Frank Cushenberry and Robin Cushenberry, individually and on behalf of the minor children, Noah Cushenberry and Khloe Cushenberry VS Johnny Scott and Barber Brothers Contracting Company, LLC
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STATE OF LOUISIANA COURT OF APPEAL, FIRST CIRCUIT FRANK CUSHENBERRY AND ROBIN CUSHENBERRY, INDIVIDUALLY AND ON BEHALF OF THE MINOR CHILDREN, NOAH CUSHENBERRY AND KHLOE CUSHENBERRY NO. 2020 CW 1271 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 In Re: BEFORE: DECEMBER 30, 2020 Barber Brothers Contracting Company, LLC, applying for supervisory writs, 19th Judicial District Court, Parish of East Baton Rouge, No. 674957 c/w 672217. 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 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. Mcclendon, J., APPEAL, FIRST CIRCUIT OURT, FOR THE COURT
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