Copper Creek Distributors, Inc. and Jose Doniceth Escoffie v. Ron Valk D/B/A Platinum Construction

REVERSE and REMAND and Opinion Filed May 24, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00123-CV

COPPER CREEK DISTRIBUTORS, INC. AND JOSE DONICETH
ESCOFFIE, Appellants
V.
RON VALK D/B/A PLATINUM CONSTRUCTION, Appellee

On Appeal from the 439th Judicial District Court
Rockwall County, Texas
Trial Court Cause No. 1-18-0096

MEMORANDUM OPINION
Before Justices Partida-Kipness, Nowell, and Smith
Opinion by Justice Nowell
Ron Valk d/b/a Platinum Construction sued Copper Creek Distributors, Inc.

(CCDI) and Jose Doniceth Escoffie for theft, tortious interference with existing

contractual relationships, and unjust enrichment; Platinum also alleged Escoffie is

the alter ego of CCDI. The case proceeded to a jury trial, the jury returned a verdict

favorable to Platinum, and the trial court entered a final judgment accordingly.

Appellants raise eleven issues on appeal, but we need only consider their fifth issue:

whether the trial court erred by instructing the jury on spoliation of evidence. We

conclude the trial court abused its discretion by instructing the jury on spoliation and
the instruction probably caused the rendition of an improper judgment. We reverse

the trial court’s judgment as to CCDI and Escoffie and remand the cause to the trial

court for further proceedings.

FACTUAL BACKGROUND

Ron Valk owns Platinum Construction, a commercial construction company

that primarily constructs self-storage centers. Ron’s son, Shawn Valk, oversees

Platinum’s day-to-day operations.

Shawn was friends with Doni Escoffie and his husband, Don Triplett.1 In early

2017, Triplett approached Ron about buying cabinetry and granite countertops for

Platinum’s commercial construction projects from Copper Creek Fine Cabinetry;

Triplett did not disclose that Copper Creek Fine Cabinetry was his business. Ron

thought the pricing was favorable and used the vendor in 2017. Copper Creek Fine

Cabinetry used the domain coppercreekcabinetry.net.

On July 27, 2017, Triplett incorporated CCDI. The initial CCDI directors

were Triplett, Escoffie, and Daryl Briggs.2 Escoffie, who had no business

experience, intended to use CCDI as a vehicle to learn how to run a business, with

Triplett instructing him. However, throughout 2017, Triplett operated CCDI and

handled all day-to-day management. Two assumed name certificates for CCDI were

1
Originally, Triplett was the sole defendant in this case. After he filed bankruptcy, he was non-suited
from the litigation.
2
Briggs was a defendant in the trial court and judgment was entered against him. However, he is not a
party to this appeal.
–2–
filed on August 4, 2017. The certificates state the business of CCDI would be

conducted under the names Copper Creek Fine Cabinetry and Copper Creek

Windows, Flooring, & More.

In 2017, Platinum was building self-storage centers at two locations, which

the parties call Maple Avenue and Locust Grove. Platinum hired Triplett to be the

superintendent on both projects, and he was responsible for managing the people

working on the job sites. In September 2017, Shawn discovered that Triplett was

diverting Platinum’s workers3 from the Maple Avenue and Locust Grove project

sites to his own residential construction projects. Triplett would arrange for the

workers’ timecards to reflect they were working at Platinum’s job sites even though

they were working at Triplett’s residential construction sites. Briggs oversaw some

of these residential projects for Triplett.

In late October 2017, Ron and Shawn met with Triplett to talk about Triplett

diverting workers to his residential projects. Ron testified that Triplett admitted he

was taking workers from Platinum’s job sites to work on his own projects. Ron and

Shawn terminated Triplett during the meeting. Ron and Shawn believed Triplett’s

projects benefited CCDI.

