Case Information
*0 RECEIVED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 3/25/2015 5:10:10 PM DEBBIE AUTREY Clerk *1 ACCEPTED 06-14-00040-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 3/25/2015 5:10:10 PM W ANDA M C K EE F OWLER DEBBIE AUTREY fowler@wrightclose.com CLERK Retired Justice of the 14th Court of Appeals 1995 – 2008 Direct: (713) 490-4025 Bi-State Justice Building
100 North State Line Avenue #20
Texarkana, Texas 75501
Re: No. 06-14-00040-CV; Tillerd Ardean Smith, Medallion Transport & Logistics, LLC, and Tomy Rushing d/b/a Rushing Transport Services, Inc. v. Brandi Williams
Dear Ms. Autrey:
I am writing to advise the Court of a recent Texas Supreme Court opinion that is relevant to the above-referenced appeal. See Wackenhut Corp. v. Gutierrez ,
No. 12-0136, 2015 WL 496301, at *1 (Tex. Feb. 6, 2015) (per curiam) (attached
hereto). Because this new authority issued after the parties completed their briefing
and because this case is set for submission by oral argument on April 1, 2015,
please forward this letter and its attachment to Chief Justice Morriss and Justices
Moseley and Burgess at your earliest convenience.
For the third time in a little more than six months, the Texas Supreme Court has reversed a judgment because the jury charge included an improper spoliation
instruction. See Wackenhut , 2015 WL 496301, at *5; Petroleum Solutions, Inc. v.
Head , No. 11-0425, 2014 WL 7204399, at * 5–6 (Tex. Dec. 19, 2014); Brookshire
Brothers, Ltd. v. Aldridge , 438 S.W.3d 9, 30 (Tex. 2014). The most recent case,
Wackenhut , involved a collision between a charter bus and a car. 2015 WL 496301
at *1. The bus was equipped with four video cameras that automatically looped
over and erased previously recorded data every seven days. Id. One of the cameras
may have captured the moment of impact, but the bus company failed to prevent
the recording system from automatically looping over the video. Id.
Almost two years after the accident, the driver of the car sued the bus company for negligence and sought damages for injuries sustained in the collision.
Id. The driver filed a pretrial motion for spoliation of evidence, seeking sanctions
against the bus company for the intentional or negligent destruction of the video W RIGHT & C LOSE , LLP
O NE R IVERWAY , S UITE 2200, H OUSTON , T EXAS 77056 T EL : 713.572.4321 F AX : 713.572.4320
Page 2
recording. Id. At the close of evidence, the trial court found the bus company had
negligently destroyed evidence and submitted a spoliation instruction to the jury. 1
Id. The jury found in the driver’s favor, and the bus company appealed.
In a per curiam opinion, the Texas Supreme Court held the spoliation instruction should not have been given because the bus company’s failure to
preserve the video recording, even if negligent, did not completely deprive the
driver of the ability to present his claims. Id. at *4 (applying rule from Brookshire
Brothers , 490 S.W.3d at 23–26, that spoliation instruction may be submitted only
if (1) spoliating party acted with intent to conceal discoverable evidence or (2)
spoliating party acted negligently and caused nonspoliating party to be irreparably
deprived of any meaningful ability to present claim or defense). The evidence at
trial included the testimony of both drivers and an eyewitness; statements prepared
by the drivers and the witness at the time of the accident; testimony of the
responding police officer; the police report; the bus company’s report to its
corporate headquarters; photos of the vehicles and the accident scene; and
extensive medical records. 2 Id.
In deciding whether the trial court’s error was reversible, the Court observed that “‘the likelihood of harm from the erroneous [spoliation] instruction [was]
substantial.’” Id. (quoting Brookshire Brothers , 438 S.W.3d at 29). The evidence
as to the cause or contributing causes of the accident was disputed. The driver
testified he was driving slowly because of rain, but the bus company employees
testified the driver was speeding. Id. And the driver’s counsel emphasized
spoliation in his opening statement and closing argument, telling the jury:
[B]ecause of that, you may presume—you are free to look at this and say that videotape, had they shown it, it would have shown you that what the driver of that bus is saying and what . . . the co-driver, is saying is against Page 3
them. It’s not the way they said. It’s the way [the driver] said it happened.
The Court concluded the trial court’s error probably caused the rendition of an
improper judgment, set aside the $1.2 million judgment for the driver, and
remanded the case for a new trial. Id. at *4–5.
The trial court’s error in instructing the jury that Medallion “intentionally withheld documents or destroyed evidence material to this case” warrants the same
result here. (CR 635) Just as in Wackenhut , liability for the collision was disputed.
