Opinion
No. 04-03-00697-CV
Delivered and Filed: September 15, 2004.
Appeal from the 45th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CI-03288, Honorable Barbara H. Nellermoe, Judge Presiding.
Reversed and Remanded.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Appellants Albertson's, Inc., Citywide Investigations and Security, Inc., and Eugenio Rosario (hereinafter collectively referred to as "Albertson's") appeal from the trial court's judgment in favor of appellee, Joshua Arriaga.
BACKGROUND
On March 4, 2002, Arriaga brought suit against Albertson's for alleged false imprisonment that occurred on October 10, 2001. That evening, Arriaga offered a ride to Daniel Clegg, a neighbor in his dorm, to a local Albertson's store in San Antonio, Texas. The two individuals were students at a nearby university. This particular Albertson's had experienced numerous instances of shoplifting by students from the nearby schools. Eugenio Rosario, a security officer with Citywide Investigations and Security, Inc., was working security at the Albertson's that night. Citywide is an independent contractor that provided Albertson's with security officers. At trial, the parties presented sharply divergent evidence of what occurred after the two individuals entered the store. Rosario testified that after Arriaga and Clegg entered the store, they immediately proceeded to the cosmetic aisles. He testified that, through a close-circuit TV, he watched Clegg conceal packages of merchandise in the sleeves of his clothes while Arriaga acted as a lookout. Rosario stated that Arriaga would look over his shoulder and up and down the aisles to see if any customers or employees were in the area. After Clegg had concealed the packages, the two proceeded to another aisle where Clegg opened the packages, removed the contents, and concealed the individual items in his sleeves. When Clegg finished, the two proceeded to the checkout counter and paid for the merchandise the two held in their hands. Neither Clegg nor Arriaga paid for the items concealed in Clegg's clothing.
When Arriaga and Clegg walked out the front doors of the store, Rosario approached and stopped them. He subsequently led them to the manager's office where he closed the door, patted them down, handcuffed them, and eventually called the police. Rosario informed them that he observed Clegg stealing merchandise while Arriaga acted as a lookout. Rosario placed the items Clegg stole on the desk in the office. While in the manager's office, Officer Cisneros from the San Antonio Police Department arrived. After talking with Rosario and reviewing his incident report, Cisneros issued Arriaga and Clegg each a misdemeanor citation. Subsequently, Cisneros escorted Arriaga and Clegg to the store parking lot and released them.
Arriaga disagreed with Rosario's version of the events and testified that he went his own way when he got in the store and only began to look for Clegg when he wanted to check out. He testified that he repeatedly asked why Rosario had detained him, considering he paid for the merchandise in his possession. Further, Arriaga testified that he denied acting as a lookout for Clegg.
On January 9, 2002, the municipal court judge dismissed the misdemeanor charges against Arriaga when Officer Cisneros failed to appear on time. In April of 2002, the month after the filing of the present civil suit, all of the Albertson's stores in San Antonio were closed for business.
At trial, Arriaga argued that the store's security videotape would corroborate his version of the events. However, because Albertson's did not produce the videotape, Arriaga obtained the following spoliation instruction from the trial court: "You are instructed that, when a party has possession of a piece of evidence at a time he or she knows or should have known it will be evidence in a controversy, and thereafter disposes of it, makes it unavailable, or fails to produce it, there is a presumption in law that the piece of evidence, had it been produced, would have been unfavorable to the party who did not produce it." The jury returned a verdict in Arriaga's favor and the trial court entered judgment accordingly.
SPOLIATION INSTRUCTION
In its first and second issues on appeal, Albertson's contends the trial court erred by submitting a spoliation instruction to the jury. More specifically, Albertson's argues Arriaga did not establish it had a duty to preserve the videotape, and therefore, he was not entitled to a spoliation instruction. In addition, Albertson's argues Arriaga was not entitled to the instruction because it provided a reasonable explanation concerning the absence of the videotape and testimony describing what the videotape depicted.
