October 31, 2007

No TRCP 34A spoliation for plaintiff who demolished home after suing homebuilder, who had opportunity to obtain factual evidence during construction

CHARLES GROSS ET AL. v. MICHAEL K. McKENNA ET AL. (Tenn.Ct.App. October 30, 2007).

This case arose out of a construction contract between Charles Gross and Kathy Gross ("Homeowners") and Woodbridge Construction Services, LLC, a company run by Michael K. McKenna ("Builder"). The parties' relationship went sour in the midst of construction, and Homeowners sued Builder and Woodbridge seeking damages for breach of contract, fraud, misrepresentation, and violations of the Tennessee Consumer Protection Act ("the TCPA").

After a bench trial, the court awarded Homeowners damages of $79,622.31 against both defendants. Builder appeals on various grounds. Regrettably, he has failed to provide us with either a transcript of the proceedings or a statement of the evidence, and, as a result, we are unable to reach most of the issues raised by him, as we must accept the trial court's factual determinations as conclusive in the absence of a record. The only issue requiring extended discussion is Builder's claim that the trial court should have dismissed the case or imposed some other sanction against Homeowners for demolishing the home and thus destroying evidence during discovery without first notifying the court and Builder. Although this was a violation of the Tennessee Rules of Civil Procedure, the trial court has broad discretion to determine what, if any, sanctions to impose for such violations, and we do not find an abuse of discretion in its decision to impose no sanction. The remainder of Builder's issues are also found to be without merit. We therefore affirm.

Opinion may be found at: