufficient to raise more than a scintilla on breach, notice, or causation	Court held Carreon’s affidavit proved injury but only produced a scintilla regarding breach, notice, and proximate cause; summary judgment affirmed

Roberts v. Roper, 373 S.W.3d 227 (Tex. App.—Dallas 2012) (elements and standards for new trial based on newly discovered evidence)
John C. Flood of DC, Inc. v. SuperMedia, L.L.C., 408 S.W.3d 645 (Tex. App.—Dallas 2013) (standard for reviewing no-evidence summary judgments and treatment of summary-judgment record)
Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) (definition of "more than a scintilla" and when evidence is legally insufficient)
W. Invs., Inc. v. Urena, 162 S.W.3d 547 (Tex. 2005) (elements of negligence claim)
Daitch v. Mid-Am. Apartment Cmtys., Inc., 250 S.W.3d 191 (Tex. App.—Dallas 2008) (elements of premises-liability claim)
In re Estate of Miller, 243 S.W.3d 831 (Tex. App.—Dallas 2008) (preservation rules: offer of proof/bill of exception required to challenge exclusion of evidence)