Once a party has notice of a potential claim, that party has a duty to exercise reasonable care to preserve information relevant to that claim. Offshore Pipelines, Inc. v. Schooley, 984 S.W.2d 654, 666 (Tex. App.-Houston [1st Dist.] 1998, no pet.). Because of this duty, a party who intentionally or negligently fails to preserve relevant information may be held accountable for the loss of such evidence. Id. As a general rule, a party's failure to produce evidence within its control raises the presumption that, if produced, the evidence would operate against him. Id. The affected party must move for sanctions or, depending on the circumstances, request a spoliation presumption or instruction. Id. The trial court has the discretion to fashion an appropriate remedy to restore the parties to a rough approximation of their positions if all evidence were available. Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 721 (Tex. 2003). However, before the trial court may view any failure to produce material evidence as discovery abuse, the opposing party must establish that the non-producing party had a duty to preserve the evidence in question. Id. at 722. Such a duty arises only when a party knows, or reasonably should know, that there is a substantial chance that a complaining party will file a claim and that the party possesses or controls material evidence relevant to that claim. Id. Therefore, as a prerequisite for the submission of the spoliation instruction, Arriaga had to demonstrate that Albertson's disposed of the videotape after it knew, or reasonably should have known, that there was a substantial chance Arriaga would file suit for false imprisonment and that the videotape would constitute material evidence. See id.
Arriaga argues that Albertson's policies alone placed a duty on it not to dispose of the videotape. However, we look not only at Albertson's policies, but also we must look at the surrounding circumstances at the time of the arrest to determine if Albertson's had notice that Arriaga might pursue a claim for false imprisonment. See Johnson, 106 S.W.3d at 722. Albertson's policies were put in place to guard against liability from a person alleging Albertson's erroneously detained the person for shoplifting. Albertson's policies warned its employees that they could face claims for false arrest if a suspected shoplifter did not sign a release form and the suspect was not convicted. The policies also state that, if possible, the employee should ask the police if the evidence can be held in the store. If allowed by the police, the employee should include everything collected from the individual in a sack, label it, initial it, and secure it in the store's security box until there is a disposition of the case from either a police officer or the court. Albertson's also had a policy of using a dual videotaping system to record store surveillance whereby it would place a surveillance tape in both the store's security area and the manager's office. If Albertson's apprehended a shoplifter, it would stop both videotapes and place them in a security box. Rosario testified that he took only the videotape from the closed circuit TV and placed it in the store's security box.
Although Arriaga vehemently argued at trial that Albertson's destroyed the videotape because it did not support Rosario's version of the events, he did not present any testimony or evidence to establish such a fact. The record contains only Arriaga's statements that he did not act as a lookout and that he paid for the goods in his possession. However, after reviewing the record of the circumstances surrounding the arrest, we cannot say that his testimony and Albertson's policies are sufficient to establish Albertson's had notice of Arriaga's claim for false imprisonment. Arriaga had the burden to present evidence that Albertson's disposed of the videotape after it knew, or reasonably should have known, that there was a substantial chance Arriaga would file his complaint. This he failed to do. Therefore, because Arriaga failed to establish the threshold requirement that Albertson's had a duty to preserve the videotape for this trial, we conclude the trial court erred in submitting a spoliation instruction to the jury. Even assuming Arriaga established Albertson's had a duty to preserve the evidence, we believe he was not entitled to the spoliation instruction. Generally, two rules apply to presumptions that arise from the non-production of evidence. Wal-Mart Stores, Inc. v. Middleton, 982 S.W.2d 468, 470 (Tex. App.-San Antonio 1998, pet. denied). One rule is that the deliberate spoliation of evidence relevant to a case raises a presumption that the evidence would have been unfavorable to the cause of the spoliator. Id. Albertson's argues that there is no evidence of deliberate destruction of the videotape. We have reviewed the record and agree; therefore, the first rule is inapplicable in this case.
