Rewrite This Sentence

by Justice Bill Boyce, Fourteenth Court of Appeals,

This installment of the column will change the GPS setting slightly and move its geographic focus from Washington D.C. to Austin, Texas.

This shift will allow the majority and dissenting opinions in Brookshire Brothers, Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014), to serve as a jumping-off point for considering the role and power of the concurring opinion.

Concurring opinions sometimes resemble the middle child in a three-sibling family. The oldest and youngest siblings often get most of the attention and perks, while the middle child has to settle for whatever scraps of attention are left over.

Sometimes, however, a middle child adds enough heft and height as time passes to surpass the siblings. The kid who started out as the overlooked one in the middle turns out to be center of attention.

So it is with concurring opinions. Sometimes they play second-fiddle to the majority opinion; or are treated as opportunities to vent; or are used as vehicles for exploring alternative approaches to the issue being decided. At other times, the concurring opinion gradually exerts an outsized influence that eventually surpasses the majority opinion it accompanies.

This dynamic is on display in Brookshire Brothers, a recent spoliation decision in which the supreme court drew heavily on the late Justice James Baker's concurring opinion in Trevino v. Ortega, 969 S.W.2d 950 (Tex. 1998).

The majority opinion in Trevino, in which the supreme court declined to recognize an independent tort cause action under Texas common law based on spoliation of evidence, is still good law. It addressed a specific, narrow issue -- and then stopped there.

Justice Baker agreed with that result. But he wrote a solo concurring opinion that canvassed existing spoliation law and offered a roadmap for Texas trial and intermediate appellate courts to use in determining when spoliation remedies are warranted, and which remedies should be considered. In the nearly two decades that have elapsed since Trevino issued in 1998, many judges have followed that roadmap.

Last year, the Supreme Court of Texas drew heavily on Justice Baker's concurring opinion when it addressed the appropriate scope of spoliation sanctions in Brookshire Brothers.

The majority opinion in Brookshire Brothers, written by Justice Lehrmann and joined by five other justices, sets out a two-step process for analyzing spoliation. First, the trial court must determine as a question of law whether a party spoliated evidence. Second, if spoliation occurred, the court must assess an appropriate remedy. See Brookshire Brothers, 438 S.W.3d at 14.

"To conclude that a party spoliated evidence, the court must find 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." Id. This determination is to be made outside the jury's presence. Id. The harsh remedy of a spoliation instruction in the jury charge "is warranted only when the trial court finds that the spoliating party acted with the specific intent of concealing discoverable evidence, and that a less severe sanction would be insufficient to reduce the prejudice caused by the spoliation." Id. "A failure to preserve evidence with a negligent mental state may only underlie a spoliation instruction in the rare situation in which a nonspoliating party has been irreparably deprived of any meaningful ability to present a claim or defense." Id.

On its way to establishing these standards, the Brookshire Brothers majority refers favorably to the reasoning from Justice Baker's concurring opinion in Trevino no fewer than seven times. See id. at 19–22. The Brookshire Brothers majority does not adopt the Trevino concurring opinion in its entirety. For example, Justice Baker thought prejudice should be analyzed as part of determining whether spoliation had occurred, and as a factor in determining the appropriate remedy. See Brookshire Brothers, 438 S.W.3d at 21 n.9 (citing Trevino, 969 S.W.2d at 955–58) (Baker, J., concurring). The Brookshire Brothers majority concluded that "this two-step analysis is unnecessary, and that analyzing prejudice as a key factor in imposing a spoliation remedy contemplates that some degree of prejudice is required for the nonspoliating party to be entitled to a remedy." Id.

Interestingly, Justice Guzman's dissenting opinion in Brookshire Brothers also invokes Justice Baker's concurring opinion from Trevino -- even through Justices Guzman, Devine and Brown concluded that the majority's application of the spoliation standard left insufficient room for the exercise of trial court discretion. See Brookshire Brothers, 438 S.W.3d at 33, 36 (Guzman, J., dissenting).

If there was not 100 percent agreement among the nine current justices about how spoliation should be addressed, there was agreement on at least one point -- Justice Baker's concurring opinion in Trevino was a milestone in analyzing the competing considerations involved in this issue. The seeds sown by Justice Baker in 1998 came into full bloom in 2014.