                                  NO. 12-10-00167-CV

                       IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

JOSEPH P. PRITCHETT,                          §             APPEAL FROM THE 87TH
APPELLANT


V.
                                              §             JUDICIAL DISTRICT COURT
MIKE GAINES AND JANET GAINES,
AS NEXT FRIENDS FOR MARTHA
MICHELLE GAINES, NON COMPOS
MENTIS, APPELLEES                             §             ANDERSON COUNTY, TEXAS

                                  MEMORANDUM OPINION
        Joseph P. Pritchett appeals the trial court‘s judgment in favor of Martha Michelle Gaines,
non compos mentis. In two issues, Pritchett challenges the legal and factual sufficiency of the
evidence and the trial court‘s charge. Gaines raises one cross-issue related to the trial court‘s
charge. We reverse and render.


                                         BACKGROUND
        Michelle Gaines was stopped at an intersection in Palestine, Texas. When her light
turned green, she entered the intersection. Unfortunately, Kenneth Woodworth ran through a red
light into the same intersection and plowed into Gaines‘s vehicle. Gaines was driving a car, and
Woodworth was driving a tractor-trailer. The trailer portion was an old oil rig. Gaines suffered
serious injuries.
        Benny Joe Adkinson, Woodworth‘s employer, owned the tractor-trailer that Woodworth
was driving. The trailer should not have been on the road because it had no brakes, and
Woodworth should not have been driving the tractor-trailer because he had no commercial
driver‘s license. Nevertheless, Adkinson told Woodworth to drive the tractor-trailer from White
Oak, Texas, to Corpus Christi, Texas.
        Gaines‘s parents, Mike and Janet, individually and as next friends of Gaines, sued
Woodworth, Adkinson, and Joseph Pritchett, claiming that all were liable: Woodworth because
he was negligent in driving the vehicle, Adkinson because he was negligent in allowing
Woodworth to drive the vehicle, and Pritchett because he had entered into a joint enterprise with
Adkinson related to the oil rig.1
        According to Adkinson and Pritchett, Pritchett had no connection to the oil rig. But the
Gaineses did not believe them. The Gaineses discovered that Adkinson was taking the oil rig to
Pritchett‘s yard, and believed the two had agreed to work together to either blueprint or sell the
rig.2 The oil rig eventually made its way to Pritchett‘s yard, and many months after the accident,
it was destroyed.
        The case proceeded to trial. After the conclusion of the evidence, the trial court found
that Gaines had proved her case against Woodworth and Adkinson as a matter of law. The trial
court asked the jury to determine the damages sustained by Gaines and whether Pritchett should
be held liable for those damages based on a joint enterprise with Adkinson. The jury awarded
damages to Gaines and found that a joint enterprise did exist between Adkinson and Pritchett.
The trial court rendered judgment in accordance with the jury‘s verdict. Pritchett appealed.3


                                              JOINT ENTERPRISE
        In his first issue, Pritchett argues that there is no evidence to support the jury‘s finding of
a joint enterprise between him and Adkinson related to the oil rig.
Standard of Review
        When reviewing a jury‘s verdict for legal sufficiency, we may set aside the verdict only if
the evidence at trial would not enable reasonable and fair-minded people to reach the verdict
under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In making this
determination, we must credit favorable evidence if reasonable jurors could, and disregard
contrary evidence unless reasonable jurors could not. Id. Jurors are the sole judges of the
credibility of the witnesses and the weight to give their testimony. Id. at 819. They may choose
to believe one witness and disbelieve another, and reviewing courts may not impose their own
opinions to the contrary. Id. Most credibility questions are implicit rather than explicit in a
jury‘s verdict. Id. Accordingly, reviewing courts must assume jurors decided all of them in
favor of the verdict if reasonable human beings could do so. Id.



