                            In The
                      Court of Appeals
        Sixth Appellate District of Texas at Texarkana


                           No. 06-14-00040-CV



TILLERD ARDEAN SMITH, MEDALLION TRANSPORT & LOGISTICS, LLC, AND
  TOMY RUSHING D/B/A RUSHING TRANSPORT SERVICES, INC., Appellants

                                    V.

                      BRANDI WILLIAMS, Appellee



                   On Appeal from the 71st District Court
                         Harrison County, Texas
                         Trial Court No. 12-0889




               Before Morriss, C.J., Moseley and Burgess, JJ.
               Memorandum Opinion by Chief Justice Morriss
                                       MEMORANDUM OPINION
         It was pre-dawn April 4, 2011, near Lone Star, Texas. Tillerd Ardean Smith was operating

on only about three hours of sleep and was admittedly tired. He was driving a tractor-trailer rig

belonging to Tomy Rushing (Rushing), d/b/a Rushing Transport Services, Inc., carrying cargo for

Medallion Transport and Logistics, LLC (Medallion Transport), which had leased the truck.1

Around 11:00 p.m. the evening before, having progressed only part way through his intended route

from Kilgore, Texas, to Arkansas, Smith had stopped near Lone Star because of mechanical

difficulty with the truck’s brakes, which had been repaired by Rushing as Smith slept in the truck’s

sleeping berth. Smith drove south on U.S. Highway 259 toward an impromptu breakfast with

Rushing. But Smith missed his turn and started looking for a way to get back on track.

         Meanwhile, Brandi Williams Turnage2 (Williams) was also driving south on U.S. Highway

259 toward her job as a registered nurse at a Longview hospital. Unfortunately, as Williams

approached Smith from behind, Smith began a U-turn outside the south gate of U.S. Steel’s plant

south of Lone Star. Williams was injured in the resulting collision;3 sued Smith, Rushing, and



1
 Smith has driven commercial trucks for over fifteen years and has driven for Rushing for over twelve years. He was
also a qualified driver for Medallion Transport.
2
 At the time of the accident, Williams was married and went by the last name of Williams. Before the trial date, she
had divorced and retaken her maiden name, Turnage.
3
 There are disputes concerning details of the accident, such as the location and speed of Smith’s truck and the location
of Williams’ vehicle, but they are not germane to this appeal. At trial, Smith agreed that he may have had three hours
of sleep and that it is unsafe to drive a truck and make a U-turn when fatigued. Nevertheless, he maintained that he
was going below five miles per hour at the time, that the impact occurred in between the southbound outside lane and
the dedicated right turn lane, and that Williams could have avoided the accident but for her speed. Williams was
initially diagnosed with a strain to her cervical spine, hip contusion, knee contusion, scratches, facial scratches, and a
dental fracture. A few days after the accident, she began complaining of pain in her lower back and was eventually
diagnosed with an internally disrupted disc at L4-L5.

                                                            2
Medallion Transport; and received a judgment against all three defendants for over $3.8 Million.4

All defendants appeal.5

            We reverse and remand the judgments against Smith and Medallion Transport, reverse the

judgment against Rushing, and render a take-nothing judgment in Rushing’s favor, because

(1) giving the spoliation jury instruction was harmful error, and (2) judgment against Rushing is

not supported by a jury finding or conclusive evidence; additionally, (3) sufficient evidence

supported the jury findings on Williams’ future damages, and (4) our holdings moot other issues

before us.



4
 A three-question charge was submitted to the jury. Question No. 1 asked: “Did the negligence, if any, of those
named below proximately cause the occurrence or injury in question?” and listed Williams and each of the Appellants.
Question No. 2 asked the jury to assign percentages of responsibility for those it found caused the occurrence or injury
and listed Williams and each of the Appellants. Question No. 3 asked the jury to award damages for Williams’
injuries, if any, and listed twelve categories of possible past and future damages. In response to Question No. 1, the
jury found that the negligence of Smith and Medallion Transport proximately caused the occurrence or injury, but that
the negligence of Rushing and Williams did not. Under Question No. 2, the jury assigned Smith fifty-five percent and
Medallion Transport forty-five percent of the responsibility. It also found the following damages:

                  Past medical expenses                            $ 142,351.00
                  Future medical expenses                          $ 350,000.00
                  Lost wages (past)                                $ 101,739.00
                  Lost wages (future)                              $1,471,011.00
                  Physical pain and suffering (past)               $ 200,000.00
                  Physical pain and suffering (future)             $ 300,000.00
                  Mental anguish (past)                            $ 300,000.00
                  Mental anguish (future)                          $ 250,000.00
                  Physical impairment (past)                       $ 250,000.00
                  Physical impairment (future)                     $ 500,000.00
                  Disfigurement (past)                             $        0.00
                  Disfigurement (future)                           $        0.00

No issue asked the jury whether, at the time of the accident, Smith was acting as an employee of either Rushing or
Medallion Transport or whether he was then acting in the course and scope of any particular employment. Based on
the verdict, the trial court entered judgment jointly and severally against all three Appellants for the sum of
$3,865,101.00, plus prejudgment interest of $117,384.33 and court costs. Appellants filed a motion for new trial, for
remittitur, and to modify judgment and a motion for judgment notwithstanding the verdict, all to no avail.
5
    When referring to Smith, Rushing, and Medallion Transport as a group, we will refer to them as “Appellants.”
                                                           3
(1)    Giving a Spoliation Jury Instruction Was Harmful Error

       Shortly after the accident, Medallion Transport received a letter, dated April 7, 2011, from

attorneys representing Williams notifying it of their representation and advising Medallion

Transport that they needed to inspect “the following documents:

       1.      Driver’s daily logs.

       2.      Any notes kept by your driver pertaining to the miles driven, routes
               driven, stops made, loads, or other information regarding his driving.

               ....

       10.     All daily route reports, driver inspection reports, load manifest, and fuel
               purchase receipts pertaining to the movement of cargo by the driver.

               ....

       12.     All trip and/or operational documents pertaining to the movement of cargo
               by the driver.”

               ....

The letter warned Medallion Transport that, if it were to (or if it allowed someone else to) “alter,

lose, or destroy any of [the listed documents] before granting [Williams] access to this evidence,

[it would] subject [itself] to prosecution for spoliation of evidence, judicial sanctions, and/or other

adverse judicial actions or instructions at trial.” By letter dated April 18, 2011, Medallion

Transport’s insurance carrier advised it to preserve the evidence requested by the attorneys and

provided an additional sheet titled “Proposed ‘Industry-wide’ Post-Accident Preservation List.”

This list included the latest eight days of logs, the dispatch records, the fuel records, and the latest

eight days of fuel records. After responding to the April 7 letter, Medallion Transport received no

further communication from any attorney representing Williams and closed its claim file
                                                   4
January 31, 2012. This suit was filed October 19, 2012, by Williams’ trial counsel.6 After filing

suit, Williams requested production of Smith’s logs, dispatch records, and waybills (also known

as bills of lading) from March 1, 2011, to April 4, 2011.7 Medallion Transport produced Smith’s

logs for March 18 through April 4, 2011; waybills for March 1 through March 31, 2011; and

dispatch records for April 6, 2010, through March 31, 2011.

           We understand Williams’ pretrial motion for sanctions for spoliation to complain of logs

missing March 1 through March 17, 2011,8 and the missing waybills and dispatch records for April

1 through April 4, 2011. She argued that Medallion Transport had a duty to preserve Smith’s logs

for six months before the accident pursuant to Department of Transportation (DOT) regulations9

and that the April 7 letter from her then counsel and the subsequent letter from its insurance

company gave Medallion Transport notice to preserve the relevant logs, waybills, and dispatch

records. She went on to assert that Medallion Transport intentionally destroyed the missing

documents, pointing to the deposition testimony of Cathy McMullen, who worked as an agent

dispatcher for Medallion Transport. In her deposition, McMullen testified that she receives the


6
    Sometime between April 7, 2011, and October 19, 2012, Williams apparently retained different counsel.
7
 Although plaintiff’s first request for production requested Smith’s logs and waybills for a period of twelve months
before the accident and plaintiff’s second request for production requested dispatch records for thirty days before and
including the date of the accident, Williams’ motion for sanctions for spoliation of evidence asserts it requested these
documents for the period of March 1, 2011, to April 4, 2011.

Williams’ motion complains of missing logs from March 1 to March 20, 2011, but the copies of logs attached to her
8

motion show log entries for March 18 through April 4, 2011.
9
 DOT regulations require a motor carrier to maintain records of duty status (logs) and “all supporting documents” for
each of its drivers “for a period of six months from the date of receipt.” 49 CFR § 395.8(k)(1) (2014). Williams does
not cite any authority that requires the motor carrier to maintain the logs of its driver in excess of six months if the
driver is involved in an accident.