The jury found CCDI and Briggs committed theft of services, intentionally

interfered with the contract between Platinum and its contractors, and were unjustly

3
The record is not clear whether the workers were employees or contractors.
–3–
enriched by the use of Platinum’s services and awarded damages. Finally, the jury

found Escoffie was responsible for the conduct of CCDI. The trial court entered

judgment in accordance with the jury’s verdict.

SPOLIATION

Appellants argue the trial court erred by giving a spoliation instruction to the

jury. The trial court instructed the jury as follows:

II. SPOLIATION INSTRUCTION
Copper Creek Distributors, Inc. destroyed or failed to preserve
evidence in this lawsuit, including accounting books and records and e-
mails related to Copper Creek Distributors, Inc. You may consider that
this evidence would have been unfavorable to Copper Creek
Distributors, Inc. on the issue of theft of services, tortious interference
with existing contractual relationship, unjust enrichment and/or alter-
ego.

Platinum responds that the spoliation instruction was appropriate because CCDI

failed to produce all of its QuickBooks files and also did not produce any emails in

response to Platinum’s requests for production.

A. Standard of Review

We review a trial court’s imposition of sanctions for spoliation for an abuse

of discretion. Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 27 (Tex. 2014). A

spoliation jury instruction is a “severe spoliation sanction” that can shift the focus of

the case from the merits to improper conduct allegedly committed by one party

during the litigation. Id. at 13.

A spoliation analysis involves a two-step judicial process: (1) the trial court

must determine, as a question of law, whether a party spoliated evidence, and (2) if
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spoliation occurred, the trial court must assess an appropriate remedy. Id. 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. The party alleging spoliation

has the burden of establishing that the nonproducing party had a duty to preserve

material and relevant evidence and breached that duty either negligently or

intentionally. See id. at 20.

On finding that spoliation occurred, the trial court must exercise its discretion

to impose an appropriate sanction, considering the spoliating party’s culpability and

the prejudice to the nonspoliating party. Id. at 21; see also Petroleum Sols., Inc. v.

Head, 454 S.W.3d 482, 488–89 (Tex. 2014). As with any discovery sanction, the

sanction must be proportionate; it must relate directly to the conduct giving rise to

the sanction and must not be excessive. Brookshire Bros., 438 S.W.3d at 14. While

a trial court’s discretion to remedy an act of spoliation is broad, it is not limitless.

Petroleum Sols., 454 S.W.3d at 489. The trial court must consider the availability of

lesser sanctions and, “in all but the most exceptional cases, actually test the lesser

sanctions.” Id. (quoting Cire v. Cummings, 134 S.W.3d 835, 841 (Tex. 2004)).

B. Facts Relevant to Spoliation

On January 26, 2018, Platinum sued Triplett individually and alleged he used

Platinum’s labor force without authorization. Approximately sixteen months later,

Platinum filed its first amended petition and added several defendants, including

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DFW Design & Remodeling, Triplett d/b/a Preferred Platinum Construction, CCDI,

and Escoffie. In its amended petition, Platinum alleged that DFW Design &

Remodeling and Triplett individually and d/b/a Preferred Platinum Construction and

d/b/a CCDI contracted to oversee its construction projects while instead working on

their own projects. Escoffie was not served with the lawsuit until late 2020. Triplett

filed a voluntary bankruptcy petition on September 19, 2019. Platinum subsequently

filed a notice of nonsuit as to eighteen parties, including Triplett, DFW Design &

Remodeling, and Triplett d/b/a Preferred Platinum Construction. CCDI and Escoffie

remained defendants.

In January 2021, Platinum filed a motion to compel and a motion for sanctions

seeking to force Escoffie to appear for a deposition and to respond to discovery;

Platinum asked the trial court to require Escoffie and CCDI to pay their attorney’s

fees and costs for abusing the discovery process. A few months later, in May 2021,

Platinum filed a motion for sanctions alleging Escoffie made false statements and

committed perjury when he testified in his deposition that he never used and did not

recognize the email address doni@coppercreekcabinetry.net and a similar email

address for his sister. The motion states: “Doni, as the owner of the assumed name

Copper Creek Cabinetry, repeatedly asserted under oath that he was unaware of any

email addresses associated with the domain, coppercreekcabinetry.net. Despite

Doni’s numerous denials, there is ample evidence of the existence of email addresses

associated with Copper Creek Cabinetry and the domain coppercreekcabinetry.net,

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including email addresses listed in his name, the name of his husband, and the name

of his sister.” The next day, Platinum filed an amended motion for sanctions and

perjury containing similar allegations.

