BOUVÉ & MOHR, LLC v. BANKS, 274 Ga. App. 758

Phipps, Judge. Joceyline Banks sued Bouvé & Mohr, LLC (B&M), the owner of the apartment complex where she lived, alleging that she had been raped and robbed in her apartment because B&M had negligently failed to repair a broken windowpane through which the intruder had gained entry. In its answer and discovery responses, B&M denied that Banks had been raped. After learning that evidence relevant to the alleged rape had been destroyed at the direction of the investigating police officer, Banks moved for spoliation sanctions against B&M, asserting that the officer had acted as its agent.

Both Banks and B&M’s counsel sought attorney fees incurred in litigating the spoliation issue. The trial court found that B&M was responsible for the spoliation and therefore ordered that the jury would be instructed at trial that Banks had been raped. The court denied as premature, however, the requests for attorney fees. B&M appeals, arguing that the spoliation sanctions were not justified and that the court should have granted its fee request. We granted interlocutory review and now affirm the trial court’s grant of spoliation sanctions but remand for prompt consideration of B&M’s attorney fees request.

Although the court did not conduct an evidentiary hearing on the spoliation claim, undisputed facts relevant to the issue were before the court based on deposition testimony and other evidence developed during pre-trial discovery. The record shows the following: After Banks reported to the East Point Police Department (Department) that she had been raped at knife point in her apartment on February 3, 2001 by an unknown intruder, a Department officer took her to the Rape Crisis Center at Grady Hospital, where she was examined and rape kit evidence was collected.

On February 5, Banks informed B&M of the attack and “further stated that she could no longer remain in [her] apartment because of what had happened there.” B&M agreed to refund her rent and security deposit on the condition that she sign a document releasing B&M from liability for any claims related to the rape. Banks signed the document on February 6, 2001, three days after the alleged rape, but repudiated it shortly thereafter through her attorney. At the time of the alleged rape, B&M employed off-duty Department officers as security guards at the apartment complex.

One such officer was Detective Robert Gray, who was assigned by the Department to investigate Banks’s rape complaint. Gray closed the investigation on February 18,2001, citing lack of interest on Banks’s part. He put a note in the file stating that the case could be reopened if Banks later contacted the Department. On March 9, 2001, Banks sued B&M, alleging that its negligent failure to repair the broken windowpane permitted access to her apartment and was a proximate cause of the rape.

Before filing suit, Banks’s attorneys notified the Department by letters on February 22, 2001 and March 5, 2001 that Banks intended to file a civil suit as a result of the rape and asked that all evidence related to the rape be preserved. After the suit was filed, both Banks and B&M tried to subpoena the rape kit from Grady Hospital, but neither side was successful because the kit was in the possession of the Rape Crisis Center (Crisis Center), a separate entity from the affiliated hospital.

On July 25,2002, Crisis Center employee Paulette Barnes wrote to the Department stating that the Crisis Center had Banks’s rape kit and that the Department could pick it up if Banks was “planning on filing charges for the incident.” Barnes testified by affidavit that, shortly after she sent the letter, she began receiving telephone calls from a B&M attorney asking for the rape kit. Barnes responded that she would release the kit only to the police, and she then called the Department to ask if they planned to pick it up. On August 22, 2002, Gray picked up the kit from the Crisis Center.

At his deposition on September 9, 2002, Gray testified that the rape kit was then in the Department’s possession. On October 15, 2002, B&M filed a motion asking the trial court to order that the rape kit and other crime scene evidence in the Department’s possession be tested by the Georgia Bureau of Investigation (GBI). Banks opposed the motion, arguing that the Department had closed its investigation of the rape case; that it had a conflict of interest because Gray had worked as an off-duty security guard for B&M; and that, in any event, the rape kit had already been analyzed by Grady Hospital.

Accordingly, Banks asked the court to deny B&M’s motion and to order that the rape kit and other crime scene evidence held by the Department be given to her. Before the trial court ruled on these motions, deposition testimony revealed that the Department had destroyed Banks’s rape kit. At his January 2003 deposition, Department Lieutenant Edward Bradley testified that, on or about November 13, 2002, he had taken the rape kit from the Department evidence refrigerator and destroyed it at Gray’s direction.

According to Bradley, as part of his yearly practice of cleaning out and disposing of unneeded evidence in closed cases, he had asked the Department detectives to give him the status of cases for which evidence was being held in the refrigerator. Gray informed him that the Banks case was closed and her rape kit could be destroyed.

