In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-25-00652-CV
PAULA AYULO, Appellant
V.
LOCAL FAVORITE RESTAURANTS, LLC, AND SNUFFER’S RESTAURANTS,
LLC, Appellees
On Appeal from the 431st District Court
Denton County, Texas
Trial Court No. 23-10030-431
Before Sudderth, C.J.; Birdwell and Bassel, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
I. Introduction
Appellant Paula Ayulo went out to dinner with her family in May 2023. Wait
staff led them to an outdoor table, and according to Ayulo’s petition, “upon sitting
down, the back of [Ayulo’s] chair gave way due to rust and age,” and she fell. Ayulo
sued Appellees Local Favorite Restaurants, LLC, and Snuffer’s Restaurants, LLC
(collectively, Snuffer’s), alleging premises liability.1 Not quite two years later, Snuffer’s
filed a traditional and no-evidence motion for summary judgment.
Ayulo responded to the motion by attaching photos that her husband, Juan, had
taken of the chair after her fall; two of Snuffer’s “Guide to Operational Excellence”
scorecards; deposition excerpts from herself, a Snuffer’s corporate representative, and
Juan; and the notarized errata changes to Juan’s deposition made the day before she
filed her response. Snuffer’s objected that Juan’s notarized errata changes amounted to
a “sham affidavit,” and the trial court agreed, sustaining the objection before granting
summary judgment for Snuffer’s.
In two issues, Ayulo argues that the trial court erred by granting summary
judgment because she produced more than a scintilla of evidence to create a genuine
1
Ayulo also sued for negligence but later abandoned that claim. See JMI Contractors, LLC v. Medellin, No. 24-0846, 2026 WL 1949160, at *4 (Tex. June 26, 2026) (“[A] plaintiff’s single undivided injury may sound in premises liability or negligent activity[,] but not both.”).
2
issue of material fact and that it abused its discretion by excluding Juan’s deposition
errata. Because the record reflects otherwise, we will affirm.
II. Discussion
A plaintiff bringing a premises-liability claim must show that: (1) the defendant
had actual or constructive knowledge of a condition on the premises, (2) the condition
posed an unreasonable risk of harm to the invitee-plaintiff,2 (3) the defendant failed to
exercise reasonable care to reduce or eliminate the risk, and (4) the defendant’s failure
to use such care proximately caused the plaintiff’s personal injuries. JMI Contractors,
LLC, 2026 WL 1949160, at *10; United Scaffolding, Inc., 537 S.W.3d at 471.
“A condition presenting an unreasonable risk of harm is defined as one in which
there is a sufficient probability of a harmful event occurring that a reasonably prudent
person would have foreseen it or some similar event as likely to happen.” Seideneck v.
Cal Bayreuther Assocs., 451 S.W.2d 752, 754 (Tex. 1970). Whether a condition is
unreasonably dangerous is often a fact question, but common or innocuous hazards are
not unreasonably dangerous as a matter of law. Pay & Save, Inc. v. Canales, 691 S.W.3d
2
The duty a defendant owes in a premises-liability case depends on the plaintiff’s status at the time the incident occurred. See United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 474 (Tex. 2017). The duty owed to an invitee—one who enters the property of another with the owner’s knowledge and for their mutual benefit—is “to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not.” Id. It is undisputed that Ayulo was an invitee.
3
499, 502 (Tex. 2024). The standalone fact that a condition has caused an injury does
not make it unreasonably dangerous. Id.
To raise a fact question on whether a common condition is unreasonably
dangerous, a plaintiff must bring forth evidence of prior accidents, injuries, complaints,
reports, regulatory noncompliance, or some surrounding circumstance that
transformed the condition into one measurably more likely to cause injury. Id. at 503;
Seideneck, 451 S.W.2d at 754 (“Obviously, evidence of other falls attributable to the same
condition, or evidence of defectiveness of the rug, floor, or other condition causing the
fall would be probative, although not conclusive, on the question.”); see United
Supermarkets, LLC v. McIntire, 646 S.W.3d 800, 803 (Tex. 2022) (“In conducting this
analysis, we have previously considered whether the relevant condition was clearly
marked, its size, whether it had previously caused injuries or generated complaints,
whether it substantially differed from conditions in the same class of objects, and
whether it was naturally occurring.”); see also Christ v. Tex. Dep’t of Transp., 664 S.W.3d
82, 87–88 (Tex. 2023) (“[T]o raise a fact issue as to whether a common condition may
support a premises-defect claim, we have required a claimant to adduce evidence either
of prior complaints or injuries or that some surrounding circumstance transformed an
everyday hazard into one measurably more likely to cause injury.”).