Escoffie responded and argued that Platinum could not show he provided any

false testimony in his deposition; “Plaintiff’s disbelief and indignation that Escoffie

does not recognize or remember emails with the domain name . . . does not render

such testimony untrue.” Escoffie asserted he lacked knowledge because he was

inexperienced, was learning the business, and relied on other company directors to

operate CCDI.

On June 29, 2021, Platinum filed a motion to compel against Escoffie and

CCDI and requested sanctions. Platinum’s motion stated it requested documents

(including emails) from Escoffie and CCDI, but they failed to produce emails.

Platinum stated it had knowledge the emails existed because Platinum obtained them

from another source; Platinum again complained about Escoffie denying knowledge

of the coppercreekcabinetry.net domain. Platinum requested Escoffie be compelled

to produce all documents (including emails) and requested sanctions for the cost of

preparing and arguing the motion.

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On April 22, 2022, Platinum filed its third amended petition, which lists the

defendants as: CCDI d/b/a Copper Creek Restoration and Construction, Escoffie,

Briggs, and Gary Wilkerson.4

On July 6, 2022, Platinum filed a supplement to its amended motion for

sanctions and discussed the emails about which Escoffie denied having knowledge.

The supplement stated that Platinum subpoenaed GoDaddy.com, LLC, and the

GoDaddy records showed Escoffie owned the domain coppercreekcabinetry.net and

the email doni@coppercreekcabinetry.net. Further, the GoDaddy records showed

the doni@coppercreekcabinetry.net email was created in February 2017 and last

modified on March 10, 2018, shortly after the lawsuit was filed against Triplett. In

their response, CCDI and Escoffie maintained Triplett set up the domain and

controlled the emails.

On August 1, 2022, the trial court held a hearing on Platinum’s motion for

sanctions and Escoffie’s alleged perjury. Escoffie testified at the hearing. Escoffie

became an owner of CCDI when it was incorporated in July 2017. While Escoffie

wanted to learn how to operate a business, Triplett actually ran the business in 2017.

Escoffie testified: “At the time, when they were forming the company, my husband

was helping me with all the decisions.” From July through December 2017, Triplett

“pretty much helped me with everything, filing paperwork, because I didn’t know

4
Wilkerson was non-suited before trial.
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much about involving [sic] or filling the paperwork and everything because I was

learning. And I wanted to do something on my own, and he wanted to teach me.”

Escoffie maintained he did not use an email address in 2017 and did not have

knowledge of the domain coppercreekcabinetry.net. Rather, he explained that

Triplett “is the one that set up all the emails, and to the best of my knowledge, I

didn’t have - - I didn’t have in 2017 an email. If I did it wasn’t - - I didn’t know.”

He testified that he never received or sent emails from doni@coppercreekcabinetry,

and he learned emails had been sent to doni@coppercreekcabinetry.net during his

deposition in this litigation.

Triplett also testified at the August 2022 hearing and stated he set up the email

address doni@coppercreekcabinetry.net, but he did not tell Escoffie about it; Triplett

used doni@coppercreekcabinetry.net to send emails on Escoffie’s behalf.

No testimony was elicited about accounting books and records, including

QuickBooks, at the August 2022 hearing.

At the end of the hearing, the judge took the matter under advisement. The

appellate record does not include an order on Platinum’s requests for sanctions.

On August 15, 2022, Platinum filed a motion requesting a spoliation jury

instruction because CCDI and Escoffie spoliated evidence. The motion recited

Platinum’s efforts to obtain emails and QuickBooks files from Escoffie and reflected

Platinum’s disbelief that Escoffie lacked knowledge of both. In the motion, Platinum

stated the emails and QuickBooks files had not been produced, and Escoffie and

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Triplett asserted they no longer existed. Therefore, Platinum argued, “[i]f such

documents no longer exist, then there can only be one answer to the question of what

happened to them — they were destroyed in anticipation of litigation.”

A transcript from Escoffie’s November 12, 2021 deposition was an exhibit to

the motion. Escoffie testified in his deposition that he was responsible for responding

to discovery requests on behalf of CCDI, but he had very few documents and

provided all documents he had, including emails. Escoffie was asked whether, as

owner of CCDI, he recorded checks that he wrote, and Escoffie testified he did not

remember or did not know. When asked whether he could describe his accounting

practices in 2017, he replied he could not because he did not remember. Escoffie

speculated he used QuickBooks online in 2017 to manage his books and records; but

at the time of the deposition, he did not have access to QuickBooks online because

“I closed it out.” He testified he had not tried to log into QuickBooks and he had not

called QuickBooks to attempt to access his books and records. He stated he would

work with his attorney to determine whether he had access to QuickBooks.

Documents from GoDaddy were also attached as an exhibit. The records

showed the email address doni@coppercreekcabinetry.net was created on February

23, 2017, it was last modified on March 10, 2018, and it had been deleted at the time

GoDaddy responded to the subpoena on April 19, 2022. In response, on September

14, 2022, CCDI filed a motion for protection stating, among other things, that

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Platinum failed to provide any evidence CCDI destroyed any emails or QuickBooks

files.

Two days later, the trial court held a hearing. Triplett, acting as the CCDI

corporate representative, was the only testifying witness. Triplett explained he

created emails for himself (don@coppercreekcabinetry.net), Escoffie

(doni@coppercreekcabinetry.net), and others in the same domain in 2017. At the

time of the hearing, Triplett no longer had access to the emails because he let the

domain lapse when it was not being used; however, as part of the litigation, he

attempted to log in and obtain the emails from 2017. Triplett testified the emails

associated with the domain coppercreekcabinetry.net did not belong to CCDI.

As to QuickBooks, Triplett was asked whether he was designated as the

corporate representative to answer questions about why QuickBooks records were

not produced, and Triplett replied he did not think QuickBooks was the purpose of

his testimony. No other testimony about QuickBooks was elicited. However, one of

the exhibits admitted during the hearing was the transcript from Escoffie’s

deposition wherein Escoffie testified CCDI migrated from using the online version

of QuickBooks to the desktop version.

At the end of the September hearing, the trial court judge stated he was

inclined to give a spoliation instruction, but he would defer the determination of the

exact nature of the instruction until trial. At a pre-trial hearing on November 28,

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2022, the judge affirmatively stated a spoliation instruction was proper, but “the

nature of the instruction . . . remains to be seen still.” Trial began the next day.

C. Analysis

Before giving a spoliation instruction, the trial court must determine, as a

question of law, whether a party spoliated evidence. See Brookshire Bros., 438

S.W.3d at 14. To conclude 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.; see also

Petroleum Sols., 454 S.W.3d at 488. For purposes of our analysis, we will assume

without deciding that CCDI had a duty to reasonably preserve evidence when

Platinum filed the lawsuit against Triplett.

1. Breach of Duty to Preserve

We begin, then, by considering whether the evidence shows CCDI

intentionally or negligently breached its preservation duty. Platinum complains

CCDI did not produce emails from the coppercreekcabinetry.net domain or

QuickBooks records.