Plaintiff claimed that Smith’s fatigue caused the accident, but Medallion and Smith
claimed that Plaintiff was driving too fast on a dark section of a curving road and
therefore was unable to take defensive measures or realize Smith’s truck might be
turning left. (3 CR 73–77; 4 CR 54) And Plaintiff’s counsel employed the same
tactics as in Wackenhut , repeatedly emphasizing spoliation in voir dire, in opening
statement, throughout trial, and in closing argument. Counsel specifically pointed
out the spoliation instruction to the jury in his closing argument, and at least four
pages of the record of that argument are occupied with counsel’s discussion of
logbooks and waybills. (7 RR 152–55, 157–58) Despite the lack of evidence that
Medallion intentionally destroyed or withheld material evidence, Plaintiff’s
counsel told the jury:
And when I asked him: Sir, you knew you were going to come in this courtroom in Marshall, Texas; you knew the issue was a log book; yet did you think to look?
Do you really think he didn’t look? Do you really think that somebody didn’t look at those documents and not just send them to us? You know why they didn’t send them to us? Because they knew, if the[y] did, I was going to be able to prove that he was fatigued. They knew it.
So they’re like: Okay. If we send it, he’s got us for sure.
If we don’t send it, guess what? We’re just going to say we just made a mistake and destroyed it and the jury might have some question in their mind.
Page 4
Ladies and Gentlemen, you know better than that.
(7 RR 155)
At one point, even though no exemplary damage questions were submitted, counsel went so far as to urge jurors to punish Medallion not for the accident but
for its recordkeeping practices:
And you remember when I had Mr. Winney on the stand, I said: This is bad stuff.
All right, Mr. Goudarzi. You’re right. He falsified the logs. That’s bad stuff.
Well, what are you going to do about it?
I’m going to think about it when I get back to North Carolina.
Well, you know what’s going to make him think about it?
Your verdict. And you know what? To be quite honest with you, it’s got to be a big verdict, because if it’s not, this gentleman and this gentleman (indicating), they’re not going to worry about it.
They’re going to say: We pulled a hat trick off again.
(7 RR 157–58)
This record plainly establishes that the trial court’s error in submitting a spoliation instruction probably caused the rendition of an improper judgment.
Accordingly, for all the reasons stated herein and in appellants’ prior briefing, the
Court should follow the Texas Supreme Court’s recent decisions on spoliation and
remand this case for a new trial.
All counsel of record are being copied on this letter. Thank you for your attention to this matter.
Page 5
Respectfully Submitted, /s/ Wanda McKee Fowler Wanda McKee Fowler Attorney for Appellants cc: Via Electronic Service
David M. Gunn
Erin H. Huber
B ECK R EDDEN LLP
1221 McKinney, Suite 4500
Houston, TX 77010
dgunn@beckredden.com
ehuber@beckredden.com
John R. Mercy
M ERCY C ARTER T IDWELL LLP
1724 Galleria Oaks Drive
Texarkana, Texas 75503
jmercy@texarkanalawyers.com
Brent Goudarzi
Geoffrey G. Hoover
G OUDARZI & Y OUNG
P.O. Box 910
Gilmer, Texas 75644
brent@goudarzi-young.com
ghoover@goudarzi-young.com
Counsel for Appellant
Wackenhut Corporation v. Gutierrez, --- S.W.3d ---- (2015)
Jesus M. Dovalina, Law Offices of Jesus M. Dovalina, 2015 WL 496301 P.C., Del Rio, Kimberly S. Keller, Keller Stolarczyk PLLC, Only the Westlaw citation is currently available. Boerne, for Respondent. Supreme Court of Texas.
Opinion
Wackenhut Corporation, Petitioner, PER CURIAM
v. Jesse James Gutierrez, Respondent *1 This personal injury suit raises two issues pertaining to the trial court's submission of a spoliation jury instruction. No. 12–0136 | OPINION First, we consider whether the party opposing the instruction DELIVERED: February 6, 2015 preserved error by responding to a pretrial motion for
Synopsis sanctions but later failing to formally object to the instruction's inclusion in the jury charge until after it was
Background: Motorist brought personal injury action
arising from accident involving charter bus and motorist's read to the jury. Second, if error was preserved, we must
automobile. Following a jury trial, the 63rd Judicial District determine whether the trial court committed reversible error
Court, Val Verde County, Enrique Fernandez, J., entered by submitting the instruction. We answer both questions in the affirmative.
judgment in favor of motorist. Bus company appealed. The
San Antonio Court of Appeals, 358 S.W.3d 722, affirmed.
