Opinion issued April 11, 2013




                                     In The
                              Court of Appeals
                                    For The
                          First District of Texas
                    ————————————
                      NO. 01-11-00325-CV
                     ———————————
          MINER DEDERICK CONSTRUCTION, LLP, Appellant
                                       V.
  GULF CHEMICAL & METALLURGICAL CORPORATION, Appellee


                   On Appeal from the 215th District Court
                            Harris County, Texas
                      Trial Court Case No. 2008-66374


                         OPINION ON REHEARING

      Appellant Miner Dederick Construction, LLP (“Miner Dederick”) has filed

an amended motion for rehearing.      We deny the motion for rehearing.   We

withdraw our December 6, 2012 opinion and judgment and issue the following

opinion and a new judgment in their stead.
      This appeal arises from a construction defect suit brought by appellee Gulf

Chemical & Metallurgical Corporation (“Gulf”) against Miner Dederick.

Following a jury trial, the trial court rendered judgment against Miner Dederick in

favor of Gulf, awarding it actual damages and attorney’s fees.

      Identifying eleven issues, Miner Dederick challenges the trial court’s

judgment. Among these issues is Miner Dederick’s assertion that the trial court

erred by failing to find that Gulf had engaged in spoliation of evidence. Miner

Dederick also challenges the trial court’s grant of summary judgment on its

counter-claim for breach of contract.

      We hold that the trial court abused its discretion when it failed to find that

Gulf had spoliated evidence vital to Miner Dederick’s defense of Gulf’s claims.

We further hold that summary judgment on Miner Dederick’s counter-claim was

appropriate. Accordingly, we reverse and remand, in part, and affirm, in part.

                             Background Summary

      Gulf engages in the business of recycling spent catalyst generated by oil

refineries. Gulf processes the catalyst by extracting metal from it. Gulf then sells

the metal on the open market.

      Before being processed by Gulf, the catalyst is considered a hazardous

material.   Gulf stores the catalyst in a hazardous waste building called

“Containment Building 2” or “CB2.” The catalyst has a granular texture and often

                                         2
appears to be oily, containing free liquids, such as oil and water.       It is not

uncommon to see an oily liquid pooling on the floor of CB2, which has drained

from the spent catalyst.

      In early 2005, Gulf decided to expand CB2 to increase its storage capacity

for the catalyst. Gulf contracted with Ashkar Engineering Corporation, a structural

engineering design services company, to engineer and to design the expansion of

CB2. Ashkar Engineering provided the drawings and specifications for how the

CB2 expansion should be constructed.

      Ashkar Engineering’s drawings and specifications required that a new

concrete foundation be poured for the expansion. The new foundation would be

attached to CB2’s original foundation by a 140-foot expansion joint. Because of

the hazardous nature of the spent catalyst, the design required a primary and a

secondary “waterstop,” made of specialized chemical-resistant rubberized

materials, to be installed within the expansion joint. Ashkar Engineering’s design

drawings for the expansion project and the waterstop manufacturer’s specifications

detailed how the waterstops were to be fastened and installed within the expansion

joint. In addition to the waterstops, the design required the expansion joint to be

covered with a sealant. It further required installation of a secondary containment

system to hold any liquids that breached the first waterstop. The waterstops and




                                        3
other features of the expansion joint were designed to prevent hazardous materials

from leaking through the joint into the environment.

      In May 2005, Gulf chose Miner Dederick, a commercial construction

company, to be the general contractor for the construction of the CB2 expansion.

Gulf entered into a written contract with Miner Dederick to build the CB2

expansion.   Pursuant to the contract, Miner Dederick agreed to construct the

expansion in accordance with Ashkar Engineering’s plans and specifications.

      Miner Dederick substantially completed the construction of the expansion in

January 2006, and Gulf began storing spent catalyst in the CB2 expansion. In

March 2006, Miner Dederick gave Gulf a document entitled “Certificate of

Guaranty,” providing a one-year warranty for the materials and work performed by

Miner Dederick on the expansion project.

      In June 2006, an adjacent property owner reported to Gulf that it had

discovered an oily substance in a ditch on its property. Upon investigation, Gulf

discovered that an oily substance was leaking from the expansion joint of CB2

where the new foundation met the old foundation.

      On June 26, 2006, a Miner Dederick employee, Dan Shead, visited Gulf’s

facility. After looking at the exterior of CB2 where the expansion joint is located,

Shead faxed a handwritten sketch to Miner Dederick, indicating that he saw a

“leak” at the expansion joint. He noted that he observed an “oil stain,” “oil

                                         4
dripping,” and an “oil puddle” at the expansion joint. Shead did not observe the

joint from inside the building. Catalyst was still being stored on the expansion

joint and would continue to be stored on it until early 2007.

         James Milner, Ashkar Engineering’s prime design consultant who had

worked on the expansion project, also visited the site on June 26 and returned to

the site approximately six times during the fall of 2006. From the exterior of the

building, Milner saw light coming through the expansion joint.              From this

observation, Milner deduced that there was a hole in the expansion joint, which

had to be repaired.

         Gulf asked Ashkar Engineering to design a repair for the expansion joint.

Once completed, the repair design required the concrete to be chiseled out on each

side of the expansion joint and a new waterstop placed on either side. The design

also required a new concrete slab to be poured over the expansion joint. In

addition, to keep catalyst from being stored directly on the joint, as it had been, the

design included a 15 foot high containment wall to be built along the expansion

joint.

         Gulf requested that Miner Dederick repair the expansion joint, pursuant to

the warranty, using the repair designed by Ashkar Engineering. After reviewing

Ashkar Engineering’s proposed design for the repair, Miner Dederick’s CEO, John

Miner, responded to Gulf in January 2007. He stated that the work requested by

                                          5
Gulf was not covered by Miner Dederick’s warranty for the construction of the

CB2 expansion.        Miner explained that Miner Dederick regarded the work

requested by Gulf to be an entirely new design for the expansion joint and not a

repair of the joint. He also stated that Miner Dederick had complied with the

original design plan and specifications for the expansion joint. Miner asserted that

the oil leak had occurred because Ashkar Engineering’s construction design was

faulty. Miner indicated that it would not do the work unless Gulf signed a new

contract with his company and paid an additional sum of money.

      Gulf opened up the new project for bids from contractors. On March 2,

2007, John Miner sent Gulf a bid proposal indicating that Miner Dederick would

do the additional work pursuant to Ashkar Engineering’s designs for $498,000.

Gulf hired another construction company, Cajun Contractors, to do the work for

$398,605. Gulf notified Miner Dederick on March 6, 2007 that it had hired

another contractor.

