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 pressurewashing 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
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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 postcollision communications in their sanctions motion.
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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
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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.”
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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
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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.
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