Bradley also testified that Department records showed that on February 3, 2001, evidence collected at the Banks crime scene had been logged in at the Department, including bedding from the apartment and a white washcloth, which Banks said was used to wipe her genital area after the rape. After examining the logged-in evidence, Bradley confirmed that the white washcloth was missing. According to Bradley, after evidence is logged in, only he and the Department Chief can access the evidence storage area.

Bradley testified that he did not know where the washcloth was, that he had not destroyed it, and that Department records did not reflect that anyone had removed it from the storage area or destroyed it. Gray was deposed again in January 2003. He testified that he logged the rape kit into evidence at the Department the same day he got it from the Crisis Center in August 2002. He further testified that immediately after his first deposition in September 2002, a B&M attorney asked him to check with the GBI to determine if it would process the rape kit.

Gray agreed, even though there was no law enforcement reason for the kit to be processed. Thus, Gray testified, at his request another detective removed the kit from the Department’s evidence refrigerator in November 2002 and took it to the GBI, but the GBI refused to process evidence from a closed case. According to Gray, the kit was then returned to the Department, and he called B&M’s lawyers to report that the GBI would not process it. Contrary to Gray’s testimony, Department log-in records do not show that the rape kit was logged in in August 2002.

The first time the Department records show the kit being logged in is November 13, 2002. Gray testified that he did not know why the records do not reflect an earlier log-in date. Gray confirmed that the rape kit had been destroyed at his direction in November 2002 after he had received a memo from Bradley about the status of cases with stored evidence. Gray testified that he thought Banks had lost interest in the case and that there was no reason to preserve the rape kit.

He admitted that he had not checked whether a request had been made to preserve evidence related to the Banks case before he directed Bradley to destroy the rape kit. As to the missing washcloth, Gray testified that he had heard it was missing from evidence, but that he had never seen it and had not removed it from evidence. Finally, Gray stated that, although he might have spoken directly to someone from B&M about his criminal investigation of Banks’s rape complaint, he did not talk to anyone at B&M about her civil suit.

He also denied that anyone told him to destroy the rape kit or that he acted as an agent for B&M or its attorneys when he ordered its destruction.

Shortly after Gray’s second deposition, Banks filed a motion requesting that B&M’s answer in the case be stricken and judgment on the issue of liability be entered in her favor due to the “deliberate, intentional, and willful spoliation of evidence by Detective Gray, while acting as the agent of the Defendant.” At oral argument on the motion, Banks contended that the evidence developed during discovery in the case showed that B&M and its attorneys acted in concert with Gray to manipulate and destroy evidence.

Banks argued that the evidence showed that Gray, who moonlighted as a security guard for B&M and therefore had a conflict of interest, prematurely shut down the criminal investigation, used his police identity to obtain the rape kit from the Crisis Center, personally held it for three months, then signed it into evidence at the Department and ordered its destruction.

According to Banks, the only logical conclusion that could be drawn from this evidence, and from other evidence of contact between Gray and B&M’s attorneys, was that they had acted together to secretly analyze the rape kit for B&M and that they “knew it supported the plaintiff s claims, and it wasn’t going to be beneficial for them [for it] to see the light of day.” Based on the oral argument and the discovery record, the trial court entered an order finding that Gray had operated under a conflict of interest by investigating the rape case while he worked for B&M; that his unwholesome motives were clear from his closure of the criminal case after investigating for merely 15 days and making “[l]ittle or no effort... to contact the victim”; that he had picked up the rape kit from the Crisis Center and personally held it for three months; that he had acted wilfully and in bad faith by ordering the destruction of the kit with full knowledge of the pending civil case and of Banks’s desire to obtain the kit; that the destruction of the washcloth also “circumstantially lay[ ] at the foot of Detective Gray” because he had access to it; and that the destruction of the rape kit undermined Banks’s ability to prove that she had been raped.

Thus, the court concluded that the record showed “a deliberate intent by an agent of [B&M] to destroy or compromise the integrity of evidence.” The court found, however, that “there is no evidence before the Court that [B&M’s] counsel participated in the spoliation of evidence.” With regard to a remedy for the spoliation, the court noted that although the evidence of spoliation authorized “dismissal of [B&M’s] answer,” it would not take that step. Instead, the court ordered that the jury would be instructed at trial that Banks had been raped and that B&M would be precluded from arguing otherwise.

