Full Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-25-00554-CV Paul UVIEDO, Appellant v. H-E-B, LP, Appellee From the 288th Judicial District Court, Bexar County, Texas Trial Court No. 2022-CI-23328 Honorable Nadine Melissa Nieto, Judge Presiding Opinion by: Velia J. Meza, Justice Sitting: Lori I. Valenzuela, Justice Adrian A. Spears II, Justice Velia J. Meza, Justice Delivered and Filed: November 10, 2026 AFFIRMED Paul Uviedo sued H-E-B, LP after he slipped and fell on an unidentified liquid in the produce department of an HEB grocery store. The trial court initially denied HEB’s traditional and no-evidence motions for summary judgment, then reconsidered and rendered judgment for HEB. Because Uviedo failed to raise a fact issue on whether HEB knew or should have known of the spilled liquid, we conclude the trial court properly granted summary judgment and affirm. 04-25-00554-CV BACKGROUND While shopping at HEB, Uviedo grabbed bananas then fell after taking two or three steps away from the display. After falling, he saw clear liquid on the floor, including a puddle about ten inches across and surrounding splatters. He did not know where the liquid came from or how long it had been there. HEB filed separate traditional and no-evidence motions for summary judgment on the same day. Its no-evidence motion challenged whether the condition posed an unreasonable risk of harm, whether HEB had actual or constructive knowledge of the condition, and whether the condition proximately caused Uviedo’s injuries. Uviedo filed a response that expressly identified the traditional motion and included deposition testimony and surveillance video screenshots. The depositions included one of Cullen Wernette, an HEB manager, who testified about produce handling and floor-safety practices. The trial court initially denied both motions, stating that Uviedo had substantively responded to both. HEB moved for reconsideration, and the court later granted both motions for summary judgment. At the reconsideration hearing, the parties and the court discussed both the scope of Uviedo’s response and whether the court could consider the surveillance video. Uviedo then moved for a new trial. At the new trial hearing, the court explained that it had changed its ruling because it understood that it could not consider the video if Uviedo had not produced it as part of his response. The court denied the motion for new trial, and this appeal followed. DISCUSSION 1 Standard of review We review a summary judgment de novo, considering the evidence in the light most favorable to the nonmovant and indulging reasonable inferences in his favor. Merriman v. XTO -2- 04-25-00554-CV Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). When a party moves for both traditional and no- evidence summary judgment, we ordinarily address the no-evidence grounds first. Id. After an adequate time for discovery, a party may seek summary judgment on the ground that no evidence supports an essential element on which the opposing party bears the burden of proof. TEX. R. CIV. P. 166a(i). 1 The opposing party must produce more than a scintilla of evidence raising a genuine issue of material fact on each challenged element. Merriman, 407 S.W.3d at 248. Because the summary judgment order does not specify the grounds on which it was granted, we must affirm if any ground presented in the motions and preserved for appellate review is meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003). 2 Adequate time for discovery We first address Uviedo’s argument that HEB sought no-evidence summary judgment before he had an adequate opportunity for discovery. A party seeking additional discovery before a summary-judgment ruling must file an affidavit explaining the need for that discovery or a verified motion for continuance. TEX. R. CIV. P. 166a(g); Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996); Rankin v. Union Pac. R.R. Co., 319 S.W.3d 58, 67 (Tex. App.— San Antonio 2010, no pet.). Uviedo did not make such a request before the original summary-judgment hearing. At the new-trial hearing, his counsel explained that he had not sought a continuance because he believed he already had enough evidence. He therefore did not preserve his complaint that the motion for summary judgment was filed before an adequate time for discovery. See Tenneco, 925 S.W.2d at 1 Rule 166a was amended effective March 1, 2026. The amendments apply to summary-judgment motions filed on or after that date. Final Approval of Amendments to Rule 166a of the Texas Rules of Civil Procedure, Misc. Docket No. 26-9012, ¶ 3 (Tex. Feb. 27, 2026). Because HEB filed its motions before March 1, 2026, we cite the former rule’s paragraph structure. -3- 04-25-00554-CV 647 (holding that court of appeals erred by considering unpreserved inadequate-time-for-discovery complaint); TEX. R. APP. P. 33.1. We overrule Uviedo’s second issue. 3 Scope of summary judgment response and evidence Uviedo’s remaining issues concern whether his response addressed both motions and raised a fact issue. Those questions require us to consider the scope of the response and the evidence available for review before addressing HEB’s notice ground. 