Bus company filed petition for review. Wackenhut Corporation owned and operated a charter
bus that collided with a car driven by Jesse Gutierrez. Wackenhut's bus was equipped with four video cameras that recorded while the bus was running but not when the Holdings: The Supreme Court held that: bus's power was turned off. After 168 hours—or seven days —of recording, the videos automatically looped over and
[1] bus company preserved for appellate review its claim that erased previously recorded data. One of the cameras was trial court erred by submitting spoliation jury instruction; positioned so that it may have captured the actual impact, 1 but Wackenhut did not preserve this recording, and it was
[2] motorist was not irreparably deprived of any meaningful eventually looped over.
ability to present his claim by bus company's failure to
preserve bus's video recordings, and thus spoliation jury Two days after the accident, Gutierrez personally delivered a instruction was unwarranted; and letter to Wackenhut detailing his recollection of the collision. In the letter, Gutierrez stated that he believed Wackenhut's
[3] trial court's error of submitting spoliation jury instruction driver had caused the accident, and that Gutierrez had
constituted reversible error. been taken to the hospital and would follow up with his
doctor. Wackenhut completed a “General Liability Notice of Petition granted; judgment of Court of Appeals reversed and Occurrence/Claim” and sent it along with Gutierrez's letter to
remanded. the company's corporate headquarters. Almost two years after the accident, Gutierrez sued
ON PETITION FOR REVIEW FROM THE COURT OF Wackenhut and the bus driver for negligence, seeking APPEALS FOR THE FOURTH DISTRICT OF TEXAS damages for the injuries he sustained in the collision. Before trial, Gutierrez filed a Motion for Spoliation of
Attorneys and Law Firms Evidence, requesting that Wackenhut be sanctioned because it intentionally or negligently destroyed the video recording
Jaime A. Saenz, Lecia Lynne Chaney, Colvin, Chaney, Saenz of the accident. In that motion, Gutierrez argued he was
& Rodriguez, L.L.P., Brownsville, Michael W. Eady, Sara entitled to a presumption that the recording would have
Berkeley Churchin, Thompson, Coe, Cousins & Irons, L.L.P., been unfavorable to Wackenhut. In its response, Wackenhut
Austin, for Petitioner.
argued that there was no evidence of either intentional or © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Wackenhut Corporation v. Gutierrez, --- S.W.3d ---- (2015)
negligent spoliation, that the requested sanctions—including test for determining if a party has preserved error in the jury
the spoliation instruction—were unwarranted, and that all charge, and that is whether the party made the trial court
evidence of the alleged spoliation should be excluded. aware of the complaint, timely and plainly, and obtained a
ruling.” State Dep't of Highways & Pub. Transp. v. Payne, During trial, after Gutierrez rested, the trial court ruled 838 S.W.2d 235, 241 (Tex.1992); see also Ford Motor Co. v.
orally that Wackenhut had negligently spoliated evidence Ledesma, 242 S.W.3d 32, 43 (Tex.2007). “The more specific
and ordered the inclusion of a spoliation instruction in the requirements of the rules should be applied ... to serve rather
jury charge. Upon the completion of trial testimony, each than defeat this principle.” Payne, 838 S.W.2d at 241.
party submitted a proposed jury charge and attended a formal
charge conference. During the conference, Wackenhut did [1] Here, the record confirms that the trial court was aware of, and rejected, Wackenhut's objection to the inclusion of a
not object to the spoliation instruction in the court's charge. 2 spoliation instruction before the charge was read to the jury.
