                                 IN THE
                         TENTH COURT OF APPEALS

                               No. 10-10-00004-CV

H.E. BUTT GROCERY COMPANY, L.P.,
                                                          Appellant
v.

ADVANCE STORES COMPANY,
INCORPORATED D/B/A ADVANCE AUTO PARTS,
                                  Appellees


                      From the County Court at Law No. 1
                           McLennan County, Texas
                         Trial Court No. 20070951-CV1


                         MEMORANDUM OPINION


      H.E. Butt Grocery Company, L.P. appeals from the granting of a no-evidence

motion for summary judgment filed by Advance Stores Company, Inc. d/b/a Advance

Auto Parts. Advance Stores Company, Inc. d/b/a Advance Auto Parts appeals the

granting of H.E.B.’s motion for sanctions for discovery abuse in a cross-appeal. H.E.B.

complains that the trial court erred by granting the no-evidence motion for summary

judgment because it provided sufficient evidence of spoliation by Advance to defeat the

motion.   Advance complains that the trial court abused its discretion in awarding

sanctions pursuant to rule 215 of the Rules of Civil Procedure for discovery abuse.
Because we find no abuse of discretion, we affirm the judgments of the trial court.

Facts

        On April 14, 2006, a fire destroyed an Advance Auto Parts store, which was near

an H.E.B. grocery store. Twenty days after the fire, H.E.B. sent a notice to Advance that

H.E.B. intended to pursue a claim against Advance for damages suffered due to the fire.

H.E.B. filed this action against Advance, alleging that the fire was the result of the

negligence of Advance.

No-Evidence Motion for Summary Judgment

        We review the judgment granting Advance’s motion for summary judgment de

novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004). Under Rule

166a(i), commonly referred to as the no-evidence standard, after adequate time for

discovery a defendant may move for summary judgment on the ground that there is no

evidence of one or more essential elements of a claim on which the plaintiff would have

the burden of proof at trial.   See TEX. R. CIV. P. 166a(i). A no-evidence summary

judgment is essentially a pre-trial directed verdict, and we apply the same legal

sufficiency standard. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003).

We review the evidence in the light most favorable to the non-movant, disregarding all

contrary evidence and inferences. Id. at 751. The granting of a no-evidence motion will

be sustained when the evidence offered by the non-movant to prove a vital fact is no

more than a mere scintilla. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711

(Tex. 1997). More than a scintilla of evidence exists when the evidence as a whole rises

to a level that would enable reasonable and fair-minded people to differ in their


H.E.B. v. Advance Auto Parts                                                          Page 2
conclusions. Id. Less than a scintilla of evidence exists when the evidence is so weak as

to do no more than create a mere surmise or suspicion. King Ranch, 118 S.W.3d at 751.

Advance’s Motion for Summary Judgment

       Advance’s no-evidence motion for summary judgment contended that H.E.B.

had no evidence of causation to support its negligence claims. H.E.B. responded to the

motion with, among other things, a copy of an investigative report into the cause of the

fire that had been conducted by investigators hired by the attorneys for Advance’s

insurance company.        The report indicated that the cause of the fire was either a

discarded cigarette or the fluorescent light fixture in the office in the store, but the exact

cause ultimately was determined to be unknown.              The report had a video and

photographs of the scene attached to it that were taken during the investigation.

       The investigation into the cause of the fire was commenced by the insurance

company because it was seeking to determine if it had a potential subrogation claim.

The investigation commenced on May 4, 2006, the same day that Advance admitted it

had notice of H.E.B.’s potential claim. The report to the attorneys for the insurance

company was dated June 22, 2006.             H.E.B. eventually received the video and

photograph in a supplemental response to discovery, but apparently did not receive the

written report until the investigator was deposed by a deposition on written questions

with a subpoena duces tecum attached to it to provide the report in November of 2008.