                                                           5
logs and waybills from the drivers, scans them, and sends them to Medallion Transport’s corporate

offices. She keeps the hard copies for one year and then throws them away. She testified that she

would have done the same for any logs and waybills from the date of the accident since she

assumed Medallion Transport would have the scanned copy.10 Williams pointed out that, if

McMullen kept any waybills and dispatch records for a year, then she would have destroyed them

after the suit was filed. Williams also pointed to the deposition testimony of Bill Winney, chief

operating officer for Medallion Transport, who testified that, if McMullen had scanned Smith’s

logs, waybills, and dispatch records, Medallion Transport should have retained them. Williams

argued that the missing waybills and dispatch records from April 1 through April 4, 2011, and the

missing logs from March 1 through March 17 prejudiced her because she was prevented from (1)

verifying the accuracy of the logs on the days leading up to the accident, (2) verifying whether

Smith was complying with the service hours restrictions in the March 1 through March 17 period,

and (3) showing that Smith was fatigued on the day of the accident. At the pretrial hearing,

Williams complained of her inability to show that Smith was driving in violation of service hours

restrictions, that he had a “history of falsifying his logs all the way through March,” and that he

was fatigued on the day of the accident. When asked what other evidence there was of driver

fatigue, Williams responded that Smith testified he began driving at 5:30 a.m. after two or three

hours of sleep and pointed to inconsistencies in his log-book entries on the day of the accident.




 Apparently the logs for April 1 through April 4 had not been produced by the time of McMullen’s and Till Winney’s
10

depositions, but had been produced sometime prior to the pretrial hearing.
                                                        6
         Medallion Transport responded that the evidence showed that Williams failed to pursue

her claim for over nine and one-half months, resulting in the closure of the claim file, and that

there was no evidence of intentional or negligent destruction of documents. Rather, it argued that

Medallion Transport preserved the documents identified in the April 7 letter and that the evidence

shows only that the dispatch records and waybills for April 1 to April 4 were not in existence, not

that they had been destroyed. Since McMullen was an independent contractor who was a non-

party to the suit, Medallion Transport argued, any destruction of documents by her could not be

the basis of a finding of intentional destruction of documents by Medallion Transport. After the

pretrial hearing, the trial court granted Williams’ motion, finding that Medallion Transport had

intentionally destroyed or not produced the dispatch records and waybills for April 1 to April 4

and “selective days”11 of Smith’s logs and ordering that it would give a spoliation instruction.12

         At trial, additional evidence relating to spoliation of evidence was heard by the jury. One

of the themes of Williams’ questioning of defense witnesses was to emphasize her theories that

Medallion Transport was hiding evidence from the jury, that it “destroyed” the missing documents

because they would have shown Smith was fatigued on the day of the accident, and that Smith had

a pattern of driving in a fatigued state. For instance, during the questioning of Smith, the following

exchange took place:



11
 Since Williams only complained about the non-production of logs from March 1 to March 17, we assume for the
purposes of this appeal that the trial court was referring to these days.
12
  In defense of the trial court, when this trial took place, just how trial courts were to handle allegations of spoliation
had not been finally settled. After this trial occurred, the Texas Supreme Court issued its ruling in Brookshire
Brothers, Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014), to which reference is made hereafter. Brookshire Bros.. clarified
the course of action trial courts are to take when faced with claims of spoliation, previously a rather murky undertaking.
                                                            7
            Q         Okay. So when we look at the dates, interesting enough, because
     what I’ve done here is I’ve tracked all of the records. We have no dispatch records,
     no waybills for the 1st, 2nd, 3rd, or 4th. Are you aware of that?

             A        No.

             Q       The only thing we have are the log books. Now, you agree with me
     that there’s no way that I can check the accuracy of your log books because they
     didn’t give us the dispatch records and the waybills for the 1st, 2nd, 3rd, or 4th,
     correct?

             A        If you say so. I don’t know. I don’t know nothing about that.

             ....

             Q        So if they [Medallion Transport] don’t get them to us, then I can’t
     bring them to this jury to show how many hours you were working on these days to
     verify, correct?

             A        Okay. Correct.

              ....

             Q         Okay. So -- you know, so if there’s log books that say you’re not
     working, and guess what, you are working, that sheds a little light on maybe why I
     didn’t get the dispatch records and the waybills on the 1st, 2nd, 3rd, and 4th, correct?

             A        Correct.

Williams also examined Winney extensively about the April 7 letter; DOT regulations; and the

missing logs, waybills, and dispatch records, seeking to show Medallion Transport’s malicious-

intent in failing to produce these documents. In her examination of McMullen, Williams also

emphasized the missing documents, including the following:

               Q      All right. Are you aware that[,] if you get a letter from a law firm
       that says, hold on to documents, or don’t destroy, do you understand what that
       means?

              A       Yes, sir.
                                                 8
                   Q       All right. And would you not destroy those records if you got that
         letter?

                   A       No, sir.

                 Q       Right. And then if you got a letter from within the company that
         said, don’t destroy these records, because if you destroy these records, it’s going to
         be shown to a jury that you’ve done it because you’re trying to hide something,
         you’d save those records too, wouldn’t you?

                   A       Yes, sir.

         Medallion Transport also explained why the documents were not produced. Regarding the

logs for March 1 through March 17, Winney explained that logs are kept in the regular course of

business for six months as required by the DOT. He said that, when a driver is involved in an

accident, Medallion Transport normally preserves the driver’s logs for the date of the accident and

the seven days before the accident, which is what it did in this case. He acknowledged receiving

the April 7 letter, but he did not understand that letter to require him to keep all of the logs for six

months before the accident. Rather, he kept the logs of the day of the accident and the week prior,

which is common practice in the industry. Therefore, at the end of six months, the other logs

would have been destroyed in the regular course of business. Regarding the dispatch records and

waybills for April 1 to April 4, Winney testified that Medallion Transport keeps waybills for two

years as required by the Internal Revenue Service, and it keeps dispatch records “forever.” Both

Smith and Winney testified that there were no waybills for April 1 because that would have been

the delivery date for the load Smith picked up March 31.13 Therefore, the waybill produced for


13
  Smith explained that the driver receives the waybill when he picks up a load. The waybill shows the identity of the
shipper, the city of origin of the shipment, the identity of the consignee, and the city of the delivery of the shipment.
                                                           9
March 31 would also cover April 1. Smith did not work April 2, so there would not be a waybill

for that date. Smith picked up a load and waybill April 3 but, after the accident, gave the waybill

to Rushing. Rushing testified that he contacted another trucking company, 5J Transportation, to

deliver the load Smith had been transporting and gave the waybill to the driver. Since Medallion

Transport did not deliver the load, it did not receive the waybill. Therefore, Medallion Transport

never had a waybill for April 3 and 4. In his deposition, Winney testified that, if Smith hauled a

load for Medallion Transport, there should be a dispatch record. However, at trial, he explained

that the dispatch record is derived from information taken from the waybills.14 He stated that since

Medallion Transport did not have a waybill for April 3 or 4, there was no information to input, so

there were no dispatch records for those dates.

         At trial, using the waybills and dispatch records produced for March, Williams was able to

demonstrate that Smith had falsified his log for at least one day in March. On March 24, Smith’s

log indicates that he was off duty all that day. However, the dispatch records and waybill for that

date showed he picked up a load in Kilgore, Texas, to be delivered to Amarillo, Texas. Smith,

Winney, and Rushing all admitted that this meant that Smith had falsified his log for March 24.

Smith agreed that, since the trip to Amarillo was at least eight hours one way, this meant that Smith

either falsified his log for either March 23 or 25, which showed he was also off duty those days,




At the end of his run, he would turn his logs and waybills in to McMullen. If he does not work one day, then no
waybill would be created for him that day.
14
  This was the only explanation of dispatch records and how they are generated. Although not entirely clear, it appears
that for each driver, information regarding the identity of the shipper, shipper location, ship date, destination, delivery
date, and waybill number are taken from individual waybill and input into a computer program to generate a “dispatch
summary” for the driver.
                                                           10
or he drove in excess of the maximum hours allowed on March 24. He agreed that, if he made the

trip all on March 24, it would be an instance in which he was driving while fatigued. Also,

Williams was able to attack the credibility of Smith’s logs for April 3 and 4, showing that Smith

had failed to record the breakdown of his truck, failed to record the repair and secure the signature

of the mechanic, and failed to do a pre-trip inspection of the truck after the repair. Smith admitted

that all of these were required to be recorded in the log and that it was possible that he failed to do

these things because he was up all night and was fatigued.

       After both parties rested, Medallion Transport asked the trial court to reconsider its

spoliation finding, pointing to the evidence that all of the waybills and dispatch records for April 1

to April 4 had either been produced, never existed, or were not in the possession of Medallion

Transport. In addition, Medallion Transport argued that the April 7 letter provided no time frame

for the preservation of documents, that the logs from March 1 through March 17 were too remote

to be probative on the issue of fatigue on the date of the accident, and that Williams had suffered

no prejudice since the documents produced were more than sufficient for her to carry her case.

Williams asserted certain inconsistencies in the trial and deposition testimony of McMullen. The

trial court overruled Medallion Transport’s motion and included the following instruction in the

jury charge:

       THE COURT has found that Medallion Transport Logistics, LLC[,] intentionally
       withheld documents or destroyed evidence material to this case. Specifically,
       Medallion Transport Logistics, LLC[,] intentionally withheld or destroyed the
       dispatch records and waybills for the days of April 1, 2011[,] to April 4, 2011, along
       with selective days of Tillerd Smith’s driver logbook. You should presume that
       this evidence would have been unfavorable to Medallion Transport Logistics,
       LLC[,] if it had been produced.

