                                     IN THE
                             TENTH COURT OF APPEALS



                                    No. 10-16-00420-CV

  IN RE XTERRA CONSTRUCTION, LLC, VENTURI CAPITAL, INC.
     D/B/A ARTISAN CABINETS AND KEITH D. RICHBOURG


                                    Original Proceeding



                                 DISSENTING OPINION

          This is a case on spoliation. There is much that I could write to explain the extent

of my dissent with the Court’s opinion and judgment in this proceeding. I could discuss

a plethora of cases and recount details of the evidence about how the evidence was lost

including the phenomenal sweeping prowess of Cedric. In the interest of time, however,

I will be brief (unlike the three days of hearing and argument on the issue in the trial

court).

          The law on spoliation is Brookshire Bros. See Brookshire Bros., Ltd. v. Aldridge, 438

S.W.3d 9 (Tex. 2014). It will serve no useful purpose for me to repeat it, or attempt to

expand upon it, or explicate the nuances of its application to these facts. The facts in the
case at hand, summarized, are that there was a fire in a warehouse owned by Hull. The

warehouse was rented to Xterra. Xterra had insurance on the contents. Hull was

contractually obligated to have insurance on the warehouse, but did not. The point of

origin of the fire was altered and the suspected/probable cause of the fire was lost.

        The origin of the fire, meaning where within the warehouse the fire started, is not

seriously disputed. The cause of the fire, the source of ignition, is disputed. The focus of

the resulting investigation, and now litigation, was on a fan manufactured by Emerson

which was purchased and owned by Xterra. The fan had been housed in a mobile cabinet

built by Xterra. The fan was used in the finishing room where Xterra finished custom

made cabinets by staining/painting/sealing them to the specifications of its customers.

DUTY TO PRESERVE EVIDENCE—the Preservation Duty

        Xterra made a claim under its fire policy two days after the fire. Roughly three

days later, an expert hired by Xterra’s insurer formed a preliminary opinion that the cause

of the fire was a fan, specifically its motor, which was later determined to be

manufactured by Emerson. From that day forward, a reasonable person would have

anticipated a claim to be made against Emerson. The duty to preserve was thus born no

later than October 23, 2014, five days after the fire.

        The Court’s opinion turns on the date it determined the duty to preserve evidence

arose. The Court determines that the duty to preserve arose on the date Xterra could

reasonably anticipate a claim against it by Hull. I believe the Court errs by focusing on

determining when anticipation of a specific claim arose thus triggering the preservation

duty. Brookshire Bros. does not speak directly to this issue. But I believe the issue must


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be understood in its broader context. It is not as narrowly limited as the date a specific

claim could be reasonably anticipated but rather the date any claim could reasonably be

anticipated.1 And the preservation duty is not dependent on who might benefit from the

evidence or who the claim may be made by or against.

        The Court has determined that Xterra could not have anticipated a claim against

it by Hull until November 10, 2014. This date is well after the scene had been altered and

the fan motor lost. I strongly disagree that this is the appropriate date. I agree with the

trial court’s implicit determination that the evidence from the hearing supports a much

earlier date to anticipate a claim which triggered the preservation duty.

SANCTION FOR BREACH OF PRESERVATION DUTY—Spoliation of Evidence

        On or before November 6, 2014, a pathway was swept through the point of origin

of the fire. On or before November 6, 2014, the fan motor, the theorized cause of the fire,

disappeared from the warehouse and has never been located.

        Hull moved for discovery sanctions for spoliation of evidence. There was more

than two days of testimony in this hearing. The testimony was about the events at the

warehouse from the time of the fire through the date the pathway was swept and the

motor disappeared. The trial court sanctioned Xterra. The sanctions were to strike

Xterra’s defense on the causation element of Hull’s suit and also strike Xterra’s

designation of Emerson as a responsible third party in defense of Hull’s suit. The trial



1
  This is a different analysis than anticipation of litigation for the birth of the work-product privilege, but it
is closely related. Recognizing the risk of confusion, the plaintiff argued, “So this idea that somehow they
didn’t know that there was an anticipation of litigation, I hope that we don’t get caught up on that.” Well,
as you now know, you got caught up on that.