4
In the no-evidence portion of its summary judgment motion, 3 Snuffer’s argued,
among other things, that there was no evidence of an unreasonable risk of harm to
Ayulo from the chair. The trial court’s order did not indicate upon which ground it
granted summary judgment. See Cmty. Health Sys. Prof’l Servs. Corp. v. Hansen, 525 S.W.3d
671, 680 (Tex. 2017) (stating that when a trial court does not specify the grounds on
which it granted a summary-judgment motion, the reviewing court must affirm if any
of the grounds asserted in the motion are meritorious).
Ayulo did not bring forth any evidence of prior accidents, injuries, complaints,
reports, regulatory noncompliance, or other surrounding circumstances that
transformed the chair into a condition measurably more likely to cause injury. See Pay
3
Because this case was filed before the amendments to Rule 166a, we cite to the previous rule. After an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move for summary judgment on the ground that no evidence supports an essential element of the nonmovant’s claim or defense. Tex. R. Civ. P. 166a(i). The trial court must grant the motion unless the nonmovant produces summary-judgment evidence that raises a genuine, material fact issue. See id. & 1997 cmt.; B.C. v. Steak N Shake Operations, Inc., 598 S.W.3d 256, 259 (Tex. 2020). If the nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact, then a no-evidence summary judgment is not proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
Further, in reviewing de novo a summary judgment, we view the evidence in the light most favorable to the nonmovant, crediting evidence favorable to that party if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Raoger Corp. v. Myers, 711 S.W.3d 206, 211 n.7 (Tex. 2025) (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). However, speculative and conclusory testimony is incompetent and cannot support or defeat summary judgment. Id. at 213.
5
& Save, Inc., 691 S.W.3d at 503; see also United Supermarkets, 646 S.W.3d at 803 (noting
evidence to consider is whether the condition “had previously caused injuries or
generated complaints”). We recount her evidence below.
A. Summary-judgment evidence other than Juan’s deposition and errata
Ayulo testified that the restaurant’s patio was covered but open on the sides. She
initially testified that she did not look at the chair before sitting down, but when asked
whether she had checked for any dirt or trash on the chair first, she stated, “I don’t
remember, but I’m sure. I don’t ever sit on a dirty seat.” She also stated that she did
not see any rust on the chair before sitting down because the rust had been
“underneath,” so she “wouldn’t have seen it.”
Ayulo testified that after her fall, a waitress told Juan that “she knew those chairs
were bad and they should have been replaced before” and that Juan showed the waitress
“that [the chair] was all rusted out from underneath.” Ayulo stated that the waitress
“indicated that she knew that they had been needing to be switched out for quite some
time, but they’d just been left out there on the patio and not been changed,” but she
did not recall specifically what the waitress had said. Ayulo stated that the manager
came out and “just said she would report the chairs.”
Snuffer’s corporate representative Quinn Dixon testified that the two people
working in management at the store at that time—Mr. Barnes and Ms. Ragon—were
responsible for “a general look-for-issues-that-there-are-in-the-store” inspection and
that patio furniture and its viability fell under that general-inspection umbrella. Barnes
6
and Ragon, as managers, had a checklist that was “back-of-house centric,” but they also
had a store walk-through on hand to use.
Dixon stated that when the restaurant closed at the end of every day, the patio
chairs were “pushed back underneath whatever table they’re assigned to . . . and left for
the day.” He testified that during the three years that he had worked for the company,
he had not been made aware of any patio furniture’s “breaking” but some items had
become “unusable.” He gave as an example, “A [chair] leg would get . . . slightly bent
to where the chair was rocking, and we would just toss the chair.” To his knowledge,
however, “nothing with welds breaking or outright breaking like [Ayulo’s chair] did.”