       Additionally, H.E.B. sought a sanction from the trial court regarding their claim

that Advance had spoliated the scene of the fire. The sanction sought by H.E.B. was for

the trial court either to grant them a default judgment against Advance or, in the


H.E.B. v. Advance Auto Parts                                                            Page 3
alternative, to give H.E.B. a spoliation presumption that would defeat the no-evidence

motion for summary judgment.

Standard of Review for Spoliation Presumption

       Because H.E.B. raised the issue of entitlement to a spoliation presumption in its

response to the no-evidence summary judgment motion, and the trial court nonetheless

granted a no-evidence summary judgment, we presume that the trial court considered

and rejected H.E.B.’s request for a presumption. See Adobe Land Corp. v. Griffin, L.L.C.,

236 S.W.3d 351, 356-57 (Tex. App.—Fort Worth 2007, pet. denied) (citing Aguirre v. S.

Tex. Blood & Tissue Ctr., 2 S.W.3d 454, 457 (Tex. App.—San Antonio 1999, pet. denied).

We, therefore, must first review whether the trial court abused its discretion by denying

the motion for a finding of spoliation. Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718,

722 (Tex. 2003). If the trial court did abuse its discretion by denying the spoliation

finding, then summary judgment would be improper. Adobe Land Corp., 236 S.W.3d at

360-61. If, however, we determine the trial court did not abuse its discretion by denying

a spoliation finding, we do not consider any presumptions related to spoliation of

evidence and review the no-evidence motion for summary judgment by examining

whether there is more than a scintilla of evidence to preclude summary judgment. Id. at

357 (citing Aguirre, 2 S.W.3d at 457). Here, H.E.B.’s sole challenge to the motion for

summary judgment concerns the trial court’s refusal to make a spoliation finding;

H.E.B. does not contend that without the finding there is more than a scintilla of

evidence to preclude summary judgment.

       To determine whether the trial court abused its discretion, we must decide


H.E.B. v. Advance Auto Parts                                                       Page 4
whether the trial court acted without reference to any guiding rules or principles; in

other words, we must decide whether the act was arbitrary or unreasonable. Mercedes-

Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996). Merely because a trial court

may decide a matter within its discretion in a different manner than we would in a

similar circumstance does not demonstrate that an abuse of discretion has occurred.

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1996). An abuse of

discretion does not occur where the trial court bases its decisions on conflicting

evidence. In re Barber, 982 S.W.2d 364, 366 (Tex. 1998). However, a trial court has no

discretion in determining what the law is or in applying the law to the facts. Adobe Land

Corp., 236 S.W.3d at 357.

Spoliation

       The act of spoliation refers to destruction of evidence relevant to a case. Buckeye

Ret. Co. v. Bank of Am., N.A., 239 S.W.3d 394, 401 (Tex. App.—Dallas 2007, no pet.). Trial

courts have broad discretion in taking measures to address spoliation of evidence that

include “measures ranging from a jury instruction on the spoliation presumption to, in

the most egregious cases, death penalty sanctions.” Trevino v. Ortega, 969 S.W.2d 950,

953 (Tex. 1998). The trial court must make its determination based on the particular

facts of each case in determining the appropriate remedy, if any. Id.

       The inquiry as to whether a spoliation sanction or presumption is justified

requires a court to consider (1) whether there was a duty to preserve evidence, (2)

whether the alleged spoliator breached that duty; and (3) whether the spoliation

prejudiced the non-spoliator’s ability to present its case or defense. Adobe Land Corp.,


H.E.B. v. Advance Auto Parts                                                        Page 5
236 S.W.3d at 357.