Immediately after the court read the charge to the jury, In its opposition to Gutierrez's pretrial motion for sanctions,
Wackenhut's counsel approached the bench and objected to Wackenhut argued that (1) it had no duty to retain the video
the submission of the spoliation instruction. The trial court prior to being served with citation in this suit, (2) there acknowledged the objection, but did not comment further on was no evidence that the tape would actually have recorded the instruction. The jury found in Gutierrez's favor, and the the accident, (3) there was no evidence that Wackenhut
trial court rendered judgment on the verdict for $1,201,050.08 intentionally or negligently destroyed the recording because
in damages and prejudgment interest. Wackenhut appealed. it was looped over in the regular course of business before Wackenhut had notice of any claim, and (4) any spoliation
*2 The court of appeals affirmed, overruling Wackenhut's did not prejudice Gutierrez because of the availability of
sole issue—that the trial court erred in submitting the other evidence. In turn, Wackenhut specifically argued that a
spoliation instruction. 358 S.W.3d 722, 724–25. Relying on spoliation instruction would be improper. The trial court ruled Texas Rule of Civil Procedure 272, the court held that, that a spoliation instruction would be submitted to the jury. because Wackenhut did not object to the instruction until after
the trial court read the charge to the jury and did not provide
a specific ground for the objection, Wackenhut waived any complaint it had about the instruction. Id. for new trial, the following conversation took place: Further, during the hearing on Wackenhut's motion [3] [2] [COUNSEL FOR WACKENHUT]: [T]he court made a
Wackenhut argues that, by detailing its reasons for opposing ruling that the instruction would go to the jury, and then spoliation sanctions generally and a spoliation instruction in the court took argument on that, and that's how we ended particular in its response to Gutierrez's pretrial motion for up with this particular instruction, but it was given over sanctions, it timely made the trial court aware of its complaint. objection. Because the trial court ruled on the motion, Wackenhut
contends that it was not required to later object to the jury *3 THE COURT: [Y]ou are correct. The court heard
charge. Wackenhut further argues that the trial court abused argument, made its ruling on the instruction. its discretion by including the spoliation instruction in the * * *
charge and that this error was harmful. Gutierrez counters that
Wackenhut failed to preserve error, that the trial court acted [COUNSEL FOR WACKENHUT]: For the record, Your within its discretion, and that any error was harmless. Honor, I think it is clear that Wackenhut did object to any spoliation instruction going to the jury at all, ... and so there
We first address the issue of error preservation. The is no waiver here. There was an objection to any instruction procedural rules governing jury charges state in pertinent going to the jury. part that objections to the charge “shall in every instance be
presented to the court ... before the charge is read to the jury” THE COURT: I don't deny that, because I noted that on and that “[a]ll objections not so presented shall be considered record that the objection was made to the charge.... as waived.” TEX. R. CIV. P. 272. Further, the objecting party
“must point out distinctly the objectionable matter and the In light of Wackenhut's specific reasons in its pretrial briefing
grounds of the objection.” TEX. R. CIV. P. 274. However, for opposing a spoliation instruction and the trial court's
we have previously explained that “[t]here should be but one recognition that it submitted the instruction over Wackenhut's
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
Wackenhut Corporation v. Gutierrez, --- S.W.3d ---- (2015)
available evidence, we hold that Gutierrez was not irreparably objection, there is no doubt that Wackenhut timely made deprived of any meaningful ability to present his claim. the trial court aware of its complaint and obtained a ruling. Therefore, the trial court abused its discretion by submitting Under the circumstances presented here, application of Rules the spoliation instruction to the jury. 272 and 274 in the manner Gutierrez proposes would defeat
their underlying principle. See Payne, 838 S.W.2d at 241. Therefore, we conclude that Wackenhut preserved error. 3 probably caused the rendition of an improper judgment. Id. [8] Finally, the trial court's error is reversible only if it our recent decision in Brookshire Brothers, Ltd. v. Aldridge,
submission of the spoliation instruction to the jury in light of 438 S.W.3d 9 (Tex.2014). Applying the Brookshire Brothers framework, we hold that the trial court abused its discretion in submitting the instruction. Next, we turn to the propriety of the trial court's [4] the likelihood of harm from the erroneous instruction is at 29; TEX. R. APP. P. 61.1(a). We have previously noted that, “ ‘if a spoliation instruction should not have been given, ” Brookshire Bros., 438 S.W.3d at 29 (quoting substantial, particularly when the case is closely contested.’ Wal–Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 724 (Tex.2003)). Liability was closely contested in this case. Gutierrez claimed
whether a particular remedy is appropriate are questions of at 14, 20. We review a trial Id. discretion standard. court's imposition of spoliation sanctions under an abuse-of- law for the trial court. at 27. In at 23–26. Specifically, a that a party spoliated evidence. Id. submit a spoliation instruction to the jury in the event it finds articulated specific restrictions on a trial court's discretion to we Brookshire Brothers, Id. [6] *4 [7] Whether a party spoliated evidence and [5] that he drove slowly because it was raining, while the stated that “[t]here is a video camera that would have In addition, during his opening statement, Gutierrez's counsel Wackenhut employees testified that Gutierrez was speeding. captured ... if Mr. Gutierrez was coming speeding as they claim.... It clarifies who was telling the truth.” Further, and more significantly, during closing arguments, counsel placed significant emphasis on the spoliation instruction:
trial court may submit an instruction only if it finds that (1) Therefore, because of that, you may
the spoliating party acted with intent to conceal discoverable presume—you are free to look at this
evidence, or (2) the spoliating party acted negligently and and say that videotape, had they shown
caused the nonspoliating party to be irreparably deprived of it, it would have shown that what the
any meaningful ability to present a claim or defense. Id. driver of that bus is saying and what
Mrs. Rivera, the co-driver, is saying Here, the trial court found that Wackenhut negligently is against them. It's not the way they
spoliated evidence in failing to preserve the recording. 4 Even said. It's the way Mr. Gutierrez said it happened.