Snuffer’s “old director of operations, Anthony McCallum,” had created the Guide to
Operational Excellence before Dixon’s time. Dixon testified that McCallum had “asked
us to fill these out periodically as we did store visits so that we could have something
on our end in writing that we could show how the store was overall in good condition
or not.”
The two “Guide to Operational Excellence” scorecards included in Ayulo’s
evidence showed eight categories, beginning with “Outside the Restaurant” and ending
with “Manager.” Under the scorecards’ “Points System,” a “3” indicated “OPS
Excellence,” a “2” indicated “At Standard,” and a “1” indicated “Below Standard.” The
“Outside the Restaurant” category listed seven subcategories, of which “Outdoor Patio
7
(furniture/umbrellas in good repair)” was one.4 The October 11, 2022 scorecard
showed that the outdoor patio received a score of “2” with the notation, “Dust
Fans/light fixtures.” The January 5, 2023 scorecard showed a “3” for the outdoor patio,
with the notation, “Keep tables set and tv’s [sic] turned on.” Ayulo had alleged in her
original petition that she fell “on or about May 8, 2023.” The record does not reflect
why a scorecard closer to the date of Ayulo’s fall was not included.
B. Juan’s deposition and subsequent notarized errata changes
At the beginning of his August 18, 2025 deposition, Juan replied, “Yes, ma’am,”
when asked whether he understood that everything he was going to say that day would
be under oath “as if you were sitting before a judge and a jury.” He replied, “I will,”
when Snuffer’s counsel stated, “[I]f you do not understand one of my questions, please
let me know and I will rephrase it.” He agreed, “That’s right,” when Snuffer’s counsel
stated, “[S]o if you answer my question, I will assume that you understood my question;
is that fair?”
The two photos that Juan took of the chair after Ayulo’s fall were discussed
during his testimony, and we include them here for reference.
4
The remaining six “Outside the Restaurant” subcategories were: “Parking Lot & Sidewalks (stripes/trash)”; “Landscaping in great condition”; “Lighting/Signage & timer set correctly”; “Back Dock & Dumpster (clean/stains)”; “Building Exterior (paint free of chip & wear, windows clean)”; and “Music (equipment working, good volume).”
8
To simplify this review, we have italicized the portions of Juan’s testimony
changed by his errata sheet and have placed the errata changes in footnotes for
comparison. The record reflects that Juan signed the errata affidavit on August 21,
2025, three days after his deposition, and the day before Ayulo filed her summaryjudgment response.
Regarding Snuffer’s wait staff’s actions after Ayulo’s fall, Juan testified about a
waitress who came to assist them:
Q. Right. And -- and what did you all tell [the waitress]?
A. That the chair broke down on her.
Q. And after you all told the waitress about the chair breaking and
-- and the fall, what -- what happened next?
A. The waitress took the chair to the corner away from that -- from
that area. And I went behind her to take the -- to figure out what
happened, and I took pictures of the chair. And then that’s when the
9
young lady said to me that -- that that chair was not supposed to be there
in the patio, that that chair was supposed to be taken away.
Q. And when you say “the young lady,” is this the same waitress
who --A. Yes.
Q. -- took the chair away?
A. Yes, ma’am.
Q. And did she say why the chair was not supposed to be there?
A. She didn’t say why,[5] but she knew that something was wrong with
that chair.
Q. How do you know she knew something was wrong with the
chair?
A. Because she told me. She said that chair was not supposed to
be there.
Q. Right. But, you know, she said that it wasn’t supposed to be
there. Did she say why it wasn’t supposed to be there?
A. She didn’t say why.[6]
Q. So we’re not sure whether or not she knew if something was
wrong with the chair?
5
In his errata sheet, Juan changed “She didn’t say why” to “She knew it would not be safe for use” and wrote “Reason: Accuracy.”
6
As before, in his errata sheet, Juan changed “She didn’t say why” to “She knew it would not be safe for use” and wrote “Reason: Accuracy.”
10
A. She knew about it, because that’s what she told me right away.
She said that chair was not supposed to be there.
Q. . . . Right. And then what --A. That’s what -- she said that that chair was supposed to be taken
away. So by that, to me, is, you know, they knew something wrong with
that chair. And then I took pictures of the chair.