Platinum began using Copper Creek Fine Cabinetry as a vendor in 2017, and

Platinum received emails from Copper Creek Fine Cabinetry, which was using the

domain coppercreekcabinetry.net. Although Triplett maintained that domain

belonged to him and not CCDI, Escoffie, the owner of CCDI, owned the domain and

Copper Creek Fine Cabinetry continued using it after CCDI filed the assumed name

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certificate in August 2017. For example, on September 21, 2017, Ashley Gibbs sent

an email from ashley@coppercreekcabinetry.net to Ron Valk and provided “copies

of all previous invoices for orders placed since February of this year,” which would

include invoices sent before CCDI was incorporated. Gibbs’s signature block states:

ASHLEY GIBBS
ORDER PROCESSING
COPPER CREEK DISTRIBUTORS, INC.
COPPER CREEK CABINETRY
CHIC CABINETRY

With the evidence in the record, the trial court could have determined CCDI owned

the domain coppercreekcabinetry.net and it was required to produce documents,

including emails, associated with the domain, but CCDI failed to do so.

Escoffie maintained he lacked knowledge of the domain, and Platinum

presented no contrary evidence. Escoffie, thus, did not negligently or intentionally

spoliate the emails.

Triplett, who testified as the CCDI corporate representative, had knowledge

of the domain and associated emails. Triplett explained he no longer had access to

the coppercreekcabinetry.net domain because he allowed the domain to lapse due to

disuse. If the trial court believed Triplett’s explanation, then it could have concluded

Triplett negligently spoliated the emails; if it did not, then it could have concluded

Triplett intentionally did not maintain the domain after the lawsuit was filed and,

thus, intentionally spoliated the emails. Based on the evidence in the record, the trial

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court did not abuse its discretion by concluding Platinum met its burden to show

CCDI intentionally or negligently breached its duty to preserve evidence.

Triplett provided no evidence about CCDI’s accounting books and records.

Escoffie speculated during his deposition that he used QuickBooks online in 2017

to manage CCDI’s books and records, but he no longer had access to QuickBooks

online at the time of his deposition because “I closed it out.” The record does not

show when Escoffie “closed out” the online version of QuickBooks and whether he

did so before or after Platinum filed the lawsuit. Escoffie also testified that CCDI

switched from the online version of QuickBooks to the desktop version; no date for

this transition was requested or provided. Escoffie’s testimony is some evidence that

CCDI used QuickBooks to manage its accounting functions, and CCDI migrated

from the online version of QuickBooks to the Desktop version.

However, there is no evidence CCDI intentionally or negligently failed to

preserve the QuickBooks data. In his deposition, Escoffie testified he had not

attempted to log into QuickBooks and he had not called QuickBooks to attempt to

access his books and records. He stated he would work with his attorney to determine

whether he had access to QuickBooks — the record does not show whether this

happened and, if it did, whether any documents or data were recovered. Considering

the failure to provide any evidence about when CCDI “closed out” its online

QuickBooks account and when CCDI migrated from the online platform to the

desktop platform along with the lack of evidence about whether Escoffie searched

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for QuickBooks records and recovered any, the trial court abused its discretion by

concluding Platinum met its burden to show CCDI intentionally or negligently

breached its duty to preserve accounting books and records, including QuickBooks

files. Accordingly, we conclude the trial court erred by instructing the jury that CCDI

destroyed or failed to preserve accounting books and records, and the jury could

consider that evidence would have been unfavorable to CCDI.

2. Appropriate Remedy

Even if the evidence showed CCDI intentionally or negligently breached its

duty to preserve evidence, the trial court was then required to consider the

availability of lesser sanctions and, “in all but the most exceptional cases, actually

test the lesser sanctions.” Petroleum Sols., 454 S.W.3d at 489 (quoting Cire, 134

S.W.3d at 841). The trial court does not need to test the effectiveness of all available

lesser sanctions by actually imposing them before but must “analyze the available

sanctions and offer a reasoned explanation as to the appropriateness of the sanction

imposed.” Cire, 134 S.W.3d at 840.

The record does not show the trial court considered any lesser sanction, does

not include a reasoned explanation as to the appropriateness of the sanction imposed,

and does not show this is an “exceptional” case where the trial court should not have

been required to test a lesser sanction. For this independent reason, we conclude the

trial court abused its discretion by giving a spoliation instruction to the jury.