In re Xterra Construction, LLC, et al.                                                                    Page 3
court also indicated that it would give an instruction on spoliation to the jury and

awarded attorney fees and cost for the hearing against Xterra to Hull and Emerson.

        Because the Court concludes there was no duty to preserve the evidence, the Court

does not reach the question of whether these sanctions were excessive. Because I would

hold there was a duty to preserve the evidence and that the duty was breached I would,

if I were writing for a majority, reach that issue. As a dissent, however, it is unnecessary

for me to address the issue fully; but I provide the following comment regarding the

extent of the sanctions. I believe they are excessive and fail to evaluate other alternatives

that would place the parties in a position as nearly as possible to where they would have

been if the evidence was available.

        As to the point of origin of the fire, there seems to be little dispute, and possibly

unanimous agreement. If not, the testimony was clear that the sweeping of the point of

origin can be overcome by the extensive photographs which were taken of the scene,

taken by numerous persons, and taken on different dates before the scene was altered by

sweeping. As to whether the fan motor was the cause of the fire, I think review of the

issue is premature.2 There was no evidence that the parties have explored whether a

second identical fan, located in an identical cabinet, used for the same purpose, in the




2
  Most of the reported spoliation cases seem to be after a trial on the merits and the spoliation instruction,
as given, can be evaluated in the context of a fully developed record. In this case the purported sanction
is, at this juncture, theoretical, because the trial court could re-determine or modify its sanction order at
any time before judgment. For example, the entire trial could be conducted without limitation by any
sanction, and based on the evidence as it comes in and the jury’s answers, the trial court may then decide
that Emerson’s liability, if any, should be shouldered by Xterra due to Xterra’s loss of the motor and
Emerson’s handicap in defending that a defect in the motor was the cause of the fire. I do not mean to
imply that I would order such; I merely suggest review now is premature.


In re Xterra Construction, LLC, et al.                                                                 Page 4
same room, and even purchased at the same time, could yield information on whether it

was defective and whether the defect, if any, could be extrapolated to have been present

in the missing fan motor, or whether there have been other reported failures of the same

type fan motors manufactured by Emerson. There seems to have been a premature leap

to extricate Emerson from the cause of the fire. Additionally, without the motor, Xterra

seems to be the most adversely affected by its inability to show the cause of the fire so

there is a natural adverse consequence to Xterra, separate and apart from any sanctions

imposed by the trial court.3 Moreover, if causation based on the fan is stricken as an

element from Hull’s suit against Xterra, I cannot see why a spoliation instruction does

anything other than inflame the jury. Of course, these observations are based on the

introduction of evidence that has not occurred because the trial has not occurred and the

charge has not been prepared, objected to, or argued. We obviously do not know the

state of the evidence, and thus, I believe that announcing a spoliation instruction will be

given is not a proper issue for this mandamus proceeding.

CONCLUSION


        For the forgoing reasons, and with the additional comments made herein, I

respectfully dissent from granting the relief requested in this mandamus proceeding and

would address the issues that may result after a trial on the merits when we can properly



3
 For example another possible sanction would be to prevent Xterra from using the only cause and origin
expert that had the opportunity to analyze the fire scene before it was altered and the motor lost. This
would put all the parties on an equal footing as to the available evidence to prove/negate causation as being
a defect in the motor, and the party that breached the duty to preserve the evidence will be the one most
prejudiced in its defense by its inability to prove its theory of causation.



In re Xterra Construction, LLC, et al.                                                                Page 5
determine the impact of the sanctions on the trial of the case and the submission of the

issues to the jury in the context of a properly, and fully, developed record.



                                          TOM GRAY
                                          Chief Justice

Dissenting opinion issued and filed May 15, 2019




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