Florida Probate Litigation Lawyer Blog
Spoliation of evidence is the failure to preserve evidence, either negligently or intentionally, that is materially relevant to an anticipated or pending lawsuit. To determine whether a party has engaged in spoliation and what remedies the non-spoliating party is entitled to, courts evaluate three factors: “(1) whether the evidence existed at one time, (2) whether the spoliator had a duty to preserve the evidence, and (3) whether the evidence was critical to an opposing party being able to prove its prima facie case or defense.” See Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 781 (Fla. 4th DCA 2026). In a recent trust/probate litigation case in Florida’s Sixth Judicial Circuit, John Shoemaker, et al. v. Stephanie Lyons Mucciano, et al., Case No. 23-008831, available on the Pinellas County Clerk of Court website, the Plaintiffs were found to have engaged in spoliation of evidence, and one of the Plaintiffs, John Shoemaker, was also found to have intentionally withheld evidence in violation of a court order.
In Shoemaker v. Mucciano, the Plaintiffs, John Shoemaker, Kathy Johnson, James Shoemaker, and Rodney Shoemaker, alleged that Chepenik Trushin LLP’s client, Defendant Stephanie Mucciano, unduly influenced Kerry Shoemaker (who was Stephanie’s life partner and the Plaintiffs’ father) to effectuate three transactions during a time period Plaintiffs claimed that Kerry had substantially diminished capacity or lacked capacity. Pursuant to the January 16, 2026 Final Judgment [Docket Entry 949], the judge rejected all of the Plaintiffs’ claims, denied all relief sought by Plaintiffs, and entered judgment in favor of Stephanie on a counterclaim. The judge did “not find credible Plaintiffs’ contentions that Kerry had capacity problems, that Stephanie isolated Kerry from friends and family, or that Stephanie unduly influenced Kerry.” The judge further found that “the transactions Kerry engaged in to benefit Stephanie were the result of Kerry’s love and affection for Stephanie and his desire to take care of her, both during his life and after his death.” The Court also sanctioned the Plaintiffs for spoliating evidence and imposed harsher sanctions on one of the Plaintiffs, John Shoemaker, for intentionally withholding critical evidence.
Prior to the trial, a special magistrate was appointed by the judge to address discovery disputes. One of those disputes involved Stephanie’s claim that the Plaintiffs had spoliated their text messages with Kerry. In the magistrate’s August 4, 2025 Report and Recommendations to the judge [Docket Entry 383], the magistrate applied the factors from Golden Yachts, Inc. v. Hall and found that “Plaintiffs have engaged in spoliation of evidence because (1) text messages between John and Kerry, James and Kerry, and Rodney and Kerry existed, (2) Plaintiffs duty to preserve evidence (including text messages with Kerry) began at least by February 2022, and (3) the text messages are critical to Defendant’s ability to defend against Plaintiff’s claims of undue influence and incapacity.”
With regard to the first factor from Golden Yachts, Inc. v. Hall, whether the evidence existed at one time, the magistrate found that “Plaintiffs John, James, and Rodney Shoemaker regularly texted with Kerry . . . up until Kerry’s death on June 3, 2022.”
As for the second factor, whether Plaintiffs had a duty to preserve the text messages, the magistrate found that “Plaintiffs anticipated litigation against Defendants by February 2022, approximately four months before Kerry’s death on June 3, 2022,” and as a result Plaintiffs had a duty to preserve their text messages with Kerry starting in February 2022.
As for the third factor, the importance of the spoliated evidence, the magistrate found that the text messages between Plaintiffs and Kerry “would be critical evidence in the case, as Plaintiffs’ claims are premised upon allegations that Kerry lacked capacity and that Defendants isolated Kerry from his family, i.e., the Plaintiffs. The Plaintiffs’ text messages with Kerry would be essential to Defendants’ ability to defend against Plaintiffs’ claims, as the text messages would provide evidence of whether Kerry lacked capacity or had the ability to effectively understand and communicate, whether Kerry was isolated from the Plaintiffs or freely and regularly communicated with them, and whether Plaintiffs communicated with Kerry in a manner that would indicate a belief or concern that Kerry was being isolated, unduly influenced, or lacked capacity.”
With regard to John Shoemaker, the magistrate found that “John has improperly withheld his text messages with Kerry, despite his discovery obligations and a court order requiring John to produce those text messages” and that “John continues to apparently intentionally withhold his text messages with Kerry, in violation of the Discovery Order, based on John’s testimony that he texted with Kerry, that only a few text messages between John and Kerry that were produced from Kerry’s phone, and John’s testimony that he never deletes his text messages.” The magistrate also found it notable that “John did not appear at the July 29 evidentiary hearing to testify or dispute that he still possessed and is intentionally withholding his text messages with Kerry, nor did his counsel present any evidence that would explain or justify his failure to produce the text messages.”
The magistrate recommended that the judge provide remedies for spoliation, including applying an adverse presumption against Plaintiffs that the missing text messages with Kerry “would have been favorable to Defendants and unfavorable to Plaintiffs.” Because Plaintiff John Shoemaker was found to have intentionally withheld his text messages, the magistrate recommended that John’s claim “should be involuntarily dismissed with prejudice, based on the above Kozel analysis and John’s testimony that he never deletes text messages evidencing John’s intentional and ongoing violation of the Discovery Order” [Docket Entry 383]. The judge ultimately approved and adopted the magistrate’s findings and recommendations in the Final Judgment [Docket Entry 949].
If you have a case involving undue influence, lack of capacity, or spoliation of evidence, please do not hesitate to contact Chepenik Trushin LLP for a consultation.