      On March 8, 2007, John Miner sent Gulf an email message, stating, in

relevant part:

      [W]e would appreciate the opportunity to review the work as it is
      ongoing so that Miner Dederick can view the as is condition and show
      that the work done at the joint between the slabs was done per plans
      and specs originally. If in the future Gulf Chemical expects us to be
      responsible for payment of any of this work, then at the very least our
      insurance folks will need to be there to review things first hand.
      Please let me know how this can be arranged. Thank you.

                                         6
      Miner did not receive a response to the message. On March 14, 2007, John

Miner sent a letter to Gulf. He wrote,

      In my previous email dated Thursday, March 8, 2007, we had
      requested the opportunity to view any work that is to be done on the
      expansion joint at the CB2 facility or at least give our insurance folks
      the chance to review the existing work once it is uncovered and see
      that it was originally constructed per plans and specs. Once again,
      please let us know how this can be arranged; Miner Dederick needs
      the opportunity to review any and all findings first hand. Thank you.

      The following day, John Miner sent another email to Gulf in which he

stated, “There is no reason to deny Miner Dederick access to document our work.

Our documentation will not slow down the progress. On the other hand, denying

access is prejudicial against Miner Dederick because it deprives us of the

opportunity to document the work conformed to the plans and specifications.”

Gulf responded as follows: “Unfortunately, we are not in a position and cannot

afford to slow down the repairs for any purpose. We plan on and intend to

document whatever we find for future reference.”

      In early March 2007, Gulf retained Engineering Systems Inc. (“ESI”), a

forensic engineering firm, to determine why oil was leaking through the expansion

joint. ESI first visited the site on March 7, 2007. To permit ESI’s inspection and

testing of the expansion joint, Cajun Contractors removed six inches of sealant

covering the primary waterstop and power washed the area.




                                         7
      After the sealant was removed, ESI did a visual inspection of the expansion

joint and took photographs. James Milner of Ashkar Engineering also did a visual

inspection. He would later testify that he saw “holes” between the waterstop and

the face of the original concrete foundation. Milner stated that the waterstop

should have been tightly fitted against the concrete to prevent liquids from

penetrating the primary waterstop.

      On March 16, 2007, ESI, Gulf, and Cajun Contractors performed a

spontaneous “water test,” in which they poured buckets of water down the

expansion joint to see if it disappeared.      They observed that the water did

disappear. Milner later stated that, to him, this indicated there was a hole in the

primary waterstop.

      On March 21, 2007, ESI conducted another test of the expansion joint to

understand how the joint was constructed. Using a hollow drill bit, made to drill

through concrete, ESI drilled in three places along the expansion joint. When the

drill bit was pulled out, the concrete stayed in the hollow drill bit. These core

samples were eight inches in diameter and showed a cross-section of the expansion

joint. ESI and a Gulf employee photographed the coring process.

      Miner Dederick was not notified that ESI would be testing the expansion

joint. Miner Dederick did not learn of the ESI testing until June 2007.




                                         8
      Cajun Contractors finished the work designed by Ashkar Engineering in

June 2007. As part of that work, Cajun Contractors covered the expansion joint

with a new sealant system and then poured six to eight inches of concrete over that.

It also installed waterstops on either side of the expansion joint. In addition, Cajun

Contractors built a 15-foot high 97-foot long retaining wall to prevent the storage

of catalyst on the expansion joint.

      Gulf filed suit against Miner Dederick on November 7, 2007, for breach of

contract and for breach of warranty. It alleged that Miner Dederick breached the

construction contract (1) by failing to construct the expansion joint in conformance

with the project’s design and its specifications and (2) by failing to repair the joint

to make it conform to the plan design and specifications.

      In support of its breach of warranty claims, Gulf asserted that Miner

Dederick had issued a written guarantee that its work conformed to the plans and

specifications for the project and that it would repair any defects to the completed

structure. Gulf asserted that Miner Dederick refused to honor the warranty and

make the necessary repairs after Gulf had notified Miner Dederick of defects in the

structure.




                                          9
      Gulf filed an amended petition adding a negligence claim against Miner

Dederick. Gulf also sued Ashkar Engineering and suppliers of component parts for

the waterstop. These later added defendants settled with Gulf.1

      Miner Dederick answered Gulf’s suit. It asserted a number of affirmative

defenses, including waiver, excuse, impossibility, and illegality of contract.

      Miner Dederick also filed a counter-claim against Gulf for breach of

contract. Miner Dederick alleged that Gulf had breached the construction contract

by providing Miner Dederick with a faulty construction design for the expansion

joint. Miner Dederick alleged that Gulf knew, or should have known, that the

design would result in oil seepage from the expansion joint. In addition, Miner

Dederick asserted claims against Gulf for various torts.

      Miner Dederick further alleged that Gulf had spoliated evidence.

Specifically, Miner Dederick alleged that Gulf had refused to allow it to inspect the

expansion joint, had failed to notify Miner Dederick of the testing conducted on it,
1
      Ashkar Engineering filed a motion to dismiss Gulf’s claims against it based on
      Gulf’s failure to comply with the certificate-of-merit requirements of Civil
      Practice and Remedies Code section 150.002. See TEX. CIV. PRAC. & REM. CODE
      ANN. § 150.002. The trial court denied the motion. In interlocutory appeal, we
      reversed the trial court’s order denying the motion to dismiss Gulf’s claims against
      Ashkar Engineering and remanded to the trial court for it to dismiss the claims.
      See Ashkar Eng’g Corp. Gulf Chem. & Metallurgical Corp., No. 01-09-00855-
      CV, 2010 WL 376076, at *10 (Tex. App.—Houston [1st Dist.] Feb. 4, 2010, no
      pet.). While this Court still had plenary power, Ashkar Engineering and Gulf
      entered into a settlement agreement. The parties filed a joint motion to dismiss the
      appeal, which we granted. See Ashkar Eng’g Corp. Gulf Chem. & Metallurgical
      Corp., No. 01-09-00855-CV, 2010 WL 1509287, at *1 (Tex. App.—Houston [1st
      Dist.] Apr. 15, 2010, no pet.).
                                           10
and had effectively destroyed the expansion joint by covering it with concrete.

Miner Dederick asserted that Gulf had a duty to inform Miner Dederick of the

testing conducted on the expansion joint and to preserve it for Miner Dederick’s

inspection and testing. Miner Dederick claimed that Gulf’s actions with respect to

the expansion joint had prejudiced Miner Dederick’s ability to defend against

Gulf’s claims. Miner Dederick requested the trial court to either sanction Gulf or

instruct the jury on the spoliation presumption.

      Gulf filed a traditional and no-evidence motion for summary judgment on

Miner Dederick’s counter-claims. After Miner Dederick responded, the trial court

signed an order on July 2, 2010 granting summary judgment on Miner Dederick’s

counter-claims.