        1
            Shortly before the trial began, Mike and Janet Gaines nonsuited their individual claims, leaving only
Martha Michelle Gaines‘s claim brought through her parents as next friends against the defendants. See TEX. R.
CIV. P. 44; see also Gracia v. RC Cola-7-Up Bottling Co., 667 S.W.2d 517, 519 (Tex. 1984) (―In a suit by a ‗next
friend,‘ the real party plaintiff is the child and not the next friend.‖).
        2
          ―Blueprinting‖ is a process used to copy the mechanical assemblies of the oil rig so that the same designs
can be repeated on other rigs.
        3
            Woodworth and Adkinson did not appeal the trial court‘s judgment against them; therefore, neither is a
party to this appeal.
        It is not necessary to have testimony from both parties before jurors may disbelieve
either. Id. at 819-20. Jurors may disregard even uncontradicted and unimpeached testimony
from disinterested witnesses.      Id. at 820.    Jurors are not free to believe testimony that is
conclusively negated by undisputed facts. Id. But whenever reasonable jurors could decide
what testimony to discard, a reviewing court must assume they did so in favor of their verdict,
and disregard it in the course of legal sufficiency review. Id.
        In addition, it is the province of the jury to resolve conflicts in the evidence.           Id.
Consequently, we must assume that, where reasonable, the jury resolved all conflicts in the
evidence in a manner consistent with its verdict.         Id.     If reasonable jurors could resolve
conflicting evidence either way, reviewing courts must presume they did so in favor of the
prevailing party, and disregard the conflicting evidence in their legal sufficiency review. Id. at
821.
        However, evidence cannot be taken out of context so that it seems to support a finding
when it actually does not. See id. at 812. For instance, if a witness testifies, ―I did not do that,‖ a
jury can disregard the whole statement but cannot disregard the middle word alone. See id.
Findings must be based on more than speculation to be legally sufficient. See id. at 827. Finally,
under the equal inference rule, evidence of circumstances equally consistent with two facts is
legally insufficient of either. See id. at 813.
        Regarding factual sufficiency challenges, where a party who did not have the burden of
proof on an issue asserts that a jury‘s verdict is contrary to the evidence, we must overrule the
complaint unless the verdict is so contrary to the overwhelming weight of the evidence as to be
clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In
conducting our review, we must consider all of the evidence that supports and that which is
contrary to the verdict. Sosa v. City of Balch Springs, 772 S.W.2d 71, 72 (Tex. 1989). We must
remember that the jury is the sole judge of the credibility of the witnesses. See Santa Fe
Petroleum, L.L.C. v. Star Canyon Corp., 156 S.W.3d 630, 638 (Tex. App.–Tyler 2004, no pet.)
The jury may take into consideration all of the facts and surrounding circumstances in
connection with the testimony of each witness and accept or reject all or any part of that
testimony. See id. Where enough evidence is before the jury so that reasonable minds could
differ on the meaning of the evidence, or the inferences and conclusions to be drawn from the
evidence, we may not substitute our judgment for that of the jury. See id.
Applicable Law
        Parties to a joint enterprise are agents of each other, and thus, liable for the negligent acts
of each other. Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 613 (Tex. 2000). Parties form a
joint enterprise when they (1) enter into an express or implied agreement, (2) with a common
purpose, (3) a community of pecuniary interest in that purpose, and (4) an equal right to a voice
in the direction of the enterprise giving each an equal right of control. Id.
        The elements necessary to form a binding contract are (1) an offer, (2) acceptance of the
offer, (3) a meeting of the minds, (4) the parties‘ consent to the terms, (5) execution and delivery
with the intent that it be mutual and binding, and (6) consideration.                      Advantage Physical
Therapy, Inc. v. Cruse, 165 S.W.3d 21, 24 (Tex. App.–Houston [14th Dist.] 2005, no pet.).
Whether an agreement was reached is a question of fact. Id. A common pecuniary interest is a
monetary interest shared without special or distinguishing characteristics among the members of
the group. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 531 (Tex. 2002). An equal right to a
voice in the direction of the enterprise giving each an equal right of control means an
authoritative voice, some right to do more than make suggestions that could be adopted or
rejected. Triplex Commc’ns, Inc. v. Riley, 900 S.W.2d 716, 719 (Tex. 1995).
        The loss or destruction of evidence may seriously impair a party‘s ability to present its
case. Tex. Elec. Coop. v. Dillard, 171 S.W.3d 201, 208 (Tex. App.–Tyler 2005, no pet.) (citing
Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 721 (Tex. 2003)).


        Evidence spoliation is not a new concept. For years courts have struggled with the problem and
        devised possible solutions. Probably the earliest and most enduring solution was the spoliation
        inference or omnia praesumuntur contra spoliatorem: all things are presumed against a
        wrongdoer. In other words, within the context of the original lawsuit, the factfinder deduces guilt
        from the destruction of presumably incriminating evidence.