Q. . . . But -- right. And so she -- she said that the chair wasn’t
supposed to be there. But did she ever say why the chair was not supposed
to be there --A. No.[7]
Q. -- to you?
A. No.[8]
Q. All right. And after the chair was moved to the side and you
took a picture, what happened after that?
A. The -- the manager showed up a few minutes later, a lady, midthirties, and brought the ice pack and start taking notes and talking to my
wife.
Ayulo’s counsel then asked Juan some follow-up questions regarding his
testimony and the photos he had taken:
Q. Okay. Do you know if this photograph represents what you
believe was wrong with the chair?
7
In his errata sheet, Juan changed “No,” to “Yes,” and listed “Accuracy” as the reason.
As before, in his errata sheet, Juan changed “No,” to “Yes,” and listed
8
“Accuracy” as the reason.
11
A. Yes, sir.
Q. Okay. [Snuffer’s counsel] asked you about this conversation that you had with the waitress after the incident. Do you remember that?
A. Yes.
Q. And you indicated that the waitress had suggested that the chair should not have been used on the patio; is that correct?
A. Yeah. That’s correct.
Q. Okay. You said that you don’t remember whether she
mentioned -- let me just ask this this way. Are you pointing [in the photo] to the condition that you believe the waitress was talking about with regards to why the chair should not have been on the patio?
A. That’s correct.
Q. Okay. Do you believe that this photograph represents why she
believed that the chair should not have been in use?
A. That’s correct. That’s correct.
Q. . . . Let me ask it this way, so I can deal with [Snuffer’s counsel’s form] objection. Can you -- can you tell us what you believe that the waitress was telling you as far as what was wrong with the chair or why it should not have been on the patio?
A. By saying this picture is really clear on what the problem is with the chair. It’s – it’s rusted and welded.
Q. . . . And you did not see this issue with the chair before your
wife used it; is that correct?
A. No, sir.
12
Snuffer’s counsel then questioned Juan about the photo in which he pointed to
part of the chair:
Q. All right. Just a quick question, Mr. Ayulo. So what you’re
pointing at is where the -- you said the weld in the chair; is that correct?
A. Yes.
Q. And you said you did not see that before the fall?
A. No.
Q. And so would you say that the only reason you’re seeing that is
because the chair is bent?
A. I’m sorry. I didn’t understand the question.
Q. [Snuffer’s counsel:] Oh, it’s okay. I’ll rephrase it. The -- what
you’re pointing at on the chair, the -- it looks like, you know, the internal
structure of the chair there. Would you say the only reason you’re able to
see it is because the chair is bent?
A. The -- the only way to see that is by seeing the chair that way.
Because if you unfold it, you can -- there is no way that you can see this.
But I -- does that answer your question?
[Snuffer’s counsel]: Yes, it does.
After the trial court sustained Snuffer’s sham-affidavit objection to the errata
changes and granted summary judgment, Ayulo filed a motion for new trial, arguing
that when her counsel submitted the errata changes on August 21, 2025, her counsel
had included an e-mail stating that Juan would be willing to be deposed again regarding
13
his errata changes and requesting, for the first time, a Spanish interpreter to prevent
miscommunication. Ayulo attached that email to the motion. The trial court denied
the motion.
C. Sham-affidavit rule
A sham affidavit is one in which the affiant attempts to create a fact issue with a
statement that is contrary to his or her prior sworn statement and made for the purpose
of preventing a summary judgment. Primary Media Grp., Inc. v. LT Ranch Props., LLC,
No. 02-25-00391-CV, 2026 WL 1838885, at *11 (Tex. App.—Fort Worth June 25,
2026, no pet.) (citing Lujan v. Navistar, Inc., 555 S.W.3d 79, 85 (Tex. 2018)); see Martinez
v. Daughters of Charity Health Servs., No. 03-05-00264-CV, 2006 WL 3453356, at *5 (Tex.
App.—Austin Nov. 30, 2006, no pet.) (affirming no-evidence summary judgment when
plaintiff’s affidavit contradicted her earlier deposition testimony without explaining the
reason for the contradiction, rendering her affidavit a sham, without which there was
no evidence to support the challenged element).