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3. Reversible Error

The trial court’s error is reversible only if it probably caused the rendition of

an improper judgment. Wackenhut Corp. v. Gutierrez, 453 S.W.3d 917, 921 (Tex.

2015). When a spoliation instruction should not have been given, “the likelihood of

harm from the erroneous instruction is substantial, particularly when the case is

closely contested.” Id. at 921-22. “The problem is magnified when evidence

regarding the spoliating conduct is presented to a jury.” Brookshire Bros, 438

S.W.3d at 13, 17. Presenting spoliating conduct to the jury can unfairly skew a jury’s

verdict, 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. See id. at 13–14.

“[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.”

Id. at 14.

In this case, Platinum called Escoffie as a witness at trial and asked him about

the GoDaddy records showing the email doni@coppercreekcabinetry.net was created

on February 23, 2017, last modified on March 10, 2018, and subsequently deleted.

He was also asked about other email addresses in the coppercreekcabinetry.net

domain that were deleted after the lawsuit was filed. As to QuickBooks, Escoffie

testified that he initially had a subscription to an online version, but eventually “we

stopped paying [for QuickBooks] and it closed.” Escoffie did not know what

happened to the QuickBooks records when he stopped paying for the service. He

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was asked whether he tried to access QuickBooks as part of the lawsuit to obtain

accounting records, and he testified he had done so and not found any. Instead, he,

on behalf of CCDI, produced sixteen pages of financial documents, which he

maintained were all of the accounting-related documents for the relevant time

period.

Platinum also called Triplett to testify as CCDI’s corporate representative.

Triplett was asked about the GoDaddy records showing deleted email addresses. As

to QuickBooks, he testified CCDI was using QuickBooks at the time of

incorporation, all of the documents from QuickBooks were converted to the desktop

version of QuickBooks, and those records were provided in discovery.

Escoffie’s and Triplett’s testimony about the coppercreekcabinetry.net

domain and QuickBooks did not relate to the substance of the lawsuit.

In addition to soliciting testimony at trial, Platinum discussed the allegedly

destroyed documents and spoliation instruction during opening statement and

closing argument. During opening, Platinum’s counsel told the jury:

We shut down that scheme in October. So how much labor was
lost? Well, we don’t know the exact amount, and we don’t know the
exact amount for a couple of reasons.
First and foremost, as I said, you’ve got Copper Creek that’s
really the shell company for their personal benefit. The other reason is
that the e-mail accounts for Copper Creek were all shut down and
deleted, so we don’t have access to those e-mails. We can’t find the e-
mails between all the - - anything internally. We have some of the
accounting emails that were sent to us for the invoices, but we don’t
have anything else. Those records have been destroyed.
...

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. . . They will also admit that they were using QuickBooks to run
all their accounting practices, but there are no QuickBook accounts.
There is no QuickBooks data that has been produced or provided
because that’s gone too. So if we don’t have e-mails and we don’t have
financials, it’s kind of hard to piece together what was going on with
Copper Creek and everything else involved in that.

In closing, Platinum’s counsel stated:

So what I want to do is I want to walk through the jury
instructions with you guys real quick to try to help you out because,
even for lawyers this stuff is confusing.
The first and most important thing was a spoliation instruction
that the Judge read to you. You are - - the instruction was that Copper
Creek destroyed or failed to preserve evidence in this lawsuit including
its accounting books and records and e-mails related to Copper Creek.
You may consider that this evidence would have been
unfavorable. If it wouldn’t have been unfavorable, you’d think it would
have been preserved or produced, but it wasn’t. That’s those missing
pieces in that puzzle picture that we’re talking about.

