Opinion issued July 15, 2014.




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-13-00773-CV
                           ———————————
                         JUDY COWARD, Appellant
                                       V.
                             H.E.B., INC., Appellee


                   On Appeal from the 295th District Court
                            Harris County, Texas
                      Trial Court Case No. 2011-24693


                         MEMORANDUM OPINION

      Judy Coward sued HEB Grocery Company to recover damages for injuries

she sustained when she slipped and fell on a puddle of water while shopping at the

grocery store. The trial court granted HEB’s motions for traditional and no-

evidence summary judgment. On appeal, Coward contends that the trial court erred
in granting summary judgment to HEB because she had raised a genuine issue of

material fact that HEB had actual or constructive knowledge of a dangerous

condition on the premises. We affirm the trial court’s judgment.

                                   Background

      Coward was shopping at an HEB grocery store when she slipped and fell in

a puddle of water covering “a large area” of an aisle, injuring her back. According

to Coward, the water puddle was not deep, but was similar to “a recently mopped

floor.” After falling, Coward saw water trickling from the ceiling, hitting nearby

shelves and products, dripping onto the floor, and gradually forming a puddle. But

Coward “never saw any large quantity of water coming from the ceiling or water

pouring downward.”

      In response to the accident, several store employees, including the store

manager, Mary Clark, came to Coward’s aid, and one employee called for a

maintenance person to mop the floor. Before the accident, Clark had been walking

another aisle, looking for overhead water leaks. According to Clark, the store had

previously experienced water leaks during heavy rains. Coward testified that there

were two bakery shop employees working approximately nine steps from the main

aisle, near the end of the aisle where she fell. But neither Clark nor any other HEB

employee testified that they saw water in the aisle before Coward fell. Store reports

reveal that in the two years before Coward’s accident the store had suffered roof



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leaks. However, none of the reports specifically identified leaks in the area of the

store where Coward slipped and fell.

      HEB filed a motion for no-evidence and traditional summary judgment,

arguing that Coward could produce no evidence that HEB knew or should have

known that there was water on the floor and that Coward had legally insufficient

evidence to support her claims. In support of the motion, HEB attached a transcript

of Coward’s deposition testimony. Coward responded, arguing that her own

affidavit testimony and store manager Clark’s testimony presented sufficient

evidence that HEB had knowledge of the dangerous condition. Specifically,

Coward argued that (1) the prior leaks put the store manager on notice that the

ceiling was likely to leak and (2) the length of time that the water was on the floor

supported the store’s constructive knowledge of that leak.

      The trial court granted summary judgment to HEB. Coward filed a motion

for new trial, which was overruled by operation of law. This appeal followed.

                               Standard of Review

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315

S.W.3d 860, 862 (Tex. 2010). If a trial court grants summary judgment without

specifying the grounds for doing so, as is the case here, we must uphold the trial

court’s judgment if any of the grounds relied on by the movant is meritorious.

Parker v. Valerus Compression Servs., LP, 365 S.W.3d 61, 65 (Tex. App.—



                                         3
Houston [1st Dist.] 2011, pet. denied). When reviewing a summary judgment

motion, we take as true all evidence favorable to the nonmovant and indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

      A party seeking summary judgment may combine in a single motion a

request for summary judgment under the no-evidence standard with a request

under the traditional, as-a-matter-of-law standard. Binur v. Jacobo, 135 S.W.3d

646, 650 (Tex. 2004). If a motion argues both bases for summary judgment and the

order does not specify which motion was granted, we typically review the

propriety of the summary judgment under the no-evidence standard first. See

Parker, 365 S.W.3d at 65. If the no-evidence summary judgment was properly

granted, we need not reach arguments on the traditional motion for summary

judgment. See id.

      To prevail on a no-evidence motion for summary judgment, the movant

must establish that there is no evidence to support an essential element of the

nonmovant’s claim on which the nonmovant would have the burden of proof at

trial. See TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex.

App.—Houston [1st Dist.] 2009, pet. denied). On review, we determine whether

the nonmovant produced more than a scintilla of probative evidence to raise a

genuine issue of material fact for each challenged element. Colson v. Grohman, 24



                                       4
S.W.3d 414, 420 (Tex. App.—Houston [1st Dist.] 2000, pet. denied). More than a

scintilla of evidence exists if the evidence offered “rises to a level that would

enable reasonable and fair-minded people to differ in their conclusions.” King

Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S.

1030, 124 S. Ct. 2097 (2004).

                                Objections to Evidence

      We first address HEB’s contention that Coward’s affidavit was insufficient

to raise a genuine issue of material fact because it was based on her “opinions,

speculations and conclusions about the source, formation, and longevity of the

water” on the floor. Coward responds that there is no speculation in her affidavit,

that it does not contain any factual or legal conclusions, and that HEB waived any

error by failing to raise these objections in the trial court.

