                                                                                           05/07/2018
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                               February 20, 2018 Session

              JOHN A. GARDNER ET AL. v. R & J EXPRESS, LLC

                 Appeal from the Circuit Court for Hamblen County
                       No. 15CV181      Beth Boniface, Judge



                             No. E2017-00823-COA-R3-CV



In this negligence action that arose from a tractor-trailer accident, the trial court
dismissed the plaintiffs’ claims following the court’s determination that a critical piece of
evidence had been destroyed by the plaintiffs, resulting in severe prejudice to the
defendant. The court further determined that dismissal was the only equitable remedy for
the plaintiffs’ spoliation of evidence. The plaintiffs timely appealed the dismissal of their
claims. Discerning no reversible error, we affirm.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                             Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and W. NEAL MCBRAYER, JJ., joined.

Donald K. Vowell and Martin Ellis, Knoxville, Tennessee, for the appellants, John A.
Gardner and Ester Gardner.

Trevor L. Sharpe, Knoxville, Tennessee, for the appellee, R & J Express, LLC.

                                        OPINION

                          I. Factual and Procedural Background

       This action was filed as a result of a tractor-trailer accident that occurred on May
29, 2015, in North Carolina. John Gardner, one of the plaintiffs in this matter, owned an
over-the-road tractor, which he was using to haul a trailer owned by the defendant, R & J
Express, LLC (“R & J”), on the date in question. Ester Gardner, John Gardner’s wife and
co-plaintiff in this action, was riding with Mr. Gardner on that day as a passenger. The
Gardners allege that the accident occurred because the tandem axle on the trailer
“suddenly and unexpectedly” came loose while they were traveling down the highway,
causing the tractor-trailer to overturn. Both the tractor and trailer were damaged, and Ms.
Gardner was severely injured. Shortly thereafter, on June 17, 2015, the Gardners retained
counsel.

       On November 18, 2015, the Gardners filed a complaint in the Hamblen County
Circuit Court (“trial court”), alleging that R & J, having exclusive control of the trailer,
had been negligent in its inspection and maintenance of the trailer and had failed to
ensure that the trailer was in compliance with all federal motor vehicle safety standards.
The Gardners asserted that the trailer was the cause of the accident in question, which had
caused Ms. Gardner to suffer severe and permanent bodily injury. The Gardners also
asserted that Mr. Gardner had “suffered total loss of his tractor and said tractor having
been destroyed this Plaintiff has incurred a lost wage claim and a loss of earning
capacity.” The Gardners sought damages in the amount of $850,000.

       The Gardners subsequently filed an amended complaint, adding a claim for
punitive damages based on their allegation that R & J had been falsifying its annual
inspection reports with regard to the trailer. The Gardners increased their ad damnum
clause to in excess of $15,000,000.

        On January 12, 2016, R & J filed an answer, denying all allegations of negligence
and wrongdoing. R & J asserted that the causes of the accident were Mr. Gardner’s
failure to keep the tractor under control, his failure to exercise due care, and his operation
of the tractor-trailer at an excessive rate of speed. R & J further claimed that Mr. Gardner
failed to perform the required pre-trip inspection in accordance with federal motor carrier
safety regulations. In addition, R & J alleged that Mr. Gardner’s own negligence barred
any recovery and that Ms. Gardner was an unauthorized passenger in the vehicle.

       On July 19, 2016, R & J filed a “Motion for Spoliation Sanctions with
Incorporated Memorandum of Law.” Relying on Tennessee Rule of Civil Procedure
34A.02, R & J asserted that the Gardners should be sanctioned for discarding or
destroying evidence. In support, R & J argued that Mr. Gardner had discarded his tractor
by allowing the insurance company to take possession of it, such that he no longer knew
of its whereabouts. R & J further claimed that because no witnesses had observed the
accident, R & J’s expert needed to inspect the tractor in order to determine whether there
existed a mechanical problem that may have caused the accident. Due to the
“destruction” of this “crucial” piece of evidence, R & J claimed that it was unduly
prejudiced and that the only adequate remedy was dismissal of the Gardners’ claims.