                                                  11
During the charge conference, Appellants15 objected to the spoliation instruction, arguing first that

“the evidence does not support [a finding] that Medallion Transport intentionally withheld

documents or destroyed evidence material to this case” and that the instruction was a comment on

the weight of the evidence. The trial court overruled these objections.

         In this Court, the Appellants first assert that the trial court abused its discretion in allowing

the jury to hear spoliation evidence and in giving a spoliation instruction to the jury. A trial court’s

submission of a spoliation instruction to the jury is reviewed under an abuse-of-discretion standard.

Brookshire Bros., 438 S.W.3d at 27; Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 723 (Tex.

2003). A trial court’s admission of spoliation evidence is likewise reviewed for abuse of

discretion. Brookshire Bros., 438 S.W.3d at 27. To determine the propriety of the trial court’s

actions, we use the framework articulated by the Texas Supreme Court in Brookshire Bros.

Petroleum Solutions, Inc. v. Head, 454 S.W.3d 482, 488 (Tex. 2014); Wackenhut Corp. v.

Gutierrez, 453 S.W.3d 917, 918 (Tex. 2015); see Brookshire Bros., 438 S.W.3d at 19–22. If we

find an abuse of discretion, the error is reversible only if it “‘probably caused the rendition of an

improper judgment.’” Brookshire Bros., 438 S.W.3d at 29 (quoting TEX. R. APP. P. 61.1(a)).


15
  Williams, in her brief and at oral argument, claimed that, because the spoliation instruction refers only to Medallion
Transport, it can cause reversal, even if erroneous, only as to Medallion Transport, not Smith. Yet, all Appellants
were represented by the same counsel, at trial and on appeal. Though Appellants’ brief states that the motion for
reconsideration was made by Medallion Transport, the objections to neither the charge nor the spoliation instruction
were limited to Medallion Transport. Although there are places in which Appellants seem to limit their arguments, in
this connection, to Medallion Transport, they certainly make a broader claim: “[T]he court’s actions undoubtedly
prejudiced Medallion and Smith on both liability and damages and led to a judgment based on improper reasons.”
Also, Appellants argue there was an abuse of discretion in giving the instruction, but do not limit their argument only
to Medallion Transport. Unless so limited by counsel, we assume the objection to the spoliation instruction was made
on behalf of all Appellants. Furthermore, Williams did not limit her focus at trial to only Medallion Transport, but
argued and presented evidence on the spoliation issue broadly against all Appellants. Thus, our review of the
prejudicial effect of the spoliation instruction cannot be limited to Medallion Transport, and reversal is not limited to
that Appellant.
                                                          12
         Under this legal framework, it is the trial court, not the jury, that “must determine whether

a party spoliated evidence and, if so, impose the appropriate remedy.” Brookshire Bros., 438

S.W.3d at 20. Since “the trial court bears this responsibility, evidence of the circumstances

surrounding alleged spoliation is generally inadmissible at trial, as such evidence is largely

irrelevant to the merits and unfairly prejudicial to the spoliating party.” Petroleum Solutions, 454

S.W.3d at 488 (citing Brookshire Bros., 438 S.W.3d at 26).16 In order to find that spoliation has

occurred, the trial court must determine first that (1) the party failing to produce evidence had a

duty to preserve the evidence and (2) that it “breached its duty to reasonably preserve material and

relevant evidence.” Id. (citing Brookshire Bros., 438 S.W.3d at 20); Wal-Mart Stores, 106 S.W.3d

at 722. Further, a duty to preserve evidence 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 material and relevant to that claim.” Brookshire Bros., 438 S.W.3d at 20 (quoting

Wal-Mart Stores, 106 S.W.3d at 722).

         If the trial court finds that spoliation has occurred, it must again exercise its discretion in

imposing a remedy. To determine the appropriate remedy, the trial court should weigh both the

culpability of the spoliating party and the prejudice to the other party. Id. at 21. To evaluate

prejudice, we are to consider

         the relevance of the spoliated evidence to key issues in the case, the harmful effect
         of the evidence on the spoliating party’s case (or, conversely, whether the evidence
         would have been helpful to the nonspoliating party’s case), and whether the

16
  In this regard, the Texas Supreme Court noted, “[T]here is no basis on which to allow the jury to hear evidence that
is unrelated to the merits of the case, but serves only to highlight the spoliating party’s breach and culpability. While
such evidence may be central to the trial court’s spoliation findings, it has no bearing on the issues to be resolved by
the jury.” Brookshire Bros., 438 S.W.3d at 26–27.

                                                          13
            spoliated evidence was cumulative of other competent evidence that may be used
            instead of the spoliated evidence.

Id. at 21–22 (citing Trevino v. Ortega, 969 S.W.2d 950, 958 (Tex. 1998) (Baker, J., concurring).

Further, “a trial court may submit a spoliation instruction only if it finds (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.”17 Petroleum Solutions, 454 S.W.3d at 489 (citing Brookshire Bros., 438

S.W.3d at 23–26). Because the giving of a spoliation instruction “can shift the focus of the case

from the merits of the lawsuit to the improper conduct that was allegedly committed by one of the

parties” and “be tantamount to a death-penalty sanction,” the Texas Supreme Court clarified that

intentional spoliation means “that the party acted with the subjective purpose of concealing or

destroying discoverable evidence.” Brookshire Bros., 438 S.W.3d at 13, 23–24.

            Relying on Brookshire Brothers, Appellants argue that there is no evidence that Medallion

Transport or any person under its control intentionally destroyed relevant and material evidence

with the purpose of concealing relevant evidence, that it preserved and produced more documents

than were originally requested in the April 7 letter and the letter from its insurer, and that a

reasonable explanation was given for the absence of any documents. In addition, Appellants point

out that any missing documents did not prevent Williams from showing that Smith falsified his

logs, violated the maximum service hours, and was fatigued at the time of the accident, all of which

she was able to show using the documents produced by Medallion Transport. Finally, Appellants



17
     In this case, the trial court found that Medallion Transport intentionally spoliated evidence.
                                                              14
argue that the logs from March 1 to March 17 were too distant to be material and relevant to the

issue of whether Smith was fatigued on April 4, which was the “essential theory of Williams’

case.”

         Williams points out that the trial court conducted an initial hearing before trial in which it

considered her motion for sanctions. She argues that the trial court considered the evidence,

determined that Medallion Transport had breached its duty to preserve relevant and material

evidence, and properly fashioned an appropriate remedy after it considered the “essential theory”

of Williams’ case: that Smith was fatigued at the time of the accident. In support of the trial

court’s finding that Medallion Transport “intentionally concealed or destroyed evidence material

to the case,” Williams points primarily to McMullen’s deposition testimony. Regarding the

missing March 1 to March 17 logs and the missing waybills and dispatch records for April 1 to

April 4, Williams claims McMullen testified “that she scanned the records and sent them to

Medallion Transport” and “that after a year she threw the originals away.” Williams asserts also

that “Medallion Transport provided no other explanation for what happened to the records.”

         If the only evidence the trial court had before it was the evidence it had at the pretrial

hearing, then our analysis might be quite different. In this case, however, the trial court admitted

evidence related to spoliation, as well as testimony explaining the absence of the evidence, at trial.

In addition, as has been seen, Williams put on substantial evidence of Smith’s admitted fatigue at

the time of the accident. At the end of testimony, the trial court was asked twice to reconsider

giving the spoliation instruction. This additional evidence is relevant to both the trial court’s



                                                  15
determination that Medallion Transport had intentionally spoliated evidence and its ruling on the

appropriate remedy.

       The Texas Supreme Court’s analysis in Brookshire Bros. controls our disposition of this

case. In that case, Aldridge slipped and fell about fifteen feet from a “Grab N Go” containing

rotisserie chickens that were cooked and packaged in the store’s deli. Id. at 15. At the time of the

fall, he did not report it to store employees. However, about an hour and a half later, he went to

the emergency room because of pain. Five days later, Aldridge returned to the store and reported

his injuries. An incident report was prepared based on Aldridge’s statement and the recollections

of the assistant manager on duty at the time of the fall, which stated that Aldridge had slipped on

grease on the floor near the “Grab N Go” area. Id. Aldridge’s fall was captured by a surveillance

camera mounted near the check-out counters. However, the floor where he fell was in the

background and obscured by a display table. After Aldridge reported the fall, Robert Gilmer,

Brookshire Brothers’ Vice President of Human Resources and Risk Management, retained and

copied about eight minutes of the surveillance footage, covering the time from when Aldridge

entered the store to his fall. At the time of the fall, the surveillance video was recorded in a

continuous loop that recorded over prior events after approximately thirty days. Id. Less than two

weeks after the fall, Aldridge requested a copy of the video footage of the incident, but Gilmer

testified he instructed the claims department not to provide the recording to Aldridge because he

believed it would be improper. Aldridge was advised by letter shortly thereafter that the claims

department could not provide him a copy. Within a few more weeks, the surveillance video (except

the copy of the eight-minute segment) was presumably recorded over. Id. Approximately one

                                                16
year later, Aldridge’s attorney requested an additional two and a half hours of footage from the

video, and Brookshire Brothers was unable to comply because the footage had been recorded over

at least ten months earlier. Id.