      Texas Rule of Civil Procedure 166a(f) requires an affidavit to show that it is

made by a person who is competent to testify on the matter. TEX. R. CIV. P.

166a(f); Rizkallah v. Conner, 952 S.W.2d 580, 586 (Tex. App.—Houston [1st

Dist.] 1997, no pet.). Texas law divides defects in summary judgment affidavits

into two categories: (1) defects in form and (2) defects in structure. For the first

category, defects in form, the complaining party must make an objection in the trial

court and obtain a ruling at or before the summary judgment hearing. See TEX. R.

APP. P. 33.1(a)(1); TEX. R. CIV. P. 166a(f); Vice v. Kasprzak, 318 S.W.3d 1, 11



                                            5
(Tex. App.—Houston [1st Dist.] 2009, pet denied). When a trial court does not

explicitly rule on an objection to the form of summary judgment evidence, its

“ruling on an objection to summary-judgment evidence is not implicit in its ruling

on the motion for summary judgment.” Delfino v. Perry Homes, 223 S.W.3d 32, 35

(Tex. App.—Houston [1st Dist.] 2006, no pet.). For the second category, defects in

substance, the complaining party may raise the issue for the first time on appeal.

See Dodge v. Durdin, 187 S.W.3d 523, 532 (Tex. App.—Houston [1st Dist.] 2005,

no pet.). Objections that statements in an affidavit are conclusory are defects of

substance and, therefore, may be raised for the first time on appeal. Id.; see

Rizkallah, 952 S.W.3d at 587.

      An affidavit is conclusory if it states “a conclusion without any explanation”

or asks the factfinder to “take [the affiant’s] word for it.” Arkoma Basin

Exploration Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 (Tex. 2008);

see Rizkallah, 952 S.W.2d at 587 (“A conclusory statement is one that does not

provide the underlying facts to support the conclusion.”). If Coward’s affidavit

contained conclusory statements—statements that failed to provide the underlying

facts to support the conclusion—it was not proper summary judgment evidence.

See Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 637 (Tex. App.—

Houston [1st Dist.] 2002, pet. denied).




                                          6
       In reply to Coward’s response to its motion for summary judgment, HEB

argued that the following statements were conclusory: (1) “the leaks were steady in

places described above, slower off the plastic lip of the shelf;” (2) “[w]ater was

dripping from that general area;” and (3) “I fell on aisle 4, approximately 9 steps

from the main aisle, and 17 steps from the bakery.” Each of these statements was

supported by factual statements within the affidavit and was within the scope of

Coward’s personal knowledge. See Rizkallah, 952 S.W.2d at 586; Miller v.

Raytheon Aircraft Co., 229 S.W.3d 358, 365–66 (Tex. App.—Houston [1st Dist.]

2007, no pet.) (“The personal knowledge requirement is satisfied if the affidavit

sufficiently describes the relationship between the affiant and the case so that it

may be reasonably assumed that the affiant has personal knowledge of the facts

stated in the affidavit.”).

       Accordingly, we conclude that Coward’s statements were competent

summary judgment evidence. We next consider whether that and other evidence

raised a fact issue to foreclose summary judgment.

                                Premises Liability

       Coward contends that the trial court erred in granting summary judgment to

HEB because she raised a fact issue regarding whether HEB had actual or

constructive knowledge of the alleged puddle on its floor.




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      Coward was HEB’s invitee. Accordingly, HEB owed her a duty to exercise

reasonable care to protect her from dangerous conditions that were either known or

reasonably discoverable. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936

(Tex. 1998); Bendigo v. City of Houston, 178 S.W.3d 112, 114 (Tex. App.—

Houston [1st Dist.] 2005, no pet.). To recover from HEB, Coward had the burden

of proving that: (1) HEB had actual or constructive knowledge of some condition

on the premises; (2) the condition caused an unreasonable risk of harm; (3) HEB

did not exercise reasonable care to reduce or eliminate the risk; and (4) HEB’s

failure to use such care proximately caused her injuries. See Ketch v. Kroger Co.,

845 S.W.2d 262, 264 (Tex. 1992); Bendigo, 178 S.W.3d at 114. A plaintiff may

satisfy the knowledge element by proving one of three things: (1) the defendant

placed a substance on the floor; (2) the defendant actually knew the substance was

on the floor; or (3) it is more likely than not that the dangerous condition had

existed long enough to give the premises owner a reasonable opportunity to

discover it. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002);

Bendigo, 178 S.W.3d at 114.

      Coward contends that the evidence shows that HEB had both actual and

constructive knowledge of a dangerous condition. We first consider whether

Coward presented more than a scintilla of evidence that HEB had actual

knowledge.



