Jean Sowell v. the Kroger Company ( 2006 )

Opinion issued September 29, 2006

In The

Court of Appeals

For The

First District of Texas

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NO. 01–05–00710–CV

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JEAN SOWELL, Appellant

V.

THE KROGER CO., Appellee

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On Appeal from the 157th District Court

Harris County, Texas

Trial Court Cause No. 2004–31277

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SUPPLEMENTAL OPINION ON MOTION FOR REHEARING

          Jean Sowell, appellant, suffered injuries after slipping on an unidentified liquid in a Kroger store. On June 1, 2006, this Court affirmed the trial court’s granting of Kroger’s no-evidence motion for summary judgment. Sowell has filed a motion to supplement the record and a motion for rehearing based on the supplemental record. Having previously granted the motion to supplement the record, we now grant the motion for rehearing, although our disposition remains the same, and we supplement our opinion with the following.

Motion for Leave to Supplement the Record

          In her motion for leave to supplement the record, Sowell argued that, during the pendency of her appeal, she had filed a request to the district clerk to supplement the record with her request for disclosure. Because the record was not supplemented, we granted her motion for leave to supplement the record with the original request.

Motion for Rehearing

          In her motion for rehearing, Sowell quotes the portion of our opinion in which we said, “Because the request for disclosure was not a part of the record before the trial court, we hold that the trial court did not abuse its discretion in denying the presumption of spoliation.” Sowell states that she assumes that this is a clerical error and that we meant “this Court” instead of “the trial court.”

          To clarify, we did mean the trial court. As an appellate court, we review the judgment of the trial court for error. Tex. R. App. P. 44.1. In order for the trial court to have found spoliation of records, there had to be evidence of a request for those records presented to the trial court before the judgment was entered. See Tex. R. Civ. P. 166a(c) (specifying deadlines for filing response to motion for summary judgment); Dominguez v. Kelly, 786 S.W.2d 749, 753 (Tex. App.—El Paso 1990, writ denied) (holding that documents filed after summary judgment hearing can only be considered by trial court if filed with leave of court). The supplemental record reflects that the “Defendant’s Response to Request for Disclosure” was not filed with the trial court until November 14, 2005. The trial court granted Kroger’s motion for summary judgment on June 24, 2005. Because there was no evidence of a request for allegedly spoliated documents before the trial court prior to the rendering of the judgment, we cannot find error in the trial court’s judgment.

Conclusion

          We affirm the judgment of the trial court.

                                                                        Laura Carter Higley

                                                                        Justice

Panel consists of Justices Jennings, Hanks, and Higley.