       Aldridge filed suit and argued that Brookshire Brothers’ failure to preserve additional video

footage amounted to spoliation and that the missing evidence was relevant to the key issue of

whether the spill was on the floor long enough to give Brookshire Brothers a reasonable

opportunity to discover it. Id. at 15–16. Aldridge asked for a spoliation jury instruction. The trial

court, after allowing the jury to hear evidence bearing on whether Brookshire Brothers spoliated

the video recording, submitted a spoliation instruction to the jury and permitted the jury to decide

whether spoliation occurred. Id. at 16. At trial, Gilmer testified that he had instructed his manager

trainee to save the portion of the video showing the fall and the five or six minutes before to

identify Aldridge entering the store. He did not believe the rest of the video would be relevant,

even though he understood that the key issue in a slip-and-fall case is frequently whether store

employees knew or should have known there was something on the floor. He also testified that,

when the decision was made to preserve the video, he did not know that there was going to be a

lawsuit. Id.

       Applying the framework discussed above to the facts before it, the Texas Supreme Court

held that both the admission of the spoliation evidence and the giving of a spoliation instruction

were improper. Id. at 27. The Court assumed, without deciding, that Brookshire Brothers had

breached its duty to reasonably preserve evidence by allowing the additional footage to be

overwritten. Nevertheless, the Court held that the trial court abused its discretion in submitting a

                                                 17
spoliation instruction because there was no evidence that Brookshire Brothers “did so with the

requisite intent to conceal or destroy relevant evidence or that Aldridge was irreparably deprived

of any meaningful ability to present his claim.” Id. The Court pointed out that the testimony was

that more footage was not retained because it was not thought relevant. Further, although Aldridge

requested a copy of the video of the fall, he did not request additional footage. Although additional

footage was requested after suit was filed a year later, the Court noted that there was no evidence

that the footage was still available at the time of the additional request. Id. Further, there was no

indication that the decision as to what footage to save was in any way based on what the additional

footage would have shown. Therefore, the Court found “simply no evidence that Brookshire Bros.

saved the amount of footage that it did in a purposeful effort to conceal relevant evidence.” Id. at

28.

       We have a similar situation in this case. First, the only evidence regarding the “missing”

waybills and dispatch records from April 1 to April 4 shows (1) that the waybill for April 1, and

the dispatch record derived from it, was a continuation of the one from March 31, which was

produced, (2) that since Smith did not work on April 2, no waybill or dispatch record ever existed

for that day, (3) that the waybill for April 3 through April 4 was not in the possession of Medallion

Transport since another carrier finished the delivery after the accident, and (4) that without a

waybill, no dispatch record was ever generated.

       The only other missing documents addressed in the spoliation instruction are the logs from

March 1 to March 17. Assuming, without deciding, that this evidence was relevant and material

and that Medallion Transport had a duty to reasonably preserve it and breached that duty by

                                                 18
allowing the logs from March 1 to March 17 to be destroyed, there is no evidence that Medallion

Transport did so with the requisite intent to conceal or destroy relevant evidence. The evidence

shows that Medallion Transport preserved logs for the day of, and for seventeen days before, the

accident. This exceeds the eight days suggested by its insurance company and Medallion

Transport’s regular practice of preserving seven days’ logs when a driver is involved in an

accident. Although Medallion Transport acknowledged receiving the April 7 letter, that letter did

not request a specific period of time for preserving the documents it identified. After Medallion

Transport responded to that letter, it had no further request for any documents until approximately

a year and a half later, when Williams requested logs from March 1 to April 4. However, this was

well past the time that the logs would have been destroyed in the regular course of business, as

testified to by Winney. There is no evidence that the logs for March 1 to March 17 were in

existence at the time this request was made. Further, there is no evidence that these logs were

destroyed because of their evidentiary value or that Medallion Transport allowed their destruction

“in a purposeful effort to conceal relevant evidence.” Id. Since the evidence required to find

intentional spoliation is lacking, we find that giving the spoliation instruction ran afoul of

Brookshire Bros.

       Having found an abuse of discretion in giving the spoliation instruction, we may reverse

the judgment on this basis only if giving the instruction “‘probably caused the rendition of an

improper judgment.’” Brookshire Bros., 438 S.W.3d at 29 (quoting TEX. R. APP. P. 61.1(a)). The

Texas Supreme Court has indicated that harm is likely.

       [A]n unnecessary spoliation instruction is particularly likely to cause harm.
       Because the instruction itself is given to compensate for the absence of evidence
                                                19
         that a party had a duty to preserve, its very purpose is to “nudge” or “tilt” the jury.
         Thus, 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.

Wal-Mart Stores, 106 S.W.3d at 724. In Brookshire Bros., the Court again emphasized that giving

a spoliation instruction “can shift the focus of the case from the merits of the lawsuit to the

improper conduct that was allegedly committed by one of the parties during the course of the

litigation process” and that “this shift can unfairly skew a jury verdict, resulting in a judgment that

is based not on the facts of the case, but on the conduct of the parties during or in anticipation of

litigation.” Brookshire Bros., 438 S.W.3d at 13–14. Further, harm is compounded by the

admission of improper evidence18 and jury arguments on the spoliation issue. Petroleum Solutions,

454 S.W.3d at 490; Brookshire Bros., 438 S.W.3d at 13–14, 29.

         Also, the Texas Supreme Court has found harm when a spoliation instruction was given in

error, even though no evidence of spoliation was introduced at trial. In Gutierrez, liability was

closely contested in a suit resulting from a collision between a bus and an automobile. The bus

was equipped with a camera, whose recording automatically looped over after 168 hours and

erased the previous recording. Gutierrez, 453 S.W.3d at 918. The trial court found Wackenhut

Corporation had negligently allowed the recording to be erased and submitted a spoliation

instruction to the jury. Id. at 919. Although no evidence of the circumstance of spoliation was


18
  Appellants assert that the trial court committed “clear error” in admitting evidence of spoliation and appear to argue
that they had no burden to object at trial to the admission of this evidence. Williams argues that Appellants failed to
preserve this complaint as a separate point of error since they failed to object at trial. While we do not reach this
complaint as a separate point of error, we nevertheless consider the admission of evidence of spoliation relevant to
our harm analysis. See Petroleum Solutions, 454 S.W.3d at 490 (where evidence of spoliation admitted at trial,
apparently without objection, held that “[t]he harm of [erroneously giving a spoliation instruction] . . . is compounded
by improper presentation of evidence and argument to the jury on the spoliation issue”).
                                                          20
admitted at trial, Gutierrez referenced the missing recording in his opening statement and placed

significant emphasis on the spoliation instruction in his closing argument stressing it would have

shown “who was telling the truth.” Id. at 922. After finding that giving a spoliation instruction

was an abuse of discretion, the Supreme Court found that it was also harmful, reasoning that, “[i]n

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

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

trial.” Id.

        Appellants argue that this was a hotly contested case both as to liability (at least as to

proportionality) and damages, both of which hinged greatly on the credibility of the witnesses.

They argue that the taint of spoliation caused by the instruction, the admission of evidence, and

Williams’ jury argument undermined the credibility of Smith and prejudiced the jury against

Medallion Transport, causing the jury to apportion fault to these defendants, but none to Williams.

Williams argues that any error regarding spoliation affected only Medallion Transport, and not

Smith or Rushing, and was harmless since the jury found Smith fifty-five percent at fault and both

Medallion Transport and Rushing vicariously liable for Smith’s fault. However, at trial, Williams

sought to cast the taint of spoliation on all of the defendants, not just Medallion Transport.

        Like the plaintiff in Gutierrez, Williams stressed the missing documents both in her

opening statement and closing argument. In her opening, she told the jury,

               Ladies and Gentlemen, the evidence is going to be very clear to you that the
        Defendants have destroyed documents.
               You know why they destroyed them? So I couldn’t bring them here and
        show them to you so you could look at them and say: Yeah. Guess what? If
        [Williams’ counsel] would have had these documents, he could have even proved
        more.
                                                 21
Then, in her closing argument, Williams heavily emphasized the spoliation instruction and the

surrounding circumstances, which comprised about four pages in the reporter’s record, including

the following:

               Do you really think that somebody didn’t look at those documents and not
       just send them to us? You know why they didn’t send them to us? Because they
       knew, if the [sic] did, I was going to be able to prove that he was fatigued. They
       knew it.
               So they’re like: Okay. If we send it, he’s got us for sure. If we don’t send
       it, guess what? We’re just going to say we just made a mistake and destroyed it
       and the jury might have some question in their mind.

                 ....

