Wackenhut Corp. v. Gutierrez
Supreme Court of Texas, No. 05-12-0136 (February 6, 2015)
Per Curiam Opinion
On the heels of its decision in Brookshire Brothers, Ltd. v. Aldridge, which established a new framework for addressing spoliation of evidence, the Texas Supreme Court clarified (1) how a party may preserve an objection to a spoliation instruction; (2) when a spoliation instruction is proper; and (3) when an improper spoliation instruction constitutes reversible error.
Wackenhut owned and operated a charter bus that collided with a car driven by Gutierrez. Two days after the accident, Gutierrez delivered a letter to Wackenhut recounting his memory of the accident and asserting Wackenhut’s driver was at fault. Wackenhut’s bus was equipped with a video camera that may have captured the incident, but Wackenhut did not preserve the recording. Two years after the accident, Gutierrez sued Wackenhut and the driver for negligence. Prior to trial, Gutierrez filed a “Motion for Spoliation of Evidence,” requesting an instruction the video recording would have been unfavorable to Wackenhut. In response, Wackenhut argued the evidence did not support a finding of intentional or negligent spoliation, the requested instruction was improper, and all evidence of spoliation should be excluded.
After Gutierrez rested, the trial court orally ruled Wackenhut had negligently spoliated evidence and ordered a spoliation instruction be included in the jury charge. During the formal charge conference, Wackenhut did not object to the spoliation instruction. Immediately after the court instructed the jury, Wackenhut approached the bench and objected to the spoliation instruction. The trial court acknowledged the objection, but did not comment further. The jury returned a verdict in Gutierrez’s favor and Wackenhut appealed. The court of appeals affirmed, holding Wackenhut waived any complaint of error by failing to timely object to the charge and by failing to specify the basis for the objection.
The Texas Supreme Court reversed. First, the Court found Wackenhut properly preserved his objection because the trial court was made aware of—and rejected—Wackenhut’s opposition to the spoliation instruction. In holding the issue was properly preserved, the Court relied on Wackenhut’s written opposition to Gutierrez’s motion for spoliation sanctions, which provided specific reasons for opposing the instruction, and the transcript of Wackenhut’s motion for new trial in which the trial court acknowledged Wackenhut had objected to the spoliation instruction. The Court expressly noted that a pretrial motion will not preserve error where the objection turns on the evidence presented at trial, but here the objection was to the submission of a spoliation instruction in any form, to which Wackenhut properly objected in pretrial briefing.
Finding the issue preserved, the Court applied the Brookshire Brothers framework, which permits a spoliation instruction only if the trial court finds: “(1) the spoliating party acted with intent to conceal discoverable evidence, or (2) the spoliating party acted negligently and caused the nonspoliating party to be irreparably deprived of any meaningful ability to present a claim or defense.” The Court concluded the trial court abused its discretion by giving a spoliation instruction because, even if Wackenhut negligently failed to preserve the video recording, the availability of other evidence—including the testimony of the drivers and an eye witness, police reports, photos of the scene, and medical records—demonstrated Gutierrez was not irreparably deprived of a meaningful ability to present his case.
Finally, the Court concluded the submission of the spoliation instruction constituted reversible error. In determining the spoliation instruction probably caused the rendition of an improper judgment, the Court focused on the closely contested nature of the case, the “highly speculative probative value” of the video evidence, which was taken at night during a heavy rain storm, and the emphasis placed on the spoliation instruction in closing arguments. Accordingly, the Court reversed the judgment of the court of appeals and remanded the case for a new trial.
