concurring in part and dissenting in part.
In her suit for damages against Bouvé & Mohr, LLC d/b/a Creekside and/or Spring Valley Apartments (B&M), Joceyline Banks alleged that she was raped and robbed in the apartment she rented from B&M, and that B&M was liable because it negligently failed to repair a windowpane through which the intruder gained entry to the apartment. B&M brought an interlocutory appeal from a pre-trial order on Ms. Banks’s motion for sanctions against B&M for spoliation *766of evidence. In its order granting the motion, the trial court: (1) found that a police officer assigned to investigate Ms. Banks’s rape and robbery complaint deliberately and in bad faith destroyed “rape kit” and other evidence relevant to the rape allegation while secretly acting as the agent of B&M, and (2) ordered that B&M be sanctioned at trial for spoliation of the evidence by an instruction to the jury conclusively establishing that Ms. Banks was raped. The majority affirms this order finding that the record supports the trial court’s conclusion that the police officer destroyed evidence acting as B&M’s agent. Because there is no evidence in the record, direct or circumstantial, which could support the trial court’s conclusion that the police officer destroyed evidence acting as B&M’s agent, I respectfully dissent.
I concur with the majority’s conclusion that the trial court erred by denying as premature B&M’s motion for the award of attorney fees under OCGA§ 9-15-14 (b).
After Ms. Banks reported to the East Point Police Department (the Department) that she had been raped and robbed in her apartment on February 3,2001, a Department officer tookMs. Banks to the Grady Hospital Rape Crisis Center (the Crisis Center) where rape kit evidence was collected. The Department then assigned Detective Robert Gray to investigate Ms. Banks’s rape and robbery complaint. At the time, B&M employed off-duty Department officers as security guards at the apartments where Ms. Banks lived, and Detective Gray was one of the officers who had worked for B&M in that capacity. Detective Gray twice interviewed Ms. Banks about the alleged rape, obtained a description of the rapist, and, based on this information and further investigation, identified two suspects and developed a photo lineup as to each suspect for Ms. Banks to view. But Ms. Banks never viewed the lineups. Detective Gray testified that he made three separate attempts to personally contact Ms. Banks at home, leaving his business card each time, and that he also attempted to contact her by telephone and left messages for her with her fiancé and her brother. Ms. Banks testified that she was not aware of any messages left for her, and that she never had any further contact with the Department about her complaint. On February 18, 2001, Detective Gray put a note in his investigation file indicating that he was closing the file due to lack of interest from Ms. Banks, subject to the file being reopened if she contacted the Department. On March 9, 2001, Ms. Banks sued B&M for damages claiming that B&M’s negligence proximately caused the rape and robbery.
During discovery in the civil suit, evidence revealed that the Department destroyed the rape kit in November 2002 during the Department’s yearly purge of evidence in closed cases, and that at some point the Department lost a washcloth which had been collected *767as rape related evidence at Ms. Banks’s apartment. In January 2003, Ms. Banks filed a motion seeking sanctions for spoliation of this evidence in which she alleged that evidence developed during the discovery process showed a “deliberate, intentional, and willful spoliation of evidence by Detective Gray, while acting as the agent of [B&M].” During oral argument on the motion, Ms. Banks contended the evidence showed that B&M and the attorneys for B&M acted in concert with Detective Gray to destroy the evidence. Pointing to evidence of contact between B&M’s attorneys and Detective Gray, and the fact that Detective Gray along with other Department officers had worked off-duty as security guards at the B&M apartments, Ms. Banks made the following allegations: that Detective Gray had a conflict of interest because he had worked off-duty as a security guard at the B&M-owned apartments, and that he prematurely closed the Department investigation file on her complaint; that Detective Gray, acting on behalf of B&M, used his police identity to obtain the rape kit evidence from the Crisis Center in August 2002; that Detective Gray then personally held the rape kit for B&M for three months while B&M had it secretly analyzed during that time; that Detective Gray then logged in the rape kit at the Department in November 2002, and, acting on behalf of B&M, directed that the rape kit be destroyed by the Department as unwanted evidence in the closed investigation. Ms. Banks argued at the hearing on her sanctions motion that “[t]he only answer that we can come up with to that is that... [B&M] had [the rape kit evidence] analyzed, that they knew it supported the plaintiffs claims, and it wasn’t going to be beneficial for them [for the rape kit] to see the light of day.”
