*2
photos
not
located. As a result
STONE,
could
be
Before
GREEN and
photos,
produce
failure to
ANGELINI,
of Wal-Mart’s
JJ.
spolia-
following
court
trial
submitted
over
tion
OPINION
objection:
GREEN, Justice.
evidence,
that w[h]ere
You are instructed
injured
Eileen Middleton was
in Wal-
scene,
the accident
such as
alleged
tripped
Mart store when she
on an
of Wal-
peculiarly within the control
brought
defect in
floor. Middleton
produce
fails to
Mart and Wal-Mart
injury
against
personal
cause of
Wal-
action
evidence, you
must
miss-
Mart and a
found in her favor. Wal-
offered,
evidence, if
ing
would
appeals
judgment complaining,
Mart
You are further
unfavorable to Wal-Mart.
among
jury charge
things,
other
that the
presumption
that such
instructed
Finding
eiToneous.
harmful error
rebutted Wal-Mart.
jury charge, we reverse and remand.
Discussion
Background
error,
argues
point
In
first
Middleton,
6, 1993,
On December
her
on
mother,
LeMaire,
Evelyn
daughter,
and her
in harmful error. We
improper and resulted
Jordan,
Kathy
shopping at the Wal-
agree.
Nederland,
entering
Texas. After
Mart
store,
went to the restroom
Middleton
Scope
of Review
Standard
shop-
daughter began
while her mother
jury charge
error in
We review
ping.
up
then met back
with her
Middleton
of re
of discretion standard
pushing
shopping
their
with the abuse
began
mother and
Servs,
Dep’t
v.
aisle,
Human
rounding
view. See Texas
the corner of
cart. While
(Tex.1990);
E.B.,
647,
H.E.
“caught
something,”
heel
on
Middleton’s
197,
Bilotto,
Grocery
losing
Butt
S.W.2d
temporarily
conscious-
Co.
fell. After
she
1996), affd, 41
ness,
(Tex.App.
Antonio
by smelling
was aroused
Middleton
—San
—
Sup.Ct.
1998 WL
hospital by emer-
J.
to a
salts and was taken
1998).
(July
trial court
A
S.W.2d-
gency personnel.
by acting arbitrarily,
abuses its discretion
44. The
unreasonably,
possession
testify
or without consideration of within his
or to
about
creates a rebuttable
guiding principles.
unfavorable
Aquamarine
Downer v.
party,
Inc.,
to that
which of itself
has
Operators,
241-242
S.W.2d
rule,
Focusing
value. Id.
on the second
(Tex.1985).
Wal-
*3
Dowling,
Mart
relies on Brewer v.
submitting
jury charge,
When
the
a
1993,
(Tex.App.
S.W.2d 156
Worth
—Fort
trial court is afforded more discretion when
denied)
argue
writ
to
that the instruction was
submitting
submitting
instructions than when
employees
unwarranted because Wal-Mart
questions.
Weingarten Realty
Perez v.
In
(evi-
testified about the floor. See id. at 159
vestors,
490,
(Tex.App.
881 S.W.2d
— San
plaintiff
spoliation
dence did not entitle
to
denied).
1994,
However,
Antonio
writ
the
presented
instruction because defendant
evi-
during
discretion afforded
the submission of
evidence).
plaintiffs
dence to rebut
harmful
instructions is not absolute.
See
Tex.R.
Civ.
points
testimony
to the
of its em-
277,
According
P. 277.
to Rule
a trial court
Ross,
ployees,
there
Canales and
who said
proper
must submit instructions “as shall be
a broken tile in the floor. Canales
to enable the
to render a verdict.” Id.
explained
missing
that the
tile did not create
hole;
the
break
the floor surface
nowas
proper,
For an instruction to be
inch;
deeper than an
and
there was not
(1)
(2)
jury,
accurately
must:
assist the
state
protruding screw or metal rod. She further
(3)
law,
support
find
pleadings
any
pieces
did not observe
broken
sur-
tile
277,
and evidence. Tex.R. Civ. 278. All
rounding the area.