                                        8
A.    Whether HEB had actual knowledge of a dangerous condition

      Coward cites City of San Antonio v. Rodriguez, 931 S.W.2d 535, 536 (Tex.

1996), to support her contention that HEB had actual knowledge of the dangerous

condition because the manager knew that the roof leaked during heavy rain. In

Rodriguez, the Texas Supreme Court reversed the court of appeals’s determination

that a jury could have concluded that a leaky roof in a city recreation center was

itself a dangerous condition and, therefore, the defendant’s knowledge was

conclusive. Id. at 536–37. The Court concluded that a leaky roof was not a

dangerous condition, but a leaky roof could cause a dangerous condition, such as

water on the floor. Id.

      Following Rodriguez, knowledge of rain causing prior roof leaks is not

equivalent to actual knowledge of a dangerous condition. To the contrary, the

Court reasoned that whether knowledge could be inferred, “[d]epend[ed] on the

position of the leaks above the floor and the amount of rain.” Id. at 537. Coward

cites to store manager Clark’s testimony that she knew that it was raining, that the

store roof had prior leaks when it rained, and that she was looking for leaks when

Coward fell. Coward argued that their testimony established actual knowledge of a

dangerous condition. However, this evidence does not demonstrate that HEB

actually knew that there was a dangerous condition on the aisle where Coward fell.




                                         9
See id. at 536 (holding leaky roof not dangerous condition itself); see also Reece,

81 S.W.3d at 814.

      Accordingly, we conclude that there was no evidence to support the

conclusion that HEB had actual knowledge of a dangerous condition.

      1.    Whether HEB had constructive knowledge of a dangerous
            condition

      We next consider whether Coward presented more than a scintilla of

evidence that the water had been on the floor for a sufficient period of time that

HEB had a reasonable opportunity to discover it. See Reece, 81 S.W.3d at 814;

Bendigo, 178 S.W.3d at 114. In determining whether to attribute constructive

knowledge, courts analyze the combination of proximity, conspicuity, and

longevity of the dangerous condition. Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d

566, 567–68 (Tex. 2006) (citing Reece, 81 S.W.3d at 816).

      Temporal evidence, the length of time that the dangerous condition existed,

provides the best indication of whether the store had a reasonable opportunity to

discover a dangerous condition. Reece, 81 S.W.3d at 816. “An employee’s

proximity to a hazard, with no evidence indicating how long the hazard was there,

merely indicates that it was possible for the premises owner to discover the

condition, not that the premises owner reasonably should have discovered it.” Id.

Temporal evidence is necessary for the fact-finder to conclude that the store owner

had an opportunity to discover the dangerous condition. Id.


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      Evidence of a dangerous condition’s conspicuousness and the proximity of

the property owner or its employees to the condition is relevant. Reece, 81 S.W.3d

at 815–16. An inconspicuous spill would require close proximity to impose

constructive knowledge. Id. (noting conspicuity could be determined based on

evidence that there was “a dark liquid on a light floor”). However, evidence of

close proximity and conspicuousness of a condition are insufficient, alone, to prove

constructive knowledge; temporal evidence “of how long the hazard was there” is

required. Id.

      In her affidavit, Coward stated that after her fall, she saw “water dripping

from the ceiling,” “striking the floor, nearby shelves and products, and water from

the shelves and products dripped onto the floor.” She also noted that the ceiling

leaks were “steady as were the leaks from the products, but slower and more

deliberate as [they] trickled down the plastic brackets of the shelves and on to the

floor.” According to Coward, the water on the floor appeared like a recently

mopped floor—not a big puddle.

      Coward cites Wal-Mart Stores, Inc. v. Tinsley, 998 S.W.2d 664, 668 (Tex.

App.—Texarkana 1999, pet. denied), to support her contention that the water was

on the floor long enough for HEB to have discovered it. In Tinsley, the grocery

store defendant had constructive knowledge of a dangerous condition when there

was evidence that water slowly dripped from a dingy ceiling tile and formed a



                                        11
large puddle and that the courtesy counter was near the puddle. Id. at 669. The

court held that the plaintiff’s testimony that she noticed “big circles and yellow

stains” on ceiling tiles above her, some portion of the ceiling tiles appeared

“darker, as if the tiles had recently been wet,” and a store employee’s testimony

that when water would leak through the tiles, the water would “gather on the floor

until someone discovered it” was sufficient to raise a fact issue about whether the

dangerous condition “existed long enough to give” the grocery store a reasonable

opportunity to discover the condition. Id. at 668–69.

