San Antonio Press, Inc. v. Custom Bilt MacHinery
852 S.W.2d 64
Tex. App.
1993
Check Treatment

*2 liability BIERY, nothing judgment, any error in the Before PEEPLES and See, Hancock findings is harmless. JJ. (Tex.App.—San Antonio OPINION v. National Fire Ins. Union PEEPLES, Justice. (Tex.App.—Corpus Easley v. Castle Press, ap San Antonio Inc. Home, Nursing in favor of Manor peals take-nothing judgment Roe- (Tex.App.—Dallas no the three defendants it sued for Delaney, Even if ver v. we were to sustain error, Civ.App. writ); points unchallenged Lew Lines, Inc., 893, no-damages finding requires Isthmian us to affirm. is v. allega We nevertheless address the writ). 1968, no tion of evidence because we think *3 charge that such a serious should be ad finding The no-damage fully sup though dressed the even we must affirm the court's In procedural for reasons. ad liability, if the Even had found the no- dressing issue, this we note that damages finding compelled would have a not the suggest does that defense attor take-nothing judgment unless it was suc neys part spoliation or played a (for cessfully challenged example, being as way. condoned it in evidence). against weight the of the Plain no-damage finding tiff has not the attacked premis- record shows that any way. Indeed, complain in it did not es suffered fire in November 1986. Evi- trial, in the answer its motion new as suggested by a blower motor made 324(b) requires. rule See TEX.R.CIV.P. Company American Fan was the cause. 324(b). preserved, Even if error were be expert Rodney promptly Plaintiffs Fuchs given cause of the deference to find investigated fire and in di- the December ings no-damage we could not set aside the laboratory sassembled the motor in his and finding insufficiency factual without de took several of it. Plaintiffs tailing saying the why again apart evidence and it is took the motor September weight photographed the of the it in and October evidence. See 1987. In Cropper Caterpillar Tractor March defendants obtained (Tex.1988); testing, the motor for examination and but v. Tex Lofton agreed (Tex.1986); it was there would be no “destruc- Corp., Brine as testing. sought per- tive” American Fan America, m v. Aluminum Co. Al operate mission to in June 1990 the Pool v. stress, under condi- which would alter its Ford Motor tion; request August this in court denied 1986); Gilbreath, Raul A. Gonzalez & Rob by that time American Fan’s ex- Appellate Jury’s Finding Review aof pert the already Robert Scott had done Damages”, “Zero 54 Tex.B.J. deposition During test. of a defense do, This we cannot unless funda expert in it February became known presented, may mental error is we not sus operated that Scott had the motor and test- argument preserved tain an that was not ed it. trial court in this court. the or Vawter v. Garvey, 786 S.W.2d trial, sought sanctions before

Tex.R.App.P. 52(a). judge from pre-trial but before had heard parties expressed his he doubt about Plaintiff suggested argument at oral authority had judge to sanction because no damage the issue irreparably signed prohibiting ever order spoliation tainted American Fan’s At point destructive evidence. We are not told how the evi- attorney tiff’s motion for withdrew his may may dence of what or not have caused court, open prejudice without proximate- damages a fire affects whether reurge to it later. Because the motion was resulting ly proved. the fire were from because the court did withdrawn and also spoliation But even if tainted the sanc- not hear from the defendants at the case, aspect require of the the rules reject plaintiff’s argu- hearing, we appellant assign no-damage least to pretrial this hear- ment that the events at present argument as error and upon issue spoliation somehow bear why is tainted and this cannot appeal. on this stand. Plaintiffs does not attack the brief damage any way; answer in called for indeed case was trial before not brief does mention it. different took advise- judge, even who discretion; our spoliation and its nor will we substitute ment the issue of of evidence decision to judgment for the trial court’s sanctions, saving the matter for decision plaintiff re impose a lesser sanction than Ultimately trial during the trial. later Corp. v. Black quested. Chrysler court ruled that American Fan could mon, 844, 852-53 testimony present expert’s deposition Fidelity United States & Guar. Co. testing; court ruled that about his Rossa, (Tex.App.— present deposition if it plaintiff could denied). Waco desired, bring Fan could fresh witness live so that he would face spoliation cases cited above focused American Fan chose cross-examination. of evidence was on whether live, testimony expert’s not to offer the and deliberate. Thus this case intentional deposition. plaintiff did not offer his Plain- employee of in which an *4 the court to strike American tiff had asked defendant told another em- slip-and-fall pleadings, Fan’s to instruct the “get rid of” the onion that ployee to fire, bearing caused the or to instruct Plorin, And it slipped tiff on. presume pre-test could construction defect case in which condition of the motor have been repair firm the defects in their hired a to American Fan. unfavorable they gave the defendant a house before Here the sim- inspect chance to it. We hold that the court did not motor, ply energized and ran the by granting abuse its discretion less severe destroy condition but did not it. altered its plaintiff requested. sanctions than And here the trial court was aware that the largely choice of sanctions is a matter for able to consider the trial court’s discretion. viola Willful original in its condition and testi- may justify sanctions. tions severe See mony about the motor’s condition before Plorin v. Bedrock Found. & House Level and after We hold that the trial 490, 490-92 by grant- 1988, App. denied); writ Southern — Dallas requested. ing a sanction less severe than Evans, 515, Transp. Pac. Co. is affirmed. (Tex.Civ.App. 518-19 [1st Dist.] — Houston 1979, n.r.e.), denied, writ ref’d cert. Justice, concurring. 994, U.S. 101 S.Ct. 66 L.Ed.2d 291 results, intentional, only In concur in the deliberate de unchallenged no-damage sup presumption struction of evidence raises a renders judgment, that the evidence would have been unfavor instruc any harmless destroying able to the party. Newton v. Hancock v. Manager Super General Scurlock’s market, (Tex.Civ. (Tex.App. Antonio writ H.E. — San — Co., 763 v. Nat’l Union Fire Ins. Grocery Butt Co. v. (Tex.App. Corpus (Tex.Civ.App. writ — Waco Faberge, writ Howard v. Roy dism’d); 1 Ray, R. Texas Law of Evi Inc., (Tex.App (Texas 1980). Practice § . —Hous n.r.e.); ref’d ton writ [1st Dist.] was, most, But here there a fact Madro, 514, 517 Szmalec expert issue whether American Fan’s inten (Tex.App. tionally violated order or inten Chaparral Chrys ref’d Mitchell v. evidence; tionally destroyed altered or Sales, Inc., 572 S.W.2d ler-Plymouth court could well have concluded that testing alteration of the motor was done n.r.e.). misunderstanding mistake and destroy not with the intent to hide or evi

dence. We cannot disturb the trial court’s conflicting testimony

resolution of dispute unless the court abused