      Gulf also filed a traditional motion for partial summary judgment on its

breach of contract claim against Miner Dederick; that is, Gulf asserted that, as a

matter of law, Miner Dederick was liable to it for breach of the construction

contract. Gulf asserted that Miner Dederick had breached the construction contract

by failing to construct the expansion joint pursuant to the specifications required

by Ashkar Engineering’s design drawings and those contained in the

manufacturer’s installation guide for the waterstop. In its motion, Gulf identified

four design specifications with which it alleged Miner Dederick had failed to

comply in constructing the expansion joint.

                                         11
         As summary judgment evidence, Gulf offered the deposition testimony of its

own witnesses and those aligned with Miner Dederick, as well as the report of ESI,

the forensic engineering firm hired by Gulf to determine why the expansion joint

had failed. To support non-compliance with each individual design specification,

Gulf relied heavily on the deposition testimony of James Milner of Ashkar

Engineering. Milner had been permitted to view the expansion joint after the

catalyst and sealant had been removed from the joint. Milner had been present on

the day the water test was performed while ESI was at the site. Milner’s cited

deposition testimony regarding non-compliance was based, to a great extent, on

ESI’s photographs of the expansion joint, including a photograph of a core sample

taken by ESI, and on ESI’s report.

         In its response to the motion for summary judgment, Miner Dederick

asserted that Gulf was not entitled to summary judgment because Gulf had

engaged in spoliation by failing to preserve the expansion joint. Miner Dederick

wrote,

         Gulf understood the importance of this evidence. It retained forensic
         engineers to investigate the construction and integrity of the
         expansion joint, conduct destructive testing, render opinions . . . as to
         the failure of the expansion joint. It selectively photographed portions
         of the expansion joint before it covered it with a half a foot of
         concrete and permanently destroyed any opportunity to investigate it,
         conduct testing, or even visually inspect it.




                                            12
      Miner Dederick offered the affidavit of John Miner, who testified that he had

requested, “in writing, the opportunity to investigate the expansion joint prior to

the work being performed so that Miner Dederick could confirm the joint was

constructed as planned.” Miner testified that Miner Dederick was concerned that it

would be prejudiced if it were not allowed to investigate because Gulf had stated

that it may seek damages from Miner Dederick. Attached to Miner’s affidavit

were the emails sent by Miner to Gulf, in early March 2007, requesting permission

to inspect the expansion joint before it was repaired and Gulf’s response to Miner

denying the request.

      Miner stated that Gulf’s investigation and testing of the expansion joint in

March 2007 occurred without any notice to Miner Dederick. He testified that it

was in June 2007 that Miner Dederick first learned that Gulf had performed “the

destructive forensic testing” on the expansion joint in March 2007.          Miner

explained that the results of the testing and investigation were first disclosed to

Miner Dederick when Gulf’s representative came to Miner Dederick’s offices in

June 2007 seeking $10,000,000 in damages.

      Miner Dederick also asserted in its response that Gulf’s conduct with respect

to the expansion joint “severely prejudiced” its ability to present a defense. Miner

Dederick claimed “[t]he testing and repairs Gulf performed on the expansion joint

either destroyed or forever concealed evidence of the alleged construction defects

                                        13
in the expansion joint, depriving Miner Dederick of any opportunity to investigate

and conduct its own testing.”        Miner Dederick offered the affidavit of its

engineering expert, Randall Rosengarten, who testified that he would have

performed five additional tests at the site if he had been given the opportunity.

Miner Dederick asserted that Gulf’s conduct deprived it of the ability to show that

it had constructed the expansion joint according to the plans and specifications and

that it had not been the cause of injury to Gulf.

      Miner Dederick requested that the trial court sanction Gulf for the spoliation

of the expansion joint. Specifically, Miner Dederick requested that the trial court

“either strike Gulf’s pleadings or preclude Gulf from introducing evidence of the

construction of the expansion joint, and Gulf’s inspection, investigation, and

testing of the expansion joint.” Alternatively, Miner Dederick asserted that it was

“entitled to a rebuttable presumption that the evidence Gulf destroyed was

unfavorable to Gulf on the issues of the cause of the oil leak and the existence of

the construction defects . . . and that the spoliated evidence supports Miner

Dederick’s claims and defenses.”

      Gulf replied to Miner Dederick’s spoliation argument. Gulf asserted that it

did not breach a duty to preserve the expansion joint because Miner Dederick

never requested to test the joint. Miner Dederick also averred that the expansion

joint still exists, albeit buried under six inches of concrete. Gulf asserted that the

                                          14
joint was covered with concrete in Gulf’s ordinary course of business. Lastly, Gulf

argued that Miner Dederick was not prejudiced because the expansion joint has

always been available for Miner Dederick to perform its own testing.

      On July 10, 2010, the trial court granted Gulf’s motion for partial summary

judgment on its affirmative claim for breach of contract. In so doing, the trial court

implicitly denied Miner Dederick’s request for spoliation sanctions or a spoliation

presumption.

      On August 3, 2010, Miner Dederick filed its “Motion for Sanctions for

Spoliation of Evidence.” Miner Dederick reiterated the arguments it had made in

its response to Gulf’s motion for partial summary judgment. Miner Dederick again

requested the trial court to issue spoliation sanctions or find that Miner Dederick

was entitled to a spoliation presumption. The trial court signed an order denying

Miner Dederick’s motion for sanctions.

      The case was tried to a jury in February 2011. During trial, Miner Dederick

again moved for spoliation sanctions against Gulf and for a directed verdict based

on the element of causation. The trial court denied the motions.

      Gulf also asked that a spoliation presumption instruction be given to the

jury. The trial court denied the request. In addition, the trial court rejected Miner

Dederick’s proposed jury instructions on prior material breach, impossibility, and

impracticability.

                                         15
      After a six day trial, the jury was asked to find whether Miner Dederick

failed to comply with an express warranty in connection with its work on CB2.

The jury answered in the affirmative. When asked whether Miner Dederick’s

failure to comply with the warranty was excused, the jury answered in the

negative.

      Based on its earlier summary-judgment ruling on Miner Dederick’s breach

of contract liability, the trial court instructed the jury, over Miner Dederick’s

objection, as follows:

      In a ruling issued before trial, the Court determined that Defendant
      Miner Dederick Construction breached its construction contract with
      Plaintiff Gulf by failing to comply with the plans and specifications.
      This is not a question for you the Jury to determine, and Gulf was not
      required to prove the fact of Miner Dederick’s breach to you.

      With respect to breach-of-contract damages, the jury was asked, “What sum

of money, if any, if paid now in cash, would fairly and reasonably compensate

Gulf for its damages that resulted from Defendant Miner Dederick Construction’s

breach of contract?” The jury was asked a similar question with respect to breach

of warranty damages. For each claim, the jury was permitted to award three types

of damages: (1) remedial damages, (2) incidental damages, and (3) lost profits.

