     Case: 18-50454      Document: 00515144869         Page: 1    Date Filed: 10/03/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                    No. 18-50454                             FILED
                                  Summary Calendar                     October 3, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
GILDA BENEDETTI,

              Plaintiff - Appellant

v.

WAL-MART STORES TEXAS, L.L.C.,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:16-CV-604


Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM:*
       In this slip and fall case, Gilda Benedetti, acting pro se, appeals the
district court’s decisions to (1) award summary judgment to Wal-Mart Stores
Texas, L.L.C., (2) deny her motions for reconsideration, (3) exercise its
discretion to rule on the motion for summary judgment rather than waiting for
the parties to engage in alternative dispute resolution, and (4) deny her motion



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 18-50454
to appoint counsel after she became dissatisfied with the attorney who
represented her through most of the proceedings. We affirm.
                                              I.
      According to Benedetti, it began raining about 20 minutes before she
entered Wal-Mart at approximately 4:15 p.m. on November 21, 2014. It is
undisputed that rain water leaked from Wal-Mart’s roof onto the ground,
creating a small puddle. About 10 minutes after she entered the store,
Benedetti was injured when she slipped and fell on the puddle. A maintenance
associate from the store later testified that there was only “like a little” water
on the ground, an amount smaller than a broomstick.
      Benedetti retained counsel and filed suit in Texas state court, alleging a
premises liability claim. 1 Wal-Mart removed the case to federal court, and the
parties conducted discovery. Eventually, Wal-Mart moved for summary
judgment. And, after concluding that Benedetti filed a sham affidavit that
conflicted with her earlier deposition testimony, the district court granted Wal-
Mart’s motion.
      Benedetti began filing pro se letters with the district court, and so the
matter was referred to a magistrate judge. The magistrate judge construed the
letters as a motion for reconsideration and a motion to appoint counsel. The
magistrate judge recommended denying the motions. The district court
received more correspondence from Benedetti, which it construed as objections
to the magistrate judge’s report. Over Benedetti’s objections, the district court
adopted the report and recommendations of the magistrate and entered
judgment against her. One of Benedetti’s letters was construed as a notice of
appeal.




      1   Benedetti made other claims not relevant to this appeal.
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                                              II.
       On appeal, Benedetti contends the district court erred by granting
summary judgment to Wal-Mart and denying her motions for reconsideration. 2
“We review the grant of summary judgment de novo, applying the same
standards as the district court.” Hill v. Carroll Cty., 587 F.3d 230, 233 (5th Cir.
2009). And “[t]ypically, we review a district court’s decision on a Rule 59 motion
to reconsider for abuse of discretion.” In re La. Crawfish Producers, 852 F.3d
456, 462 (5th Cir. 2017).
                                              A.
       We turn first to Benedetti’s contention that the district court erred by
granting summary judgment to Wal-Mart on her premises liability claim.
Under Texas law, a plaintiff seeking to win a premises liability claim must
prove “[a]ctual or constructive knowledge of some condition on the premises by
the owner.” Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 2014).
When there is no evidence that a premises owner created or knew of a hazard,
a plaintiff may proceed on a “constructive notice” theory. See Wal-Mart Stores,
Inc. v. Spates, 186 S.W.3d 566, 567 (Tex. 2006). 3 The Texas Supreme Court has
explained that this “requires proof that an owner had a reasonable opportunity
to discover the defect.” Id. That question, in turn, “requires analyzing the
combination of proximity, conspicuity, and longevity.” Id. In other words, “if


       2 Before us, Benedetti contends that the district court abused its discretion by ruling
on Wal-Mart’s motion for summary judgment instead of waiting for the parties to engage in
alternative dispute resolution. Even when counseled, Benedetti did not raise this argument
to the district court in her response to Wal-Mart’s motion for summary judgment. Nor did
she raise the argument when she sought reconsideration pro se. Because Benedetti did not
raise this issue before the district court and she has failed to support the argument with case
law here, she has forfeited the argument. See Noriss v. Causey, 869 F.3d 360, 373 n.10 (5th
Cir. 2017).
        3 Benedetti contends on appeal that, “based on the previous leak history as