3.1 Uviedo’s summary-judgment response Uviedo argues that his response substantively addressed both of HEB’s motions for summary judgment and should not have been treated as failing to respond to the no-evidence motion. HEB counters that Uviedo’s filing, by its terms, responded only to the traditional motion. A party opposing a proper no-evidence motion must point out evidence raising a fact issue on the challenged elements. State v. $3,774.28, 713 S.W.3d 381, 390 & n.8 (Tex. 2025). Evidence already in the court’s file need not be attached, but the response must direct the court to that evidence and substantively discuss how it raises a fact issue. Id. at 388–90. Uviedo’s summary judgment response contains conflicting indications of its scope. Its title, opening paragraph, and prayer expressly identify only HEB’s traditional motion. It also recites the traditional summary-judgment standard, including the statement that the burden always remains with the movant and never shifts to the nonmovant. Those features support HEB’s reading. Other portions support Uviedo’s position. The response begins by identifying the scheduled hearing on both the traditional and no-evidence motions. It states that more than a scintilla of evidence supports the challenged element, identifies the same three evidentiary deficiencies raised in HEB’s no-evidence motion, and develops arguments about HEB’s actual or -4- 04-25-00554-CV constructive knowledge. Even its prayer alternatively asks the court to limit relief to claims for which it determines there is no evidence. The response also attaches depositions and identifies testimony and screenshots on which Uviedo relies to raise a fact issue. HEB’s reply addresses those arguments and describes the filing as a response to its “Motions for Summary Judgment.” It is not clear whether the filing served as a response to HEB’s separate no-evidence motion. Rule 166a(i) directs the trial court to grant a proper no-evidence motion “unless the respondent produces summary judgment evidence raising a genuine issue of material fact.” TEX. R. CIV. P. 166a(i). And courts look to a filing’s substance, not merely its title, to determine its effect. See Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999); see also TEX. R. CIV. P. 71. Uviedo’s response produced evidence and addressed the challenged elements despite its title. Because it would not change the outcome, we assume without deciding that Uviedo’s response addressed both summary judgment motions. 3.2 The surveillance video Before turning to the merits, we must determine whether the surveillance video is part of the summary-judgment evidence. The parties disputed that question in the trial court. 2 The trial court explained that it had relied on the video when initially denying summary judgment but later understood that it could not consider the video because Uviedo had not produced it as part of his response. The trial court had authority to reconsider its initial denial. A court retains control over its interlocutory orders and may set them aside before rendering a final judgment. Fruehauf Corp. v. 2 The surveillance video was not included in the appellate record. The clerk’s record contains screenshots, but the reporter’s exhibit volume states that no exhibits were admitted or attached. Other than screenshots, Uviedo does not reference any portion of the video in his summary-judgment response or on appeal. -5- 04-25-00554-CV Carrillo, 848 S.W.2d 83, 84 (Tex. 1993) (per curiam). Rule 166a does not require every item of summary-judgment evidence to be attached to a response. A nonmovant may rely on evidence already on file if the response directs the court to that evidence and explains the fact issue it raises. $3,774.28, 713 S.W.3d at 388–90. Discovery not otherwise on file may be used through a timely filed and served notice specifically identifying the discovery and stating the intent to use it as summary-judgment proof. TEX. R. CIV. P. 166a(d). And the rules permit late-filed evidence with leave of court. Id. R. 166a(c). A separate written order granting leave is not required. In B.C. v. Steak N Shake Operations, Inc., a nonmovant filed a response and supporting evidence one day late without seeking leave, and the movant objected to their timeliness. 598 S.W.3d 256, 258–59 (Tex. 2020) (per curiam). The supreme court explained that leave may appear in “a separate order, a recital in the summary judgment, or an oral ruling contained in the reporter’s record of the summary judgment hearing.” Id. at 260 (citation modified). The trial court’s unqualified recital that it had considered the evidence affirmatively indicated that it had considered the late response and its attachments. Id. at 261–62. Here, the video was not “on file” at the time of the initial hearing—it was filed afterward. And the record does not show that Uviedo ever obtained leave to file late evidence. Absent an affirmative indication in the record that the trial court permitted a late filing, we presume that the court did not consider it. Steak N Shake, 598 S.W.3d at 262; Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996). Uviedo does not challenge the trial court’s refusal to consider the video as evidence on appeal. Therefore, we cannot consider the video as summary-judgment evidence. -6- 04-25-00554-CV 4 Notice of dangerous condition We next consider whether the remaining summary-judgment evidence raises a fact issue on notice. Uviedo argues that an employee created the spill and that HEB’s employees had an opportunity to discover it. HEB responds that the evidence does not connect the liquid to an employee or establish how long it was on the floor. We assume for this analysis that the liquid posed an unreasonable risk of harm and caused Uviedo’s injuries. HEB owed Uviedo, its invitee, a duty to exercise reasonable care to protect him from dangerous conditions that were known or reasonably discoverable. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002). HEB can be held liable only if it knew or should have known of the condition—that is, if it had actual or constructive notice. See id. A slip-and-fall plaintiff must satisfy this notice element by establishing that “(1) the defendant placed the substance on the floor, (2) the defendant actually knew that the substance was on the floor, or (3) it is more likely than not that the condition existed long enough to give the premises owner a reasonable opportunity to discover it.” Id. We address these routes in turn. 4.1 Creation of the condition or actual knowledge Uviedo contends that the presence of an HEB employee and a produce cart near the fall location showed that HEB created the condition or that it had actual knowledge of it. Evidence that a premises owner created a dangerous condition may support an inference that the owner knew of it. Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex. 1992). To defeat HEB’s no-evidence motion on that theory, Uviedo had to present evidence supporting a reasonable inference that an employee placed the liquid on the floor, rather than a mere suspicion that an employee could have done so. See Reece, 81 S.W.3d at 814; Merriman, 407 S.W.3d at 248. -7- 04-25-00554-CV The screenshot in Uviedo’s response depicts an employee with a produce cart near the location where Uviedo fell about 19 minutes before the fall. Wernette testified that employees load carts with produce in a back storage room that houses the produce cooler and then bring the carts onto the sales floor to stock the shelves. He also testified that condensation could possibly be present on the produce or cart. But that testimony does not identify condensation on the employee’s cart or its contents, and the screenshot does not establish that the cart was spilling any liquid. The cart’s presence and the general possibility of condensation do not support a reasonable inference that the cart created the spill. The evidence therefore does not raise a fact issue on this theory of notice. The evidence also does not raise a fact issue on whether HEB actually knew of the spill before Uviedo fell. Uviedo testified that an employee cleaned the area afterward, but he identified no prior report of the spill or statement that an employee already knew of it. Cleanup after the fall does not allow a reasonable inference of knowledge before the fall. Thus, the evidence does not raise a fact issue under either of the first two theories of notice. 4.2 Constructive notice As to constructive notice, Uviedo relies on the location of the fall in a high-traffic area, employees’ proximity to that area, and HEB’s inspection practices. Constructive notice requires evidence that the condition likely existed long enough to give the premises owner a reasonable opportunity to discover it. Reece, 81 S.W.3d at 814. What constitutes a reasonable time depends on the circumstances, including the condition’s conspicuousness and an employee’s proximity to it. Id. at 816. But without some evidence of how long the hazard existed, a factfinder cannot reasonably assess the owner’s opportunity to discover it. Id. -8- 04-25-00554-CV The supreme court applied this temporal requirement to a no-evidence summary judgment in H-E-B, LP v. Peterson, 732 S.W.3d 541 (Tex. 2026). There, evidence of a possible source of the liquid, the puddle’s size, and the store’s inspection practices did not establish how long the puddle had existed before the fall. Id. at 547–48. The evidence supported only the possibility that the puddle had existed long enough for HEB to discover it. That possibility was insufficient to raise a fact issue on constructive notice. Id. at 548. Here, the evidence likewise does not establish the spill’s duration. Uviedo did not know how long the liquid had been on the floor. A video screenshot included in his response establishes the cart’s presence in the area about 19 minutes before his fall, but not the liquid’s presence throughout that interval. Because nothing connects the cart to the spill, beyond mere speculation, the time since the cart was present does not help establish the spill’s age. The evidence about traffic and floor-safety practices is similarly unhelpful. Wernette agreed that the produce department would generally be a high-traffic area around the time of day that Uviedo fell—a Sunday at about 1:00 p.m.—and he described employees’ responsibilities to be vigilant regarding spills. But that evidence does not establish that the liquid was present when an employee had a reasonable opportunity to discover it. As Reece explains, an employee’s proximity to a hazard, without evidence of how long the hazard existed, shows only that discovery was possible, not that the owner reasonably should have discovered it. 81 S.W.3d at 816–17. “Otherwise, owners would face strict liability for any dangerous condition on their premises.” Id. at 816. Uviedo’s amended response also quotes testimony attributed to HEB’s corporate representative, Timothy Twiehaus, about inspection practices, documentation, and conditions in the produce department. The response provided the deposition only through a Dropbox link, and -9- 04-25-00554-CV the deposition itself does not appear in the appellate record. Even assuming the quoted testimony was properly before the trial court, it does not identify how long this spill existed before the fall. General practices and the mere risk that water may be present do not substitute for that evidence. See Reece, 81 S.W.3d at 817; Peterson, 732 S.W.3d at 547–48. Considering the evidence together and in the light most favorable to Uviedo, his summary judgment evidence does not raise a fact issue on whether the liquid existed long enough to give HEB a reasonable opportunity to discover it. The evidence therefore does not raise a genuine issue of material fact on HEB’s actual or constructive notice. This ground alone supports no-evidence summary judgment. We need not reach the remaining challenged elements or HEB’s traditional motion. See Merriman, 407 S.W.3d at 248; TEX. R. APP. P. 47.1. We overrule Uviedo’s first and third issues. CONCLUSION Because we conclude summary judgment was proper, we affirm the trial court’s judgment. Velia J. Meza, Justice - 10 -