The sham-affidavit rule requires a case-specific inquiry, and where circumstances
point to the likelihood of a sham rather than legitimate conflicting inferences, the trial
court may insist on a sufficient explanation and may grant summary judgment if none
is forthcoming. Lujan, 555 S.W.3d at 88–89. A sufficient explanation may include
newly discovered evidence or the affiant’s confusion about what was being asked during
the deposition and an attempt to clarify the confusing testimony rather than
manufacture a sham. Id. at 85–86; see Est. of Doss, No. 13-23-00021-CV, 2024 WL
14
3199152, at *12 (Tex. App.—Corpus Christi–Edinburg June 27, 2024, pet. denied)
(stating that the sham-affidavit rule may be applied “when (1) the affidavit is executed
after a deposition and (2) there is a clear contradiction on (3) a material point (4) without
explanation” (citing Cnty. of El Paso v. Aguilar, 600 S.W.3d 62, 75 (Tex. App.—El Paso
2020, no pet.)).
The rule is based on “a trial court’s authority to distinguish between genuine and
non-genuine fact issues . . . when confronted with evidence that appears to be a sham
designed to avoid summary judgment.” Lujan, 555 S.W.3d at 82.9 It is “a valid
component of a trial court’s authority under Rule 166a to distinguish genuine fact issues
from non-genuine fact issues.” Id. at 91.
A trial court asked to disregard a conflicting affidavit must examine the nature
and extent of the differences in the facts asserted in the documents to determine what
effect a conflict should be given in a particular case because most differences between
a witness’s affidavit and deposition are “more a matter of degree and details than direct
contradiction,” reflecting human inaccuracy more than fraud. Id. at 88. If the
9
In Lujan, in addition to facial inconsistencies between Lujan’s affidavit and other sworn evidence, other “particular circumstances” supported the trial court’s decision to disregard the affidavit as a sham: Lujan’s attorney openly admitted to the trial court that the affidavit was false and his only explanation “was that Lujan either did not recall or misunderstood the relevant facts,” which the trial court found unpersuasive. 555 S.W.3d at 91 (stating that these circumstances “buttress[ed] the trial court’s conclusion that the late-filed and contradictory affidavit did not raise genuine fact issues sufficient to survive summary judgment”).
15
differences fall into the category of variations on a theme, consistent with the major
allegations with some variances of detail, then this is grounds for impeachment, not
exclusion. Id. But if the subsequent affidavit clearly contradicts the witness’s earlier
testimony involving the suit’s material points, without explanation, then the shamaffidavit rule applies. Id.
A trial court’s refusal to consider evidence under this doctrine should be reversed
only if it was an abuse of discretion because of the deference traditionally afforded to
its decisions to exclude or admit summary-judgment evidence. Id. at 84–85.
D. Analysis
1. No abuse of discretion in exclusion of deposition errata
Ayulo argues that the trial court abused its discretion by excluding Juan’s
deposition errata because it “clarified ambiguous testimony given by a non-native
English speaker[10] and was consistent with the physical evidence and prior answers,”
and she characterizes the trial court’s action as an “overbroad application” of the shamaffidavit rule. She further argues, “Because the sham-affidavit doctrine is limited to
irreconcilable contradictions offered solely to create a fact issue, it has no application
Nothing aside from Ayulo’s assertions in her appellate brief and motion for
10
new trial states that Juan was a non-native English speaker or that English was his second language. Cf. Wohlstein v. Aliezer, 321 S.W.3d 765, 771 n.8 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (stating that during oral argument, “counsel confirmed English is not appellant’s native language”).
16
to clarifying errata submitted under Rule 203.1(b).” 11 Snuffer’s responds that excluding
Juan’s errata was not an abuse of discretion because it was sham testimony designed to
avoid summary judgment when the revised testimony contradicted his earlier testimony
on material points.
Juan signed his deposition errata before a notary, averring that he had read the
foregoing deposition and that “same is true and correct, except as noted above.” Like
our federal counterparts, we see no reason why deposition errata—if made to avoid
summary judgment—cannot be struck under the sham-affidavit rule. See Brian P.