                                              2
       The Gardners filed a response opposing the motion for sanctions, wherein they
asserted that Mr. Gardner did not willfully allow the tractor to be destroyed in order to
prevent its inspection. The Gardners also sought sanctions against R & J for its alleged
production of falsified inspection records concerning the trailer during pretrial discovery.
Mr. Gardner executed an affidavit stating that he had no knowledge of anything
mechanically wrong with the tractor prior to the May 2015 accident. According to Mr.
Gardner, the brakes, tires, engine bearings, and other items had been recently replaced.

        As Mr. Gardner indicated, on the day of the accident, he informed the owner of R
& J, Rex Satterfield, about the accident and told him the location of the garage to which
the tractor and trailer had been towed. Mr. Satterfield dispatched another truck to that
garage within forty-eight hours to pick up the items that were being hauled in the trailer.
Mr. Gardner claimed that to his knowledge, Mr. Satterfield made no attempt to inspect
the tractor at that time. Mr. Gardner also reported that he later signed over the title of the
tractor to the insurer who afforded insurance coverage for the tractor. He further related
that Mr. Satterfield was aware of the identity of the insurer. According to Mr. Gardner,
he never intended to destroy the tractor and had no idea that it was going to be “scrapped
out” by the insurer. Mr. Gardner affirmed that he retained counsel on June 17, 2015, with
the intent of instituting the instant action.

       Following the filing of numerous motions by the parties regarding possible
sanctions, the trial court conducted a hearing on September 6, 2016. Following that
hearing, the Gardners filed a motion in limine seeking to exclude the testimony of R &
J’s expert, arguing in part that his opinions were based on speculation because he had
never inspected the tractor.1 The trial court held another hearing regarding the pending
motions on November 17, 2016.

       The trial court subsequently entered an order on December 8, 2016, determining
that R & J had been “severely prejudiced” in its ability to defend against the Gardners’
claims due to the unavailability of the tractor, which the court described as a “key piece
of evidence.” The court thus ordered that the Gardners would have thirty days to attempt
to locate and produce the tractor for inspection. The court further directed that should the
Gardners be unable to produce the tractor in the same condition as on the date of the
accident, their complaint would be dismissed with prejudice. All other motions were
held in abeyance.

       The Gardners subsequently filed a motion to reconsider, reporting their discovery
that the tractor’s engine had been removed and the chassis sold for salvage by their
insurance carrier. The Gardners stated that the tractor had been in the custody of the
insurer since the accident and that the Gardners had no control over its disposition. The
1
    The Gardners subsequently withdrew this motion on December 12, 2016.
                                                   3
Gardners further posited that R & J should not be allowed to claim prejudice because R &
J did not request that the tractor be preserved until January 25, 2016, which was 242 days
following the accident.2

        On December 19, 2016, R & J provided written notice to the trial court that the
tractor had not been produced within the thirty-day time limit established by the court’s
prior order. On April 4, 2017, the trial court entered an order granting R & J’s motion for
sanctions, stating in pertinent part:

              The Court will first address the Defendant’s Motion for Spoliation
       Sanctions. In 2015, the Tennessee Supreme Court clarified the totality of
       the circumstances analysis to be used in spoliation cases. The Court stated
       the determinative factors:

               1.      The culpability of the spoliating party in causing the
                       destruction of the evidence, including evidence of
                       intentional misconduct or fraudulent intent;

               2.      The degree of prejudice suffered by the non-spoliating
                       party as a result of absence of the evidence;

               3.      Whether, at the time the evidence was destroyed, the
                       spoliating party knew or should have known that the
                       evidence was relevant to pending or reasonably
                       foreseeable litigation; and

               4.      The least severe sanction available to remedy any
                       prejudice caused to the non-spoliating party.

       Tatham v. Bridgestone Ams. Holding, Inc., 473 S.W.3d 734, 747 (Tenn.
       2015).