Duty to Preserve

       First, H.E.B. had to establish that Advance had a duty to preserve the evidence in

question. Wal-Mart Stores, Inc., 106 S.W.3d at 722. This duty arises only when a party

knows or reasonably should know that there is a substantial chance that a claim will be

filed and that evidence in its possession or control will be potentially relevant to that

claim. See id. The duty to preserve evidence is not so encompassing as to require a

litigant, for example, to keep or retain every document in its possession. Trevino, 969

S.W.2d at 957 (Baker, J., concurring). However, it does require the party to preserve

what it knows, or reasonably should know is relevant in the action, is reasonably

calculated to lead to the discovery of admissible evidence, is reasonably likely to be

requested during discovery, or is the subject of a pending discovery sanction. Id.

       The parties do not dispute that May 4, 2006 is the date on which Advance knew

of the existence of H.E.B.’s claim, which was approximately twenty days after the fire.

In the intervening time, a restoration and clean-up company was hired to begin clearing

the debris from the fire. Although Advance contends that the insurance company hired

the restoration crew and that it had no control over the activities of that crew, the

citations to the record given by Advance do not support this contention. Peggy Moser,

the manager of the liability and property claims division of Advance, stated in her

affidavit in support of the motion for summary judgment that Advance did have the

ability to stop the clean-up.

       The clean up of the site that took place prior to Advance’s notice of H.E.B.’s claim


H.E.B. v. Advance Auto Parts                                                         Page 6
is not spoliation because Advance did not have notice of a duty at that time to preserve

any evidence. See Wal-Mart Stores, Inc., 106 S.W.3d at 722. However, once Advance was

put on notice that H.E.B. intended to pursue a claim against it for negligence relating to

the fire, Advance had a duty to preserve the evidence at that point.

         Advance further contends that the actions of the restoration and clean-up

company could not constitute spoliation as to Advance. However, as stated above, the

risk manager for Advance indicated that she did have the authority to halt the clean-up

efforts. We find that Advance had a duty to preserve the evidence.

Breach of Duty

         After concluding that Advance had a duty to preserve the evidence, we must

now determine whether Advance breached that duty. See Trevino, 969 S.W.2d at 957

(Baker, J., concurring). While parties need not take extraordinary measures to preserve

evidence, they have a duty to exercise reasonable care in preserving potentially relevant

evidence. See id. Therefore, in accordance with this duty, it is only logical that parties

should be held accountable for either negligent or intentional spoliation.        Id. This

effectively places the burden of the prejudicial effects associated with the failure to

preserve upon the culpable spoliating party rather than the innocent non-spoliating

party.    Id.   However, a spoliator can defend against an assertion of negligent or

intentional destruction by providing other explanations in an attempt to justify its

failure to preserve evidence. Id.

         Advance contends that it did not intentionally or negligently spoliate the scene of

the fire because they were not in control of either the clean-up and restoration company


H.E.B. v. Advance Auto Parts                                                          Page 7
or of any of the cause and origin investigators that came to the scene. To support this,

Advance provided affidavits from Moser and from the investigators that stated that the

investigators were not employed by Advance. However, once Advance was put on

notice that the claim was pending, they made no efforts to preserve any potentially

relevant evidence, and therefore, they breached their duty to preserve the evidence.

Prejudice

       Finally, the third step of our inquiry focuses on whether Advance’s spoliation

prejudiced H.E.B.’s ability to present their case. Offshore Pipelines, Inc., 984 S.W.2d at

666 (citing Trevino, 969 S.W.2d at 954-55 (Baker, J., concurring)).      In making this

determination, we look to a variety of circumstances such as the relevancy of the

missing evidence and the availability of other evidence to take the place of the missing

information. Trevino, 969 S.W.2d at 958 (Baker, J., concurring).

       The affidavit from the investigator that performed the May 4, 2006 investigation

indicated that the condition of the scene was such that he was unable to make a

definitive opinion as to the cause of the fire. There were many photographs that were

taken of the scene, both on April 19, 2006 and on May 4, 2006, as well as a video made

on May 4, 2006, which showed the extent to which the condition of the scene had been

altered by May 4. The trial court, in its discretion, could have found that the scene was

disturbed to a degree that the spoliation that had occurred after May 4, 2006, if any, did

not prejudice H.E.B.’s ability to present its case. There were reports from at least two

investigators, both substantiated with many photographs of the scene as well as a video

and the condition of the scene before and after the date of Advance’s notice of H.E.B.’s


H.E.B. v. Advance Auto Parts                                                        Page 8
claim. H.E.B. has not established how its ability to present its case was prejudiced by

the subsequent clean-up of the property.

