SHAMROCK-SHAMROCK, INC., A FLORIDA FOR PROFIT CORPORATION

v.

TRACEY REMARK

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

SHAMROCK-SHAMROCK, INC., A FLORIDA FOR PROFIT CORPORATION,

Appellant,

v. Case No. 5D18-1987

TRACEY REMARK,

Appellee.

________________________________/

Opinion filed April 26, 2019

Appeal from the Circuit Court for Volusia County, Michael S. Orfinger, Judge.

Dorothy

F.

Easley, of Easley Appellate Practice, PLLC, Miami, for Appellant.

Gary M. Glassman, Assistant City Attorney, Daytona Beach, for Appellee.

SASSO, J.

This case presents the issue of whether Florida law imposes a duty on nonparties to litigation to preserve evidence based solely on the foreseeability of litigation. We hold that it does not and therefore affirm the summary final judgment in favor of Appellee, Tracey Remark.

2

Factual Background and Procedural History Appellant, Shamrock-Shamrock, Inc. (“Shamrock”), owns property in Daytona Beach that it sought to rezone and develop into a hotel and marina. The City of Daytona Beach Zoning Department considered and denied Shamrock’s rezoning request. Shamrock appealed, but the Daytona Beach Planning Board upheld the decision. Remark was a member of the Planning Board at the time. Thereafter, Shamrock sued the City of Daytona Beach and its Planning Board (collectively “the City”), eventually alleging that the City intentionally and for its own gain thwarted Shamrock’s right to develop its property. Remark was never a party to Shamrock’s action against the City. However, Shamrock’s operative complaint contained two references to Remark in its general allegations. The first was an allegation that prior to joining the Planning Board, Remark had sent a letter to a Planning Board member opposing Shamrock’s rezoning request. The second reference was an allegation that after joining the Planning Board, Remark took part in hearings before the Board and voted on Shamrock’s appeal “despite having bias and a pre-determined opinion against SHAMROCK, the Hotel and the Marina.” During Shamrock’s litigation against the City, Shamrock sought to take Remark’s deposition. It served several notices of deposition and subpoenas on Remark, beginning in May 2011 and ending ten months later with a sixth amended notice of taking deposition. Only the sixth amended notice, served on March 28, 2012, included a duces tecum request for documents to be produced at the deposition.

4 served Remark with a subpoena duces tecum, she already had destroyed her old computer. As a result, the trial court held that Remark had no legal duty to preserve her old computer or its contents on the date she destroyed it. Standard of Review Our standard in reviewing the trial court’s summary judgment order is de novo. Baxter v. Northrup, 128 So. 3d 908, 909 (Fla. 5th DCA 2013). In evaluating the trial court’s order, we must determine if the record evidence presented to the trial court shows there is no genuine dispute regarding the material facts. Id. We view the facts in the light most favorable to the non-moving party below. Id. Analysis Unlike some jurisdictions, Florida courts have recognized an independent cause of action for spoliation of evidence against third parties that accrues when a person or entity, though not a party to the underlying action causing the plaintiff's injuries or damages, loses, misplaces, or destroys evidence critical to that action.1 See, e.g., Gayer v. Fine Line Constr. & Elec., Inc., 970 So. 2d 424 (Fla. 4th DCA 2007) (holding that special employer had duty under workers' compensation law to preserve evidence for injured laborer's claim against third-party tortfeasor based on section 440.39(7), Fla. Stat.). To establish a spoliation cause of action, the plaintiff must prove each of the following six elements: (1) existence of a potential civil action, (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action, (3) destruction of

1 In contrast, “[f]irst-party spoliation claims are claims in which the defendant who allegedly lost, misplaced, or destroyed the evidence was also a tortfeasor in causing the plaintiff's injuries or damages.” Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342, 346 n.2 (Fla. 2005). An independent cause of action does not exist for first-party spoliation of evidence. Id. at. 347.

5 that evidence, (4) significant impairment in the ability to prove the lawsuit, (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit, and (6) damages. Gayer, 970 So. 2d at 426 (citation omitted); Cont’l Ins. Co. v. Herman, 576 So. 2d 313, 315 (Fla. 3d DCA 1990) (citation omitted). This appeal involves only the second element, whether Remark had a duty to preserve evidence. As to duty, Florida courts have held a duty may arise in third-party spoliation cases based on the existence of a contract, statute, or properly served discovery request. See, e.g., Gayer, 970 So. 2d at 426 (“Because a duty to preserve evidence does not exist at common law, the duty must originate either in a contract, a statute, or a discovery request.” (citing Royal & Sunalliance v. Lauderdale Marine Ctr., 877 So. 2d 843, 845 (Fla. 4th DCA 2004))). However, neither the Florida Supreme Court nor Florida’s intermediate appellate courts have imposed a common law duty on a third party to preserve evidence based on foreseeability, or even actual knowledge, of litigation. Even so, Shamrock cites several cases to support its contention that third parties have an affirmative duty under Florida law to preserve evidence based on foreseeability of litigation. We address several of those cases in turn. Primarily, Shamrock relies on Detzner, 172 So. 3d 363, a case in which the trial court drew an adverse inference from the Florida Legislature’s deletion of documentation relating to its redistricting plan. Shamrock’s reliance on Detzner is misplaced for two reasons. First, Detzner was not a third-party spoliation case. Second, the language relied on by Shamrock is dicta. Specifically, the Florida Supreme Court stated in dicta that Florida courts have found a duty to preserve evidence when “a party should reasonably foresee litigation.” 172 So. 3d at 391 (citing Am. Hospitality Mgmt. Co. of Minn. v. Hettiger,