      In the charge, remedial damages were defined as “[t]he reasonable and

necessary costs incurred by Gulf to repair the CB2 expansion joint.” The jury was

instructed that incidental damages are “[t]he reasonable and necessary costs

                                        16
incurred by Gulf for storage of spent catalyst while CB2 was being repaired which

were a natural, probable, and foreseeable consequence of Miner Dederick’s

breach.” The charge defined lost profits to be “a natural, probable, and foreseeable

consequence of Miner Dederick’s breach.” For each claim, the jury awarded Gulf

$464,688 in remedial damages, $104,330 in incidental damages, and $158,446 in

lost profits. The jury also awarded Gulf attorney’s fees of $907,718 for trial

preparation and additional attorney’s fees, totaling $65,000, for an appeal to this

Court and to the Supreme Court of Texas.

      Miner Dederick filed post-judgment motions, including a motion for

judgment notwithstanding the verdict and a motion for new trial. The trial court

denied the motions.

      Based on the jury’s verdict, the trial court signed a judgment awarding Gulf

actual damages of $727,464.00, prejudgment of interest of $84,385.82, and costs of

$14,810.01. The trial court also awarded Gulf the attorney’s fees found by the

jury. This appeal followed.

           Trial Court’s Jurisdiction to Render Judgment Following Trial

      As an initial matter, we address Miner Dederick’s argument that the trial

court lacked jurisdiction to sign the judgment in this case following trial. Miner

Dederick asserts that the trial court’s July 16, 2010 order granting summary

judgment on Miner Dederick’s counter-claims, when taken with the July 2, 2010

                                        17
order granting Gulf’s motion for partial summary judgment on its affirmative claim

for breach of contract, constituted a final, appealable judgment. Miner Dederick

argues that it follows that the trial court lost plenary power 30 days after signing

the July 16, 2010 order. Miner Dederick asserts that, as a result, the trial court was

without jurisdiction to render the March 7, 2011 judgment against Miner Dederick

following trial.

      Generally, a judgment is final if it disposes of all pending parties and claims

in the record. Lehmann v. Har–Con Corp., 39 S.W.3d 191, 204 (Tex. 2001).

When there has been no conventional trial on the merits, a judgment is final for

purposes of appeal only if it either actually disposes of all claims and parties before

the court, regardless of its language, or if it states, with unmistakable clarity, that it

is a final judgment. Id. If other claims remain in the case, “an order determining

the last claim is final.” Id. at 200. Whether an order is a final judgment for

purposes of appeal must be determined from its language and the record in the

case. Id. at 204.

      Here, Gulf’s breach of warranty claim and the damages portion of its breach

of contract claim remained pending after the trial court granted Gulf’s motions for

summary judgment. Nonetheless, Miner Dederick argues that there was a final

judgment following the summary judgment rulings for two reasons: (1) the July 2,

2010 order granting summary judgment on Miner Dederick’s counter-claims was

                                           18
entitled “Order Granting Gulf’s Motion for Final Summary Judgment” and (2) the

order contained a Mother Hubbard clause; that is, it stated “all relief not expressly

granted herein is denied.”

      Contrary to Miner Dederick’s contentions, finality of a judgment can no

longer be determined solely by the existence of a Mother Hubbard clause,

particularly when a judgment is rendered without a conventional trial on the merits.

Id. at 203–04. Nor can the status of an order be conclusively determined by its

title, either “final” or “interlocutory.” Id. at 200. The intent to finally dispose of

the case must be unequivocally expressed in the words of the order itself. Id.

      In this case, neither summary judgment order unequivocally expresses that

the trial court had disposed of all claims. The record shows that, at that time the

orders were signed, Gulf’s breach of warranty and contract damages claims

remained pending.     We conclude that the trial court’s orders granting Gulf’s

motions for summary judgment did not constitute a final judgment. Thus, we hold

that the trial court had jurisdiction when it signed the March 7, 2011 final judgment

following trial.




                                         19
          Summary Judgment on Miner Dederick’s Counter-Claim

       In its fourth issue, Miner Dederick includes a challenge to the trial court’s

grant of Gulf’s summary judgment on Miner Dederick’s counter-claim for breach

of contract. 2

B.     Unchallenged Summary Judgment Ground Support Ruling

       In its summary judgment motion, Gulf asserted the following three grounds

as bases to support summary judgment on Miner Dederick’s breach of contract

counter-claim: (1) Miner Dederick had no compensable breach of contract

damages as a matter of law; (2) Miner Dederick “cannot identify any contractual

provision of the [construction contract] that Gulf allegedly breached”; and (3)

Miner Dederick failed to file its claim within the limitations period. The trial court

did not identify the basis on which it granted summary judgment.

       In its opening brief on appeal, Miner Dederick offers arguments pertaining

to the first and third grounds on which Gulf sought summary judgment. As

pointed out by Gulf, Miner Dederick does not address whether summary judgment

could have been granted on the ground that Gulf did not breach a contractual

obligation to Miner Dederick.


2
       Miner Dederick states in its brief that it does not dispute the granting of summary
       judgment against it on its tort claims against Gulf. See Jacobs v. Satterwhite, 65
       S.W.3d 653, 655 (Tex. 2001) (indicating that appellate courts should affirm a trial
       court’s summary judgment on unchallenged claims).

                                           20
      When a party moves for summary judgment on multiple grounds and, as

here, the trial court’s order granting summary judgment does not specify the

ground or grounds on which it was based, a party who appeals the order must

negate all possible grounds on which the order could have been based. See Ellis v.

Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. App.—Houston [1st

Dist.] 2002, no pet.). To make this challenge, the appellant may either assert a

separate issue challenging each possible ground or assert a general issue that the

trial court erred in granting summary judgment and, within that issue, provide

argument negating all possible grounds on which summary judgment could have

been granted. See Jarvis v. Rocanville Corp., 298 S.W.3d 305, 313 (Tex. App.—

Dallas 2009, pet. denied); see also McCoy v. Rogers, 240 S.W.3d 267, 272 (Tex.

App.—Houston [1st Dist.] 2007, pet. denied). If an appellant does not challenge

each possible ground for summary judgment, we must uphold the summary

judgment on the unchallenged ground. See Ellis, 68 S.W.3d at 898; see also

McCoy, 240 S.W.3d at 272–73.           Accordingly, we must affirm the summary
                                                                        3
judgment on Miner Dederick’s breach of contract counter-claim.              See Ellis, 68

S.W.3d at 898; see also McCoy, 240 S.W.3d at 272–73.


3
      In its reply brief, Miner Dederick offers argument addressing Gulf’s assertion that
      it was entitled to summary judgment because it did not breach a contractual
      obligation to Miner Dederick. However, the rules of appellate procedure do not
      allow an appellant to include in a reply brief a new issue in response to some
      matter pointed out in the appellee’s brief but not raised in the appellant’s opening
                                           21
B.    No Evidence of Breach-of-Contract Damages

      Even assuming that Miner Dederick successfully presented argument to

show that Gulf breached a contractual obligation, summary judgment on Miner

Dederick’s breach-of-contract counter-claim was nonetheless appropriate. Gulf

presented a combined traditional and no-evidence motion for summary judgment.