              In the present case, there is no evidence of intentional misconduct or
       fraudulent intent in Plaintiffs’ destruction of the tractor; however,
       intentional misconduct is not a prerequisite to imposing sanctions for
       spoliation. Id. at 746. There is no doubt that as of June 17, 2015, when
       Plaintiffs retained legal counsel, they intended to file a lawsuit for damages.
       On June 24, 2015, their attorney sent a letter to Defendant informing him of
       Plaintiffs’ intention to file an action and Defendant’s responsibility to
2
  We note, however, that R & J’s preservation request was made approximately two months following the
filing of the complaint.
                                                 4
preserve the relevant evidence. After sending the preservation letter to the
Defendant, Plaintiffs signed over the title to the tractor and the tractor was
destroyed. Apparently, having sent a preservation letter to Defendant,
Plaintiffs knew or should have known that the tractor was crucial evidence
needing to be examined to determine the cause of the wreck. Citing
Tennessee Rule of Civil Procedure 34, Plaintiffs state that the tractor was
not in their “possession, custody or control” because it was at the wrecker
service. The tractor would still be at the wrecker service had Plaintiffs not
relinquished ownership of the tractor to the insurance company. Before
signing the title, Plaintiffs at all times had ownership rights and control
over the tractor and its location. If Plaintiffs did not intend to preserve the
tractor for inspection, then they should have given Defendant notice of their
desire to relinquish ownership of the tractor. Plaintiffs acknowledge that
they had a duty to preserve the crucial evidence but, argue that Defendant
did not send a preservation letter until 242 days after the accident.
Plaintiffs fail to credit that Defendant’s letter was sent approximately two
months after being served with the Complaint. Defendant did not send the
letter 242 days after commencement of the litigation. Plaintiffs argue that
Defendant failed to file a Rule 34 Motion compelling Plaintiffs to produce
the tractor. But the tractor was tendered to the insurance company within
30 days of the accident so an earlier letter or Rule 34 Motion would have
been futile. Plaintiffs, not the Defendant, had the responsibility to preserve
the tractor pursuant to Tennessee Rule of Civil Procedure 34.

        The next inquiry is the degree of prejudice suffered by the
Defendant. Plaintiffs argue that the evidence has “never indicted the tractor
at all as the proximate cause of the accident.” Therein lies the rub, the
tractor could not be identified as the cause of the accident because it has
always been unavailable to be inspected. Plaintiffs allege that a Declaration
of Scott Moore, the person who repaired the brakes, overcomes the
possibility that the brakes were faulty. Defendant has no avenue to refute
this assertion. Defendant would have no proof that the brakes were
malfunctioning, defective or improperly installed, whereas, Plaintiffs have
had access to the evidence necessary to establish their theory of the case.
Defendant is left with accepting the Plaintiffs’ theory of causation as there
is no way to refute it. The Plaintiffs filed a Motion in Limine to Exclude
Testimony of Bryce O. Anderson, Ph.D. Regarding Brakes and Welds,
because the expert opinion would be based on “conjecture, speculation and
simple guesswork.” Plaintiffs argue that Dr. Anderson has not inspected
the crucial piece of evidence, the tractor. Plaintiffs withdrew their Motion
in Limine subject to the Plaintiffs’ right to cross-examine Dr. Anderson.
                                      5
      Allowing Dr. Anderson to testify does not cure the problem. Clearly, Dr.
      Anderson would have to admit, as he has in his Affidavit, that he cannot
      perform an adequate or thorough inspection without the tractor. Dr.
      Anderson’s testimony would not carry any weight. Defendant’s expert has
      not had an opportunity to measure or inspect the crush pattern, brakes or
      any Electronic Control Module recording device. The Defendant’s expert
      cannot give an opinion as to causation within a reasonable degree of
      scientific certainty. Had the tractor been available for inspection, the
      evidence may have shown that the rusted/broken welds caused the accident,
      but it might have shown that excessive speed and faulty brakes were the
      primary cause of the accident. “Because no one has an exclusive insight
      into truth, the process depends on the adversarial presentation of evidence,
      precedent and custom, and argument to reasoned conclusions — all
      directed with unwavering effort to what, in good faith, is believed to be true
      on matters material to the disposition.” Silvestri v. General Motors Corp.,
      271 F.3d 583, 590 (4th Cir. 2001).