requirements
three
must be met for the in
Middleton relies instead on Watson v. Bra
therefore,
struction to
if
proper;
an in
Inc.,
Co-op.,
zos Elec. Power
into there is no evidence or offer when lady she talking with this dent after opponent’s harmful of evidence to rebut the there, they have was a hole evidence; said there the Brewer court did not base its pictures Wal-MaH had those “type” the defen- on the of evidence decision fails —if you must produce the evidence *4 brought forward. As both Bruner and dants that would the the suggest, Brewer second rule should be if offered to Wal-Mart. implicated party when a is in control of unfavorable good Folks, any for pictures if those relevant evidence and he fails to it Wal-Mart, single us here every one of testimony non-produc- explaining offer its or they had them that would have knows his opponent’s tion to rebut harmful evi- for up big as as Dallas down here blown Here, provided a reasonable dence. Canales floor you at them to show that the to look of explanation concerning the the absence they are here. okay. But not was photographs, and testified about what she them, thereby be depicted remembered to essentially required the The instruction to eliminating Middleton’s entitlement the pro- jury to consider Wal-Mart’s reason, spoliation instruction. For this the photographs as duce the given. instruction should not have been liability, forcing Wal-Mart to over- of its thus evidentiary presumption that did not come an Analysis 3. Harm question The for proper exist in this case. Because hold the trial court’s we its jury the breached was whether Wal-Mart improper, instruction we was now determine Middleton, duty care to not whether Wal- of in spoliation whether the submission of the produce photographs from its Mart failed to struction resulted R.App. harmful error. See file. 44.1(a)(1). For harmful error to that, the argues regardless The of dissent occur, the amount to a of a error must denial presented on the evidence based probably that rights caused -rendi- jury itself that at trial the could determine improper judgment. of an tion Id. pre- spoliation had the Wal-Mart rebutted error can result from un Reversible fact sumption. argument This the overlooks necessary jury instructions that focus the had spoliation presumption that whether the jury’s belong on that do not evidentiary ruling attention issues be is an to been rebutted Montez, in the See Lemos v. judge case. is not a fact made the trial —it (Tex.1984); Accord v. Gener jury S.W.2d To the to question jury. the ask for (Tex. Corp., presumption al Motors 669 S.W.2d to apply to the is decide when 1984). harmful because legal The error becomes question. rule ask them to on the law instructions become court’s “[t]he as matter law determined We have accepted by jury the case are to the be not spoliation presumption should that the they rely.” guide on which must Tex as However, jury apply against Wal-Mart. Light Lovinggood, Power & Co. contrary pre- was instructed to —that (Tex.Civ.App. S.W.2d — Dallas jury deter- sumption apply did unless n.r.e.); Watson, refd writ accord was it had been rebutted. Wal-Mart mined at had the ef- the instruction because harmed proof. shifting the burden Here, partially fect of submit- spoliation instruction was case, Wal-Mart successfully any To defend though jury to the even ted jury that it had persuade to concerning required operating against Wal-Mart The spoliation presumption. legally rebutted the had been re- photographic evidence consequence trial, (a) carry of its failure jury reasonably: this bur- could have den explanation was to award Middleton the regarding benefit of believed Wal-Mart’s (b) having prove pictures; not essential elements of her absence of the determined premises any liability spoli- cause of that Wal-Mart’s evidence rebutted action. Wal-Mart (e) presumption; ation concluded persua- should not have had this burden of regarding sion at trial. Middleton’s evidence the condition outweighed of the floor evidence. Conclusion event, any reasonably In could have determined that had rebutted the spoliation The trial court’s erroneous in- spoliation presumption. absolutely There is unduly struction confusing and mislead- nothing majori- support this record to ing. We conclude that it caused the ty’s holding verdict, improper ultimately reach an which “unduly confusing misleading_” improper judgment. led to the rendition of an Accordingly, we sustain Wal-Mart’s first majority concludes that submission of point of error. effectively asked legal question to rule on a point Because Wal-Mart’s first of error is —whether spoliation presumption had been rebut- dispositive, we need not address remain- ted. the effect of the While this ing points judgment of error. The of the *5 instruction, erroneous submission of the it is trial court is reversed and the cause is re- not evidence of harm. Under the record manded for a new trial. us, before we cannot conclude that harm STONE, Dissenting opinion by J. occurred. conflicting testimony regarding the The
STONE, Justice, dissenting. object depth of the hole and whether a metal Although majority correctly has deter- protruding from the hole was for the submitting mined the trial court erred in jury jury The had sufficient evi- to resolve. majority I believe the dence before it to conclude either analysis. I has erred its harm therefore negligent hole did or did not constitute dissent. liable. condition for which Wal-Mart was assuming Even jury seventy decided that Wal-Mart was submitted, wrongfully Wal-Mart has negligent, per cent and we should not disturb failed to show that the instruction caused or finding. Accordingly, their I dissent. likely improper caused rendition of Tex.R.App. 44.1(a)(1). See verdict. Con- trary majority’s “[t]he conclusion that essentially required produce
consider pictures liability,” evidence of its INSURANCE ATLANTIC LLOYD’S merely the instruction set forth rebuttable TEXAS, COMPANY OF presumption. briefly, correctly, As but not- Appellant, during closing ar- ed Middleton’s counsel gument, was to L.L.P., Jeffrey GODFREY, SUSMAN photographs were unfavorable Wal-Mart Chambers, Thomas A. W. produce if Wal-Mart failed to IV, Adams, Appellees. the hole in the floor. did about No. 05-96-00981-CV. why evidence about (they were not introduced were sent to Wal- Texas, Appeals Court of headquarters and at the time of trial Mart’s Dallas. missing), produced inexplicably and it Aug. about the hole in the floor. Re- accounts, gardless, from both wrong something
learned that with the presented at Based on the evidence
floor.