The trial court granted the motion without identifying the basis for its ruling.

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). The standards of review for traditional and no-

evidence summary judgments are well known. See Timpte Indus., Inc. v. Gish, 286

S.W.3d 306, 310 (Tex. 2009); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548

(Tex. 1985). With respect to a traditional motion for summary judgment, the

movant has the burden to demonstrate that no genuine issue of material fact exists

and it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon,

690 S.W.2d at 548–49. In contrast, to defeat a no-evidence summary judgment,

the nonmovant is required to produce evidence that raises a genuine issue of

material fact on each challenged element of its claim. Gish, 286 S.W.3d at 310;

see also TEX. R. CIV. P. 166a(i).



      brief. See TEX. R. APP. P. 38.3; Howell v. Tex. Workers’ Comp. Comm’n, 143
      S.W.3d 416, 439 (Tex. App.—Austin 2004, pet. denied); see also Barrios v. State,
      27 S.W.3d 313, 322 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (“Pointing
      out the absence of an appellant’s argument does not raise the argument or entitle
      appellant to assert that argument for the first time in his reply brief.”).
                                          22
      Among its grounds, Gulf asserted summary judgment was proper because

Miner Dederick had no compensable damages as a matter of law. Damages are an

essential element of a breach of contract claim. See Winchek v. Am. Express

Travel Related Servs. Co., 232 S.W.3d 197, 202 (Tex. App.—Houston [1st Dist.]

2007, no pet.) (listing “damages sustained as a result of the breach” as an element

of a breach-of-contract claim). Gulf pointed out that the only damages sought by

Miner Dederick were its expenses for defending against Gulf’s claims. Miner

Dederick responded by offering a document, Exhibit 26, created to show the value

of the time spent by its employees and executives to investigate and to respond to

Gulf’s claims.

      In its brief, Miner Dederick asserts that it produced evidence of damages.

Miner Dederick points to Exhibit 26 attached to its summary judgment response.

Exhibit 26, created during litigation, is an itemized statement of tasks performed

by several of Miner Dederick employees and executives. It lists the name of the

Miner Dederick employee or executive, the task completed by that person, the time

spent on the task, the hourly rate for that individual, and the total sum of money

attributed to each task.

      In its summary judgment response, Miner Dederick explained that these are

tasks related to responding to and investigating Gulf’s claim against it. These tasks

included site visits, document review, and preparing a re-design of the expansion

                                         23
joint. However, there is no evidence that Miner Dederick paid, or was obligated to

pay, the sums reflected in the document beyond the salary or compensation that

Miner Dederick already paid to each listed individual.        In other words, the

document does not reflect that any of the sums listed are an actual measure of loss

sustained by Miner Dederick as a result of the alleged breach of the contract by

Gulf. See RAJ Partners, Ltd. v. Darco Const. Corp., 217 S.W.3d 638, 649 (Tex.

App.—Amarillo 2006, no pet.) (holding that company was not entitled to damages

for time spent by its executives to address breach of contract dispute, noting that

evidence did not show that company was obligated to pay sum requested or that

the sum reflected an actual measure of loss to the company); see also Nw.

Otolaryngology Assoc. v. Mobilease, Inc., 786 S.W.2d 399, 405 (Tex. App.—

Texarkana 1990, writ denied) (holding, in a breach of contract case, that

partnership—which was the defendant/counter-plaintiff—was not entitled to

compensation for time spent by partners in investigation and depositions).

      We conclude that Miner Dederick did not raise a genuine issue of material

fact with regard to the element of damages for its breach of contract counter-claim.

See TEX. R. CIV. P. 166a(i). The trial court did not err when it granted summary

judgment in favor of Gulf on Miner Dederick’s breach of contract claim.

      We overrule Miner Dederick’s fourth issue to the extent that it challenges

the trial court’s summary judgment on its breach of contract counter-claim.

                                        24
                               Spoliation of Evidence

      In its third issue, Miner Dederick asserts that the trial court abused its

discretion by failing to assess spoliation sanctions against Gulf with respect to its

failure to preserve the expansion joint for Miner Dederick’s viewing, inspection,

and testing.4

A.    Standard of Review

      We review a trial court’s order denying a motion for spoliation sanctions

under an abuse of discretion standard. See Wal-Mart Stores, Inc. v. Johnson, 106

S.W.3d 718, 723 (Tex. 2003); McMillin v. State Farm Lloyds, 180 S.W.3d 183,

199 (Tex. App.—Austin 2005, pet. denied); see also Clark v. Randalls Food, 317

S.W.3d 351, 356 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). A trial court

commits an abuse of discretion only if its decision is arbitrary, unreasonable, and

without reference to guiding principles. Mercedes-Benz Credit Corp. v. Rhyne,

925 S.W.2d 664, 666 (Tex. 1996). An abuse of discretion does not occur when the

trial court bases its decisions on conflicting evidence. In re Barber, 982 S.W.2d

4
      Gulf asserts in its brief that Miner Dederick did not request spoliation sanctions
      before the trial court granted partial summary judgment in this case on Gulf’s
      breach of contract claim. This is incorrect. Miner Dederick asserted its request
      for spoliation sanctions in its response to Gulf’s motion for partial summary
      judgment. When a summary judgment non-movant requests a spoliation
      determination in its response to a motion for summary judgment, the trial court
      implicitly makes a finding of no spoliation by granting the motion for summary
      judgment. See Clark v. Randalls Food, 317 S.W.3d 351, 356 (Tex. App.—
      Houston [1st Dist.] 2010, pet. denied) (citing Adobe Land Corp. v. Griffin, L.L.C.,
      236 S.W.3d 351, 356–57 (Tex. App.—Fort Worth 2007, pet. denied)).
                                          25
364, 366 (Tex. 1998). Nevertheless, a trial court has no discretion in determining

what the law is or in applying the law to the facts. Clark, 317 S.W.3d at 356.

B.    Law of Spoliation

      The inquiry regarding whether a spoliation sanction or presumption is

justified requires a court to consider (1) whether there was a duty to preserve

evidence, (2) whether the alleged spoliator breached that duty; and (3) whether the

spoliation prejudiced the non-spoliator’s ability to present its case or defense.

Clark, 317 S.W.3d at 356 (citing Adobe Land Corp. v. Griffin, L.L.C., 236 S.W.3d

351, 356–57 (Tex. App.—Fort Worth 2007, pet. denied)); Offshore Pipelines, Inc.

v. Schooley, 984 S.W.2d 654, 666 (Tex. App.—Houston [1st Dist.] 1998, no pet.)).