             Plaintiffs argue that both sides are equally prejudiced because
      neither was able to inspect the tractor. See Tatham v. Bridgestone Ams.
      Holding, Inc., 473 S.W.3d 734 (Tenn. 2015). This argument does not
      account for the fact that Plaintiffs have had access to the trailer which is the
      crucial piece of evidence necessary to establish their theory of the case.
      The two most important pieces of evidence are the tractor and the trailer. It
      is true that Plaintiffs’ case would be stronger if they had inspected the
      tractor and could definitively state that there was no defect in the tractor,
      but Defendant’s theory of the case is impossible to prove without the
      inspection of the tractor. Plaintiffs do not need to inspect the tractor to
      prove their case. Plaintiff John Gardner will testify that he was not
      speeding and his brakes were in perfect working order. Unless Defendant
      can inspect the tractor, he is left with mere cross-examination.

             Having determined that a critical piece of evidence has been
      destroyed by the Plaintiffs resulting in severe prejudice to the Defendant,
      the Court finds that dismissal is the only equitable remedy.

       With regard to the Gardners’ claim that R & J filed falsified documents in
response to discovery, the trial court ruled that the imposition of sanctions was not
required. Rather, the court determined that the proper redress would be to allow the
documents into evidence and then permit the Gardners to cross-examine R & J’s
witnesses concerning the authenticity of the documents. The court also stated, however,


                                             6
that because the Gardners’ claims were being dismissed, this issue had become moot.
The Gardners timely appealed.

                                 II. Issues Presented

       The Gardners present nine issues for our review, all of which relate to the
overarching issue of whether the trial court properly sanctioned the Gardners by
dismissing their claims. We have restated those issues slightly as follows:

      1.    Whether the trial court erred by dismissing the Gardners’ claims
            based on their purportedly innocent spoliation of evidence.

      2.    Whether the trial court misapplied the controlling legal authority
            when imposing the sanction of dismissal.

      3.    Whether the trial court properly assessed the factors listed in Tatham
            v. Bridgestone Ams. Holding, Inc., 473 S.W.3d 734, 747 (Tenn.
            2015), when making its determination regarding an appropriate
            sanction.

      4.    Whether the trial court erred by failing to properly consider that the
            Gardners had signed over the title to the tractor in the routine course
            of insurance business, exactly as the Tatham plaintiff had done.

      5.    Whether the trial court erred by failing to consider that the tractor
            was available for inspection by R & J for a period of time following
            the accident.

      6.    Whether the trial court erred in its assessment of the degree of
            prejudice to R & J.

      7.    Whether the trial court erred by determining that Mr. Gardner knew
            or should have known that the tractor was “crucial evidence” when
            he transferred its title to his insurance company.

      8.    Whether the trial court erred by failing to consider any less severe
            sanctions.

      9.    Whether the trial court erred by failing to consider that R & J was
            guilty of intentional discovery fraud or fabrication of evidence.


                                           7
                                 III. Standard of Review

       In Tatham, a case which involved spoliation of evidence, our Supreme Court
explained as follows concerning the proper standard of review applicable to a trial court’s
determination of sanctions:

       [I]rrespective of the doctrine of spoliation, Tennessee courts also have long
       maintained that trial courts have broad discretion in imposing procedural
       sanctions in order to preserve the integrity of the discovery process. See
       Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 133 (Tenn. 2004)
       (“[T]rial judges have the authority to take such action as is necessary to
       prevent discovery abuse.”); Lyle v. Exxon Corp., 746 S.W.2d 694, 699
       (Tenn. 1988) (“[T]he inherent power of trial judges permits the trial judge
       to take appropriate corrective action against a party for discovery abuse.”);
       Alexander v. Jackson Radiology Assocs., P.A., 156 S.W.3d 11, 13-16
       (Tenn. Ct. App. 2004) (“[T]rial courts possess the inherent authority to take
       actions to prevent abuse of the discovery process.”) (citing Mercer, 134
       S.W.3d at 133); Clark Const. Grp., [Inc. v. City of Memphis], 229 F.R.D.
       [131,] 140 [(W.D. Tenn. 2005)] (“[T]he Tennessee Supreme Court stresses
       that the trial court should have wide discretion to impose the appropriate
       sanction [to prevent discovery abuse].”). This authority does not arise from
       the common law doctrine of spoliation but, instead, is rooted in the trial
       court’s inherent power to ensure the proper administration of justice. See
       Lyle, 746 S.W.2d at 699 (noting the “inherent power of trial judges”);
       Alexander, 156 S.W.3d at 13-16 (recognizing the trial court’s “inherent
       authority”).