The second rule comes into play when the party controlling the evidence does not produce it and does not testify. Id. The party's failure to produce evidence within its possession or to testify about it creates a rebuttable presumption unfavorable to that party, which of itself has probative value. Id. Focusing on the second rule, Albertson's points to Rosario's testimony, stating that he observed Arriaga through a closed circuit T.V., which recorded Arriaga acting as a lookout for Clegg. He further testified that the videotape depicted his version of the events. In addition to the testimony describing what the videotape depicted, Albertson's points to the testimony of its representative, Kevin Murray, to provide a reasonable explanation concerning the absence of the videotape. Murray testified that all of the Albertson's stores in San Antonio closed in April of 2002 and he did not know what happened to the videotape. However, Murray testified that Albertson's policy was to retain the evidence of the shoplifting incident until it had a disposition of the criminal trial, following which, Albertson's ordinary course of business was to reuse the videotape. See Doe v. Mobile Video Tapes, Inc., 43 S.W.3d 40, 56 (Tex. App.-Corpus Christi 2001, no pet.) (concluding videotapes recorded over in the normal course of business and before notice of claim provided no basis for exclusion of evidence based on alleged spoliation); Aguirre v. S. Tex. Blood Tissue Ctr., 2 S.W.3d 454, 457-58 (Tex. App.-San Antonio 1999, pet. denied) (concluding destruction of records in the regular course of business and without notice of their relevance to future litigation did not raise spoliation presumption). Albertson's points to Cisneros' testimony that the criminal case was concluded on January 9, 2002, when the municipal court judge dismissed it after Officer Cisneros failed to appear on time. Therefore, because Albertson's provided a reasonable explanation concerning the absence of the videotape and provided testimony describing what the videotape depicted, we conclude Arriaga was not entitled to the spoliation instruction.
Even though the trial court erred by submitting the instruction, we will not reverse that decision unless its submission probably caused the rendition of an improper judgment. Tex.R.App.P. 61.1(a); Johnson, 106 S.W.3d at 723. An unnecessary spoliation instruction is particularly likely to cause harm because the trial court gives the instruction to compensate for the absence of evidence that a party had a duty to preserve and its very purpose is to "nudge" or "tilt" the jury. Johnson, 106 S.W.3d at 724. Thus, if the trial court should not have given a spoliation instruction, there is a substantial likelihood of harm from the erroneous instruction, particularly when parties closely contest the case. Id. Here, both sides agree that because each side presented sharply divergent testimony about what occurred that night, the trial became a swearing match. In addition, Arriaga's attorney focused most of his closing argument on Albertson's destruction and failure to produce the videotape rather than his claims for false imprisonment. See Middleton, 982 S.W.2d at 471. Therefore, we conclude the trial court's error in submitting the spoliation instruction in this highly contested case was harmful and probably caused the rendition of an improper judgment. Tex.R.App.P. 61.1(a). Accordingly, we reverse the trial court's judgment and remand this case to the trial court for further proceedings. We do not address Albertson's remaining issues because they are not necessary to the final disposition of this appeal. See Tex.R.App.P. 47.1.
CONCLUSION
We reverse the trial court's judgment and remand the case for further proceedings.
DISSENTING OPINION
This case highlights the tension between the trial court's grant of broad discretion in making evidentiary rulings, and the case law requirements regarding issuance of a spoliation instruction. In this case, I do not believe the trial court abused its discretion when it submitted a spoliation instruction to the jury, therefore I respectfully dissent.
The trial court had before it testimony from Arriaga asserting that he did not act as a lookout, contrasted with Eugenio Rosario's testimony that he saw Arriaga acting as a lookout and that Arriaga's actions were recorded on the videotape. Rosario further bolstered his testimony by asserting that the videotape would confirm his version of what took place. The videotape, however, was missing. Albertson's representative denied that the videotape was deliberately destroyed, and opined that it may have been taped over, which would have been a violation of Albertson's policies. Albertson's policies regarding preservation of such videotapes are a recognition of the importance of substantiating shop lifting cases so as to minimize liability for alleged false imprisonment claims. To me, this fact alone provides support for Arriaga's claim that Albertson's knew or reasonably should have known that there was a substantial chance that Arriaga would file a complaint. See Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 722 (Tex. 2003) (holding that duty to preserve evidence arises if non-producing party knows or reasonably should know of potential claim). In light of all the evidence, including the circumstances surrounding the arrest, the trial court could properly have determined that by issuing the spoliation instruction it was leveling the playing field and putting the parties where they would have been had the videotape not "gone missing." Because the majority rules otherwise, I dissent.