Golden Pantry Food Stores, Inc. v. Bradley

899 S.E.2d 724

GOLDEN PANTRY FOOD STORES, INC.

v.BRADLEY.

Golden Pantry Food Stores, Inc.

v.Stark.

A23A1597

A23A1598

Court of Appeals of Georgia.

March 13, 2024

Reconsideration Denied March 28, 2024

Jackson Anthony Dial, Austin Aaron Atkinson, Atlanta, for Appellant in A23A1597.

ShaMiracle Johnson Rankin Rankin, Christopher John Graddock, Keenan R.S. Nix, Darren Summerville, Atlanta, Meredith Charlotte Kincaid, Meghan Renee Hatfield Yanacek, for Appellee in A23A1597.

Jackson Anthony Dial, Austin Aaron Atkinson, Atlanta, for Appellant in A23A1598.

Stacey Allen Carroll, Atlanta, for Appellee in A23A1598.

Mercier, Chief Judge.

In these premises liability actions, Golden Pantry Food Stores, Inc. appeals the trial court’s grant of separate motions for spoliation sanctions filed by Caroline Bradley and Libby Stark (collectively "Plaintiffs"). Because the trial court employed an incorrect standard of review when deciding Plaintiffs’ motions, we must vacate the order granting spoliation sanctions in each case and remand both cases for application of the proper standard.

In a nutshell, the record shows that each of the Plaintiffs brought a premises liability action against Golden Pantry because they were violently attacked and injured by Eric Keith Mitchell while shopping in one of Golden Pantry’s convenience stores. Shortly after being injured by Mitchell, Plaintiffs, prior to filing their lawsuits, sent letters to Golden Pantry requesting that it preserve video surveillance footage of the attack. In addition, Bradley requested preservation of surveillance footage going back to 30 days prior to the attack, and Stark requested preservation of the preceding five years of footage. After consulting its insurance carrier and attorney, Golden Pantry, in accordance with its internal policies, chose to only preserve nine minutes of surveillance footage that included the attack itself and several minutes surrounding it.

[1] Subsequently, Plaintiffs filed separate pre-trial motions for spoliation sanctions, contending that there was evidence that Mitchell had been in the store and acting erratically approximately 30 minutes prior to the attack. Plaintiffs further contended that surveillance footage taken prior to the attacks could have verified this fact, thereby supporting an argument that Plaintiffs’ at- tacks were foreseeable to Golden Pantry and preventable. And, finally, Plaintiffs argued that Golden Pantry committed spoliation by failing to preserve surveillance footage that might show any prior visit to the store by Mitchell, and, as a consequence of this spoliation, a default judgment should be entered against Golden Pantry.¹

During a non-evidentiary hearing on these motions, the trial court considered witness affidavits and deposition testimony from both parties. Thereafter, the trial court granted Plaintiffs’ motions and sanctioned Golden Pantry by striking its answers and entering default judgments against it. Following our subsequent grant of Golden Pantry’s applications for an interlocutory review in both cases, these appeals, consolidated for review, ensued.

[2] Among other things, Golden Pantry contends that the trial court employed the wrong standard of review when considering the Plaintiffs’ motions. We agree.² The proper standard of review for cases in the posture of the current matter is settled. Here, Plaintiffs filed

pretrial motion[s] to … impose … sanctions for spoliation, but did not request an evidentiary hearing on the motion. In resolving the motion, the trial court, without objection, considered matters outside the pleadings, including witness affidavits and depositions, but did not hold an evidentiary hearing at which the court could decide the credibility of those witnesses. Thus, under the circumstances presented here, the motion is properly reviewed under the standard applicable to a motion for summary judgment, and as the party opposing the motion, [Golden Pantry] is entitled to have the evidence in the record viewed in the light most favorable to [it] and to have all reasonable inferences from the evidence drawn in [its] favor.

Cooper Tire & Rubber Co. v. Koch, 303 Ga. 336, 344 (3), 812 S.E.2d 256 (2018).³

[3, 4] On the face of its orders, which are largely identical in both cases, the trial court does not state the standard of review it employed to determine both that Golden Pantry spoliated evidence and that it should be subject to the most severe sanction possible - the entry of default judgment against it. In the absence of an expressly stated standard of review, we do not automatically presume that an incorrect standard of review has been applied. To the contrary, in the absence of evidence otherwise, we generally assume that a trial court knows and follows the correct law. See Wilson v. State, 302 Ga. 106, 108 (II) (a), 805 S.E.2d 98 (2017) ("[I]n the absence of affirmative evidence to the contrary," an appellate court will presume "that the trial court understood the nature of its discretion and exercised it.") (citations and punctuation omitted). In this case, however, the trial court’s orders on spoliation contain statements and conclusions indicating that the trial court considered evidence in the light most favorable to the Plaintiffs, not Golden Pantry', and in the light most favorable to a finding of spoliation by Golden Pantry. This was improper, as further discussed below.