Tatham, 473 S.W.3d at 742. Furthermore, in Mercer v. Vanderbilt Univ., Inc., 134
S.W.3d 121, 133 (Tenn. 2004), our Supreme Court stated:

               Although the Tennessee Rules of Civil Procedure do not provide a
       sanction for abuse of the discovery process, trial judges have the authority
       to take such action as is necessary to prevent discovery abuse. Trial courts
       have wide discretion to determine the appropriate sanction to be imposed.
       Such a discretionary decision will be set aside on appeal only when “the
       trial court has misconstrued or misapplied the controlling legal principles or
       has acted inconsistently with the substantial weight of the evidence.” White
       v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999) (citing
       Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 709 (Tenn. Ct. App. 1999)).
       Appellate courts should allow discretionary decisions to stand even though
       reasonable judicial minds can differ concerning their soundness.
                                             8
(Additional internal citations omitted.)

                  IV. Dismissal as Sanction for Spoliation of Evidence

        As previously stated, all of the Gardners’ issues on appeal relate to whether the
trial court properly dismissed their claims as a sanction for their purportedly unintentional
spoliation of evidence. The trial court determined that dismissal was the only appropriate
remedy because of the significant prejudice to R & J’s ability to defend against the
Gardners’ claims due to R & J’s inability to inspect the tractor involved in the accident.

       Tennessee Rule of Civil Procedure 34A.02 provides: “Rule 37 sanctions may be
imposed upon a party or an agent of a party who discards, destroys, mutilates, alters, or
conceals evidence.” Rule 37.02 provides for various sanctions that may be imposed for a
party’s failure to comply with a discovery order, including “[a]n order striking out
pleadings or parts thereof, or staying further proceedings until the order is obeyed, or
dismissing the action or proceeding or any part thereof, or rendering a judgment by
default against the disobedient party.”

       In Tatham, our Supreme Court was asked to determine whether the sanction of
dismissal was appropriately denied by the trial court when the plaintiff discarded
important evidence. The Tatham plaintiff had filed a products liability action against the
defendants, alleging that her recently purchased automobile tire had failed while she was
driving, thereby causing her to become involved in an accident and suffer significant
physical injuries. See Tatham, 473 S.W.3d at 738. Following the accident, the plaintiff
was informed that her vehicle had been totaled, and she transferred the car’s title to the
wrecker service on the advice of her insurance company. Id. at 739. The tire at issue
remained on the car at the time title was transferred, and the plaintiff had not yet hired an
attorney and did not realize that the tire needed to be preserved. Id.

       Following the filing of the Tatham plaintiff’s complaint, which alleged that the tire
was defective and dangerous, the defendants filed a motion seeking to have the case
dismissed as a sanction for the spoliation of evidence. Id. Although the trial court denied
the motion, the court granted the defendants an interlocutory appeal. Id. This Court
denied the defendants’ application for an interlocutory appeal, but the Supreme Court
granted an appeal to determine, inter alia, whether the trial court abused its discretion by
refusing to dismiss the case as a sanction for the spoliation of evidence. Id.

