COURT OF APPEALS DECISION DATED AND FILED July 16, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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Sherry Olson,
Plaintiff-Appellant, v. Jeffrey Bauer,
Defendant-Respondent. |
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APPEAL
from a judgment of the circuit court for
Before Vergeront, Lundsten and Storck,[1] JJ.
¶1 PER CURIAM. Sherry Olson appeals a judgment dismissing her complaint against Jeffrey Bauer. The trial court dismissed the action as a sanction for Olson’s spoliation of evidence. We conclude that the trial court properly exercised its discretion in the matter, and therefore affirm.
¶2 Olson purchased a home from Bauer. Her complaint, filed in July 2007, claimed breach of contract and misrepresentation based on Bauer’s alleged failure to disclose defects in the home that caused flooding in the basement.
¶3 In September 2007 Olson’s attorney notified Bauer’s attorney that Olson “is having some repair work done to the property,” and offered Bauer the opportunity to inspect the property. Bauer’s attorney responded that Bauer would like to inspect the property and asked for some dates. Bauer’s counsel noted that the September letter did not specify the repairs and stated “but we assume there will be no spoliation of evidence that would somehow affect our ability to defend this case.” Bauer’s inspection was subsequently scheduled for December 14, 2007. Just before the scheduled inspection Olson’s attorney reported that Olson had completed a substantial list of plumbing and basement repairs, including replacing the inside drain tile system.
¶4 Bauer called off the inspection and brought a motion to exclude all damages evidence pertaining to the repaired areas of Olson’s home. The trial court and the parties agreed that the motion was effectively a motion to dismiss because without the evidence Bauer sought to exclude, Olson could not prove her case. After hearing the matter the trial court found that the repairs done while the litigation was pending amounted to an egregious, extreme, and substantial destruction of evidence without a clear and justifiable excuse. The court concluded that the appropriate remedy was dismissal. The court stated that: “If ever there was a case where the truth seeking function has been completely thwarted, this is it. And a message has to be sent to parties. You don’t destroy evidence, which is – it’s not part of the case, it is the case.”
¶5 A trial court exercises its discretion when sanctioning a
party for the destruction or spoliation of evidence. City of Stoughton v. Thomasson Lumber Co.,
2004 WI App 6, ¶38, 269 Wis. 2d 339, 675 N.W.2d 487 (Ct. App. 2003) (citations
omitted). We affirm discretionary
rulings if the trial court has examined the relevant facts, applied a proper
standard of law, and, utilizing a demonstrably rational process, reached a
conclusion that a reasonable judge could reach.
¶6 Olson first contends that the trial court applied the wrong
legal standard because dismissal requires a finding of egregious conduct and,
under
¶7 Olson next contends that the court dismissed the case without sufficient evidence that Olson destroyed relevant evidence or that the destruction materially affected Bauer’s ability to defend himself. We disagree. Olson’s complaint alleged that Bauer concealed or failed to disclose plumbing problems in the purchased house, and the extent of the resulting basement leakage and other damage. It was undisputed that after litigation commenced Olson demolished a substantial part of the basement and then replaced the inside drain tile and also replaced the pipes leading to the kitchen and a bathroom. She replaced several faucets and drains as well. In other words, the evidence destroyed before Bauer could examine it went to the very essence of the allegations against him. Under those circumstances, the trial court reasonably concluded that Bauer’s ability to defend the lawsuit was substantially compromised.
¶8 Olson also contends that the court did not have sufficient evidence as to Olson’s state of mind when she authorized the repairs. As noted, proof of intent is not necessary to meet the objective “should have known” standard recognized in Cease Electric.
¶9 Olson next contends that the spoliation was attributable to
the conduct of her attorneys and that the trial court erred by imputing that
conduct to her. The issue is waived
because Olson never raised the issue of attribution and she presented no
evidence that her attorneys were responsible for the spoliation.
¶10 Finally, Olson contends that the court erred by making its
findings without holding an evidentiary hearing. Olson did not request an evidentiary hearing
and did not object when the trial court chose to rely on affidavits for its
findings. She has therefore waived the
issue. See Kavanaugh Rest. Supply v. M.C.M. Stainless Fabricating, 2006 WI
App 236, ¶14, 297
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2007-08).
[1] Circuit Judge John R. Storck is sitting by special assignment pursuant to the Judicial Exchange Program.