Full Opinion

FOURTH DIVISION MCFADDEN, P. J., WATKINS and PADGETT, JJ. NOTICE: Motions for reconsideration must be received no later than 4:30 pm on the 10th day after the decision was issued to be deemed timely filed. https://www.gaappeals.gov/rules October 28, 2026 In the Court of Appeals of Georgia A26A0912. SUN BRITE SERVICES, INC. v. GUTIERREZ et al. MCFADDEN, Presiding Judge. Norbert Goodrum, an employee of appellant Sun Brite Services, Inc., struck and killed a pedestrian while he was driving his personal car. Kristina Gutierrez, the mother of the pedestrian’s child, and Hillary B. Cranford1, the administrator of his estate (together, “the plaintiffs”), filed this lawsuit against Goodrum and Sun Brite, alleging that Sun Brite was vicariously liable for Goodrum’s negligence because Goodrum was acting in the course and scope of his employment at the time of the fatal collision. 1 In the record, Cranford’s first name is spelled as both “Hilary” and “Hillary.” Sun Brite appeals from two interlocutory orders: an order imposing spoliation sanctions and an order denying its motion for summary judgment. At the hearing on those motions, the parties argued but did not present evidence. Consequently, the summary judgment standard for disputes of fact obtained as to both motions. The trial court did not employ that standard on the spoliation issue. So we vacate the trial court’s order granting the plaintiffs’ motion for spoliation sanctions. In light of this holding, we also vacate the order denying Sun Brite’s motion for summary judgment. We remand the case for further proceedings not inconsistent with this opinion.2 1. Background Sun Brite is a commercial and industrial pressure washing company. Jeff Robison is Sun Brite’s sole owner and CEO, and Goodrum is an employee. At the time of the fatal collision, Sun Brite employees drove their personal cars to the Sun Brite facility; picked up their assigned, printed work order from a job board at the office; and then retrieved the equipment needed to complete the job, including a company-owned truck equipped with a pressure washer, which they would drive to 2 Oral argument was held in this case on April 28, 2026, and is archived on the court’s website. See Court of Appeals of Georgia, Oral Argument, Case No. A26A0912 (April 28, 2026), available at https://vimeo.com/1188466885. 2 the job site. Sun Brite employees communicated internally using Slack, “a cloud-based team communication platform.” https://en.wikipedia.org/wiki/Slack_(software) (retrieved September 16, 2026), and by text messages and telephone calls. Some of Sun Brite’s clients are shopping centers, which must be cleaned when they are closed at night, so Robison allows his employees flexibility in their hours; as long as his employees complete the job by 6 or 7 in the morning, they may begin the work when they prefer. Goodrum worked as a senior technician for Sun Brite. He was a night-shift employee, but some evidence showed that some days in the weeks before the collision, he began work earlier than the typical night-shift start time of between 9 p.m. and 10 p.m. If a particular job allowed Goodrum to begin work earlier than ususal, Robinson would inform him by text message or phone call. On the night of the fatal collision, October 25, 2021, Goodrum was driving his personal car from his residence to the Sun Brite facility in order to pick up a pressure- washing truck to use at a job site. He was wearing a Sun Brite uniform and had a safety vest in a backpack in his car. He did not see the pedestrian in the road, and struck him, killing him. 3 On December 17, 2021, Gutierrez sent Sun Brite a letter, requesting that it maintain all records relating to the injuries and death of [the pedestrian]. This request includes all communications with Norbert Goodrum and all scheduling documents for Norbert Goodrum’s employment for the two weeks before and after this collision, all photographs, videos, reports, and any other documentation relating to this collision, and Norbert Goodrum’s employment status on the date of the collision. After the plaintiffs filed this lawsuit, Sun Brite filed a motion for summary judgment and the plaintiffs filed a motion for spoliation sanctions. The trial court held a hearing on the motions, at which the parties argued but did not present evidence, and then entered an order denying Sun Brite’s motion for summary judgment and granting the plaintiffs’ motion for spoliation sanctions. We granted Sun Brite’s application for interlocutory appeal, and this appeal followed. 