The court did not address the requests for attorney fees, finding that they were premature. 1. B&M argues that the trial court abused its discretion by impermissibly finding that Gray served as its agent when he destroyed evidence in bad faith. According to B&M, such factual determinations are for the jury. We disagree.

Trial courts have the power to control the behavior of litigants before them to maintain the integrity of the judicial process, and this power includes the discretion to fashion appropriate remedies for the spoliation of evidence. “Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” Sanctions may be imposed against a litigant based on a third party’s spoliation of evidence if the third party acted as the litigant’s agent in destroying or failing to preserve the evidence.

We will not disturb a trial court’s imposition of sanctions for evidence spoliation unless the court abused its discretion. Moreover, we will uphold a trial court’s finding of wilful discovery abuse if there is any evidence to support it. In determining whether to impose sanctions for evidence spoliation, trial courts routinely and necessarily make factual findings about whether spoliation occurred, whether the spoliator acted in bad faith, the importance of the compromised evidence, and so on.

Spoliation issues often arise before trial, and sanctions for spoliation may include the removal of certain evidence and issues from the jury’s consideration. The trial court — not the jury — determines what evidence the jury may hear and which issues it must resolve. Therefore, the court did not exceed its authority in this case by making factual findings necessary to determine whether to impose sanctions for spoliation. Moreover, the trial court did not abuse its discretion in concluding that the spoliation was attributable to B&M because Gray acted as B&M’s agent.

An agency relationship exists where one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf. An agency relationship may be proven by circumstantial evidence of the conduct of the parties. In this case, the record contains circumstantial evidence that Gray acted as B&M’s agent in destroying or compromising the rape kit. Gray worked for both B&M and the Department. As early as three days after the alleged rape, B&M was concerned enough about potential legal liability to ask Banks to sign a release.

Although Gray was assigned to investigate Banks’s rape complaint, he closed the investigation after only 15 days. Approximately 17 months later, the Crisis Center notified the Department that it had the rape kit. Shortly thereafter, Barnes (the Crisis Center employee) received telephone calls from a B&M lawyer requesting the rape kit. A reasonable inference from the timing of these events is that Gray informed B&M or its lawyers that the Crisis Center had the rape kit. Gray picked up the rape kit in person from the Crisis Center in August 2002, even though the criminal case had long been closed.

Because Gray had no police purpose for retrieving the rape kit, it was reasonable for the trial court to conclude that he did so on behalf of B&M for use in the pending civil suit. Although Gray testified that he logged the rape kit into storage at the Department the day he obtained it from the Crisis Center, Department records do not show that the kit was logged in until November 13, 2002. In light of this discrepancy, the trial court was justified in concluding that Gray kept the rape kit in his personal custody for nearly three months.

Because personal retention of evidence violated Department policy, and because the rape kit was not needed in a criminal case, it is reasonable to infer that Gray kept the rape kit on behalf of B&M. Gray admitted that a B&M lawyer asked him to check whether the GBI crime lab would process the rape kit. Gray agreed to do so, even though he conceded that there was no law enforcement reason for the kit to be processed. Thus, the only logical purpose that Gray could have had for contacting the GBI was to assist B&M. After the GBI refused to process the kit, Gray notified B&M’s lawyers of that fact.

He then logged the kit into evidence at the Department and, shortly thereafter, ordered that it be destroyed — even though Banks’s lawyer had asked the Department to preserve all evidence relevant to the rape. Applying our necessarily deferential standard of review, we find that the trial court’s determination that Gray acted as B&M’s agent is supported by circumstantial evidence in the record that excludes other reasonable explanations for his behavior. We therefore affirm the court’s conclusion that sanctions were warranted against B&M for its agent’s spoliation of evidence. 2.

B&M also argues that the court lacked discretion to “enter a finding of rape” as a sanction for the spoliation. First, B&M argues that sanctions were not justified because Banks failed to show that the destruction of the evidence prejudiced her case. But B&M has taken the position, in its answer and discovery responses, that Banks was not raped, thereby forcing her to prove that fact at trial. The rape kit — its mere existence, as well as any tangible evidence it might have yielded — was a critical piece of evidence that could have helped Banks prove that she had been raped.

As the trial court found, the destruction of the kit hampered her ability to prove her case. Second, B&M argues that, in imposing a sanction, the court was limited to one of the three sanctions expressly enumerated in our case law: “(1) charging] the jury that spoliation of evidence creates the rebuttable presumption that the evidence would have been harmful to the spoliator; (2) dismissing] the case; or (3) excluding] testimony about the evidence.” But the trial court has wide latitude to fashion sanctions on a case-by-case basis, considering what is appropriate and fair under the circumstances.

