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Summary Judgment Striking Defenses Too Severe a Sanction For Alleged

Ex parte The Water Works and Sewer Board of the City of Anniston, [Ms. 1190436, Dec. 11, 2020], ___ So. 3d ___ (Ala. 2020). The Court (Bryan, J.; Bolin, Wise, Sellers, Stewart, and Mitchell, JJ., concur; Shaw, J., concurs in the result; Parker, C.J., and Mendheim, J., dissent) issues a writ of mandamus vacating the Calhoun Circuit Court’s order entering partial summary judgment for Plaintiffs as a sanction for spoliation of evidence by The Water Works and Sewer Board of the City of Anniston (“the Board”). Plaintiffs sued the Board alleging that their vacant home was damaged by black mold as a result of the Board failing to properly cut off the water supply to the home. Ms.*2. The Board contended that a cap and lock device placed by a Board employee on the cut-off valve had been tampered with by a third party. Ms. *5. When the Plaintiffs requested the device be produced in discovery, the Board responded that the device had either been used at another residence or scrapped. Ibid.

Mandamus review was available because “[t]he trial court’s order is, in essence, a discovery sanction ‘effectively precluding a decision on the merits ... so that ... the outcome has been all but determined, and the [Board] would be merely going through the motions of a trial to obtain an appeal.’ [Ex parte] Ocwen [Federal Bank, FSB], 872 So. 2d 810, 813-14 [(Ala. 2003)]. Thus, we conclude that the Board has demonstrated that, under the particular circumstances of this case, an appeal is not an adequate remedy.” Ms. *15.

Given the preference for deciding cases on the merits, the Court holds although the cap and lock device was important evidence, the Plaintiffs had available to them testimony from the Board employee who placed and later removed the cap and lock device from the cut-off valve as well as photographs of the cap and lock device before it was removed. Ms. **19-20. The Court notes the evidence regarding the Board’s culpability and emphasizes that “viewing the evidence in the light most favorable to the Board, any culpability imputed to the Board based on Crow’s failure to maintain the equipment removed from the Plaintiffs’ house was in a relatively low range on the ‘continuum of fault.’” Ms. **22-23, citing Vesta Fire Ins. Corp. v. Milam & Co. Constr., 901 So. 2d 84, 98 (Ala. 2004). Consequently, a jury instruction on spoliation would be adequate to protect the Plaintiffs’ interests. Ms. *27.

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