Trevino v. Ortega, 969 S.W.2d 950, 952 (Tex. 1998) (internal citations omitted).
        ―[W]hen spoliation occurs, there must be adequate measures to ensure that it does not
improperly impair a litigant‘s rights . . . .‖ Id. at 953. It is simple, practical, and logical to
rectify any improper conduct within the context of the lawsuit in which it is relevant. Id. ―As
with any discovery abuse or evidentiary issue, there is no one remedy that is appropriate for
every incidence of spoliation; the trial court must respond appropriately based upon the
particular facts of each individual case.‖4 Id.
Discussion



        4
            The supreme court has explained that

        [e]vidence may be unavailable for discovery and trial for a variety of reasons. Evidence may be
        lost, altered or destroyed willfully and in bad faith or it may be lost for reasons completely
        innocent. Sometimes, lost evidence may be easily replicated, or it may be so marginal that it has
        little or no effect on the outcome of the case. On other occasions, the loss or destruction of
        evidence may seriously impair a party‘s ability to present its case. A trial judge should have
        discretion to fashion an appropriate remedy to restore the parties to a rough approximation of their
        positions if all evidence were available. These remedies must generally be fashioned on a case-
        by-case basis.

Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 721 (Tex. 2003) (internal citations omitted).
        Pritchett argues that the evidence is legally and factually insufficient as to every element
of joint enterprise. Because our determination of the fourth element (i.e., the equal right to
control the joint enterprise) is dispositive of the appeal, we focus our analysis there.
        Adkinson purchased the oil rig from B.I. Owens.            According to the sales receipt,
Adkinson was the sole owner, and Pritchett owned no part of the rig. But Adkinson told Owens
that he was buying the rig to blueprint it. Adkinson also spoke to Pritchett about blueprinting the
oil rig. However, Adkinson denied that he and Pritchett ever agreed to blueprint the rig. And
Pritchett likewise denied any plan with Adkinson to blueprint the rig. Pritchett testified that he
could not decide whether he wanted an interest in the rig until after he had the opportunity to
inspect the rig.
        Pritchett saw a photograph of the rig before the accident. He also was on Adkinson‘s
property just four days before the accident, but he claimed that he did not see the rig then. Also,
Pritchett knew that Adkinson was taking the rig to Pritchett‘s yard near Corpus Christi. After the
accident, Adkinson called Pritchett to tell him about the accident.
        Gaines argues that other events after the accident evidence the joint enterprise between
Adkinson and Pritchett. Pritchett lent Adkinson a substantial amount of money, and there was
significant evidence that Adkinson was not creditworthy.           Gaines believes this money led
Adkinson to lie for Pritchett. She also argues that it shows a willingness on the part of Pritchett
to be dishonest. And Gaines presented evidence that Pritchett and Adkinson were not honest to
the jury.
        Finally, Gaines argues that Pritchett was guilty of spoliation of evidence and that the
relevant inferences from this conduct support the finding of joint enterprise. Months after the
accident, the oil rig was delivered to Pritchett‘s yard. Many months later, and after an initial
inspection by the Gaineses‘ attorney, Adkinson told Pritchett that he was taking the oil rig from
Pritchett‘s yard to cut it up into scrap. Pritchett knew that the oil rig was evidence, and so he told
his attorney about Adkinson‘s intentions to take the rig, but he did not tell him that Adkinson
planned to destroy the rig. Pritchett‘s attorney told the Gaineses‘ attorney what he knew, but he
did not convey that Adkinson planned to destroy the rig because Pritchett had not told him. Of
course, Pritchett points out that Adkinson owned the rig, and thus he could not keep Adkinson
from taking it.
        Gaines argues that this evidence is similar to the evidence in Able. See generally Tex.
Dep’t of Transp. v. Able, 35 S.W.3d 608 (Tex. 2000). We disagree. In that case, the Ables
collided with another vehicle traveling the wrong way in an HOV lane. Id. at 610. The Ables
sued several entities, including the Texas Department of Transportation (TxDOT) and the
Houston Metropolitan Transit Authority (Metro). Id. One of the Ables‘ theories for liability on
the part of TxDOT was that Metro was negligent in its operation and maintenance of the HOV
lane and TxDOT was in a joint enterprise with Metro. Id. The jury agreed with this theory, and
TxDOT appealed. Id.
       The Texas Supreme Court found legally sufficient evidence of a joint enterprise. Id. at
616. However, TxDOT had a contractual right under its Master Agreement with Metro to
participate in the operation and maintenance of the HOV lane. Id. at 615. TxDOT and Metro
had agreed to work together to promulgate an ―Operations Plan‖ for the roadways subject to the
agreement. Id. at 616. And amendments to the Operations Plan could only be made with the
consent of both TxDOT and Metro. Id. These contractual rights gave TxDOT ―a voice and right
to be heard regarding matters affecting the day-to-day operations of the [HOV lane].‖ Id. Here,
however, there is no evidence describing any particular provisions of the agreement, or setting