With these principles in mind, we determine whether the trial court abused its

discretion by denying Miner Dederick’s request for spoliation sanctions or a

spoliation presumption.

C.    Analysis

      1.    Duty to Preserve Evidence

      The duty to preserve evidence is not raised unless (1) a party knows or

reasonably should know that there is a substantial chance a claim will be filed, and

(2) evidence is relevant and material.       Clark, 317 S.W.3d at 356–57 (citing

Johnson, 106 S.W.3d at 722).




                                        26
      A party knows or reasonably should know that there is a substantial chance a

claim will be filed if a reasonable person would conclude from the severity of the

incident, and other circumstances surrounding it, that there was a substantial

chance for litigation at the time of the alleged spoliation. See Tex. Elec. Coop. v.

Dillard, 171 S.W.3d 201, 209 (Tex. App.—Tyler 2005, no pet.) (citing Johnson,

106 S.W.3d at 722). “A party should not be able to subvert the discovery process

and the fair administration of justice simply by destroying evidence before a claim

is actually filed.” See Trevino, 969 S.W.2d 950, 955 (Tex. 1998) (Baker, J.,

concurring).

      Here, the evidence shows that, prior to taking the core samples from the

expansion joint and then covering it with concrete, Gulf requested Miner Dederick

to repair the expansion joint under the warranty. Miner Dederick responded by

stating to Gulf that the leaks were not caused by defective construction but rather

by a flaw in the design of the joint. Miner Dederick also indicated to Gulf that the

repair work requested was not covered by the warranty because it was based on a

completely new design for the expansion joint.        Additionally, Gulf’s act of

retaining ESI, a forensic engineering company, to conduct the core testing on the

expansion joint before the joint was covered with concrete also indicates that Gulf

knew there was a substantial chance that it would be filing a claim against Miner

Dederick.

                                        27
      The evidence at trial also indicated that Gulf denied Miner’s request to

inspect the expansion joint on the advice of its attorneys.       In support of its

attorney’s fees request, Gulf offered the testimony of its counsel.       On cross-

examination, the following exchange occurred:

      Q. Are you aware that the response to Miner Dederick’s request for
      inspection [on] March 8, 2007, was to deny that request?

      A. Yes, I am.

      Q. And that denial of that request was done with the input of your law
      firm, and your law firm is purporting to request fees from this jury for
      the time you spent to deny that request, correct?

      A. I think that that’s a fair assessment, yes.

      The involvement of counsel indicates that Gulf was aware there was a

substantial chance of litigation at the time of the spoliation. In short, the record

evidence shows that, at the time of the alleged spoliation, there was a substantial

chance Gulf would file a claim against Miner Dederick. See Johnson, 106 S.W.3d

at 722.

      To show that the evidence is relevant and material, a party must demonstrate

that the alleged spoliator knew or should have reasonably known that the evidence

would be relevant to the action. See Clark, 317 S.W.3d at 357 (citing Johnson,

106 S.W.3d at 722). A party must preserve what it knows, or reasonably should

know, is relevant in the action or is reasonably calculated to lead to the discovery

of admissible evidence. See id. (citing Trevino, 969 S.W.2d at 957 (Baker, J.,
                                          28
concurring)). Here, the expansion joint is the subject matter of the claims. It is

undisputed that it is relevant to the litigation.

       In sum, Gulf had a duty to preserve the expansion joint. Given the evidence,

it would have been unreasonable for the trial court to have concluded otherwise.

       2.     Breach of Duty to Preserve

       Although it need not take extraordinary measures to preserve evidence, a

party has a duty to exercise reasonable care in preserving potentially relevant

evidence. See id. (citing Trevino, 969 S.W.2d at 957 (Baker, J., concurring)). A

spoliator can defend against an assertion of negligent or intentional destruction by

providing explanations to justify its failure to preserve evidence. Id. Here, Gulf

defends against the spoliation complaint by asserting that the repair of the

expansion joint was in the ordinary course of its business. Such a justification has

been successful in some cases, but it is not successful in this case. Cf. Aguirre v. S.

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

denied) (holding destruction of records in the regular course of business and

without notice of their relevance to future litigation did not raise spoliation

presumption).

       A claim that the evidence was destroyed in the ordinary course of business

will not excuse the obligation to preserve when a party’s duty to preserve evidence

arises before the destruction. See Adobe Land Corp., 236 S.W.3d at 359. As

                                            29
discussed supra, the evidence shows that Gulf’s duty to preserve arose before it

conducted the repair. Therefore, Gulf’s failure to preserve cannot be justified on

the basis that the evidence was destroyed in the ordinary course of business. See

id.

      In its brief, Gulf also asserts that it “did not breach any duty to preserve

evidence because the defective expansion joint remains in place (but repaired) and

available to be tested.” We disagree with this assertion.

      As mentioned, a party that has a duty to preserve evidence has a duty to

exercise reasonable care in preserving it. See Clark, 317 S.W.3d at 357 (citing

Trevino, 969 S.W.2d at 957 (Baker, J., concurring)). Implicit in the duty to

exercise reasonable care in preserving evidence is the duty to refrain from altering

or changing the evidence’s condition or integrity. Illustrating this precept is, for

example, Texas case authority explaining that a spoliation instruction is an

instruction given to the jury outlining permissible inferences it may make against a

party who has lost, altered, or destroyed evidence. See Dillard, 171 S.W.3d at

208; Brewer v. Dowling, 862 S.W.2d 156, 159 (Tex. App.—Fort Worth 1993, writ

denied).

      Black’s Law Dictionary defines spoliation as the “intentional destruction or

alteration of evidence, or the knowing failure to preserve property for another’s use

as evidence in pending or reasonably foreseeable litigation.”        BLACK’S LAW

                                         30
DICTIONARY 1409 (7th ed. 1999). Courts in other jurisdictions have adopted a

definition of spoliation that expressly includes the act of altering evidence. See,

e.g., Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 649 (9th Cir. 2009); West v.

Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999); Pyeritz v.

Commonwealth of Pa., 32 A.3d 687, 692 (Pa. 2011); Cahoon v. Cummings, 734

N.E.2d 535, 545 (Ind. 2000).

      In this case, Ashkar Engineering’s design drawings for the repair project

required Cajun Contractors to “remove [from the existing joint] sufficient concrete,

joint sealant, joint filler and other materials to determine the cause of the failure of

the existing joint.” The undisputed evidence shows that, under Gulf’s direction,

Cajun Contractors removed approximately six inches of sealant—which had been

installed by Miner Dederick—before testing was conducted on the joint. Once the

sealant was removed, the joint was no longer in the same condition that it was

when Miner Dederick finished the construction project.             At that point, the

expansion joint was missing one of the components that Miner Dederick had been

instructed to install. In other words, the joint was permanently altered even before

testing began.