The trial court did not conduct an evidentiary hearing on the spoliation claim, but based its consideration of Ms. Banks’s claim entirely on the record developed during discovery in the case. As previously set forth, the record showed that Detective Gray, who had worked as an off-duty security guard for B&M, was assigned by the Department to investigate Ms. Banks’s complaint, and that he interviewed Ms. Banks, investigated the case, located suspects, and developed photo lineups of the suspects for Ms. Banks to view. Although Detective Gray testified that he made numerous attempts to contact Ms. Banks to view the lineups, the record shows that Ms. Banks never responded and never contacted the Department to pursue her complaint. After Detective Gray closed the investigation file, subject to further contact from Ms. Banks, Ms. Banks filed the subject suit on March 9, 2001 seeking damages against B&M. Prior to filing the suit, Ms. Banks’s attorneys asked the Department by letter to preserve evidence related to the rape.
The discovery record considered by the trial court further showed the following: After the rape kit evidence was collected at the Crisis *768Center from Ms. Banks on February 3,2001, the rape kit remained in the possession of the Crisis Center for about 18 months while attorneys for both B&M and Ms. Banks unsuccessfully attempted to obtain the kit by subpoena. The Crisis Center eventually sent a letter to the Department on July 25, 2002 indicating that it still had the rape kit, and in response to the letter the Department sent Detective Gray to pick up the rape kit on August 22, 2002. A Crisis Center employee testified by affidavit that, after the letter was sent, she told an attorney for B&M, who was seeking possession of the rape kit, that the Crisis Center would only release the kit to the Department. Detective Gray testified by deposition that he logged in the rape kit at the Department on the same day he obtained it from the Crisis Center in August 2002, and that the rape kit remained in the custody of the Department until it was logged out for transport to the GBI in November 2002 to determine if the GBI would analyze it. At his January 2003 deposition, Detective Gray testified that, immediately after his earlier September 2002 deposition, an attorney for B&M asked him if he would determine if the GBI would analyze the rape kit. He testified that he told the B&M attorney that he would forward the rape kit to the GBI to determine if they would analyze it. According to Detective Gray, the GBI refused to analyze the rape kit because the Department investigation file was closed, and it was returned to the Department and logged in by him on November 13, 2002. Although Detective Gray testified that he called B&M’s attorneys to inform them that the GBI would not analyze the rape kit, he said he did not otherwise discuss the rape kit with the B&M attorneys.
Detective Gray further testified that, shortly after the rape kit was returned to the Department from the GBI, the Department destroyed it at his direction as part of the Department’s yearly purge of unneeded evidence in closed investigations. Detective Gray testified that the rape kit was destroyed at his direction in response to a memo he received from Department Lieutenant Edward Bradley about the status of cases with stored evidence. Lieutenant Bradley testified by deposition that, on or about November 13, 2002, he took the Banks rape kit from the Department evidence refrigerator and destroyed it at the request of Detective Gray, who had sent him written notice that the Banks investigation was closed and that the evidence could be destroyed. Lieutenant Bradley testified that it was his yearly practice to dispose of evidence in closed cases, and that the written notice he received from Detective Gray was sent in response to his request for information on the status of evidence in closed cases. Detective Gray testified that he authorized destruction of the rape kit because he thought Ms. Banks had lost interest in the case and that there was no reason to keep the evidence. He admitted that he did not *769check to determine if Ms. Banks had requested that the Department preserve the evidence prior to telling Lieutenant Bradley to destroy it.
Although Department records showed the November 13, 2002, log-in date, there were no Department records to support Detective Gray’s testimony that he originally logged in the rape kit in August 2002 or that the rape kit was logged out in November 2002 for transport to the GBI. Detective Gray testified that he did not know why the Department records failed to show those dates. Detective Gray testified that, although it was possible he spoke directly to someone connected to B&M during his criminal investigation of Ms. Banks’s complaint, he had no conversations with anyone at B&M concerning Ms. Banks’s civil suit against B&M. He also denied that anyone told him to destroy the rape kit, or that he acted as an agent for B&M or its attorneys when he told Lieutenant Bradley that the rape kit could be destroyed.
The record also shows that the Department lost a washcloth collected as rape evidence at Ms. Banks’s apartment. Lieutenant Bradley testified that Department records showed that evidence collected at Ms. Banks’s apartment was logged in at the Department, including bedding from the apartment and a washcloth, which Ms. Banks said was used to wipe her genital area after the rape. Lieutenant Bradley confirmed that the washcloth was missing from the logged-in evidence. According to Lieutenant Bradley, after the evidence was logged in, only he and the Department Chief had a key that could access the evidence storage area. Lieutenant Bradley testified that Department records did not show that the washcloth had been logged out or destroyed. Detective Gray testified that, although he had heard the washcloth was missing from evidence, he never saw it and did not remove it from evidence.
