Key Points

  • When a trial court rules on a spoliation motion without an evidentiary hearing, it must view the evidence under the summary judgment standard, in the light most favorable to the party opposing sanctions, and may not decide credibility.
  • The record supported a finding that Sun Brite failed to preserve texts and call records between its CEO and the driver on the CEO's replaced phone from October 11 through October 24, 2021.
  • Viewed in Sun Brite's favor, the evidence did not show that pre-collision communications existed on the day of the crash, so the finding of spoliation for that day was unsupported.
  • The court vacated the sanction order and the denial of summary judgment and remanded for the trial court to reconsider the remedy; evidence categories raised first on appeal were not considered.

The Georgia Court of Appeals on Wednesday threw out a sanction that would have told jurors a pressure-washing company let evidence be destroyed in a lawsuit over a fatal crash, holding that a trial judge who heard only lawyers' arguments, and no evidence, could not resolve disputed facts against the company.

Presiding Judge McFadden wrote for a unanimous three-judge panel, joined by Judges Watkins and Padgett. The court vacated the order imposing spoliation sanctions on Sun Brite Services Inc., along with the order denying the company summary judgment, and sent the case back to the trial court.

The panel held that the record supports a finding that Sun Brite failed to preserve two weeks of texts and call records between its chief executive and the driver before the crash. It does not support such a finding for the day of the crash itself. The trial court must now decide what remedy fits that narrower finding.

The case arises from an October 25, 2021, collision. Norbert Goodrum, a Sun Brite senior technician who worked nights, was driving his personal car from home to the company's facility to pick up a pressure-washing truck for a job. He was wearing a Sun Brite uniform. He did not see a pedestrian in the road, struck him and killed him, according to the opinion.

Kristina Gutierrez, the mother of the pedestrian's child, and Hillary B. Cranford, the administrator of his estate, sued Goodrum and Sun Brite. They alleged 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 crash.

Timing mattered to that theory. Sun Brite's sole owner and chief executive, Jeff Robison, let employees set their own hours as long as jobs were finished by 6 or 7 in the morning. When a job allowed Goodrum to start earlier than usual, Robison would tell him by text message or phone call, the opinion said.

In December 2021, Gutierrez sent Sun Brite a letter asking it to keep "all communications with Norbert Goodrum and all scheduling documents for Norbert Goodrum's employment for the two weeks before and after this collision." It was undisputed that Robison replaced his cellphone.

Spoliation is the destruction of, or failure to preserve, evidence needed for pending or contemplated litigation. The plaintiffs moved for sanctions on that ground. At the hearing, the parties argued but presented no evidence. The trial court found that Sun Brite had not acted in bad faith but had offered "no valid or convincing explanation or reasoning for the destroyed records[.]" It ruled that it would instruct the jury that the missing evidence "may have shown that Mr. Goodrum was acting within the course and scope of his employment at the time of the subject incident."

Sun Brite argued on appeal that the trial court applied the wrong legal standard. The panel agreed. Because there was no evidentiary hearing, McFadden wrote, the trial court had to treat the motion like one for summary judgment, viewing the evidence in the light most favorable to Sun Brite and drawing all reasonable inferences in its favor. "Absent an evidentiary hearing, the court may not decide credibility issues," he wrote.

The panel first had to pin down what the plaintiffs claimed was lost. "About that the plaintiffs were not precise," McFadden wrote. The motion variously described communications in the week before the crash, the two weeks before it and the hours leading up to it. Each theory rested on Robison's replaced phone. The court read the motion to cover texts and call records between Goodrum and Robison on that phone from October 11 through October 25, 2021.

For October 11 through October 24, the court found the failure to preserve undisputed. Robison testified in his deposition that he and Goodrum would have communicated in that period, including about job start times.

The day of the crash was different. Goodrum testified that he did not speak or text with anyone from Sun Brite that day before the collision, and Robison testified that he would not have contacted Goodrum that day before the collision. Robison also said Goodrum most likely would have received a text or call that day about when to start. But he clarified that such information "could have been communicated days before in a conversation."

The trial court could not weigh that testimony without a hearing, the panel held. Read in Sun Brite's favor, the evidence did not show that any pre-crash messages existed that day. Quoting an earlier decision, McFadden wrote, "It is axiomatic that in order for there to be spoliation, the evidence in question must have existed."

That error carried into the sanction. Georgia courts weigh five factors in choosing a spoliation sanction, including prejudice to the party seeking sanctions, whether the prejudice can be cured and the practical importance of the evidence. The trial court found prejudice that could not be cured and evidence of real importance. The panel said the mistaken finding about the day of the crash "may have affected" those conclusions. Again quoting precedent, it wrote that "[a] trial court must fashion a remedy appropriate to its findings[.]"

The court declined to consider other categories of evidence the plaintiffs raised for the first time in their appellate brief: Goodrum's own cellphone, the company's Slack messages and its work orders. Those were not part of the sanctions motion and "were not before the trial court," the opinion said.

Because reconsidering the sanction could change the summary judgment ruling, the panel vacated the denial of Sun Brite's motion as well, without reaching the company's challenge to that ruling.

The case, No. A26A0912, returns to the trial court for it "to consider the remedy to be employed under the circumstances and applicable law," and then to take up summary judgment again. Under the court's notice, motions for reconsideration must be received by 4:30 p.m. on the 10th day after the decision.