We did not intend for the list cited by B&M to be exhaustive. Third, B&M contends that the sanction in this case — instructing the jury that Banks had been raped and prohibiting B&M from arguing otherwise — was too drastic. We disagree. After finding that evidence had been spoiled wilfully, in bad faith, and to Banks’s detriment, the court essentially removed from the jury’s consideration the issue to which the evidence related. Far from being the critical issue in the case, as B&M asserts, the question of whether Banks was raped is merely one element of her tort claim.

And despite denying in its answer and discovery responses that she was raped, B&M’s lawyer told the trial court: As far as whether there was or was not a rape, that issue was raised by plaintiffs counsel..., not us. We didn’t raise it as a defense. I’m certainly not going to stand in your courtroom and cross-examine Joceyline Banks as to whether or not she was raped. ... I don’t have any facts to support it. It can hardly have been unfair for the trial court to prevent B&M from making an argument that its lawyer claimed it did not intend to make. 3.

B&M also claims that the trial court erred by failing to grant its OCGA § 9-15-14 (

b) motion for the award of attorney fees, even though the court had expressly found that there was no evidence that B&M’s attorneys had participated in the spoliation of evidence. The trial court did not consider the merits of the motion, but denied it as premature. Although a prior version of OCGA § 9-15-14 provided that motions for attorney fees under the Code

section were premature if brought prior to “final disposition of the action,” the Code

section was amended in 1994 and now provides that attorney fees and expenses under the Code

section “may be requested by motion at any time during the course of the action but not later than 45 days after the final disposition of the action.” Accordingly, the trial court erred by denying the motion as premature, and on remand the trial court is directed to address the merits of the motion. Judgment affirmed in part and reversed in part, and case remanded with directions. Ruffin, C. J., Johnson, P. J., Blackburn, P. J., and Barnes and Mikell, JJ., concur. Andrews, P. J., concurs in part and dissents in part.

Gray testified that after speaking with Banks and obtaining a description of the rapist, he identified two suspects and developed a photographic lineup for each. Gray further testified that he was unable to contact Banks to view the lineups, despite visiting her apartment and leaving messages with her fiancé and his brother. Banks, however, testified that after her initial contact with Gray, he never called hack and she never received any messages from him.

Although the dissent states that “the Department sent Detective Gray to pick up the rape kit,” Gray’s deposition testimony suggests that he — not anyone else at the Department - made the decision to retrieve the kit. See Bridgestone/Firestone North American Tire v. Campbell, 258 Ga. App. 767, 768 (574 SE2d 923) (2002); R. A. Siegel Co. v. Bowen, 246 Ga. App. 177, 179 (2) (539 SE2d 873) (2000). Bridgestone/Firestone North American Tire, supra (footnote omitted). See R. A. Siegel Co., supra. See id. at 182. Addington v. Anneewakee, Inc., 204 Ga. App. 521 (420 SE2d 60) (1992). See, e.g., R. A.

Siegel Co., supra (affirming trial court’s factual findings in spoliation case). Id. at 179. OCGA§ 10-6-1. Southern Exposition Mgmt. Co. v. Genmar Indus., 250 Ga. App. 702,704-705 (551 SE2d 830) (2001); Nissan Motor Acceptance Corp. v. Stovall Nissan, Inc., 224 Ga. App. 295, 298 (1) (480 SE2d 322) (1997). See R. A. Siegel, supra at 180 (whether nonspoliating party was prejudiced and whether prejudice can be cured are among factors that trial court should consider in fashioning remedy for spoliation).

B&M contends that Banks could not have been prejudiced because she opposed its motion to have the GBI analyze the kit. Banks’s opposition was based not on a desire to avoid analysis, however, but on her objection to Gray playing any role in obtaining the analysis and on the fact that Grady Hospital had already analyzed the kit. Therefore, her opposition to GBI analysis of the kit does not show a lack of prejudice. R. A. Siegel, supra (citation and footnote omitted). See id. at 182.

The trial court’s order mistakenly referred to a motion pursuant to OCGA§ 9-11-15, but B&M and Banks agree that the motion was brought under OCGA § 9-15-14. Meister v. Brock, 268 Ga. App. 849 (1) (602 SE2d 867) (2004) (punctuation omitted).