Wackenhut Corp. v. Gutierrez
| Decision Date | 06 February 2015 |
| Docket Number | No. 12–0136,12–0136 |
| Citation | 453 S.W.3d 917 |
| Parties | Wackenhut Corporation, Petitioner, v. Jesse James Gutierrez, Respondent |
| Court | Texas Supreme Court |
Jaime A. Saenz, Lecia Lynne Chaney, Colvin, Chaney, Saenz & Rodriguez, L.L.P., Brownsville, Michael W. Eady, Sara Berkeley Churchin, Thompson, Coe, Cousins & Irons, L.L.P., Austin, for Petitioner.
Jesus M. Dovalina, Law Offices of Jesus M. Dovalina, P.C., Del Rio, Kimberly S. Keller, Keller Stolarczyk PLLC, Boerne, for Respondent.
This personal injury suit raises two issues pertaining to the trial court's submission of a spoliation jury instruction. First, we consider whether the party opposing the instruction preserved error by responding to a pretrial motion for sanctions but later failing to formally object to the instruction's inclusion in the jury charge until after it was read to the jury. Second, if error was preserved, we must determine whether the trial court committed reversible error by submitting the instruction. We answer both questions in the affirmative.
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 bus's power was turned off. After 168 hours—or seven days—of recording, the videos automatically looped over and erased previously recorded data. One of the cameras was positioned so that it may have captured the actual impact,1 but Wackenhut did not preserve this recording, and it was eventually looped over.
Two days after the accident, Gutierrez personally delivered a letter to Wackenhut detailing his recollection of the collision. In the letter, Gutierrez stated that he believed Wackenhut's driver had caused the accident, and that Gutierrez had been taken to the hospital and would follow up with his doctor. Wackenhut completed a “General Liability Notice of Occurrence/Claim” and sent it along with Gutierrez's letter to the company's corporate headquarters.
Almost two years after the accident, Gutierrez sued Wackenhut and the bus driver for negligence, seeking damages for the injuries he sustained in the collision. Before trial, Gutierrez filed a Motion for Spoliation of Evidence, requesting that Wackenhut be sanctioned because it intentionally or negligently destroyed the video recording of the accident. In that motion, Gutierrez argued he was entitled to a presumption that the recording would have been unfavorable to Wackenhut. In its response, Wackenhut argued that there was no evidence of either intentional or negligent spoliation, that the requested sanctions—including the spoliation instruction—were unwarranted, and that all evidence of the alleged spoliation should be excluded.
During trial, after Gutierrez rested, the trial court ruled orally that Wackenhut had negligently spoliated evidence and ordered the inclusion of a spoliation instruction in the jury charge. Upon the completion of trial testimony, each party submitted a proposed jury charge and attended a formal charge conference. During the conference, Wackenhut did not object to the spoliation instruction in the court's charge.2 Immediately after the court read the charge to the jury, Wackenhut's counsel approached the bench and objected to the submission of the spoliation instruction. The trial court acknowledged the objection, but did not comment further on the instruction. The jury found in Gutierrez's favor, and the trial court rendered judgment on the verdict for $1,201,050.08 in damages and prejudgment interest. Wackenhut appealed.
The court of appeals affirmed, overruling Wackenhut's sole issue—that the trial court erred in submitting the spoliation instruction. 358 S.W.3d 722, 724–25. Relying on Texas Rule of Civil Procedure 272, the court held that, 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.
Wackenhut argues that, by detailing its reasons for opposing spoliation sanctions generally and a spoliation instruction in particular in its response to Gutierrez's pretrial motion for sanctions, it timely made the trial court aware of its complaint. Because the trial court ruled on the motion, Wackenhut contends that it was not required to later object to the jury charge. Wackenhut further argues that the trial court abused 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 within its discretion, and that any error was harmless.
We first address the issue of error preservation. The procedural rules governing jury charges state in pertinent part that objections to the charge “shall in every instance be presented to the court ... before the charge is read to the jury” and that “[a]ll objections not so presented shall be considered as waived.” Tex. R. Civ. P. 272. Further, the objecting party “must point out distinctly the objectionable matter and the grounds of the objection.” Tex. R. Civ. P. 274. However, we have previously explained that “[t]here should be but one test for determining if a party has preserved error in the jury charge, and that is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.” State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex.1992) ; see also Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 43 (Tex.2007). “The more specific requirements of the rules should be applied ... to serve rather than defeat this principle.” Payne, 838 S.W.2d at 241.
Here, the record confirms that the trial court was aware of, and rejected, Wackenhut's objection to the inclusion of a spoliation instruction before the charge was read to the jury. In its opposition to Gutierrez's pretrial motion for sanctions, Wackenhut argued that (1) it had no duty to retain the video prior to being served with citation in this suit, (2) there was no evidence that the tape would actually have recorded the accident, (3) there was no evidence that Wackenhut intentionally or negligently destroyed the recording because it was looped over in the regular course of business before Wackenhut had notice of any claim, and (4) any spoliation did not prejudice Gutierrez because of the availability of other evidence. In turn, Wackenhut specifically argued that a spoliation instruction would be improper. The trial court ruled that a spoliation instruction would be submitted to the jury.
Further, during the hearing on Wackenhut's motion for new trial, the following conversation took place:
In light of Wackenhut's specific reasons in its pretrial briefing for opposing a spoliation instruction and the trial court's recognition that it submitted the instruction over Wackenhut's objection, there is no doubt that Wackenhut timely made the trial court aware of its complaint and obtained a ruling. Under the circumstances presented here, application of Rules 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
Next, we turn to the propriety of the...
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