2 The plaintiff in Hettiger sued the defendant for both negligence and spoliation of evidence. The jury decided the case on the negligence claim only and the Fourth District noted its intervening decision that a first party may not maintain both negligence and spoliation claims against the same defendant. 904 So. 2d at 551 n.1.

8 litigation,³ we now consider whether we should. Our inquiry begins by determining whether, and under what circumstances, a duty to preserve evidence arises. In evaluating the existence of a common law duty, courts assess the interests of each party and society to determine whether a duty should be imposed. Rupp v. Bryant, 417 So. 2d 658, 667 (Fla. 1982). “‘[D]uty’ is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection [or not].” Gracey v. Eaker, 837 So. 2d 348, 354–55 (Fla. 2002) (quoting Rupp, 417 So. 2d at 667). Under this framework, jurisdictions that permit an independent tort for third-party spoliation generally decline to recognize a broad, common law duty to preserve evidence. Holmes v. Amerex Rent–A–Car, 710 A. 2d 846 (D.C. 1998) (“There is no general duty in the common law to preserve evidence in a third-party spoliation situation.”); Koplin v. Rosel Well Perforators, Inc., 734 P. 2d 1177, 1179 (Kan. 1987) (noting general rule that there is no duty to preserve possible evidence for another party to aid that other party in some future legal action against third party); Coleman v. Eddy Potash, Inc., 905 P. 2d 185, 191 (N.M. 1995) (“We hold that in the absence of [certain enumerated circumstances] a property owner has no duty to preserve or safeguard his or her property for the benefit of other individuals in a potential lawsuit.”), overruled on other grounds by Delgado v. Phelps

3 Sponco Manufacturing, Inc. v. Alcover, 656 So. 2d 629 (Fla. 3d DCA 1995), and Palmas Y Bambu, S.A. v. E.I. DuPont de Nemours & Co., 881 So. 2d 565 (Fla. 3d DCA 2004), also do not establish a third-party duty to preserve evidence based on the foreseeability of litigation. In Sponco, the issue on appeal was the propriety of the sanction and not whether the manufacturer had a duty to preserve the ladder. 656 So. 2d at 630. In Palmas, the court “assume[d] for the sake of discussion the trial court correctly determined a duty was owed” and therefore did not decide whether the third party in that case had a duty to preserve evidence. 881 So. 2d at 580 n.11.

10 litigation over speculative loss and by cost to society of promoting onerous record and evidence retention policies). Weighed against these considerations, courts have recognized the importance of ensuring that spoliation does not improperly impair a litigant’s rights. But as other jurisdictions have noted, and as is available in Florida, litigants may employ various legal mechanisms to impose upon a third party a duty to preserve necessary evidence. For example, a third party may be required to produce particular evidence it possesses in response to a subpoena duces tecum, which may be enforced by court orders and the sanction of contempt. See Fla. R. Civ. P. 1.410(c), (f). In this case, there was no statute, contract, or discovery request that would impose a clearly defined duty on Remark to preserve any potentially relevant evidence. Thus, a duty would arise only through Remark’s purported knowledge of Shamrock’s pending litigation and her anticipation that something in her control could potentially be of use to that litigation. As such, Shamrock would like us to announce that Remark owed a duty to it based on the foreseeability of litigation. Considering the traditional approach to defining legal duty, we decline to do so. Indeed, such a broad pronouncement would be tantamount to declaring a general legal duty on any nonparty witness to anticipate the needs of others’ lawsuits. There are innumerable circumstances in which a nonparty to litigation may have evidence relevant to a case and may know of its relevance. But that knowledge, by itself, should not give rise to a duty to safeguard the evidence in anticipation of litigation. Mukamal v. Gen. Elec. Capital Corp. (In re Palm Beach Fin. Partners II, L.P.), 517 B.R. 310, 327 (Bankr. S.D. Fla. 2013) (“In fact, ‘that an actor realizes or should realize that action on his part is necessary for another’s aid or protection

11 does not of itself impose upon him a duty to take such action unless a special relationship exists between the actor and the other which gives the other the right to protection.’” (quoting Delgado v. Lohmar, 289 N.W. 2d 479, 483 (Minn. 1979))). While we do not speculate as to every circumstance under which a third party to litigation may have a legal duty to preserve evidence, we hold that the trial court properly determined here that Remark did not owe a legal duty to Shamrock. The summary judgment in favor of Remark is affirmed.

AFFIRMED.

COHEN and EISNAUGLE, JJ., concur.