Lauten, The Era of Trial by Paper: When the Witness Re-Writes the Oral Deposition Testimony
in the Errata Sheet, 8 Hous. L. Rev. 126, 128–29 (2018) (discussing similarities between
11
Contrary to Ayulo’s argument that Rule 203.1 “expressly authorizes substantive changes to deposition testimony,” the rule has not contained that express language since its amendment in 1999, unlike Federal Rule of Civil Procedure 30(e). See Julie M. James, Note & Comment, “A Deposition Is Not A Take Home Examination”: Resolving the Ambiguity of Texas Rule of Civil Procedure 203.1, 69 Baylor L. Rev. 217, 220–22 & nn. 21– 26 (2017) (comparing Rule 203.1 to its prior incarnations); see Klorer v. Block, 717 S.W.2d 754, 757 (Tex. App.—San Antonio 1986, writ ref’d n.r.e.) (quoting prior rule as stating, “Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with statement of the reasons given by the witness for making such changes.” (emphasis added)); cf. Fed. R. Civ. P. 30(e)(1)(B) (stating that “if there are changes in form or substance,” the deponent must be allowed “to sign a statement listing the changes and the reasons for making them”).
As pertinent here, under current Rule 203.1(b), “The witness may change responses as reflected in the deposition transcript by indicating the desired changes, in writing, on a separate sheet of paper, together with a statement of the reasons for making the changes.” Tex. R. Civ. P. 203.1(b). “The witness must then sign the transcript under oath and return it to the deposition officer.” Id.
17
Texas Rule of Civil Procedure 203 and Federal Rule of Civil Procedure 30(e) and noting
that when a state procedural rule has a parallel federal rule, “Texas courts routinely rely
upon the federal courts for their ‘extensive jurisprudential experience’ for any ‘guidance
it may yield’”); see also Reilly v. TXU Corp., 230 F.R.D. 486, 488–90 (N.D. Tex. 2005)
(discussing role of the sham-affidavit rule in cases that disregarded deposition changes
in deciding summary-judgment motions). 12
Examining the circumstances per Lujan, we observe the following:
• Juan changed his answers to the same four questions regarding why the waitress said
the chair was not supposed to be there. Two of those four answers changed from
“No” to “Yes,” completely contrary to his prior statement. See 555 S.W.3d at 85.
• Juan’s deposition answers were in English, as were his errata changes, and when he
did not understand a question during the deposition, he asked for clarification. He
12
One of the cases discussed in Reilly found no distinction between “sham” affidavit alterations and impermissible changes to a deposition in an errata sheet. 230 F.R.D. at 488 (citing Burns v. Bd. of Cnty. Com’rs of Jackson Cnty., 330 F.3d 1275, 1281–82 (10th Cir. 2003) (“We see no reason to treat Rule 30(e) corrections differently than affidavits.”)). Another found such errata changes “akin to a sham affidavit.” Id. at 488– 89 (citing Hambleton Bros. Lumber Co. v. Balkin Enters., Inc., 397 F.3d 1217, 1225 (9th Cir. 2005) (“We think this type of ‘sham’ correction is akin to a ‘sham’ affidavit.”)). The third determined that the trial court properly disregarded deposition corrections in deciding a summary-judgment motion. Id. at 488 (citing Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir. 2000) (noting, “by analogy to the cases which hold that a subsequent affidavit may not be used to contradict the witness’s deposition,” that “a change of substance which actually contradicts the transcript is impermissible unless it can plausibly be represented as the correction of an error in transcription, such as dropping a ‘not’”)); see Lauten, 8 Hous. L. Rev. at 137 (“In lockstep with the holdings in Thorn, Hambleton Bros., and Burns, respectively, the sham affidavit doctrine has also been applied (in the context of errata sheet changes) by United States District Courts in other circuits.”).
18
did not, however, ask for any clarification for the questions to which he subsequently
changed his responses in the errata.
• Juan did not provide an explanation for the changes other than “Accuracy.” Cf.
Wohlstein, 321 S.W.3d at 771–72 (stating that deponent noted in his errata sheet that
he had misunderstood counsel’s questions and then corrected that testimony).