               Now, I submit to you, had they given me the stuff that the Court’s already
       told you they didn’t give me, that they destroyed because they didn’t want me to
       have it from here to here, guess what? How much you bet I’d be able to prove other
       things? How much you bet I would have found a pattern?
               Again, goes back to their decision: We’re not going to give him this stuff,
       because if we give him this stuff, then we can’t make an argument that it’s not true
       because he’s got us.
               And, again, if you look over here, why would they give us some and not
       others? Why? Because they know the “other” is going to what? Shut the trap on
       them again.

In both her opening statement and closing argument, Williams sought to cast suspicion on all of

the defendants, not just Medallion Transport. In addition, Williams examined Smith, Rushing,

Winney, and McMullen about the missing documents, thereby casting on all defendants the

suspicion that they were hiding damaging evidence. Further, Appellants sought to show that

Williams was at least partially at fault in the accident and that she was exaggerating her injuries,

both of which depended in part on the credibility of Smith. Since the spoliation instruction tends

to “unfairly skew a jury verdict, resulting in a judgment that is based not on the facts of the case,

                                                 22
but on the conduct of the parties during or in anticipation of litigation,” this is significant since the

jury found no liability on the part of Williams. Brookshire Bros., 438 S.W.3d at 13–14. There

was some testimony that, if believed, would have supported a finding of some liability on

Williams, which could have potentially affected the Appellants’ joint and several liability. Since

“an improper spoliation instruction presents a substantial likelihood of harm” and such harm is

compounded by counsel’s statements and arguments and by improper evidence, we find that the

trial court’s error probably caused the rendition of an improper judgment. Petroleum Solutions,

454 S.W.3d at 490; Brookshire Bros., 438 S.W.3d at 29; Gutierrez, 453 S.W.3d at 922.

         Accordingly, we sustain this point of error, reverse the trial court’s judgment against Smith

and Medallion Transport, and remand the case to the trial court for a new trial involving Smith,

Medallion Transport, and Williams consistent with this opinion.19 As discussed below, however,

the judgment against Rushing will be reversed and rendered.

(2)      Judgment Against Rushing Is Not Supported by a Jury Finding or Conclusive Evidence

         The jury found that no negligence on the part of Rushing proximately caused the

occurrence or injury and assigned no percentage of responsibility to him. In addition, the jury

charge did not contain any question asking whether Smith was the employee of Rushing, or, if so,

whether Smith was in the course and scope of his employment at the time of the accident.

Nevertheless, the trial court entered judgment against Rushing.




19
  Our reversal of the trial court’s judgment against Medallion Transport makes moot its point of error complaining of
the entry of a joint and several judgment against it, since the jury in the new trial will be required to determine what
parties were responsible for the occurrence, as well as their percentage of responsibility.
                                                          23
       Rushing asserts that the trial court erred in (1) disregarding the jury’s answers finding that

he did not proximately cause the occurrence or injury and (2) entering judgment against him. He

argues that, since there was no motion and notice, as required by Rule 301 of the Texas Rules of

Civil Procedure, the trial court could not disregard the jury answers. See TEX. R. CIV. P. 301.

Further, even if there had been a motion and order, Rushing argues, the trial court could disregard

the jury’s answers only if either no evidence supported the answers or the issue was immaterial,

neither of which applies to this case. As to joint and several liability, Rushing argues that entry of

judgment violates Section 33.013(b)(1) of the Texas Civil Practice and Remedies Code, which

requires a finding of liability greater than fifty percent and that no question was submitted to the

jury establishing Rushing’s vicarious liability. Williams responds that the trial court did not

disregard the jury answers to Questions 1 and 2 since these inquired only as to Rushing’s direct

liability. She also argues that the record conclusively establishes that Smith was employed by

Rushing, thereby making Rushing vicariously liable for Smith’s acts committed in the course and

scope of his employment. According to Williams, this was undisputed since Appellants were

willing to stipulate to Rushing’s vicarious liability.

       Appellants point to no evidence in the record, and the record does not show, that the trial

court entered its joint and several judgment against Rushing by disregarding the jury’s answers to

Questions 1 and 2, which concerned Rushing’s direct liability. In her motion for judgment on the

verdict, Williams asked for a joint and several judgment against all defendants “on the verdict.”

After Appellants filed a response opposing a joint and several judgment, Williams filed a reply to

the opposition arguing that Rushing was jointly and severally liable based on his vicarious liability

                                                  24
as Smith’s employer. Further, there is no indication in the judgment that the trial court disregarded

any of the jury’s answers. To the contrary, the judgment states, “The charge of the Court and the

verdict of the jury are incorporated for all purposes by reference.” Since Appellants have not

shown in the record that the trial court disregarded the jury’s answers, they have waived this

argument. See TEX. R. APP. P 38.1(i).

       Nevertheless, as Rushing points out, our proportionate responsibility statute allows a joint

and several judgment to be entered against a party only if that party’s percentage of responsibility

is found to be greater than fifty percent. See Sharyland Water Supply Corp. v. City of Alton, 354

S.W.3d 407, 424 (Tex. 2011) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 33.013(b)(1) (West

2015)). Since the jury determined that Rushing had no direct responsibility, entry of a joint and

several judgment against him on the basis of his direct responsibility would be in error. Id.

However, a joint and several judgment could be entered against Rushing if he is vicariously liable

for Smith’s actions under a theory of respondeat superior. See Pierre v. Swearingen, 331 S.W.3d

150, 154–55 (Tex. App.—Dallas 2011, no pet.); Bedford v. Moore, 166 S.W.3d 454, 460–61 (Tex.

App.—Fort Worth 2005, no pet.). The only theory Williams asserts to support the judgment

against Rushing is that Smith was the employee of Rushing and acting in the course and scope of

his employment at the time of the accident.

       We must consider whether the judgment can be supported under a theory of respondeat

superior in the absence of jury findings that Smith was Rushing’s employee and that he was acting

in the course and scope of his employment. “[I]f no element of an independent ground of recovery

or defense is requested or submitted, that independent ground is waived unless it is conclusively

                                                 25
established.” J & C Drilling Co. v. Salaiz, 866 S.W.2d 632, 635 (Tex. App.—San Antonio 1993,

no pet.) (citing TEX. R. CIV. P. 279). Recovery against Rushing for his vicarious liability under a

theory of respondeat superior would be an independent ground of recovery. Id. “‘A trial court is

not authorized to make findings of fact pursuant to Rule 279 when the omitted issue is an

independent ground of recovery and no issues referable to it were submitted to the jury.’” Id.

(quoting Tribble & Stephens Co. v. Consol. Servs., Inc., 744 S.W.2d 945, 951 (Tex. App.—San

Antonio 1987, writ denied)). In this case, no issue concerning Smith’s employment with Rushing,

or any element referable to it, was submitted.20 Williams had the burden to request a jury question

regarding vicarious liability. See Laredo Med. Grp. v. Jaimes, 227 S.W.3d 170, 174 (Tex. App.—

San Antonio 2007, pet. denied). Having failed to do so, to hold Rushing vicariously liable for

Smith’s actions, Williams became encumbered with a heavy burden.21 Since his employment was

in issue, Williams had to show first that Smith was in the service of Rushing with the understanding

that Rushing had “the right to direct the details of his work and not merely the result to be

accomplished” at the time of the accident. Comm. on Pattern Jury Charges, State Bar of Tex.,

Texas Pattern Jury Charges: General Negligence, Intentional Personal Torts & Workers’

Compensation PJC 10.1 (2014); see Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308,

312 (Tex. 2002); Salaiz, 866 S.W.2d at 636. In addition, Williams had to conclusively show that



20
 Rushing properly preserved this error in his Motion for New Trial, For Remittitur, and to Modify the Judgment. See
Salaiz, 866 S.W.2d at 636.
21
  Williams’ First Amended Original Petition alleged that Rushing was the employer of Smith and that Smith was
acting in the course and scope of that employment when the injury occurred. Rushing filed a general denial in
Defendants’ First Amended Original Answer, placing these allegations in issue. See Salaiz, 866 S.W.2d at 635; see
also City of Houston v. Wormley, 623 S.W.2d 692 (Tex. Civ. App.—Houston [1st Dist.] 1981, writ ref’d n.r.e.).
                                                        26
Smith was acting within the course and scope of his employment. Robertson Tank Lines, Inc. v.

Van Cleave, 468 S.W.2d 354, 357 (Tex. 1971); see Salaiz, 866 S.W.2d at 636. Unless the evidence

conclusively establishes that Smith was Rushing’s employee and that he was acting in the course

and scope of his employment at the time of the accident, this theory of recovery was waived.

Salaiz, 866 S.W.2d at 636; TEX. R. CIV. P. 279.

       In this Court, Williams contends the testimony of Smith and Rushing conclusively shows

Smith was Rushing’s employee. Williams cites the following testimony of Smith:

             Q     All right. And just backing up a minute here, you have worked for
       Tomy Rushing for some time, correct?

              A       Correct.

              Q     All right. And just so the record’s clear, you’re no longer working
       for Tomy Rushing, right?

              A      Well, that could be -- I’m on-call, we’ll put it that way. Every day,
       to answer your question, no. I don’t work for him every day.

              Q       All right . . . Just so we understand. Have you worked for him in the
       last week?