       With regard to spoliation, the Tatham Court explained:



                                             9
        In light of both [Tennessee] Rule [of Civil Procedure] 34A.02 and
the long-standing recognition discussed herein of a trial court’s inherent
authority and wide discretion in imposing sanctions to ensure fundamental
fairness and the proper administration of justice, we hold that intentional
misconduct is not a prerequisite for a trial court to impose sanctions for the
spoliation of evidence, including that of a negative inference. Indeed, while
in the past under the common law doctrine of spoliation, there clearly was a
prerequisite of intentional misconduct for a trial court to impose the
specific sanction of a negative inference against the spoliating party, we see
no reason to continue the requirement of intentional misconduct for the
imposition of sanctions for the spoliation of evidence whether the sanction
be imposed under the common law doctrine, under the inherent authority of
the court, or under Rule 34A.02. We hold today that the analysis for the
possible imposition of any sanction for the spoliation of evidence should be
based upon a consideration of the totality of the circumstances. To adopt
an inflexible, bright-line rule restricting a trial court’s power to fashion the
appropriate remedy for spoliation of evidence would be contrary to the trial
court’s inherent authority to sanction abuses of the discovery process and to
remedy the potential prejudice caused thereby. Therefore, intentional
misconduct should not be a prerequisite to the imposition of some sanction
under any approach. Rather, such determinations should be made on a
case-by-case basis considering all relevant circumstances. Whether the
conduct involved intentional misconduct simply should be one of the
factors considered by the trial court.

       The decision to impose sanctions for the spoliation of evidence is
within the wide discretion of the trial court. The determination of whether
a sanction should be imposed for the spoliation of evidence necessarily
depends upon the unique circumstances of each case. Factors which are
relevant to a trial court’s consideration of what, if any, sanction should be
imposed for the spoliation of evidence include:

       (1) the culpability of the spoliating party in causing the
       destruction of the evidence, including evidence of intentional
       misconduct or fraudulent intent;

       (2) the degree of prejudice suffered by the non-spoliating
       party as a result of the absence of the evidence;

       (3) whether, at the time the evidence was destroyed, the
       spoliating party knew or should have known that the evidence
                                      10
             was relevant to pending or reasonably foreseeable litigation;
             and

             (4) the least severe sanction available to remedy any prejudice
             caused to the non-spoliating party.

             A trial court’s discretionary decision to impose a particular sanction
      “will be set aside on appeal only when ‘the trial court has misconstrued or
      misapplied the controlling legal principles or has acted inconsistently with
      the substantial weight of evidence.’” Mercer, 134 S.W.3d at 133 (quoting
      White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999)).
      With regard to the specific sanction of dismissal of an action, although we
      recognize that the dismissal of an action is a severe sanction, we hold that
      “such a sanction would be appropriate in circumstances where any less
      severe remedy would not be sufficient to redress the prejudice caused” to
      the non-spoliating party by the loss of the evidence. Cincinnati Ins. Co. [v.
      Mid-South Drillers Supply, Inc.], [No. M2007-00024-COA-R3-CV,] 2008
      WL 220287, at *4 [(Tenn. Ct. App. Jan. 25, 2008)].

473 S.W.3d at 745-47 (footnotes and additional internal citations omitted).

       Therefore, the High Court determined in Tatham that the trial court had not abused
its discretion in denying the sanction of dismissal for the plaintiff’s spoliation of
evidence. Id. at 748. The Court considered that the spoliation was not the result of any
intentional misconduct because the proof demonstrated that the plaintiff had simply
transferred the title of her car to the wrecker service upon advice from her insurer, and
the car was subsequently destroyed as part of a “routine practice.” Id. at 747. The Court
also considered that because neither party had the opportunity to examine the tire, the
defendants incurred no real prejudice. As the Court noted, the plaintiff’s expert only
offered testimony “regarding the general nature of tire manufacturing and accidents
caused by tire failure,” and the defendants were able to offer rebuttal testimony on this
same topic. Id.

       In the case at bar, the trial court’s order demonstrates that the court properly
considered all four of the factors listed in Tatham. The court rendered extensive findings
regarding each factor, as detailed above. The court specifically found that there was no
evidence of intentional misconduct or fraud on the part of the Gardners with regard to the
destruction of the tractor; we agree that the evidence supports such a finding. However,
as the Tatham Court explained, this factor “simply should be one of the factors
considered by the trial court” in determining the appropriate sanction for spoliation of
evidence. See id. at 746.
                                            11
       With regard to the second factor, the trial court determined that the non-spoliating
party, R & J, would be severely prejudiced by the absence of the tractor in this matter.
We agree with this determination. Without the opportunity to examine the tractor’s
condition and determine whether it possibly caused or contributed to the accident, R & J
would have the sole remaining option of defending the condition of its trailer, which both
parties were able to thoroughly examine. R & J would also be unable to refute Mr.
Gardner’s testimony regarding the condition of the tractor at the time of the accident.
The trial court placed great emphasis on this factor in its analysis regarding the
appropriate sanction for spoliation.