acknowledged by Wal-Mart employees, they did have constructive knowledge of the presence
of an unreasonable risk of harm.” But, when counseled, Benedetti expressly disclaimed this
argument. She cannot now revive this argument on appeal. See Noriss, 869 F.3d at 373 n.10.
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the dangerous condition is conspicuous as, for example, a large puddle of dark
liquid on a light floor would likely be, then an employee’s proximity to the
condition might shorten the time in which a jury could find that the premises
owner should reasonably have discovered it.” Wal-Mart Stores, Inc. v. Reece, 81
S.W.3d 812, 816 (Tex. 2002). The court stressed that “there must be some proof
of how long the hazard was there before liability can be imposed on the
premises owner for failing to discover and rectify, or warn of, the dangerous
condition.” Id.
      Here, it is undisputed that Wal-Mart did not place the water on the floor,
which came instead from the leaky roof. And, when counseled, Benedetti, did
not respond to Wal-Mart’s argument that it lacked actual knowledge of the
puddle. Instead, Benedetti relied on a theory of constructive knowledge. So,
when ruling on Wal-Mart’s motion for summary judgment, the district court
was required to consider whether Benedetti produced sufficient evidence to
create a fact dispute on the issue of constructive knowledge. To do so, it
analyzed the proximity of Wal-Mart’s employees to the puddle, the puddle’s
conspicuity, and the length of time the puddle sat in the aisle.
      On the proximity factor, the district court noted that in a deposition
Benedetti testified that she did not remember seeing a Wal-Mart associate
near where she fell. But, later, in an affidavit, she swore that “she saw Wal-
Mart Store employees in the Delicatessen and Meat Departments”—areas
adjacent to where she fell. The district court disregarded this evidence under
the “sham affidavit rule.” See S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489,
495 (5th Cir. 1996) (“It is well settled that this court does not allow a party to
defeat a motion for summary judgment using an affidavit that impeaches,
without explanation, sworn testimony.”). Without the affidavit, the district