2. Spoliation “Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation. AMLI Residential Properties v. Ga. Power Co., 293 Ga. App. 358, 361 (1) (667 SE2d 150) (2008) (citation modified). See also OCGA § 24-14-22. Generally, the trial court 4 has wide discretion in adjudicating spoliation issues, and such discretion will not be disturbed absent abuse. Where a trial court makes findings of fact in ruling on a spoliation claim, this [c]ourt will uphold those findings if there is any evidence to support them, i.e., unless they are clearly erroneous. When the trial court imposes a sanction that is inconsistent with its factual findings, the trial court abuses its discretion. Cowan Systems v. Collier, 361 Ga. App. 823, 823-824 (865 SE2d 619) (2021) (citation modified). But here, there has not been an evidentiary hearing. So the trial court was required to construe the evidence “under the standard applicable to a motion for summary judgment, and as the part[y] opposing the motion, [Sun Brite is] entitled to have the evidence in the record viewed in the light most favorable to [it] and to have all reasonable inferences from the evidence drawn in [its] favor.” UPS of Am. v. Whitlock, 366 Ga. App. 542, 555(2)(a) (883 SE2d 556) (2023) (citation modified). Absent an evidentiary hearing, the court may not decide credibility issues. Id. at 556- 57(2)(a)(i). Sun Brite argues that the trial court applied the wrong legal standard when it found that spoliation had occurred. We agree. 5 We begin by identifying the evidence plaintiffs claimed they had asked Sun Brite to preserve but that it had not preserved. About that the plaintiffs were not precise. See Cowan Systems, 361 Ga. App. at 825 n.2 (reviewing motion for sanctions to determine what evidence the movant alleged was spoliated); Whitlock, 366 Ga. App. at 555(2)(a) (“the way in which the plaintiff[ ] raised ... the spoliation claim[ ] against the defendant[ ] is important to our review of the issue before us”). At one point in the motion, the plaintiffs alleged that Sun Brite failed to preserve its “communications” with Goodrum, without defining what they meant by “communications.” At another point they alleged specifically that Sun Brite had not preserved text messages and records of telephone calls between Sun Brite employees and Goodrum “in the week leading up to the collision.” They also alleged that Sun Brite failed to preserve communications with Goodrum “in the two weeks leading up to” the collision. They elsewhere focused on Sun Brite’s communications with Goodrum while he was driving to work on the night of the fatal collision and the calls and text massages “in the hours leading up to the collision.” As to all of these communications, however, the plaintiffs alleged that Sun Brite failed to preserve the evidence because Robison replaced his cellular telephone, an undisputed fact. 6 From this we conclude that in their motion the plaintiffs contended that the evidence they requested Sun Brite to retain but that Sun Brite did not preserve is the text messages and records of telephone calls between Goodrum and Robison as reflected on Robison’s replaced cellular telephone in the two weeks leading up to the collision and on the date of the collision itself, or from October 11, 2021, through October 25, 2021.3 The trial court found as fact, see In re Estate of Flournoy, 373 Ga. App. 133, 138(2) (907 SE2d 724) (2024), that Sun Brite “spoliated the requested records,” without specifying which particular records. So we must conclude that the trial court found that Sun Brite spoliated the “requested records” described above: the text messages and records of telephone calls between Goodrum and Robison, as reflected on Robison’s replaced telephone, in the two weeks leading up to the collision and on the date of the collision itself. 3 In their appellees’ brief, the plaintiffs also argue about Sun Brite’s failure to preserve Goodrum’s cellular telephone, Slack messages, and work orders. But they did not make these arguments in their motion for spoliation sanctions, so these categories of evidence were not before the trial court when he ruled on the spoliation sanctions motion. 7 We hold that the evidence supports the trial court’s factual finding of spoliation only in part. Even when viewing the evidence in Sun Brite’s favor, as the trial court was required to do given the procedural posture of this case, the evidence is undisputed that Sun Brite failed to preserve text messages and records of telephone calls between Goodrum and Robison, as documented on Robison’s replaced telephone, for the period of October 11, 2021, through October 24, 2021. Robison testified in his deposition that he and Goodrum would have communicated, including about job start times, by text message or telephone call in this time period. But when viewed in Sun Brite’s favor, the evidence does not suppport a finding that Sun Brite failed to preserve text messages and records of telephone calls between Goodrum and Robison on the day of the fatal collision, at least before the collision occurred.4 Goodrum testified in his deposition that on that day, he did not speak or text with anyone from Sun Brite before the collision occurred. Robison also testified in his deposition that he would not have communicated with Goodrum on that day before the collision occurred. And although Robison also testified in his deposition 4 The evidence is undisputed that Goodrum and Robison communicated by telephone shortly after the collision, but the plaintiffs did not argue about post- collision communications in their sanctions motion. 