Platinum’s lawyer told the jury that CCDI and Escoffie “hotly contest[ed]” the

damages evidence provided by Platinum. He continued: “But again, because we

don’t have the evidence of all the e-mails and accounting records, we’ve had to piece

together on our end. So what were those numbers?” Counsel told the jury that “we’re

basically guestimating that they [the workers] were gone [from the job sites],

because we don’t know the extent of stolen labor.”

Whether Triplett diverted labor from Platinum for CCDI’s benefit was hotly

contested as was the extent, if any, of control that Escoffie exercised over CCDI and

the damages, if any, that Platinum sustained. The jury heard spoliation-related

testimony, and Platinum discussed the allegedly deleted documents and spoliation

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instruction in its opening statement and closing argument. Given the evidence in the

case, including the spoliation-related evidence, and the arguments of counsel about

spoliation, we conclude the trial court’s error in giving the spoliation instruction

probably caused the rendition of an improper judgment.

We sustain appellants’ fifth issue.

CONCLUSION

As a general matter, when multiple grounds for reversal of a trial court’s

judgment are presented, courts of appeals should first address issues that would

require rendition and consider those issues before ordering a remand. See FieldTurf

USA, Inc. v. Pleasant Grove Indep. Sch. Dist., 642 S.W.3d 829, 836 (Tex. 2022).

“However, even when rendition would otherwise be warranted, our rules of appellate

procedure allow discretion for a remand when ‘the interests of justice require’ it.”

Id. (quoting TEX. R. APP. P. 43.3(b)). “Appellate courts have broad discretion to

remand a case for a new trial in the interest of justice.” In re D.C., No. 05-22-01223-

CV, 2023 WL 3243483, at *5 (Tex. App.—Dallas May 4, 2023, no pet.) (mem. op.)

(quoting In re H.H., No. 05-15-01322-CV, 2016 WL 556131, at *3 (Tex. App.—

Dallas Feb. 12, 2016, no pet.) (mem. op.)). One circumstance meriting a remand in

the interest of justice is when the trial court’s error prevented full development and

presentation of the evidence. See FieldTurf USA, Inc. v. Pleasant Grove Indep. Sch.

Dist., 642 S.W.3d 829, 836 (Tex. 2022). A remand on that ground must be supported

by the record. See id.

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Before trial began, the trial court announced it would instruct the jury that

CCDI spoliated evidence. We have concluded that ruling was in error. As

acknowledged by Platinum’s counsel in its closing argument, Platinum used the

spoliation instruction to fill the “missing pieces in that puzzle picture.” Knowing it

would be receiving the substantial benefit of the spoliation instruction, Platinum

appears to have relied on the spoliation instruction when determining which

evidence to present to the jury, and it may have presented less evidence than it

otherwise would have without the trial court’s error. Accordingly, based on this

record, we conclude that a re-trial of Platinum’s claims, and any defenses to those

claims, would be in the interest of justice, and we choose to exercise our broad

discretion to remand this case for further proceedings.

In light of our resolution of appellants’ fifth issue, we do not address

appellants’ first through fourth and sixth through eleventh issues. See TEX. R. APP.

P. 47.1.

We reverse the trial court’s judgment against Copper Creek Distributors, Inc.

and Jose Doniceth Escoffie, and we remand the cause to the trial court for further

proceedings.

/Erin A. Nowell/
ERIN A. NOWELL
230123F.P05 JUSTICE

–20–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

COPPER CREEK DISTRIBUTORS, On Appeal from the 439th Judicial
INC. AND JOSE DONICETH District Court, Rockwall County,
ESCOFFIE, Appellant Texas
Trial Court Cause No. 1-18-0096.
No. 05-23-00123-CV V. Opinion delivered by Justice Nowell.
Justices Partida-Kipness and Smith
RON VALK D/B/A PLATINUM participating.
CONSTRUCTION, Appellee

In accordance with this Court’s opinion of this date, we REVERSE the trial
court’s judgment against Copper Creek Distributors, Inc. and Jose Doniceth
Escoffie. This cause is REMANDED to the trial court for a new trial.

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered May 24, 2024.

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