Frank Cushenberry and Robin Cushenberry, individually and on behalf of the minor children, Noah Cushenberry and Khloe Cushenberry v. Johnny Scott and Barber Brothers Contracting Company, LLC ( 2020 )

STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
FRANK CUSHENBERRY AND ROBIN NO. 2020 CW 1271
CUSHENBERRY, INDIVIDUALLY AND ON
BEHALF OF THE MINOR CHILDREN, NOAH
CUSHENBERRY AND KHLOE CUSHENBERRY
VERSUS
JOHNNY SCOTT AND BARBER BROTHERS
CONTRACTING COMPANY, LLC LOUISIANA
CONSOLIDATED WITH
BARBER BROTHERS CONTRACTING
COMPANY, LLC
VERSUS
CAPITOL CITY PRODUCE COMPANY, LLC,
FRANK CUSHENBERRY AND XYZ
INSURANCE COMPANY DECEMBER 30, 2020
In Re: Barber Brothers Contracting Company, LLC, applying for
supervisory writs, 19th Judicial District Court, Parish
of East Baton Rouge, No. 674957 c/w 672217.
BEFORE: GUIDRY, MCCLENDON, AND LANIER, JJ.
WRIT GRANTED IN PART; WRIT DENIED IN PART ON THE SHOWING
MADE. The trial court's December 8, 2020 judgment, granting the
Motion and Order for Adverse Inference on Spoliation of Evidence
filed by Frank Cushenberry and Robin Cushenberry, Individually
and on Behalf of the Minor Children, Noah Cushenberry and Khloe
Cushenberry (collectively "the Cushenberrys"), is reversed. The
Cushenberrys did not meet their burden of proving Barber
Brothers Contracting Company, LLC or Johnny Scott intentionally
destroyed evidence to deprive the Cushenberrys of its use or
denied the Cushenberrys' access to the evidence. See e.g.
Stephenson v. Bryce W. Hotard Sunbelt Rentals, Inc., 2019-0478
(La. 5/20/19), 271 So.3d 190, 192; Randolph v. General Motors
Corp., 93-1983 (La. App. 1st Cir. 11/10/94), 646 So.2d 1019,
1027, writ denied, 95-0194 (La. 3/17/95), 651 So.2d 276.
Accordingly, the trial court abused its discretion in granting
the Motion and Order for Adverse Inference on Spoliation of
Evidence, which is denied. In all other respects, the writ is
denied on the showing made, and the trial court's judgment,
denying the Motion for Partial Summary Judgment filed by Barber
Brothers Contracting Company, LLC, is maintained, as this court
was not provided with a copy of the exhibits attached to the
Cushenberrys' Supplemental Opposition to Motion for Partial
Summary Judgment.
JMG
WIL
Mcclendon, J.,concurs. I agree with the majority and am
constrained to grant the writ as to the Motion for Adverse
Inference on Spoliation of Evidence based on the limited
evidence introduced at the hearing on the motion.
APPEAL, FIRST CIRCUIT
OURT, FOR THE COURT