There was no assertion of newly discovered evidence, and Ayulo’s counsel
questioned Juan during the deposition on the same topic, eliminating the need to
further clarify his testimony. Cf. Lujan, 555 S.W.3d at 85–86.
• Juan signed his notarized errata changes the day before Ayulo filed her summaryjudgment response.
Because Juan’s errata changes contradict his earlier testimony involving material
points—Snuffer’s knowledge and the condition’s dangerousness—without explanation
beyond “[a]ccuracy,” we cannot conclude that the trial court abused its discretion by
sustaining Snuffer’s objection based on the sham-affidavit rule. See id. at 84–85, 88. We
overrule Ayulo’s second issue.
2. No evidence of unreasonable danger
The remainder of Juan’s testimony (and his photos) showed that the broken weld
was not visible without viewing the chair’s underside and included his speculation that
the waitress “knew that something was wrong with that chair.” Dixon testified that
management would discard unusable chairs without attempting repairs and that he was
unaware of any furniture breaking during his three years with the company. Ayulo
testified that the rust had been “underneath” the chair, so she “wouldn’t have seen it.”
Ayulo also testified that a waitress told Juan that “she knew those chairs were bad” after
they showed the waitress “that it was all rusted out from underneath” but that she did
19
not remember exactly what the waitress said. Juan’s photos did not show what the chair
looked like at the table before the incident.
None of Ayulo’s evidence showed that the chair presented an unreasonable risk
of harm at the time of the incident. That is, no one deposed the waitress to determine
what she knew about “those chairs,” i.e., why or how they were “bad” and how long
they had been so, or any prior incidents involving them, and no one deposed the store’s
managers or the director of operations—all identified in Dixon’s deposition—to
investigate their knowledge about prior accidents, injuries, complaints, reports, or other
surrounding circumstances involving the patio chairs that might have transformed the
condition into one measurably more likely to cause injury; to cross-examine them on
their “Guide to Operational Excellence” scorecards or on the thoroughness or
deficiency of their patio-chair inspections; or to determine whether any industry
standards existed for such inspections. See Pay & Save, Inc., 691 S.W.3d at 503.
As the supreme court has stated, “An absence of . . . evidence [showing
otherwise] will lead to a conclusion that the condition complained of is an everyday
hazard.” Id.; see Banks v. River Oaks Steak House, No. 2-03-363-CV, 2004 WL 1858216,
at *2 (Tex. App.—Fort Worth Aug. 19, 2004, no pet.) (affirming traditional summary
judgment when affidavit of restaurant’s manager, who was on duty at the time of the
incident, contained information about daily inspection of restaurant’s metal chairs and
stated that neither the manager nor his staff knew or had reason to know that the chair
in which the plaintiff sat before she fell was defective or dangerous and when affidavit
20
of licensed professional engineer stated that he had personally inspected the at-issue
chair, which had a defective weld that was not visible until after the chair failed due to
metal fatigue); see also Morales v. Buc-ee’s, Ltd., No. 14-24-00454-CV, 2025 WL 970424, at
*2 (Tex. App.—Houston [14th Dist.] Apr. 1, 2025, no pet.) (affirming no-evidence
summary judgment on “unreasonably dangerous condition” ground when plaintiff
presented no evidence that “this model of chair was involved in prior accidents, injuries,
or complaints . . . [or] of any reports concerning the safety of this model chair or that
the chair fail[ed] to conform to any regulations” and identified “no surrounding
circumstance that would make this chair ‘measurably more likely to cause injury’ than
any other chair”); cf. Blake v. Sybarite Pubs, LLC, No. 14-22-00293-CV, 2023 WL
2808064, at *2 (Tex. App.—Houston [14th Dist.] Apr. 6, 2023, no pet.) (reversing
summary judgment when “elsewhere in the Pub’s motion, there was evidence that the
same type of chair had broken and resulted in injury to another invitee. That prior
incident creates a fact issue to consider in deciding whether the chair was unreasonably
dangerous.”).
Because Ayulo’s evidence did not raise a fact issue as to an unreasonable risk of
harm, the trial court did not err by granting summary judgment on this ground. We
overrule her first issue.
III. Conclusion
Having overruled both of Ayulo’s two issues, we affirm the trial court’s
judgment.
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/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: August 27, 2026
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