       H.E.B. has also not established exactly when on May 4, 2006 the notice was

received. The trial court could have believed that the independent cause and origin

investigation was completed prior to Advance’s receiving the notice. The trial court

could have believed that the photographs and reports were sufficient to take the place

of the actual evidence at the scene. It is also important to note that H.E.B. has not

challenged the veracity of either of the cause and origin reports; in fact, they rely on

them heavily to support their assertions. There was nothing in either report to indicate

that a discarded cigarette was located at the scene, and the trial court could have

believed Advance’s manager’s statement that he had never smoked in the store as it

was against Advance’s policy to do so. H.E.B. has presented nothing to counter that

assertion.

       Additionally, an engineer who was at the scene on May 4, 2006 was able to

investigate the premises and was able to determine that automotive batteries stored

near the location of the fire’s outbreak were not the source of the fire based, in part,

from the condition of the premises on that date. He was unable, however, to find any

evidence of the fluorescent light fixture or the branch circuit wiring as being the source

of the fire because portions of the light fixture had been cleared away prior to his

investigation of the scene. That engineer formed an opinion that the electrical system

did not cause the fire, but he qualified his opinion by stating that because of the

disturbance of the scene and the intensity of the fire he was unable to conclusively make


H.E.B. v. Advance Auto Parts                                                        Page 9
that assertion. That engineer did not mention a discarded cigarette as a potential cause

in his report or findings, which the trial court could have determined was significant

because he was there at the same time as the investigator on May 4, 2006.

Sanctions

       H.E.B. also contends that the trial court’s denial of the presumption regarding

spoliation was inconsistent with the trial court’s ruling in H.E.B.’s favor granting

sanctions for abuse of discovery pursuant to rule 215 of the Texas Rules of Civil

Procedure. TEX. R. CIV. P. 215. We disagree. The record is silent as to the exact timing

of the alleged spoliation, however, H.E.B.’s original petition in this cause was not filed

until May 17, 2007. It appears from the record that the clean-up and restoration of the

Advance Auto Parts store continued after May 4, 2006. Rule 215 of the Texas Rules of

Civil Procedure is a remedy to address abuses in the discovery process, not pre-

litigation spoliation. See Trevino, 969 S.W.2d at 958-59. We will address the issue of

whether the sanctions were appropriately awarded below; however, we find no

inconsistency between the award of sanctions and the refusal to grant the spoliation

presumption.

       We find that the trial court did not abuse its discretion by denying the request for

the spoliation presumption.

No-Evidence Summary Judgment

       H.E.B. does not contend that they produced more than a scintilla of evidence

regarding causation in the absence of the spoliation presumption. Since the trial court

did not abuse its discretion by denying the presumption, there was not more than a


H.E.B. v. Advance Auto Parts                                                        Page 10
mere scintilla of evidence regarding causation and the trial court did not err by granting

Advance’s motion for summary judgment. We overrule H.E.B.’s sole issue.

Cross-Appeal

       Advance complains in its cross-appeal that the trial court abused its discretion by

awarding sanctions to H.E.B. for discovery abuse pursuant to rule 215 of the Texas

Rules of Civil Procedure.

Award of Sanctions

       When a trial court finds a party has failed to comply with proper discovery

requests, has failed to obey discovery orders, or has otherwise abused the discovery

process, the court is authorized to impose a sanction that is just under the

circumstances. TEX. R. CIV. P. 215; In re Ford Motor Co., 988 S.W.2d 714, 718 (Tex. 1998).