Based on the above discovery record in the case, the trial court entered an order in which it found that “there is no evidence before the Court that [B&M’s] counsel participated in the spoliation of evidence.” Nevertheless, the trial court concluded that evidence showed Detective Gray terminated the criminal investigation without good reason; that he picked up and personally held the rape kit from August 22, 2002 until November 13, 2002, and that “[t]he records show no reason as to why Detective Gray would hold such a critical piece of evidence in his possession for almost three months.” The trial court further found that Detective Gray had “an obvious conflict of interest” because of his off-duty work for B&M, and that “[fjrom the very beginning Detective Gray’s motives were clear when he concluded that this incident was not a rape case and closed it. . . with virtually little or no investigation.” Moreover, the trial court found that Detective Gray, who had been deposed in Banks’s civil case *770in September 2002 about two months before he directed that the rape kit be destroyed in November 2002, had notice that the evidence was important to Banks’s civil case, and that he deliberately destroyed it in bad faith. Finally, the trial court found that the washcloth evidence had “inexplicably disappeared,” and that the “[destruction of this evidence circumstantially lays at the foot of Detective Gray.” Based on these findings, the trial court concluded that: “The actions of Detective Gray during this incident shows behavior evidencing a deliberate intent by an agent of Defendant to destroy or compromise the integrity of evidence . . . [and that there] is no doubt that Defendants, through Detective Gray, went to considerable efforts to destroy the rape kit which undermined Plaintiffs ability to establish that she was raped.” Having found that B&M engaged in spoliation of evidence through the actions of its agent, Detective Gray, the trial court granted Banks’s motion and sanctioned B&M by ruling that the jury be given an instruction conclusively establishing that Ms. Banks was raped.
Because B&M did not own or possess the destroyed evidence, the trial court was authorized to impose sanctions against B&M for spoliation only if there was sufficient proof that B&M had control over the destroyed evidence by virtue of its ability to control the nonparty entity or person who possessed and destroyed the evidence. See R. A. Siegel Co. v. Bowen, 246 Ga. App. 177, 179-183 (539 SE2d 873) (2000) (spoliation sanctions imposed against a party after agents for the party destroyed relevant evidence). To satisfy this requirement, the trial court concluded that B&M had control over the evidence at issue because Detective Gray destroyed the evidence acting as an agent for B&M. The majority finds that there was sufficient circumstantial evidence in the record to support this conclusion.
First, the majority points out that, shortly after the Crisis Center sent the letter informing the Department that it had the rape kit, an attorney representing B&M in the civil suit made telephone calls to the Crisis Center seeking the rape kit. According to the majority, a reasonable inference can be drawn from these facts that Detective Gray must have “informed B&M or its lawyers that the Crisis Center had the rape kit.” Although this is pure speculation, even if there was evidence it was true, it does not support a reasonable inference that Detective Gray destroyed the evidence on behalf of B&M.
Second, the majority points out that, after the Crisis Center sent the above letter to the Department, Detective Gray picked up the rape kit from the Crisis Center in August 2002, even though he had closed the investigation file. According to the majority, Detective Gray had no “police purpose” for retrieving the rape kit in the closed investigation, so the trial court could reasonably infer that “he did so on behalf of his other employer, B&M, for use in the pending civil suit.” *771Again, the mere fact that, after receiving the letter, the Department sent Detective Gray to pick up the rape kit does not support a reasonable inference that he did so as B&M’s agent or that he later destroyed the evidence as B&M’s agent. Detective Gray was assigned by the Department to the investigation, and even though he had closed the investigation, subject to further contact from Ms. Banks, he did so only after repeated unsuccessful attempts to get Ms. Banks to cooperate with the investigation.
Third, the majority points out that, even though Detective Gray said he logged in the rape kit at the Department the day he picked it up, Department records showed only a November 2002 log-in date. According to the majority, the trial court could reasonably infer from these facts (1) that Detective Gray kept the rape kit in his personal custody for three months in violation of Department policy and (2) that because the investigation file was closed, Detective Gray held the rape kit “on behalf of B&M.” I agree that this evidence supports a reasonable inference that Detective Gray held the rape kit after he picked it up until the Department records show that he logged it into evidence in November, but this is not evidence that could support an additional reasonable inference that he held it or subsequently destroyed it as B&M’s agent.
Fourth, the majority points out that in September 2002 an attorney for B&M asked Detective Gray after his deposition if he would find out if the GBI would be willing to analyze the rape kit; that Detective Gray agreed to find out, and that he later informed B&M’s attorney that the GBI refused. According to the majority, this shows that Detective Gray’s “only logical purpose” was to “assist B&M.” Certainly, this evidence supports a reasonable inference that Detective Gray intended to assist B&M’s attorneys and B&M with this request, but it is not reasonable to infer from this evidence that Detective Gray destroyed evidence as B&M’s agent.