              A       No.

             Q        Have you worked for him in the last month?. . . In the last two
       months? . . .Three months? . . . In the last six months? . . . In the last year?

              A       (to each question) No.

               Q       Okay. But you’re telling us that you still work for him sometimes
       if he calls you?

              A       Yeah.

              Q       Okay. All right. Do you work for Medallion Transport now?

                                                  27
              A       I work for Tomy.

                      ....

              (Video clip playing) (from deposition of Smith)

               QUESTION: The question is: At any time you worked for Tomy Rushing,
       he at no time ever provided you any 18-wheeler trucking training, correct?

              ANSWER: Correct.

             QUESTION: No safety training whatsoever the entire time you’ve been
       employed with Mr. Rushing. Correct?

              ANSWER: Correct.

              QUESTION:        Entire time you’ve been employed with Rushing
       Transportation Services and/or Medallion Transport, neither of those groups has
       ever provided you with any training, correct?

              ANSWER: Correct.

              QUESTION: In fact, after this accident occurred, they still didn’t provide
       you with any training on how to avoid accidents of this nature, correct?

              ANSWER: Correct.

              (End of video clip.)

She also points to the following testimony of Rushing:

             Q       And, Mr. Rushing, you’re -- you’re another one of the employers for
       Mr. Smith, correct?

              A       Sir?

              Q       You’re another one of the employers for Mr. Smith, correct?

              A       Yes. He drives my trick [sic].

              Q       Okay.

                                               28
               A       He drove my truck, yes.

               Q       All right. Does he still work for you?

              A       On occasion, if we have to go get some hay or something like that,
       we’ll go get some hay, but he -- it’s just --

               Q       Sure.

               A       -- little bitty things like that.

               Q       Did he work for you last month?

               A       No, sir.

               Q       Has he worked the last couple of months?

               A       No, sir.

               Q       When’s the last time he worked for you?

              A        I really couldn’t tell you. It has been a while. Been over a year
       probably.

We have searched the record for other testimony by Smith and Rushing regarding their relationship

on the day of the accident, in addition to that cited by Williams. Smith testified at one point that

Rushing was his supervisor. He also testified that he “worked” for Rushing driving trucks over

the last twelve or thirteen years. At most, this testimony is evidence that Smith has worked for

Rushing at various times in the past as a truck driver, either as an employee or an independent

contractor. None of this testimony conclusively establishes that Smith was acting as an employee

of Rushing on the day of the accident. In addition, we could not find any testimony to show that

Rushing had the right to direct Smith in his work. To the contrary, Smith testified that it was

Medallion Transport’s agent, McMullen, who dispatched him and told him where to go. He also

                                                    29
testified that he turned his log books in to McMullen. Although it is undisputed that Smith was

driving a truck owned by Rushing at the time of the accident, this does not establish that he was

acting in the service of Rushing or that Rushing had the right to direct the details of his work. 22

Since the evidence does not conclusively establish that Smith was acting as Rushing’s employee

at the time of the accident,23 it was error to enter judgment against Rushing, unless there was an

effective stipulation as to Rushing’s vicarious liability.24

        “A stipulation is an agreement, admission, or concession made in a judicial proceeding by

the parties or their attorneys respecting some matter incident thereto.” Jaimes, 227 S.W.3d at 174

(citing Shepherd v. Ledford, 962 S.W.2d 28, 33 (Tex. 1998)). “Stipulations are generally favored

by trial courts as a way of expediting litigation and will normally be upheld unless good cause is

shown for rejecting them.” Id. (citing Valero Eastex Pipeline Co. v. Jarvis, 990 S.W.2d 852, 856

(Tex. App.—Tyler 1999, pet. denied)). However, the stipulation should be disregarded by the trial



22
  At the trial court, Williams asserted that the lease between Medallion Transport and Rushing established that Smith
was an employee. However, the lease provides that Rushing will supply drivers who are his “employees or
independent contractors” and that, as between Rushing and Medallion Transport, the “direction and control” of these
employees or independent contractors “including the selection, hiring, discharge, supervision, direction, training,
establishment of wages, hour[s,] and working conditions . . . is the exclusive responsibility of Rushing.”
Understandably, Williams has not pressed this point in this Court since she sought jury findings against Medallion
Transport for its deficiencies in regard to selection, hiring, supervision, training and discharge.
23
 We also note that the undisputed testimony of Smith and Rushing shows that, at the time of the accident, Smith had
deviated from his delivery route and was on his way to meet Rushing for breakfast. Smith had picked up his load in
Kilgore and was heading toward Arkansas on U.S. Highway 259 when his truck had brake problems. This means he
was heading in a northerly direction. Yet, at the time of the accident, Smith was heading south on Highway 259 and
was attempting a U-turn because he had missed his turn on his way to breakfast. When the testimony shows that an
employee is on a personal errand, such as going to or from a meal, at a minimum, a fact issue is raised regarding
whether he is within the course and scope of his employment. See Robertson Tank Lines, 468 S.W.2d at 360; Sw.
Dairy Prods. Co. v. De Frates, 125 S.W.2d 282 (Tex. 1939); Salaiz, 866 S.W.2d at 637–68.
24
  Williams argues that Rushing’s vicarious liability was undisputed and asserts that “appellants were willing to
stipulate to Rushing’s vicarious liability. “
                                                        30
court if it is ambiguous or unclear. Id. In construing a stipulation, the intent of the parties is

determined from the language used in the entire agreement and by examining the surrounding

circumstances, including the pleadings and the attitude of the parties with respect to the issue. Id.

(citing Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 822 (Tex. App.—Houston

[1st Dist.] 1999, pet. denied)). The only evidence of a stipulation in this case came during the

charge conference. In objecting to the inclusion of Rushing and Medallion Transport in Question

1, to the instructions accompanying Question 1, and to Question 2, Appellants stated that they had

“stipulated that . . . Defendant[s] [Medallion Transport] and [Rushing] are vicariously liable for

the actions of [Smith] on the date in question . . .” Then the following exchange took place:

                   [Plaintiff’s Counsel]: For the record, we do not accept their stipulation of
          liability.

                 THE COURT: I understand. And make sure that --

                 [Defense Counsel]: Well, I didn’t stipulate liability.

                 [Plaintiff’s Counsel]: Stipulated to vicarious liability.

                 THE COURT:             All right. And that’s overruled.

Thus, it appears that, although Rushing and Medallion Transport offered to stipulate to being

vicariously liable for the actions of Smith, their offer was rejected by Williams.                In this

circumstance, the trial court was required to disregard the attempted stipulation, and it could not

be relied on as a basis for an implied finding of vicarious liability on the part of Rushing. See id.

at 176.

          Since the evidence does not conclusively establish that Smith was acting as Rushing’s

employee at the time of the accident, and there was no effective stipulation that Rushing was
                                                   31
vicariously liable for Smith’s actions, this ground of recovery was waived. See Salaiz, 866 S.W.2d

at 635; TEX. R. CIV. P. 279. Therefore, we sustain this point of error and find that the judgment

against Rushing was entered in error. “In a multiple defendant case, when one defendant is not

found negligent by the jury, and an appeals court leaves that finding intact, remand is improper for

the defendant whose liability in negligence has been determined.” Methodist Hosps. of Dallas v.

Sullivan, 714 S.W.2d 302, 303 (1986) (per curiam) (citing Acord v. Gen. Motors, Inc., 669 S.W.2d

111, 116–17 (Tex. 1984)). In this case, the jury finding that Rushing was not responsible for the

occurrence or injury has not been challenged, and remand as to Rushing would be improper. We,

therefore, reverse the trial court’s judgment against Rushing and render a take-nothing judgment

in his favor.

(3)      Legally Sufficient Evidence Supported the Jury Findings on Williams’ Future Damages

         Appellants also complain that the trial court erred in awarding $350,000.00 for future

medical expenses, $1,471,011.00 in future lost earnings, and $500,000.00 for future physical

impairment, asserting there is no evidence to support these damages. They argue that these

damages are supported only by expert testimony that should have been excluded since it was

incompetent to show the existence and the amount of damages.25 Appellants maintain that

Williams’ expert physician, Dr. Aaron Calodney, was not qualified to testify regarding Williams’

need for future surgery, her future impairments after surgery, or her likely ability to work as a



25
 Since we are remanding the case for a new trial, we need not address the amounts of the damages, but we do examine
whether there is legally sufficient evidence to support the existence of these damages. We address the no-evidence
point as to the existence of damages since, if we sustain it, we are to disregard the findings and render judgment for
Appellants on these damages, unless a new trial is required in the interests of justice. See Garza v. Alviar, 395 S.W.2d
821, 823 (Tex. 1965).
                                                          32
nurse after surgery. Further, they argue that the opinion of James Davis, CPA, as to lost future

earnings is unreliable because (1) it is founded on Dr. Calodney’s unreliable testimony and (2) it

is based on an extrapolation from only one year of Williams’ earnings history (the only year in

which Williams worked full time). Williams responds that the evidence shows that Calodney was

qualified to testify regarding her need for future surgery, her future medical expenses, her future

impairments after surgery, and her likely ability to work as a nurse after surgery. In addition, she

argues that, even disregarding the complained-of testimony from Calodney, there is sufficient

evidence to support both Davis’ testimony and the jury’s findings on these items of damages. We

agree.