        Concerning the third factor, the trial court determined that the Gardners knew as of
June 17, 2015, the date upon which they retained counsel and a mere nineteen days
following the accident, that they intended to file an action seeking damages. Mr. Gardner
affirmed this to be true in his deposition. As the trial court pointed out, the Gardners’
counsel sent a letter to R & J on June 25, 2015, informing R & J of the Gardners’ intent
to file a lawsuit and of R & J’s responsibility to preserve the trailer as evidence. This
letter expressly states in pertinent part:

        This letter is to formally demand the preservation of certain evidence
        related to this collision. If you fail to properly secure and preserve these
        important pieces of evidence it will give rise to the legal presumption that
        the evidence would have been harmful to your side of the case. The
        destruction, alteration, or loss of any of the below constitutes a spoliation of
        evidence.

The first item on the list of evidence the Gardners requested to be preserved was the
trailer. Despite this request for preservation of the trailer and having the benefit of legal
counsel, Mr. Gardner acknowledged that he transferred title of the tractor four days later
on June 29, 2015. The tractor was then dismantled and sold for scrap within a matter of
days.3 Clearly, Mr. Gardner and his counsel should have known that the tractor was
relevant to the foreseeable litigation.

       Finally, with regard to the fourth factor, the trial court found that dismissal was
“the only equitable remedy” due to the severe prejudice suffered by R & J. Again, we


3
  A communication from Mr. Gardner’s counsel contained within the record demonstrates that the tractor
was “sold as salvage to Charlotte Truck Parts and received in their salvage yard on July 2, 2015.”
Therefore, any argument by the Gardners that R & J had ample opportunity to inspect the tractor
following their notification of an impending lawsuit on June 25, 2015, and the disposal of the tractor on
or before July 2, 2015, is untenable.
                                                   12
agree with the trial court’s determination. As the court aptly recognized in its written
order:

       Defendant is left with accepting the Plaintiffs’ theory of causation as there
       is no way to refute it. . . . Had the tractor been available for inspection, the
       evidence may have shown that the rusted/broken welds caused the accident,
       but it might have shown that excessive speed and faulty brakes were the
       primary cause of the accident.

The court further noted that both parties were not equally prejudiced by the absence of
the tractor because “Plaintiffs have had access to the trailer which is the crucial piece of
evidence necessary to establish their theory of the case.” By contrast, the court
recognized that “Defendant’s theory of the case is impossible to prove without the
inspection of the tractor. Plaintiffs do not need to inspect the tractor to prove their case.”

       Because R & J was rendered unable to effectively set forth its defense due to the
destruction of the tractor, the trial court determined that dismissal of the Gardners’ action
was warranted. Although we agree that dismissal is a severe sanction, our Supreme
Court has expressly held that “‘such a sanction would be appropriate in circumstances
where any less severe remedy would not be sufficient to redress the prejudice caused’ to
the non-spoliating party by the loss of the evidence.” See Tatham, 473 S.W.3d at 747
(quoting Cincinnati Ins. Co. v. Mid-South Drillers Supply, Inc., No. M2007-00024-COA-
R3-CV, 2008 WL 220287, at *4 (Tenn. Ct. App. Jan. 25, 2008)).

       The Gardners argue that the holding in Tatham requires the opposite result in this
case. Although the trial court in Tatham ultimately reached a different conclusion
regarding the appropriate sanction, we cannot conclude that the trial court in this matter
“misconstrued or misapplied the controlling legal principles or has acted inconsistently
with the substantial weight of evidence,” thus abusing its discretion. See Mercer, 134
S.W.3d at 133. There are two obvious factual distinctions between the circumstances
presented in Tatham and those of the instant action. First, in Tatham, there was a witness
to the accident who corroborated the plaintiff’s testimony that the tire had failed, who
claimed that she saw something on the tire “flapping” and subsequently witnessed a piece
of the tire “c[o]me out from under the car” immediately before the accident occurred.
See Tatham, 473 S.W.3d at 738. By contrast, in the instant action, the only witnesses to
the accident were the Gardners. Ergo, no other witness could rebut the Gardners’
assertion that the accident was caused by a mechanical problem with the trailer rather
than the tractor.