      Coward presented no evidence that would suggest that there had been prior

leaks in the same area of the store where she fell. The evidence she presented

indicated that the prior leaks were located in different parts of the store and were

not always the result of rain. As examples, there were leaks involving a roof air

conditioning unit leaking fluid, a window air conditioning unit leaking fluid,

“ponding” on the roof, a skylight leaking, and the roof leaking in the front of the

store. Furthermore, knowledge that it was raining and that rain could have caused

leaks is not evidence of a dangerous condition; instead, it is evidence of the

possibility of a dangerous condition. See Rodriguez, 931 S.W.2d at 536–37

(holding that “leaky roof was not itself a dangerous condition”). Such knowledge is

not evidence of constructive knowledge absent any evidence of knowledge of prior

rain leaks in the part of the store where Coward fell.



                                          12
      Coward cites Kofahl v. Randall’s Food & Drugs, Inc., 151 S.W.3d 679

(Tex. App.—Waco 2004, pet. denied), to argue that HEB had constructive

knowledge because of the time it would take for the puddle to form on the store

floor. In Kofahl, there was more than scintilla of evidence that the store had

constructive knowledge based on testimony that the puddle was “large,” with “very

tacky and gummy” edges, as though the puddle had “start[ed] to dry up.” Id. at 681

(citing Kroger Stores, Inc. v. Hernandez, 549 S.W.2d 16, 16–17 (Tex. App.—

Dallas 1977, no writ) (attributing constructive knowledge when substance on floor

was described as “dried where it looks like cake”); Furr’s, Inc. v. McCaslin, 335

S.W.2d 284, 286–87 (Tex. App.—El Paso 1960, no writ) (attributing constructive

knowledge based on evidence that substance on floor was described as “dry around

the edges”); Furr’s v. Bolton, 333 S.W.2d 688, 689–90 (Tex. App.—El Paso 1960,

no writ) (attributing constructive knowledge based on evidence that substance on

floor was “mashed and turned dark” and “had dried some around the edges”)).

      Coward, however, presented no similar evidence of dirt, track marks, or

gummy surfaces that would indicate that the puddle in which she fell had “start[ed]

to dry up” or otherwise indicate the water had been on the floor long enough to

raise an issue of constructive knowledge. See Kofahl, 151 S.W.3d at 681; cf.

Safeway Stores, Inc. v. Harkless, 601 S.W.2d 534, 537, 539 (Tex. App.—Tyler

1980, writ ref’d n.r.e.) (holding no constructive knowledge based on plaintiff



                                        13
testimony that liquid was “brown” or dirty). At best, the evidence presented

supports the possibility of a dangerous condition, rather than a dangerous condition

itself. See Gonzalez, 968 S.W.2d at 936 (holding evidence of footprints and

trackmarks in “fresh” substance on floor could “no more support the inference that

[spill] accumulated dirt over a long period of time than it can support the opposite

inference”).

       Lastly, Coward argues that HEB employees’ close proximity to the

dangerous condition supports the conclusion that HEB had constructive

knowledge. Specifically, Coward testified that two bakery workers were just steps

from the main aisle, near the end of aisle on which she fell. In Wal-Mart Stores,

Inc. v. Spates, the Texas Supreme Court held that the store defendant did not have

constructive knowledge of a dangerous condition based on evidence that a store

employee was “directly behind” her when the plaintiff slipped and fell on an empty

six-pack ring. 186 S.W.3d at 567–68. Despite the employee’s proximity, the store

did not have constructive knowledge because the only temporal evidence was the

plaintiff’s testimony that the ring had been on the floor for 30 to 45 seconds. Id. at

568.

       Coward, likewise, fails to offer any temporal evidence to raise an issue of

constructive knowledge based on this proximity. There is no evidence that the

bakery employees were aware of or could have observed the condition about which



                                         14
she complains. Furthermore, the only employee who testified to having walked the

aisle before Coward’s fall testified that she had seen no water on the floor 20

minutes before Coward’s accident. Accordingly, Coward failed to present any

evidence that the puddle was present long enough to allow the employees’ close

proximity to raise an issue of HEB’s constructive knowledge of a dangerous

condition. See Mendoza v. Fiesta Mart, Inc., 276 S.W.3d 653, 656 (Tex. App.—

Houston [14th Dist.] 2008, pet. denied) (holding no constructive knowledge

because plaintiff failed to present temporal evidence and relied on argument that

employees were “present in the store, and should have been aware of the

dangerous condition”).

      Without any knowledge of how long the water was on the floor, we

conclude that there was no evidence of one of the essential elements of Coward’s

claim. Accordingly, we conclude that the trial court did not err in granting

summary judgment to HEB. 1

                                  Conclusion

      We affirm.




1
      Because we conclude that the trial court properly granted HEB no-evidence
      summary judgment, we do not reach Coward’s arguments regarding traditional
      summary judgment. See Parker v. Valerus Compression Servs., LP, 365 S.W.3d
      61, 65 (Tex. App.—Houston [1st Dist.] 2011, pet. denied).

                                       15
                                            Harvey Brown
                                            Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.




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