         In reviewing evidence for legal sufficiency, we “view the evidence in the light most

favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding

contrary evidence unless reasonable jurors could not.” Endsley Elec., Inc. v. Altech, Inc., 378

S.W.3d 15, 21 (Tex. App.—Texarkana 2012, no pet.) (citing City of Keller v. Wilson, 168 S.W.3d

802, 827 (Tex. 2005)). If a reasonable and fair-minded jury, when considering the evidence at

trial, could disagree in their conclusions, then we may not substitute our judgment for theirs. City

of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). The evidence is legally sufficient “if there

is more than a scintilla of evidence to support the finding.” BMC Software Belgium, N.V. v.

Marchand, 83 S.W.3d 789, 795 (Tex. 2002); Holt Atherton Indus. v. Heine, 835 S.W.2d 80, 84

(Tex. 1992); accord Pilgrim’s Pride Corp. v. Cernat, 205 S.W.3d 110, 119 (Tex. App.—

Texarkana 2006, pet. denied).



                                                33
         “The qualification of a witness as an expert is within the trial court’s discretion.” Broders

v. Heise, 924 S.W.2d 148, 151 (1996). Absent clear abuse, the trial court’s decision is not

disturbed. Id. The “party offering the expert’s testimony bears the burden to prove that the witness

is qualified under Texas Rule of Civil Evidence 702.”26 Id. While a challenge to the admissibility

of expert testimony is reviewed for abuse of discretion, a party on appeal may assert that its

unreliability makes it not only inadmissible, but also legally insufficient to support a verdict.

Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex. 2009).

         “Admissibility of the expert’s opinion hinges on whether the expert has special knowledge

concerning the matter on which his opinion is sought that will assist the trier of fact.” Travelers

Ins. Co. v. Wilson, 28 S.W.3d 42, 48 (Tex. App.—Texarkana 2000, no pet.) (citing TEX. R. EVID.

702). Not every medical doctor will qualify as an expert in a given case; rather, the offering party

must show that the medical expert has the required “‘knowledge, skill, experience, training, or

education’ regarding the specific issue before the court which would qualify the expert to give an

opinion on that particular subject.’”27 Id. (quoting Broders, 924 S.W.2d at 153). Regarding his


26
  “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may
testify thereto in the form of an opinion or otherwise.” TEX. R. EVID. 702.
27
  In challenging Dr. Calodney’s qualifications to testify regarding the need for surgery, Appellants rely heavily on
cases involving health care liability claims. See Cortez v. Tomas, No. 02-11-00231-CV, 2012 WL 407382 (Tex.
App.—Fort Worth Feb. 9, 2012, no pet.) (mem. op.); Ibrahim v. Gilbride, No. 14-09-00938-CV, 2010 WL 5064430
(Tex. App.—Houston [14th Dist.] Dec. 9, 2010, no pet.) (mem. op.). However, these claims involve expert testimony
“on the issue of the causal relationship between the alleged breach and the injury claimed.” Cortez, 2012 WL 407382,
at *3. In order to be qualified to submit the report required by statute in health care liability claims, the expert must
not only be qualified to render an opinion under Rule 702 of the Texas Rules of Evidence, he must also meet other
specific statutory requirements. Id.; see TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(5)(A) (West Supp. 2014),
§§ 74.401(a), (c), 74.403(a) (West 2011); TEX. R. EVID. 702. Under Section 74.401, the expert must be a physician
who:

                                                           34
qualifications to opine as to the necessity of surgery, the anticipated outcomes, and Williams’

likelihood of working after surgery, Calodney testified that he specializes in treating disorders and

injuries to the spine, that he is one of the founders of the Texas Spine & Joint Hospital, and that

he has neurosurgical partners. He is an anesthesiologist and has done a fellowship in interventional

pain management. He has done research and lectured on the spine. He has been referring patients

with Williams’ condition for spine surgery for twenty years and has followed hundreds or

thousands of patients before, during, and after surgery for over twenty years. During these years,

he has seen conditions like Williams’, and he knows when patients need certain types of surgery.

He has been a designated doctor for workers’ compensation matters, and he has performed

evaluations and assessments of patients to determine impairment and future abilities. For twenty



                  (1)       is practicing medicine at the time such testimony is given or was practicing
         medicine at the time the claim arose;
                  (2)       has knowledge of accepted standards of medical care for the diagnosis, care, or
         treatment of the illness, injury, or condition involved in the claim; and
                  (3)       is qualified on the basis of training or experience to offer an expert opinion
         regarding those accepted standards of medical care.

TEX. CIV. PRAC. & REM. CODE ANN.§ 74.401(a). In this case, Dr. Calodney is not testifying as to the standards of
medical care and an alleged breach, but rather to the next step in Williams’ course of treatment of her injuries. See
also, the Texas Supreme Court’s decision in Broders, and this Court’s decisions in Wilson and K Mart Corp. v. Rhyne,
932 S.W.2d 140, 146 (Tex. App.—Texarkana 1996, no writ). Although Appellants rely on these cases, they clearly
used the standard under Rule 702, rather than the standard used in health care liability claims. Broders concerned the
exclusion of the testimony of an emergency room physician regarding the cause in fact of the death of a patient who
had suffered brain injuries. The court found no abuse of discretion in excluding his testimony since even though “he
knew both that neurosurgeons should be called to treat head injuries and what treatments they could provide, he never
testified that he knew, from either experience or study, the effectiveness of those treatments in general, let alone in
this case.” Broders, 924 S.W.2d at 153. Therefore, his opinions on cause in fact would not have risen above
speculation. Id. In Wilson, this Court held that the trial court did not abuse its discretion in excluding an orthopedic
surgeon’s testimony regarding whether the plaintiff’s chiropractic care was reasonable or necessary, since he had no
training or expertise in chiropractic care, and there was no showing that his “medical training and experience as an
orthopedic surgeon qualified him to opine about the reasonableness and necessity of chiropractic treatment.” Wilson,
28 S.W.3d at 48. In Rhyne, this Court held that the trial court abused its discretion in allowing a chiropractor to testify
as to the cost of future surgeries since there was no showing that he was qualified to opine as to the cost of the surgeries.
Rhyne, 932 S.W.2d at 146.
                                                            35
years, he also performed social security disability assessments for his patients with spinal injuries

regarding their vocational capabilities, whether they need vocational rehabilitation, and whether

they can return to work. Regarding Williams, he testified that he had assessed her throughout her

course of treatment. He is familiar with both surgeries that she may undergo and how they are

performed. He has treated nurses with Williams’ condition and seen what they can and cannot do

after the surgery. Further, he testified that he is familiar with the costs of the surgeries because of

his involvement with a surgical hospital. After going over all of her medical records, he testified

in the presence of the jury that she has an internally disrupted disc in her lumbar spine and that she

was initially treated with neurobiological, non-surgical treatments, but that she continues to be

symptomatic. He testified that, in his opinion, she would need either a lumbar fusion or disc

replacement. He further described the two surgeries and the costs of the surgeries. He also testified

that he has been in the operating room while these procedures were being performed. He then

opined as to the medical care Williams would need and the costs she would incur in the future

based on his “history with people with an internal disc reconstruction at L4-L5.” He also testified

about the medications and imaging tests Williams would need. Regarding her future likelihood of

returning to work, he testified that he has over twenty years’ experience determining what jobs

people can and cannot do. His testified of the problems she would have because of the injury to

her cervical and lumbar spine. Finally, he opined that Williams would not work again as a nurse,

but that she may be able to do clerical work.

       Although Calodney is not a surgeon, we cannot say the trial court erred in allowing him to

testify that Williams will need surgery. The Eastland Court of Appeals found that a chiropractor,

                                                  36
even though he was not a surgeon, was qualified to testify that the plaintiff’s back injury, which

he suffered in an accident, required surgery. Hayhoe v. Henegar, 172 S.W.3d 642, 644 (Tex.

App.—Eastland 2005, no pet.). In that case, the chiropractor testified that he had been practicing

for twenty years, that he served as a professor at the Texas Chiropractic College, and that he was

familiar with the anatomy and conditions of the spine. He also testified regarding the tests he

performed in diagnosing the plaintiff’s herniated disc, that he has treated other patients with

herniated discs, and that he often refers these patients to a surgeon. Id. Since he had “extensive

experience with chiropractic medicine in general and herniated discs in particular,” the appellate

court held that the trial court had not abused its discretion in finding that he was qualified to testify

as to the need for surgery. Id. In this case, Calodney testified regarding his experience in treating

other patients with this same injury both before and after surgery, his specialization in treating

disorders and injuries of the spine, his familiarity with the surgical procedures, and his extensive

research and lecturing regarding injuries to the spine and available treatments. In addition, he

testified regarding his course of treatment of Williams in particular. Therefore, we find that the

trial court did not abuse its discretion in finding him qualified to render an opinion, based on his

knowledge, skill, experience, training, or education, as to the need for surgery and the anticipated

outcomes of the surgery. See Broders, 924 S.W.2d at 151.

