law-spoliation presumption
SPOLIATION
Allegations of spoliation do not give rise to an independent cause of action under Texas law, Trevino v. Ortega,
969 S.W.2d 950, 953 (Tex. 1998); Malone v. Foster, 977 S.W.2d 562, 563 (Tex. 1998), and, accordingly, do
not constitute claims subject to attack by way of a no-evidence motion for summary judgment. Rather,
spoliation is an evidentiary concept that is best remedied by the trial court within the context of the core lawsuit
in which such allegations arise. See Trevino, 969 S.W.2d at 953. In those cases, the non-spoliating party may
attempt to remedy the situation by either moving for sanctions or requesting a presumption that the destroyed
evidence would not have been favorable to the spoliator. Id. at 954 (Baker, J., concurring); see Brewer v.
Dowling, 862 S.W.2d 156, 159 (Tex. App.- Fort Worth 1993, writ denied) (discussing the presumptions that
arise from the non-production of evidence). While rule 166a(i) requires a motion to be specific in alleging a
lack of evidence on an essential element of the plaintiff's cause of action, it does not require the defendant to
also attack evidentiary components, such as spoliation, that may ultimately be used to prove the challenged
element. See In re Mohawk Rubber Co., 982 S.W.2d 494, 497-98 (Tex. App.- Texarkana 1998, no pet.).
Therefore, we conclude that Griffin was not required to seek a no-evidence summary judgment on Appellants=
spoliation allegations in order to properly obtain no-evidence summary judgment relief. Thus, we overrule
Appellants' first issue.
Spoliation Presumption
By way of their second issue, Appellants contend that they were entitled to a spoliation presumption against
Griffin as a result of Griffin's failure to preserve its retained sample of the Trilin that was applied to their alfalfa
crop. Appellants argue that since they were entitled to such a presumption, the trial court erred in granting
Griffin's no-evidence motion.
07-0992
GRIFFIN, L.L.C. v. ADOBE LAND CORPORATION, ADOBE CATTLE COMPANY (A GENERAL PARTNERSHIP),
CHERRY CREEK FARMS (A GENERAL PARTNERSHIP), VANGUARD AG SERVICES, INC., AND ADOBE
IRRIGATION AND AG SERVICES, L.L.C.; from Tarrant County; 2nd district (02‑06‑00097‑CV, 236 SW3d 351,
07‑12‑07) (trial court abused its discretion in refusing to grant Appellants a spoliation presumption)