Pivotal to Plaintiffs’ spoliation claims is the factual question of whether the Mitchell had previously visited the Golden Pantry store where the attack occurred and whether he acted strangely during such a visit, thereby raising a corollary legal question of whether the attack was reasonably foreseeable by Golden Pantry. In turn, the answer to this question also informs the issue of whether surveillance footage of events occurring in the store well prior to the attack have any relevance to Plaintiffs’ premises liability lawsuits and whether Golden Pantry "fail[ed] to preserve evidence that is relevant" by preserving only nine minutes of footage featuring the Plaintiffs being attacked by Mitchell. Phillips v. Harmon, 297 Ga. 386, 393, 774 S.E.2d 596 (2015) (defining "spoliation"). With regard to this pivotal concern, Golden Pantry offered the affidavit and deposition testimony of four witnesses, including Odonia Furcron, the clerk on duty at the time of the attack, and Mitchell, the assailant. Mitchell stated in his affidavit: "On May 24, 2020, around 9:00 p.m„ I walked from my house to the Golden Pantry convenience store located at 126 N. Milledge Avenue, Athens, Georgia 30601…. This was the first and only time I went to this Golden Pantry on May 24, 2020."⁴ Similarly, Furcron, the store clerk, deposed that Mitchell entered the store just "a few minutes" before the attack and that, prior to this time, she had not seen Mitchell in the store. On the other hand, the Plaintiffs offered the deposition testimony of Grace Tippins, a frequent patron of the store. Tippins deposed that she believed that she visited the store around 8:30 p.m. on the night of the attack, Mitchell was already in the store at that time and behaving erratically, and Furcron appeared to be terrified of him. So, the witness testimony presented by the Plaintiffs is directly contrary to the witness testimony provided by Golden Pantry with regard to Mitchell’s presence in the store prior to the attacks. This creates a question of fact that can only be answered by a credibility determination, which the trial court could not make in the absence of an evidentiary hearing. Id.

Nonetheless, the trial court’s orders on spoliation state:

Even though Golden Pantry points to witnesses who testified that they did not see Mr. Mitchell on the property prior to the incident, those witness[es] do not establish conclusively that he was not on the property. Similarly, Mr. Mitchell’s Affidavit does not establish conclusively that he had not been on the property especially in light of the conflicting testimony of Grace Tippins. (Emphasis supplied.)

The orders then go on to find that

the testimony of Grace Tippins establishes questions of fact exist as to Mr. Mitchell's presence on the property and Golden Pantry’s knowledge of his erratic behavior. This testimony confirms the importance of the lost video recordings and the prejudice that results to Plaintiff.

In addition, the orders make the following inference:

The [c]ourt finds the prejudice cannot be cured because the Plaintiff must establish the foreseeability that Mr. Mitchell was a threat. While Ms. Tippins could provide testimony to this issue, the videos may have provided important additional evidence to support Plaintiffs claim.

(Emphasis supplied.)

This analysis violates the appropriate standard of review in several ways. First, it expressly considers the evidence in the light most favorable to Plaintiffs, not Golden Pantry, by emphasizing Tippins’s testimony. Second, rather than drawing all reasonable inferences in favor of Golden Pantry and a finding that spoliation did not occur, the trial court’s order draws inferences in favor of Plaintiffs and against Golden Pantry that (a) Mitchell might have been in the store and acting erratically at some point earlier than the time of the attack and (b) based on Tippens’s testimony, the surveillance footage that was not preserved could possibly contain footage of these prior visits. And, third, the trial court’s analysis entails an underlying credibility determination that Tippins’s testimony should be given more weight than the directly contrary testimony of the store clerk, the assailant, and Golden Pantry’s additional witnesses. In short, the trial court expressly viewed the evidence, and inferences from that evidence, in the light most favorable to Plaintiffs and their allegations of spoliation, while also crediting Tippins's testimony over that of Golden Pantry’s witnesses.

This was simply not the appropriate standard of review. Koch, 303 Ga. at 344 (3), 812...