8 that, most likely, that day Goodrum would have received a text message or a phone call from him or the operations manager informing him what time to begin work, he clarified that such information “could have been communicated days before in a conversation.” The trial court could not make a credibility determination, since it did not hold an evidentiary hearing, and was required to view this testimony in the light most favorable to Sun Brite. Properly viewed, the evidence does not show that there were text messages and records of telephone calls between Goodrum and Robison on the day of the fatal collision before the collision occurred. “It is axiomatic that in order for there to be spoliation, the evidence in question must have existed. ...” Sentry Select Ins. Co. v. Treadwell, 318 Ga. App. 844, 847(2)(c) (734 SE2d 818) (2012). So when viewed in favor of Sun Brite, the evidence does not support the trial court’s factual finding that Sun Brite spoliated text messages and records of telephone calls between Goodrum and Robison on the day of the fatal collision before the collision occurred. (b) Sanction Once the trial court has determined that spoliation occurred, the court should weigh five factors to determine an appropriate sanction: (1) whether the party seeking sanctions was prejudiced as a result of the destroyed evidence; (2) whether the prejudice could be cured; (3) the 9 practical importance of the evidence; (4) whether the destroying party acted in good or bad faith; and (5) the potential for abuse if any expert testimony about the destroyed evidence was not excluded.5 Whitlock, 366 Ga. App. at 555(2)(a) (citation modified). “[W]e will not disturb a trial court’s imposition of sanctions for evidence spoliation unless the trial court abused its discretion.” Sentry Select, 318 Ga. App. at 848(3) (quotation marks omitted). Here, only the first four factors were at issue; the record contains no mention of an expert witness. On the first three factors, the trial court found that [p]laintiffs were prejudiced as a result of the destruction of Sun Brite Services, Inc.’s phones and communications with Mr. Goodrum, [that] the prejudice cannot be cured, and that the missing phones and communications contained important evidence as to whether Mr. Goodrum was acting in the course and scope of his employment at the time of the collision. On the fourth factor, the court found that Sun Brite had not acted in bad faith, although it had offered “no valid or convincing explanation or reasoning for the destroyed records[.]” As a sanction, the court ruled that it would instruct the jury that 5 We note that the trial court incorrectly stated that the fifth factor is simply “potential for abuse.” 10 the spoliated evidence (i.e., the missing cell phones and communications) may have shown that Mr. Goodrum was acting within the course and scope of his employment at the time of the subject incident, but Sun Brite Services, Inc. allowed the evidence to be destroyed after being put on notice that it had a duty to preserve this evidence. But the trial court’s erroneous factual finding — that Sun Brite spoliated text messages and records of telephone calls between Goodrum and Robison on the date of the fatal collision before it occurred — may have affected the trial court’s findings on whether the plaintiffs were prejudiced as a result of the destroyed evidence; whether the prejudice could be cured; and the practical importance of the evidence. “[A] trial court must fashion a remedy appropriate to its findings[.]” Sentry Select, 318 Ga. App. at 849(3). Because spoliation is a question for the trial court to resolve in the first instance, Whitlock, 366 Ga. App. at 557-58(2)(a)(iii), the trial court’s spoliation order must be vacated and the case must be remanded “for the trial court to consider the remedy to be employed under the circumstances and applicable law.” Sentry Select, 318 Ga. App. at 849(3) (quotation marks omitted). As the trial court’s reconsideration of the spoliation motion may affect the court’s ruling on Sun Brite’s 11 motion for summary judgment, we also vacate the order denying that motion and do not reach Sun Brite’s argument that the trial court erred in denying that motion. Judgment vacated and case remanded with direction. Watkins and Padgett, JJ., concur. 12