      As part of the testing, three eight-inch-diameter core samples were then

drilled from the expansion joint.      Gulf directed Cajun Contractors to cut the

concrete along each side of the expansion joint and to install a new waterstop on

                                          31
either side. Next, Cajun Contractors, pursuant to Gulf’s instruction, poured a new

six to eight inch concrete slab over the 140 foot long expansion joint.

      Based on this undisputed evidence, it would not have been reasonable or

rational for the trial court to have concluded that Gulf exercised reasonable care in

preserving the expansion joint for the foreseeable litigation. To the contrary, Gulf

intentionally altered the condition and the integrity of the expansion joint without

affording Miner Dederick the opportunity to inspect it. Gulf’s insinuation that the

expansion joint was preserved under the concrete is not supported by the record.

      Gulf also asserts that it did not breach its duty to preserve the evidence

because Miner Dederick never requested to conduct its own tests on the expansion

joint. Gulf further contends that Miner Dederick has waived its right to complain

of spoliation because, after suit was filed, Miner Dederick did not serve Gulf with

a discovery request to inspect or to test the joint nor did Miner Dederick seek a

motion to compel such discovery from the trial court. In making such argument,

Gulf misses the mark.

      Significantly, Miner Dederick, through its CEO, John Miner, requested to

inspect the expansion joint in three separate correspondences. Miner indicated that

it needed to determine whether its work had conformed to the plans and

specifications.   The requests were made before Cajun Contractors began

construction and before the performance of the water test and the core sampling on

                                         32
the joint. Gulf expressly refused to allow Miner Dederick to inspect the expansion

joint. This was in March 2007.

      John Miner’s affidavit indicated the reason why Miner Dederick did not

request to inspect the expansion joint before the time it made its first request.

According to Miner, until the time of his requests to inspect the expansion joint,

Miner Dederick was under the impression that it would be doing the new

construction work to remedy the leaking joint. Miner testified also that, until that

time, the expansion joint could not be viewed because it was covered with catalyst.

In other words, Miner thought his company would able to inspect the joint at the

time it completed the repairs.

      Miner stated that, once Miner Dederick learned that another contractor

would be doing the work, it “requested, in writing, the opportunity to investigate

the expansion joint prior to work being performed so that Miner Dederick could

confirm the joint was constructed as planned.” He continued, “Miner Dederick

knew that Gulf would have to move the catalyst from the joint to perform the

work, and Miner Dederick wanted to investigate.”

      The evidence showed that John Miner made his last request to inspect the

expansion joint on March 15, 2007. The request was denied. Gulf did not notify

Miner Dederick of the testing. The water test was conducted one day later on

March 16, and the core samples were taken less than a week later on March 21.

                                        33
Cajun Contractor then began its work on the expansion joint, which was completed

in June 2007. It was also in June 2007 that Miner Dederick first learned of the

testing that Gulf had performed on the expansion joint.

      By the time litigation was filed in November 2007, the expansion joint had

already been altered from its original condition. The opportunity to inspect and to

test the expansion joint in its unaltered condition was gone. Miner Dederick’s lack

of a discovery request to test the expansion joint did not waive its spoliation

complaint and does not absolve Gulf from its failure to preserve the evidence at a

time that litigation was foreseeable. 5 We conclude that it would not have been


5
      Miner Dederick clarifies it is not suggesting that Gulf had an indefinite duty to
      preserve the expansion joint in its original condition or to forestall repairs without
      limitation. Instead, Miner Dederick states that it should have been notified of the
      testing by Gulf and given the opportunity to attend the testing. Miner Dederick
      also contends that it should have been given the opportunity to inspect the
      premises before Cajun Contractors performed its work on the expansion joint. It
      follows that, had it been given the opportunity to inspect the expansion joint and
      attend Gulf’s testing, Miner Dederick may have determined that it did not need to
      conduct its own testing. We note that courts in other jurisdictions have recognized
      that a custodial party, who has a legitimate need to destroy the evidence, may
      discharge its duty to preserve evidence by giving its opponent notice of the claim
      and a full and fair opportunity to inspect the evidence before its destruction. See
      Miller v. Lankow, 801 N.W.2d 120, 128–29 (Minn. 2011); Am. Family Mut. Ins.
      Co. v. Golke, 768 N.W.2d 729, 737–38 (Wis. 2009) (citing N. Assurance Co. v.
      Ware, 145 F.R.D. 281, 284 (D. Me. 1993) (holding that “reasonable notice to
      likely adversaries” that the evidence was to be destroyed would be sufficient to
      prevent a sanction for spoliation); Cooper v. United Vaccines, Inc., 117
      F. Supp. 2d 864, 875 (E.D. Wis. 2000) (stating that claim might not have been
      dismissed if plaintiff had notified defendant of its intention to engage in
      destructive testing of evidence so that defendant could have participated or
      conducted its own testing); Howell v. Maytag, 168 F.R.D. 502, 506 (M.D. Pa.
      1996) (explaining that “plaintiffs could reasonably have given [the defendant]
                                           34
reasonable for the trial court to have concluded that Gulf did not breach its duty to

preserve the evidence.

      3.     Prejudice

      The last step of our analysis focuses on whether Gulf’s spoliation prejudiced

Miner Dederick’s ability to present its defense against Gulf’s claims. See Adobe

Land Corp., 236 S.W.3d at 359. In making this determination, we look to a variety

of circumstances such as (1) the relevancy of the missing evidence and (2) the

availability of other evidence to take the place of the missing information. Id.

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

      As Miner Dederick correctly points out, the expansion joint was the most

important piece of evidence in the case.         Gulf’s primary evidence offered in

support of its motion for partial summary judgment on its affirmative claim for

breach of contract were James Milner’s testimony of his personal observations of



      notice of the potential claim, and provided it with an opportunity to conduct an in-
      dependent investigation before the demolition of the fire scene”); Baliotis v.
      McNeil, 870 F. Supp. 1285, 1290–91 (M.D. Pa. 1994) (stating that relevant
      evidence should not be destroyed without giving the other party an opportunity for
      inspection); Hirsch v. Gen. Motors Corp., 266 N.J. Super. 222, 251, 628 A.2d
      1108, 1122 (Law Div. 1993) (holding that a “potential spoliator need do only what
      is reasonable under the circumstances,” which included allowing defendants a
      reasonable amount of time to inspect the evidence and giving notice of probable
      litigation (citation omitted)); cf. Hamilton Mut. Ins. Co. of Cincinnati v. Ford
      Motor Co., 702 N.E.2d 491, 493 (Ohio Ct. App. 1997) (holding that exclusion of
      expert testimony as sanction for spoliation was improper because defendant had
      been given multiple notices and opportunities to inspect the evidence and had
      indicated that it would not do so)).
                                           35
the expansion joint and ESI’s report and photographs taken during its forensic

investigation and testing.