        In addition to Calodney’s testimony regarding Williams’ need for surgery, there was

additional evidence that would support the jury’s finding of future medical costs and future

impairment.    Although an award of future medical expenses must be based on reasonable

probability, it does not require expert testimony. Antonov v. Walters, 168 S.W.3d 901, 908 (Tex.

                                                   37
App.—Fort Worth 2005, pet. denied); Gen. Shelters of Tex., LTD v. Hicks, No. 12-03-00081-CV,

2004 WL 1475104, at *3 (Tex. App.—Tyler June 30, 2004, no pet.) (mem. op.) (citing Blankenship

v. Mirick, 984 S.W.2d 771, 778 (Tex. App.—Waco 1999, pet. denied); Hughett v. Dwyre, 624

S.W.2d 401, 405 (Tex. App.—Amarillo 1981, writ ref’d n.r.e.)). Evidence of the nature of the

plaintiff’s injuries, the medical care rendered in the past, and the condition of the plaintiff at the

time of trial will support an award for future medical expenses. Antonov, 168 S.W.3d at 908;

Hicks, 2004 WL 1475104, at *3. Further, “[p]hysical impairment encompasses the loss of the

injured party’s former lifestyle.” SunBridge Healthcare Corp. v. Penny, 160 S.W.3d 230, 253

(Tex. App.—Texarkana 2005, no pet.). Evidence of her activities before the accident compared

with her activities after the accident, the nature of her injuries, and her impairment will support an

award for future impairment. See id. As discussed above, Calodney testified, without objection,

regarding Williams’ past medical care and current impairment. In addition, there was evidence

that Williams had worked full-time as a nurse and of the outdoor activities she enjoyed before the

accident. She testified that she could no longer work as a nurse or do those activities and why she

did not believe she would be able to work as a nurse again. We find there was more than a scintilla

of evidence to support the jury findings of the existence of future medical expenses and future

impairment.

         Appellants attack the reliability of Davis’ testimony regarding future lost wages 28 as

(1) being based on Calodney’s opinion that Williams would not be able to work in the future and


28
  Although the court’s charge describes this damage category as “lost wages . . . that in reasonable probability will be
sustained in the future,” Davis testified that “what she lost is her earning capacity.” Appellants do not assert any error
in this regard.
                                                           38
(2) not being based on a “representative wage” since it was based on only one year’s earnings.

Although Davis testified that he based his opinion on the assumption that Williams would not be

able to work as a nurse again, it is not clear that assumption is based solely on Calodney’s

testimony. Loss of earning capacity may be shown by a plaintiff’s activities before the accident

compared with her activities after the accident. See Cernat, 205 S.W.3d at 119; see also Tagle v.

Galvan, 155 S.W.3d 510, 519 (Tex. App.—San Antonio 2004, no pet.) (evidence of loss of future

earning capacity includes “evidence of past earnings; the plaintiff’s stamina, efficiency, and ability

to work with pain; the weaknesses and degenerative changes that will naturally result from the

plaintiff’s injury; and the plaintiff’s work-life expectancy”). Calodney’s testimony would support

Davis’ assumption that Williams would not work again as a nurse. Therefore, we find that the trial

court did not abuse its discretion in admitting Davis’ testimony that Williams would suffer a loss

in her future earning capacity.

       In addition, there was other evidence that would support the jury finding of the existence

of future loss of earning capacity. Evidence that the plaintiff’s physical limitations prevent her

from performing the occupation she had performed before the accident, and will do so in the future,

along with some evidence of what she earned in the past, will support an award of loss of earning

capacity. See Cernat, 205 S.W.3d at 120. There was evidence of Williams’ earnings working as

a nurse before the accident. In addition, Calodney’s unchallenged testimony regarding her current

impairment, the evidence that Williams had worked full-time as a nurse before the accident, and

her testimony that she can no longer work as a nurse and why she believed she would be unable to

work as a nurse again all support this finding. Therefore, we find there was more than a scintilla

                                                 39
of evidence to support the jury’s finding of loss of earning capacity. Since there was more than a

scintilla of evidence to support the existence of each of the categories of future damages, we

overrule this point of error.

(4)     Our Holdings Moot Other Issues Before Us

        Approximately five weeks before trial, Appellants’ counsel had his staff search Facebook

to determine if Williams had a Facebook account. After locating Williams’ Facebook page, they

discovered that there were several photographs of Williams showing her hunting deer and wild

pigs that were posted in November 2011, seven months after the accident. Appellants produced

copies of these photographs to Williams a few days before trial, and Williams promptly filed a

second amended motion in limine asking the trial court to exclude the photographs since they were

untimely produced. In a pretrial hearing, Williams argued that she had made a request for

production of any photographs of her before or after the accident and that, although Appellants

had possession of the photographs as of November 8, 2013, they did not produce them to her until

December 12, four days before trial. Therefore, she argued under Rule 193.6 of the Texas Rules

of Civil Procedure, they should be excluded. See TEX. R. CIV. P. 193.6. Appellants argued that

they had intended to impeach Williams using her actual Facebook page, but that they were

prevented from doing so when she abruptly deactivated her Facebook page the week before trial.

They then produced the photographs out of an abundance of caution. They also questioned

whether they had an obligation to produce them at all since the photographs were under Williams’




                                               40
custody and control and since she had posted them in the public domain on Facebook.29 In

addition, they argued that, since she had posted them on her Facebook page, she could not be

unfairly surprised. The trial court excluded the photographs before trial, since it did not find “any

good cause for the introduction of the evidence,” but found unfair surprise and unfair prejudice.30

         Appellants complain that the trial court abused its discretion when it excluded photographs

obtained from Williams’ Facebook page. Our understanding is that the trial court granted

Williams’ motion to exclude these photographs since they were untimely produced to her several

days before trial with no good cause for the late production and that their admission into evidence

would cause unfair surprise or unfair prejudice to Williams. When a case has been remanded for

new trial, it “stands upon the docket as if it had not been tried.” Winfield v. Daggett, 846 S.W.2d

920, 922 (Tex. App.—Houston [1st Dist.] 1993, no writ); State Dep’t. of Highways & Public

Transp. v. Ross, 718 S.W.2d 5, 11 (Tex. App.—Tyler 1986, no writ). Any pretrial orders related

to the first trial “would also be obliterated.” Ross, 718 S.W.2d at 11. Since the photographs have

already been produced, the passage of time would also resolve any issues regarding the timeliness

of the production, unfair surprise, or unfair prejudice. Therefore, our remand of this case for a

new trial renders this point of error moot.

         Medallion Transport also complains that the trial court abused its discretion by instructing

the jury that Medallion Transport could be held liable for negligence if it found that Medallion


29
  At trial, in an offer of proof made before cross-examination, Williams admitted taking the photographs and posting
them on her Facebook page, but claimed they had been taken in 2009 and 2010.
30
 Rule 193.6 generally excludes evidence that was not timely disclosed, unless the trial court finds that there was either
good cause for the failure to timely disclose the evidence or that the failure to timely disclose “will not unfairly surprise
or unfairly prejudice the other part[y].” TEX. R. CIV. P. 193.6 (a)(1), (2).
                                                            41
Transport hired and retained an incompetent driver or failed to train an employee as a corporation

of ordinary prudence would have done. Medallion Transport asserts that there was no evidence to

support the instructions and that the instructions were improper comments on the weight of the

evidence.31 The trial court may submit an instruction “‘if it (1) assists the jury, (2) accurately states

the law, and (3) finds support in the pleadings and evidence.’” Thota v. Young, 366 S.W.3d 678,

687 (Tex. 2012) (quoting Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851,

855–56 (Tex. 2009)). Since this case is being remanded for new trial, we cannot predict whether

the trial court will submit these same instructions, or if the evidence at the new trial will support

the same. Therefore, our remand of this case for a new trial renders this point of error moot.




31
     The trial court included the following instructions in Question No. 1:

            As to Medallion Transport Logistics, LLC[,] and Tomy Rushing d/b/a Rushing Transport Services,
            Inc., “negligence” also means hiring or retaining or supervising in its employ an incompetent
            employee whom it knew, or by the exercise of reasonable care, should have known was incompetent,
            and thereby creating an unreasonable risk of harm to others.

            As to Medallion Transport Logistics, LLC[,] and Tomy Rushing d/b/a Rushing Transport Services,
            Inc., “negligence” also means failing to train its employees as a corporation of ordinary prudence
            would have done under the same or similar circumstances.

Appellants objected that the instructions were a comment on the weight of the evidence and that the probative value
in helping the jury was outweighed by the prejudicial impact of the instructions.
                                                            42
       We reverse the trial court’s judgment against Rushing and render a take-nothing judgment

in his favor. We also reverse the trial court’s judgment against Smith and Medallion Transport

and remand the case to the trial court for a new trial between Smith, Medallion Transport, and

Williams consistent with this opinion.



                                                   Josh R. Morriss, III
                                                   Chief Justice

Date Submitted:       April 1, 2015
Date Decided:         May 29, 2015




                                              43