        Second, there existed two critical pieces of evidence in this case (the tractor and
the trailer), compared to a single piece of evidence in Tatham. Thus, as the trial court
                                             13
herein pointed out, the Gardners were able to inspect the trailer and gather evidence to
support their theory of the accident’s cause while R & J was unable to similarly inspect
the tractor and determine whether it contributed to or caused the accident. In Tatham,
neither party was able to inspect the tire at issue, and accordingly, both parties were left
in the identical position of relying on expert testimony to establish whether a “flaw in the
design or manufacturing of the tire led to its failure.” Id. at 747. By contrast, in the case
at bar, without the ability to inspect the tractor at issue, the parties are placed in quite
disproportionate postures. We therefore conclude that the Gardners’ reliance solely on
the outcome in Tatham is misplaced.

       Importantly, the Supreme Court’s decision to affirm the trial court’s ruling in
Tatham was premised substantially on the applicable standard of review. The Court
specifically stated:

       Although the trial court did not expressly consider in its order any of the
       other factors discussed herein, nothing in the record supports the
       conclusion, as the Defendants suggest, that the trial court applied
       intentional misconduct as a rigid prerequisite to sanction. Therefore, we
       cannot conclude from the record that the trial court based its ruling on an
       incorrect legal standard. Nor can we, based on our own analysis of the
       record in light of the relevant factors, conclude that the trial court acted
       inconsistently with the substantial weight of the evidence. See Mercer, 134
       S.W.3d at 133 (“Such a discretionary decision will be set aside on appeal
       only when ‘the trial court has misconstrued or misapplied the controlling
       legal principles or has acted inconsistently with the substantial weight of
       the evidence.’”) (quoting White, 21 S.W.3d at 223). Based on the
       foregoing reasoning, we conclude that the trial court did not abuse its
       discretion when it declined to dismiss the case as a sanction for the
       spoliation of evidence in this case.

Tatham, 473 S.W.3d at 748. Accordingly, the trial court’s decision in this case must be
evaluated incorporating the same deferential standard. We determine that the trial court
herein neither “based its ruling on an incorrect legal standard” nor “acted inconsistently
with the substantial weight of the evidence.” Id. We therefore conclude that the trial
court did not abuse its discretion regarding the sanction imposed.

       The Gardners also present essentially an unclean hands argument, asserting that R
& J was guilty of wrongdoing by allegedly providing falsified inspection records in
response to discovery, such that the trial court should have imposed a lesser sanction
against the Gardners because there existed “impropriety” on both sides. In response, R &
J points out that the Gardners did not actually prove any wrongdoing by R & J because R
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& J had explained that it was guilty of admittedly “sloppy recordkeeping” but did not
commit fraud. The trial court determined that the proper remedy for any issues
concerning R & J’s inspection reports was to permit the Gardners to cross-examine R &
J’s witnesses respecting the authenticity of the documents. Ultimately, however, the
issue was rendered moot when the Gardners’ claims were dismissed. The Gardners have
not demonstrated that they would have suffered prejudice by the admission of these
documents, subject to proper cross-examination, similar to the prejudice R & J would
have experienced by being denied access to a critical piece of evidence. We determine
this argument to be unavailing.

                                      V. Conclusion

       For the foregoing reasons, we conclude that the trial court did not abuse its
discretion in imposing the sanction of dismissal for the Gardners’ spoliation of evidence.
We therefore affirm the trial court’s ruling in all respects. Costs on appeal are assessed to
the appellants, John and Ester Gardner. This case is remanded to the trial court for
collection of costs assessed below.




                                                  _________________________________
                                                  THOMAS R. FRIERSON, II, JUDGE




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