               IN THE SUPREME COURT OF TEXAS
                                         444444444444
                                           NO . 12-0136
                                         444444444444


                        WACKENHUT CORPORATION, PETITIONER,
                                                 v.


                         JESSE JAMES GUTIERREZ, RESPONDENT

           4444444444444444444444444444444444444444444444444444
                             ON PETITION FOR REVIEW FROM THE
                    COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS
           4444444444444444444444444444444444444444444444444444


                                          PER CURIAM


       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


         1
          The camera at issue was located outside the passenger door, viewing the side of the bus that was involved in
the accident.

                                                          2
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.




         2
           The instruction read: “Parties to a lawsuit are under a duty to preserve evidence that they know or should know
is relevant to the dispute. In this case, The W ackenhut Corporation negligently failed to preserve the video on the bus,
and it did so while there was an anticipation of litigation and while it had a duty to preserve evidence. You may,
therefore, presume that the videotape was unfavorable to The W ackenhut Corporation.”

                                                            3
        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.

                                                    4
         Further, during the hearing on Wackenhut’s motion for new trial, the following conversation

took place:

         [COUNSEL FOR WACKENHUT]: [T]he court made a ruling that the instruction
         would go to the jury, and then the court took argument on that, and that’s how we
         ended up with this particular instruction, but it was given over objection.

         THE COURT: [Y]ou are correct. The court heard argument, made its ruling on the
         instruction.

                                                         * * *

         [COUNSEL FOR WACKENHUT]: For the record, Your Honor, I think it is clear
         that Wackenhut did object to any spoliation instruction going to the jury at all, . . .
         and so there is no waiver here. There was an objection to any instruction going to the
         jury.

         THE COURT: I don’t deny that, because I noted that on record that the objection was
         made to the charge . . . .

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

         3
           To the extent concerns exist that this holding will open the floodgates to preservation of trial error by way of
pretrial motion in other contexts, such concerns are unfounded. A motion in limine, for example, does not preserve error
on evidentiary rulings at trial because it does not seek a ruling on admissibility; rather, the purpose of such a motion “is
to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury”
without seeking the trial court’s permission. Hartford Accident & Indem. Co. v. McCardell, 369 S.W .2d 331, 335 (Tex.
1963). And a denied pretrial no-evidence motion for summary judgment does not preserve a no-evidence objection to
a question in the jury charge, as the latter is premised on the evidence (or lack thereof) presented at trial and thus cannot
properly be asserted before trial. In the unique circumstances presented here, the course of the trial does not affect the
propriety of a spoliation instruction. Brookshire Bros., Ltd. v. Aldridge, 438 S.W .3d 9, 20, 26 (holding that whether

                                                             5
         Next, we turn to the propriety of the trial court’s submission of the spoliation instruction to

the jury in light of our recent decision in Brookshire Brothers, Ltd. v. Aldridge, 438 S.W.3d 9 (Tex.

2014). Applying the Brookshire Brothers framework, we hold that the trial court abused its

discretion in submitting the instruction.

         Whether a party spoliated evidence and whether a particular remedy is appropriate are

questions of law for the trial court. Id. at 14, 20. We review a trial court’s imposition of spoliation

sanctions under an abuse-of-discretion standard. Id. at 27. In Brookshire Brothers, we articulated

specific restrictions on a trial court’s discretion to submit a spoliation instruction to the jury in the

event it finds that a party spoliated evidence. Id. at 23–26. Specifically, a trial court may submit an

instruction only if it finds that (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. Id.

         Here, the trial court found that Wackenhut negligently spoliated evidence in failing to

preserve the recording.4 Even assuming that finding is correct, which Wackenhut disputes, the trial

court nevertheless abused its discretion by submitting the spoliation instruction. To justify the



spoliation occurred and the propriety of a particular spoliation remedy are issues of law for the trial court and that
evidence of spoliation is generally inadmissible at trial). And the relief W ackenhut sought in its opposition to the pretrial
motion for sanctions— findings that it did not negligently or intentionally spoliate evidence and that the submission of
a spoliation instruction was improper— is exactly what the trial court rejected in its oral ruling. Notably, W ackenhut’s
formal objection to the instruction after the charge was read to the jury was not to the particular wording of the
instruction; such a complaint had never before been brought to the trial court’s attention and would have been untimely.
Rather, mirroring its rejected pretrial position, Wackenhut objected to the submission of a spoliation instruction in any
form.

         4
         In so holding, the trial court also expressly found that the evidence did not show that W ackenhut “intentionally
destroyed” the video.

                                                              6
instruction based on this negligence finding, the spoliation must have irreparably deprived Gutierrez

of any meaningful ability to present his claims. This, we conclude, Wackenhut’s failure to preserve

the recording did not do.

        The evidence presented at trial included: the testimony of both drivers; the testimony of an

eyewitness Wackenhut employee; witness statements prepared by the drivers and the witness at the

time of the accident; testimony of the responding police officer; the police report; Wackenhut’s

report to its corporate headquarters; photos of the vehicles and the accident scene; and extensive

medical records. In light of the abundance of available evidence, we hold that Gutierrez was not

irreparably deprived of any meaningful ability to present his claim. Therefore, the trial court abused

its discretion by submitting the spoliation instruction to the jury.

        Finally, the trial court’s error is reversible only if it probably caused the rendition of an

improper judgment. Id. at 29; TEX . R. APP. P. 61.1(a). We have previously noted that, “‘if a

spoliation instruction should not have been given, the likelihood of harm from the erroneous

instruction is substantial, particularly when the case is closely contested.’” Brookshire Bros., 438

S.W.3d at 29 (quoting Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 724 (Tex. 2003)).

Liability was closely contested in this case. Gutierrez claimed that he drove slowly because it was

raining, while the Wackenhut employees testified that Gutierrez was speeding. In addition, during

his opening statement, Gutierrez’s counsel stated that “[t]here is a video camera that would have

captured . . . if Mr. Gutierrez was coming speeding as they claim. . . . It clarifies who was telling the

truth.” Further, and more significantly, during closing arguments, counsel placed significant

emphasis on the spoliation instruction:

                                                   7
        Therefore, because of that, you may presume—you are free to look at this and say
        that videotape, had they shown it, it would have shown that what the driver of that
        bus is saying and what Mrs. Rivera, the co-driver, is saying is against them. It’s not
        the way they said. It’s the way Mr. Gutierrez said it happened.

In light of the contested liability, counsel’s statements, and the highly speculative probative value

of the recording,5 the record reflects the significant effect the spoliation instruction likely had on the

trial. Therefore, we hold that the trial court’s error probably caused the rendition of an improper

judgment.

        Accordingly, we grant Wackenhut’s petition for review and, without hearing oral argument,

reverse the court of appeals’ judgment and remand the case to the trial court for a new trial in

accordance with this opinion. TEX . R. APP . P. 59.1.



OPINION DELIVERED: February 6, 2015




        5
            The collision took place around 8:00 p.m. on a stormy evening with heavy rain.

                                                          8