out any responsibilities under the agreement between Pritchett and Adkinson. In fact, there is
scant evidence of any agreement at all.
       Instead, we believe the facts of this case are more closely aligned with those in Triplex.
See generally Triplex Commc’ns, Inc. v. Riley, 900 S.W.2d 716 (Tex. 1995). There, as part of a
nightclub‘s ―ladies‘ night‖ promotion, a radio station conducted a broadcast from a nightclub.
Id. at 717.   During one such ladies‘ night, Joseph Wayne Stephens was served a clearly
excessive amount of alcohol. Id. at 718. As he tried to drive home, he hit another car, and
ricocheted into Beaumont police officers James Riley and Mary Gray as they were working
another accident. Id. Riley and Gray were injured, and they sued the nightclub, the bartender
who served Stephens, and the radio station. Id. The trial court refused to allow Riley and Gray
to proceed on a theory of joint enterprise between the radio station and the nightclub. Id. After
the intermediate appellate court reversed the trial court, the radio station appealed to the Texas
Supreme Court. Id.
       The Texas Supreme Court found the evidence legally insufficient. Id. at 719. Riley and
Gray placed great emphasis on the fact that the drink prices for ladies‘ night corresponded to the
radio frequency of the radio station. Id. However, the nightclub set the drink prices, was
licensed to sell alcohol, and maintained absolute control over the serving of all alcohol. Id. The
nightclub decided who could stay and who could be served. Id. No evidence was presented that
the radio station had a contractual right of control or exercised any right of control over who was
served or rejected. Id. Finally, the radio station‘s general participation in the event was deemed
legally insufficient evidence of a right of control. Id.
       Similarly, in this case, none of the evidence shows that Pritchett had an equal right to
control the alleged enterprise. In fact, there is less evidence here than in Triplex, because the
evidence here does not indicate that Pritchett could make suggestions that Adkinson could adopt
or reject. The evidence shows only a conversation about potential blueprinting of the rig and that
the rig was being taken to Pritchett‘s yard. Quite simply, that is legally insufficient evidence of a
joint enterprise.
        Gaines‘s attempts to bolster the evidence with inferences—specifically evidence of the
lack of honesty exhibited by Pritchett and Adkinson in their testimony, and Pritchett‘s assistance
in the spoliation of evidence—fail to satisfy the legally sufficient evidence threshold. First, the
testimony and evidence do nothing more than ―give rise to any number of inferences, none more
probable than another.‖ See Blount v. Bordens, Inc., 910 S.W.2d 931, 933 (Tex. 1995) (holding
no evidence of community of pecuniary interest element of joint enterprise theory in car wreck
when only evidence led to equally plausible inferences). Second, even assuming Pritchett is
partially responsible for Adkinson‘s destruction of the rig, nothing on the rig could show whether
Pritchett and Adkinson had an equal right to control the enterprise months earlier. And third,
while the jury certainly could disregard the testimony of Pritchett and Adkinson, their testimony
is not evidence of the opposite position. City of Keller, 168 S.W.3d at 812 (If a witness testifies,
―I did not do that,‖ a jury can disregard the whole statement but cannot disregard the middle
word alone.).
        In light of the record before us, we conclude that Gaines presented no evidence that
Pritchett and Adkinson had an equal right to a voice in the direction of an enterprise relating to
the oil rig giving each an equal right of control. Therefore, we hold that the evidence is not
legally sufficient to support the jury‘s verdict that Pritchett and Adkinson had engaged in a joint
enterprise with respect to the oil rig.
        We sustain that portion of Pritchett‘s first issue related to the legal sufficiency of the
evidence.


                                          REMAINING ISSUES
        Because we have sustained Pritchett‘s first issue related to legal sufficiency, we do not
address Pritchett‘s second issue. See TEX. R. APP. P. 47.1. Further, Gaines, in a cross-issue,
argues that we should remand the case so that the trial court can instruct the jury as to spoliation.
However, we have considered the evidence of spoliation and determined that it constituted no
evidence that Pritchett had an equal right to a voice in the direction of the enterprise giving him
an equal right of control. Because there is no evidence of an essential element of Gaines‘s claim
of joint enterprise, the trial court should not have submitted the case to the jury. See Triplex, 900
S.W.2d at 719. Thus, we need not address Gaines‘s argument regarding charge error in failing to
submit her requested spoliation instruction to the jury. See TEX. R. APP. P. 47.1.


                                            DISPOSITION
         Having sustained Pritchett‘s first issue, we reverse the trial court‘s judgment and render
judgment in favor of Pritchett and against Gaines such that Gaines takes nothing from Pritchett
as a result of this suit.


                                                                BRIAN HOYLE
                                                                   Justice

Opinion delivered July 13, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




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