We review the imposition of sanctions for an abuse of discretion. Low v. Henry, 221

S.W.3d 609, 614 (Tex. 2007) (citing Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583

(Tex. 2006), and Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004)). A sanction for

abuse of the discovery process requires that: (1) there is a direct relationship between

the offensive conduct and the sanction imposed; and (2) the sanction imposed must not

be excessive. Transamerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991).

       Advance contends that because the cause and origin investigations were

completed by individuals hired by their insurance company, they cannot be held

responsible because the insurance company is not their agent.          Further, Advance

complains that because the manager of the liability and property claims division of

Advance did not know of such an investigation, they were not responsible for the


H.E.B. v. Advance Auto Parts                                                       Page 11
production of any reports completed. Advance does not otherwise complain that the

discovery requests propounded upon them by H.E.B. did not require the disclosure of

those reports, had they known of their existence.

       The evidence presented by Advance does not support the proposition that

Advance did not know of a cause and origin investigation; in fact, their evidence

establishes just the opposite. According to the written report from the cause and origin

investigator from April 19, 2006, Richard Zapata, a regional manager for Advance Auto

Parts, was present for the first cause and origin investigation. Additionally, according

to the second cause and origin investigator, his report was based in part on information

collected from Chris Courtney, Advance’s District Manager, and Russell Cox, the store

manager for the store that had burned. The report further indicates that both Courtney

and Cox were present for their examination of the property.

       Advance further complains that there was no evidence that Advance hid the

existence of the investigation from H.E.B. and that the testimony regarding Advance’s

lack of knowledge was undisputed. We disagree. In the hearing on the motion for

sanctions, counsel for H.E.B. set forth the difficulties he had in getting the identity of the

cause and origin investigators, a copy of the photographs of the scene, and the reports

prepared by those cause and origin investigators. The final motion for sanctions was in

addition to the approximately seven other pleadings requesting court intervention to

compel Advance to comply with H.E.B.’s discovery requests.                  It appears that

managerial employees of Advance knew of the cause and origin investigations and that

Advance did not provide the photographs of the May 4, 2006 cause and origin


H.E.B. v. Advance Auto Parts                                                           Page 12
investigation until August 12, 2008 and apparently did not ever produce the reports of

any of the investigations completed.

       Advance contends that they were not offenders in the discovery process and that

there was no innocent party’s prejudice to remedy. However, because the trial court

could have determined that Advance knew of the investigations but did not disclose

their existence, the trial court could have found that they were culpable for failing to

produce requested discovery.

Direct Relationship

       The trial court awarded approximately $7,000 in attorney’s fees to H.E.B. which

the trial court found were solely for H.E.B.’s attempts to obtain discovery relating to the

cause of the fire from Advance. H.E.B. sought an award of almost $27,000, which

included a request for attorney’s fees relating to all of H.E.B.’s difficulties in obtaining

discovery, not just those incurred relating to the cause of the fire. We find that there is a

direct relationship between the sanction imposed and the offensive conduct.

Amount of Sanction

       Advance does not complain regarding the amount of the sanction; therefore, we

do not reach the issue of whether the amount of the sanctions awarded constituted an

abuse of discretion. See TEX. R. APP. P. 38.1.

       We find that the trial court did not abuse its discretion in awarding H.E.B.’s

attorney’s fees for the pursuit of the cause and origin investigation reports pursuant to

rule 215. We overrule Advance’s sole issue.




H.E.B. v. Advance Auto Parts                                                          Page 13
Conclusion

       We find that the trial court did not abuse its discretion by impliedly refusing a

presumption regarding spoliation. We further find that the trial court did not abuse its

discretion in awarding sanctions to H.E.B. for discovery abuse.         We affirm the

judgments of the trial court.



                                        TOM GRAY
                                        Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed August 4, 2010
[CV06]




H.E.B. v. Advance Auto Parts                                                     Page 14