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court concluded that Benedetti failed to produce any evidence supporting the
proximity factor.
         On appeal, Benedetti explains that the confusion arose because she was
attempting to be precise with her answers during the deposition. She was
asked “Do you recall whether there was a Wal-Mart associate sort of out in
front of you or in that area as you walked through there, do you remember
that?” She answered, “Not in front of me, no, I don’t remember that.” (emphasis
added). Before us, she contends that she was answering only the question
about whether there was an associate in front of her, and not whether there
was an associate in the meat department. Benedetti did not raise this
argument before the district court, and so she has forfeited the argument. See
Noriss v. Causey, 869 F.3d 360, 373 n.10 (5th Cir. 2017); New York Life Ins. Co.
v. Brown, 84 F.3d 137, 142 (5th Cir. 1996). Even if properly raised, we would
not conclude that the district court erred by rejecting this argument because
she was asked whether there was an associate “out in front of you or in that
area.”
         Benedetti also claims for the first time on appeal that a Wal-Mart
employee was in proximity to the water on the floor. Even when counseled,
Benedetti did not raise this point in her response to Wal-Mart’s motion for
summary judgment. So, again, she forfeited the argument on appeal. See
Noriss, 869 F.3d at 373 n.10; Brown, 84 F.3d at 142.
         On the conspicuity factor, the district court found that, even when
viewed in a light favorable to Benedetti, her evidence “indicates that the
condition was not conspicuous.” When considering a plaintiff who fell into a
puddle “about the size of a small-or medium-sized pizza” in a well-trafficked
area, the Texas Supreme Court held that “there was no evidence that the spill
was conspicuous—it was not large and consisted of clear liquid on a light tile
floor.” Reece, 81 S.W.3d at 813, 816. Here, it is undisputed that the puddle
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consisted of clear water on a light-colored tile. In her response to Wal-Mart’s
motion for summary judgment, to support her position that the puddle was
conspicuous, Benedetti pointed to the testimony of Crystal Lassiter—the store
manager—and the testimony of the maintenance associate. The district court
found that Benedetti took Lassiter’s testimony “out of context.” Lassiter had
testified that it was “evident” that there was a leak in the area where Benedetti
fell. Benedetti used this statement to claim that Lassiter testified the puddle
was evident. The district court concluded that Lassiter’s testimony did not
establish whether the puddle was conspicuous. Moreover, the district court
found that the maintenance associate’s testimony that only “like a little” water
was on the ground, an amount smaller than a broomstick, did not show that
the puddle was conspicuous.
      On appeal, Benedetti notes that Lassiter testified that the size of the
puddle was about a foot and a half wide. But this does not contradict the
district court’s finding or suggest that the water was conspicuous.
      On the final factor, longevity, the district court found that Benedetti did
“not direct the Court to any summary judgment evidence in support of her
temporal proximity argument.” The Texas Supreme Court has held that a
plaintiff must offer proof that a dangerous condition existed for some length of
time under a constructive notice theory. Reece, 81 S.W.3d at 815. Although
Benedetti offered speculations about the time that it began raining—around
3:55 or 4:00 p.m.—and she claimed she was injured around 4:25 p.m., the
district court held that such speculation was insufficient.
      Balancing the factors of proximity, conspicuity, and longevity, the
district court found that Benedetti failed to offer enough evidence to create a
fact dispute on the question of Wal-Mart’s constructive notice of the puddle.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (explaining that if “a
nonmoving party has failed to make a sufficient showing on an essential
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                                  No. 18-50454
element of her case with respect to which she has the burden of proof” then
“[t]he moving party is entitled to judgment as a matter of law” (quotations
omitted)). In this we see no reversible error.
                                        B.
      We turn to Benedetti’s claim that the district court abused its discretion
by denying her Rule 59(e) motion for reconsideration. Before the district court,
Benedetti raised two arguments to support her motion: (1) because of her
attorney’s lack of diligence, she never had access to a video depicting Wal-
Mart’s “horrible negligence” that caused her fall; and (2) her attorney failed to
depose an eyewitness to her injury. And, on appeal, Benedetti contends that
her attorney may have been “in cahoots” with Wal-Mart. This court has said
that “[a] court considering a Rule 59(e) motion requesting reconsideration may
take into consideration an attorney’s conduct in determining whether to reopen
a case.” Ford Motor Credit Co. v. Bright, 34 F.3d 322, 324 (5th Cir. 1994). But
“it has long been held, particularly in civil litigation, that the mistakes of
counsel, who is the legal agent of the client, are chargeable to the client.” Pryor
v. U.S. Postal Serv., 769 F.2d 281, 288 (5th Cir. 1985).
      The record appears to flatly contradict Benedetti’s assertions about the
video. The magistrate judge held a hearing and discussed the video on June
19, 2018. At the hearing, counsel for Wal-Mart confirmed that the correct video
was produced on August 26, 2016. Benedetti’s attorney confirmed that Wal-
Mart produced the correct video, which recorded the spot where Benedetti was
injured.
      Moreover, it appears that Benedetti’s counsel could have deposed the
eyewitness. Indeed, Benedetti’s brief states that she “asked [her] attorney to
take her deposition repeatedly. He said he was saving her.” If Benedetti’s
counsel mistakenly failed to depose the witness, that error is “chargeable to
the client.” Pryor, 769 F.2d at 288. We see no evidence in the record supporting
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Benedetti’s contention that her lawyer conspired with Wal-Mart. The district
court did not abuse its discretion when denying Benedetti’s motion for
reconsideration.
                                      III.
      Finally, we consider Benedetti’s claim that the district court erred when
it declined her request to appoint counsel to assist her. “There is no right to
appointment of counsel in civil cases.” Delaughter v. Woodall, 909 F.3d 130,
140 (5th Cir. 2018) (internal quotation marks omitted). But this court has said,
at least in the context claims brought under 42 U.S.C. § 1983, that the district
court has discretion to “appoint counsel if doing so would aid in the efficient
and equitable disposition of the case.” Id.; accord Naranjo v. Thompson, 809
F.3d 793, 799 (5th Cir. 2015). However, “appointment of counsel should be
reserved for cases presenting exceptional circumstances.” Delaughter, 909 F.3d
at 141. Because Benedetti was counseled for the majority of the proceedings in
the district court, including during the discovery phase, we find that this case
does not present exceptional circumstances—even assuming that the district
court may appoint counsel outside of the § 1983 context. Thus, the district court
did not err when denying her motion to appoint counsel.
      AFFIRMED.




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