      In contrast, Miner Dederick was denied the opportunity to inspect the

expansion joint or to be present at the forensic testing. Although Gulf asserts that

it would have allowed Miner Dederick to conduct testing, had it asked, this

assertion is belied by the undisputed evidence that it refused to allow Miner

Dederick to inspect the expansion joint before Cajun Contractors began work.

Once the work began, the condition of the expansion joint was altered. Even

assuming Gulf would have allowed Miner Dederick to conduct testing at that point,

it would have been under different conditions than those under which ESI

conducted its inspection and testing.

      By altering the condition of the expansion joint, Gulf deprived Miner

Dederick of the opportunity to gather evidence to rebut the evidence offered by

Gulf in support of its claims and to develop its affirmative defenses. Specifically,

Miner Dederick could not counter the testimony of James Milner, who described

his personal observations of the expansion joint, with its own witness testimony

regarding the condition of the expansion joint. Miner Dederick could not refute

similar observations made in ESI’s report or take its own photographs of the

expansion joint or of the testing. In short, Miner Dederick was deprived of the




                                        36
ability to determine whether it could show that it had complied with the design

plans and specifications.

      Nor could Miner Dederick fully develop its defensive theory that it did not

cause injury to Gulf. Miner Dederick could not fully critique ESI’s methodology

or easily refute the testing. Additionally, Miner Dederick offered the affidavit

testimony of its engineering expert, who identified additional tests that he would

have conducted.

      With respect to availability of other evidence to take the place of the missing

information, the record shows that ESI and a Gulf employee took photographs of

the expansion joint and the testing. In addition, videotape was taken of some of the

testing processes. The three core samples were also made available for Miner

Dederick’s inspection.

      Regardless of the value of the photographic evidence, none of this evidence

permitted Miner Dederick to conduct its own forensic testing on the expansion

joint as it existed in its pre-repair condition. In other words, there was no available

substitute for the expansion joint itself with respect to testing. Significantly, Miner

Dederick’s engineering expert, Randall Rosengarten, testified in his affidavit that,

when he inspected them at ESI’s offices, the three core samples were in a

deteriorated condition and could not be reconstructed to their original condition.




                                          37
He stated that the concrete in the cores had been broken and “parts of cores were

incomplete with some parts of single cores in multiple boxes.”

      Given the record, it would not have been reasonable or rational for the trial

court to have concluded that Miner Dederick was not prejudiced by Gulf’s

spoliation of the expansion joint. We hold that the trial court abused its discretion

when it denied Miner Dederick’s request to grant spoliation sanctions against Gulf.

      Concomitantly, we also hold that the trial court erred when it granted partial

summary judgment on Gulf’s breach of contract claim against Miner Dederick.

See Clark, 317 S.W.3d at 356 (citing Adobe Land, 236 S.W.3d at 360–61) (“If the

trial court did abuse its discretion by denying the spoliation finding, then summary

judgment would be improper.”). We further hold that the trial court’s error in

failing to grant Miner Dederick’s request for spoliation sanctions was harmful error

because the error complained of probably prevented Miner Dederick from properly

presenting the case on appeal. See TEX. R. APP. P. 44.1(a)(2).

      We refrain from determining what the appropriate measure is to remedy the

spoliation in this case. Rather, that is matter best left to the trial court’s discretion.

As recognized by the Supreme Court of Texas, trial courts “have broad discretion

to take measures ranging from a jury instruction on the spoliation presumption to,

in the most egregious case, death penalty sanctions.” Trevino, 969 S.W.2d at 953.

A trial court may also choose to exclude testimony or other evidence. Trevino, 969

                                           38
S.W.2d at 959 (Baker, J., concurring).        “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.” Trevino, 969 S.W.2d at 953.

      We sustain Miner Dederick’s third issue.

                                 Rendition vs. Remand

      In issues one and two, Miner Dederick contends that the evidence was

legally insufficient to support the actual damages awarded by the jury.         We

recognize that the legal sufficiency challenges raised by Miner Dederick in these

issues, if successful, result in rendition. See Holt Atherton Indus., Inc. v. Heine,

835 S.W.2d 80, 86 (Tex. 1992) (explaining that, as general rule, “when we sustain

a no evidence point of error after a trial on the merits, we render judgment on that

point.”). We do not separately address issues one and two, however.

      Appellate courts have broad discretion to remand for a new trial in the

interest of justice. See TEX. R. APP. P. 43.3(b); Scott Bader, Inc. v. Sandstone

Prods., Inc., 248 S.W.3d 802, 822 (Tex. App.—Houston [1st Dist.] 2008, no pet.).

Gulf offered evidence that Miner Dederick’s work failed to comply with the design

plan and specifications for the expansion joint. This was shown through James

Milner of Ashkar Engineering, the ESI report, and Miner Dederick’s construction

expert. The evidence showed that the expansion joint was defective and needed

                                        39
repair. Similarly, Gulf presented some evidence linking the need for the repair to

Miner Dederick’s failure to follow the design plan and specifications.              For

example, Gulf presented evidence that there were holes and gaps in the expansion

joint. Given the purpose of the expansion joint, the jury could have reasonably

inferred that it needed repair. Gulf also presented some evidence that the work

completed by Cajun Contractors to repair the joint was reasonable and necessary.

For example, James Milner explained in a clear manner why the work was the

most efficacious and cost-effective repair that could be made to the expansion

joint. In other words, Gulf presented some evidence that it was entitled to recover,

at a minimum, remedial damages from Miner Dederick.

      As discussed, Miner Dederick was hampered in its ability to defend against

Gulf’s claims due to Gulf’s spoliation of evidence. It is difficult, at this point, to

conduct a meaningful review of the evidence. Had Miner Dederick been permitted

to inspect the premises it may have found conclusive evidence, which the jury

could not ignore, negating an element of Gulf’s claim. See City of Keller v.

Wilson, 168 S.W.3d 802, 815–17 (Tex. 2005) (explaining that conclusive evidence

cannot be disregarded). Moreover, the entire presentation of the case was affected

by the trial court’s error in failing to remedy Gulf’s spoliation. It is not surprising,

then, that Gulf’s evidence supports its claims. Nonetheless, the strength of the

evidence supporting Gulf’s recovery in this case also cannot be ignored. For these

                                          40
reasons, we conclude that it serves the interest of justice for this case to be

remanded to the trial court to permit it, in its broad discretion, to fashion an

appropriate spoliation remedy and to conduct further proceedings, as necessary. 6

See TEX. R. APP. P. 43.3(b).

                                       Conclusion

      We affirm the portion of the trial court’s judgment granting summary

judgment to Gulf on Miner Dederick’s counter-claims against Gulf. We reverse

the remaining portions of the trial court’s judgment. We remand the case for

further proceedings.




                                             Laura Carter Higley
                                             Justice

Panel consists of Justices Jennings, Higley, and Sharp.




6
      We need not address Miner Dederick’s remaining issues.
                                        41
