The Texas Supreme Court has granted review of a Dallas Court of Appeals decision overturning a jury verdict and remanding for new trial based on the trial court’s spoliation charge.
Ron Valk d/b/a Platinum Construction v. Copper Creek Distributors, Inc. and Jose Doniceth Escoffie (No. 24-0516; granted June 13, 2025) arose from a business relationship gone bad. Platinum, a commercial construction company, contracted with Copper Creek to superintend construction of two self-storage centers, including hiring workers. Shortly thereafter, Valk discovered that Copper Creek’s owner, Triplett, was diverting Platinum’s workers to his own residential construction projects and doctoring their timesheets to hide it. When confronted by Valk, Triplett admitted to the fraud and Valk terminated the agreements. Platinum sued for theft, tortious interference with existing contractual relationships, and unjust enrichment. He also sued Escoffie as the alter ego of Copper Creek. The jury returned a verdict for Platinum, and the trial court entered judgment on the verdict. Defendants appealed.
In an opinion by Justice Nowell, the court of appeals reversed and rendered. Among other issues, Defendants argued that the trial court abused its discretion and committed harmful error by instructing the jury that Copper Creek destroyed or failed to preserve evidence, including books, records, and emails, and that the jury could consider the missing evidence as unfavorable to Defendants. Platinum countered that the charge was proper because Copper Creek didn’t produce most of that material in response to discovery requests. “A spolitation analysis involves a two-step judicial process,” wrote Justice Nowell, “(1) the trial court must deetermine, as a question of law, whether a party spoliated evidence, and (2) if spolitation occurred, the trial court must assess an appropriate remedy” (citation omitted). To support a finding that a party committed spoliation, the court must determine that “(1) the spoliating party had a duty to reasonably preserve evidence, and (2) the party intentionally or negligently breached that duty by failing to do so.” In assessing an appropriate remedy, the court should consider the “spoliating party’s culpability and the prejudice to the nonspoliating party” (citations omitted) and impose a proportional sanction.
The court of appeals detailed the discovery history of the case, noting that Platinum started filing motions for sanctions pretty quickly after filing a second amended petition, nonsuiting several parties, and serving Escoffie with process. After compelling Escoffie to give a deposition, Platinum filed a motion for sanctions alleging that he lied at the deposition with respect to the existence of a Copper Creek email address. A few months after that, when Copper Creek and Escoffie didn’t produce emails and other documents, Platinum again requested sanctions for the cost of preparing and arguing a new motion to compel. It also subpoenaed GoDaddy records showing the email address Escoffie of which Escoffie denied having knowledge. At the hearing on the motion for sanctions, Escoffie stated that Triplett ran the email account, which Triplett admitted. Nothing was said about missing books and records at the hearing. Soon thereafter, Platinum filed a motion requesting a spoliation jury instruction, which the trial court granted.
The court of appeals was underwhelmed by the evidence of spoliation. While the trial court could have determined that Copper Creek owned the domain and was required to produce the emails and other documents and failed to do so, there was no evidence that Escoffie negligently or intentionally spoliated the emails. As to Triplett’s testimony that he ran the domain but didn’t maintain it after the lawsuit was filed, the trial court could have concluded that Triplett either negligently or intentionally spoliated the emails. Thus the trial court did not abuse its discretion by concluding that Platinum met its burden to show Copper Creek’s intentional or negligent breach of duty to preserve evidence. As to the books and records, however, the record contained little if any evidence supporting Platinum’s spoliation claim. At most, the record showed that Escoffie was confused about when the company’s QuickBooks account was closed, but no one produced any evidence about that or whether there was any other way to access the account. To the extent the spoliation charge covered books or records, the trial court abused its discretion.
But did the trial court properly consider the availability of lesser sanctions? The record contained nothing indicating that it did. That, too, was an abuse of discretion. The question then became whether the trial court’s spoliation charge probably caused the rendition of an improper judgment and constituted reversible error. “Presenting spoliating conduct to the jury can unfairly skew a jury’s verdict,” the court wrote, “resulting in a judgment that is based on the conduct of the parties during or in anticipation of litigation rather than the facts of the case.” Consequently, “[e]vidence bearing directly upon whether a party has spoliated evidence is not to be presented to the jury except insofar as it relates to the substance of the lawsuit.” In his closing argument, Platinum’s counsel alleged that the only explanation for Escoffie and Copper Creek’s failure to produce the emails, books, and records was that destroyed them in anticipation of litigation. But, the court held, Defendants’ testimony about the domain and emails didn’t relate to the substance of the lawsuit, that is, whether and when Copper Creed allegedly diverted labor. Further, Copper Creek did turn over a 16-page document containing financial records, which is all Escoffie said he had. In light of the relative paucity of evidence and the allegations Plaintiff’s counsel made in his closing argument, the court concluded that the trial court’s error in giving the spoliation instruction probably caused the rendition of an improper judgment.
Finally, the court decided to remand the case to the trial court. Because Platinum “used the spoliation instruction to fill the ‘missing pieces in that puzzle picture’ and relied on the instruction when determining which evidence to present to the jury, the court concluded that only a re-trial could repair the damage.
SCOTX has not yet scheduled oral argument.