Finally, the majority points out that, shortly after Detective Gray logged in the rape kit in November 2002, he authorized Lieutenant Bradley to destroy it as unneeded evidence in the closed investigation, even though he knew that Ms. Banks had filed the civil suit against B&M. This evidence creates a suspicion that Detective Gray may have acted in bad faith when he authorized destruction of the rape kit, but it does not support a reasonable inference that he acted as an agent for B&M.
At best, the evidence pointed out in the trial court’s order and the majority opinion creates a mere suspicion or possibility that Detective Gray destroyed the rape kit evidence in bad faith and that he did so while acting as an agent for B&M. And certainly the trial court’s additional conclusion that the evidence shows Detective Gray destroyed the washcloth for B&M because it “inexplicably disappeared” *772is rank speculation. Aside from the fact that Detective Gray had worked as an off-duty security guard for B&M, there is no evidence in the record of any direct contact between B&M and Detective Gray. In fact, the only evidence of indirect contact was the fact that B&M’s attorneys spoke to Detective Gray about determining if the GBI would analyze the rape kit. The majority ignores the fact that even the trial court recognized that the contact between B&M’s attorneys and Detective Gray provided no support for Ms. Banks’s claim that B&M’s attorneys were involved in spoliation of the evidence. But with no evidence of any contact between B&M and Detective Gray related to the civil suit, the majority piles one speculative inference upon another to endorse the trial court’s conclusion that B&M destroyed evidence by acting through Detective Gray. The fact that Detective Gray worked off-duty as a security guard for B&M may create suspicion that he destroyed evidence to help B&M in the civil suit, but even if he acted with that motive, it provides no reasonable proof that he acted as B&M’s agent.
On the record before the trial court, it was not reasonable to infer that B&M destroyed evidence by using Detective Gray as its agent. “The relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf.” OCGA § 10-6-1. As with any other fact, an agency relationship may be established by circumstantial evidence “through circumstances, apparent relations, and the conduct of the parties.” Johnston v. Warendh, 252 Ga. App. 674, 679 (556 SE2d 867) (2001). But circumstantial evidence which gives rise to mere suspicion or possibility is the equivalent of no evidence at all and provides no basis for the trial court to reasonably conclude or infer that Detective Gray destroyed the evidence as an agent for B&M. Ken Thomas of Ga., Inc. v. Halim, 266 Ga. App. 570, 574-575 (597 SE2d 615) (2004). Contrary to Ms. Banks’s contention, this case is not similar to cases where this Court has found that, because of established business relations between corporate entities alleged to have an agency relationship, “[t]he threshold for showing agency in this context is low, and even scant factual support may suffice.” Nissan Motor Acceptance Corp. v. Stovall Nissan, Inc., 224 Ga.App. 295,298 (480 SE2d 322) (1997). The fact that Detective Gray worked as an off-duty security guard for B&M was not the type of business context addressed in those cases. In any event, Ms. Banks does not allege that an agency relationship existed between Detective Gray and B&M in the context of the off-duty employment, but that Detective Gray secretly acted as an agent for B&M while using his identity as a police officer. No lower threshold for proof of agency applied in this case.
*773Decided July 14, 2005 Reconsideration denied July 28, 2005 Carlock, Copeland, Semler & Stair, Thomas S. Carlock, Mary K. Greene, Renee Y. Little, for appellant. James A. Goldstein, Jonathan R Hayes, for appellee.On related discovery impropriety issues, this Court has repeatedly held that those decisions are within the sound discretion of the trial court, and that an appellate court will not interfere absent a clear abuse of discretion. Ga. Emission Testing Co. v. Reheis, 268 Ga. App. 560, 564 (602 SE2d 153) (2004). Because there is no evidence in the record which could support the trial court’s finding that Detective Gray destroyed evidence as B&M’s agent, I conclude that the trial court clearly abused its discretion, and that the order imposing sanctions for spoliation of evidence should be reversed. Bruce v. Wallis, 274 Ga. 529, 531 (556 SE2d 124) (2001) (trial court abuses discretion where judgment has no evidence to support it).
Finally, one additional point needs to be made in response to the majority opinion affirming the trial court’s decision to sanction B&M by instructing the jury that Ms. Banks was raped. As both the majority opinion and trial court’s order note, when B&M filed a motion in the trial court to have the rape kit independently analyzed by the GBI, Ms. Banks opposed the motion contending that the analysis was unnecessary because the rape kit had already been analyzed by Grady Hospital. If, as Ms. Banks contended, the rape kit was independently analyzed by Grady Hospital before it was destroyed and further analysis was unnecessary, then the rape kit analysis (if evidence of it exists) preserved the evidentiary value of the destroyed rape kit. If that is the case, then the trial court’s basis for the imposition of sanctions — that destruction of the rape kit undermined Ms. Banks’s ability to prove that she was raped — is rendered moot by her ability to use the results of the rape kit analysis to establish that she was raped.