assuming that finding is correct, which Wackenhut disputes,
the trial court nevertheless abused its discretion by submitting In light of the contested liability, counsel's statements, and the spoliation instruction. To justify the instruction based on the highly speculative probative value of the recording, 5 the this negligence finding, the spoliation must have irreparably record reflects the significant effect the spoliation instruction
deprived Gutierrez of any meaningful ability to present his likely had on the trial. Therefore, we hold that the trial court's
claims. This, we conclude, Wackenhut's failure to preserve error probably caused the rendition of an improper judgment.
the recording did not do. *5 Accordingly, we grant Wackenhut's petition for review
The evidence presented at trial included: the testimony of both and, without hearing oral argument, reverse the court of
drivers; the testimony of an eyewitness Wackenhut employee; appeals' judgment and remand the case to the trial court for
witness statements prepared by the drivers and the witness at a new trial in accordance with this opinion. TEX. R. APP. P.
the time of the accident; testimony of the responding police 59.1.
officer; the police report; Wackenhut's report to its corporate
headquarters; photos of the vehicles and the accident scene;
and extensive medical records. In light of the abundance of
Footnotes
1 The camera at issue was located outside the passenger door, viewing the side of the bus that was involved in the accident.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
Wackenhut Corporation v. Gutierrez, --- S.W.3d ---- (2015)
2 The instruction read: “Parties to a lawsuit are under a duty to preserve evidence that they know or should know is relevant to the
dispute. In this case, The Wackenhut Corporation negligently failed to preserve the video on the bus, and it did so while there was an anticipation of litigation and while it had a duty to preserve evidence. You may, therefore, presume that the videotape was unfavorable to The Wackenhut Corporation.”
3 To the extent concerns exist that this holding will open the floodgates to preservation of trial error by way of pretrial motion in other
contexts, such concerns are unfounded. A motion in limine, for example, does not preserve error on evidentiary rulings at trial because it does not seek a ruling on admissibility; rather, the purpose of such a motion “is to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury” without seeking the trial court's permission. Hartford Accident & Indem. Co. v. McCardell, 369 S.W.2d 331, 335 (Tex.1963). And a denied pretrial no-evidence motion for summary judgment does not preserve a no-evidence objection to a question in the jury charge, as the latter is premised on the evidence (or lack thereof) presented at trial and thus cannot properly be asserted before trial. In the unique circumstances presented here, the course of the trial does not affect the propriety of a spoliation instruction. Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 20, 26 (Tex.2014) (holding that whether spoliation occurred and the propriety of a particular spoliation remedy are issues of law for the trial court and that evidence of spoliation is generally inadmissible at trial). And the relief Wackenhut sought in its opposition to the pretrial motion for sanctions—findings that it did not negligently or intentionally spoliate evidence and that the submission of a spoliation instruction was improper—is exactly what the trial court rejected in its oral ruling. Notably, Wackenhut's formal objection to the instruction after the charge was read to the jury was not to the particular wording of the instruction; such a complaint had never before been brought to the trial court's attention and would have been untimely. Rather, mirroring its rejected pretrial position, Wackenhut objected to the submission of a spoliation instruction in any form.
4 In so holding, the trial court also expressly found that the evidence did not show that Wackenhut “intentionally destroyed” the video.
5 The collision took place around 8:00 p.m. on a stormy evening with heavy rain.
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4
[1] The instruction, which was not as harsh as the one given in this case, read: “Parties to a lawsuit are under a duty to preserve evidence that they know or should know is relevant to the dispute. In this case, The Wackenhut Corporation negligently failed to preserve the video on the bus, and it did so while there was an anticipation of litigation and while it had a duty to preserve evidence. You may , therefore, presume that the videotape was unfavorable to The Wackenhut Corporation.” Id. at *1 n.2 (emphasis added).
[2] For the reasons why the alleged spoliation of driver logbooks and waybills in this case did not deprive Plaintiff of the ability to present her claims, please see the appellants’ brief at pages 34 to 35.