Joceyline Banks sued Bouve and Mohr, LLC B&M, the owner of the apartment complex where she lived, alleging that she had been raped and robbed in her apartment because B&M had negligently failed to repair a broken windowpane through which the intruder had gained entry. In its answer and discovery responses, B&M denied that Banks had been raped. After learning that evidence relevant to the alleged rape had been destroyed at the direction of the investigating police officer, Banks moved for spoliation sanctions against B&M, asserting that the officer had acted as its agent. Both Banks and B&M’s counsel sought attorney fees incurred in litigating the spoliation issue. The trial court found that B&M was responsible for the spoliation and therefore ordered that the jury would be instructed at trial that Banks had been raped. The court denied as premature, however, the requests for attorney fees. B&M appeals, arguing that the spoliation sanctions were not justified and that the court should have granted its fee request. We granted interlocutory review and now affirm the trial court’s grant of spoliation sanctions but remand for prompt consideration of B&M’s attorneys’ fee request. Although the court did not conduct an evidentiary hearing on the spoliation claim, undisputed facts relevant to the issue were before the court based on deposition testimony and other evidence developed during pre-trial discovery. The record shows the following:
After Banks reported to the East Point Police Department Department that she had been raped at knife point in her apartment on February 3, 2001 by an unknown intruder, a Department officer took her to the Rape Crisis Center at Grady Hospital, where she was examined and rape kit evidence was collected. On February 5, Banks informed B&M of the attack and “further stated that she could no longer remain in her apartment because of what had happened there.” B&M agreed to refund her rent and security deposit on the condition that she sign a document releasing B&M from liability for any claims related to the rape. Banks signed the document on February 6, 2001, three days after the alleged rape, but repudiated it shortly thereafter through her attorney.
