author: Adams, Judge.

text:
    A12A1293.
    BURROWES et al v. TENET HEALTHSYSTEM GB, INC. et al.
    (735 SE2d 131)
   Adams, Judge.

In this lease dispute, Dr. Celio 0. Burrowes (Burrowes) and his professional corporation Celio Burrowes, M.D., PC. (Burrowes, PC.) appeal from the trial court’s dismissal of their complaint against Tenet Healthsystem GB, Inc. d/b/a Atlanta Medical Center (AMC) and Tenet Healthcare Corporation (Tenet), based on res judicata and lack of standing. Finding no error, we affirm.

In the trial court’s order of September 19, 2011, denying Burrowes and Burrowes, P.C.’s emergency motion for stay of a writ of possession in this action, the following procedural and factual history is set out:

Burrowes had been a tenant of AMC since 1991, but a dispute arose during negotiations for a lease renewal around 2009. Fearing a possible eviction, Burrowes, PC. filed an action against Tenet d/b/a AMC on February 12, 2010, in the Superior Court of Fulton County (Case No. 2010CV181415) (the Prior Action), seeking declaratory judgment, an interlocutory injunction, and alleging breach of contract. Among its allegations, Burrowes, P.C. alleged that, during the lease negotiations, AMC violated certain provisions of the “Stark Laws,” which are federal regulations governing the health care industry, thereby violating the 2006 Corporate Integrity Agreement (CIA) entered into between Tenet and the Office of the Inspector General of the Department of Health and Human Services. Burrowes was not a party to the CIA. AMC filed an answer and counterclaim, Count I of which sought to evict Burrowes, P.C. and recover past due rent. Pursuant to an order entered in the Prior Action, Burrowes, P. C. was required to pay certain sums to AMC and place other sums in the Court registry in order to maintain possession while the eviction claim was pending.

The parties engaged in extensive discovery in the Prior Action and, on July 14, 2011, AMC filed dispositive motions including a motion for summary judgment on its eviction counterclaim. The day before the scheduled hearing on these motions, to which Burrowes, P.C. filed no response, Burrowes, P.C. filed a voluntary dismissal which included its claims for affirmative relief based upon alleged violations of the “Stark Laws” and the CIA. Following the hearing on August 23, 2011, the trial court granted AMC’s motion for partial summary judgment and issued a writ of possession to be effective on or after September 12, 2011. This judgment was not appealed. Ajury trial was held on September 14 and 15, and the trial court issued its order and final judgment on September 19, 2011, in the Prior Action, granting AMC’s motion for directed verdict and awarding past due rent of $52,510.49. This judgment was not appealed.

The complaint in the instant action, Fulton Superior Court Case No. 2011CV205657, was filed on September 13, 2011, by Burrowes and Burrowes, P.C. The trial court in the present action denied their request for an emergency order staying execution of the writ of possession.

The complaint here initially alleged only a single count (Burrowes and Burrowes, P.C. asserted that they were third-party beneficiaries of a breach of contract, i.e., the CIA), which was Count V of the amended complaint in the Prior Action. Tenet filed its answer and a motion to dismiss, arguing that the complaint was barred by res judicata and that the claims were required to have been asserted in the Prior Action. In response, Burrowes and Burrowes, P.C. filed an Amended Complaint basically reasserting all of the claims made in the Prior Action.

“We review de novo the trial court’s grant of a motion to dismiss. A motion to dismiss may be granted only where a plaintiff would not be entitled to relief under any set of facts that could be proven in support of the plaintiff’s claim.” (Citations and punctuation omitted.) Johnson v. Bd. of Commrs., Bibb County, 302 Ga. App. 266, 267 (690 SE2d 912) (2010). And when, as here, the trial court does not recite the grounds upon which the court granted the motion to dismiss, if the judgment is authorized for any reason, it must be affirmed. Nairon v. Land, 242 Ga. App. 259 (529 SE2d 390) (2000).

1. Appellants’ first enumeration is that they were not required to assert their claims in the Prior Action and therefore the present complaint is not barred by res judicata.

Appellants argue that they could file a voluntary dismissal pursuant to OCGA § 9-11-41 (a) (1) in the Prior Action and then file a renewal suit without being subject to res judicata. That section provides that “fsfubject to the provisions of... any statute, an action may be dismissed by the plaintiff, without order or permission of [the] court: (A) By filing a written notice of dismissal at any time before the first witness is sworn[.]” (Emphasis supplied.)

OCGA § 9-11-13 (a), to which voluntary dismissal is subject, provides, in pertinent part:

A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. . . .

Because this statute uses “pleader,” “pleading,” and “opposing party,” instead of designating parties to litigation, it is clear that its mandate applies to claims and counterclaims. Upon Burrowes and Burrowes, P.C.’s voluntary dismissal of its complaint in the Prior Action, Tenet’s claims stood alone and, pursuant to OCGA § 9-11-13 (a), Burrowes and Burrowes, PC. were required to file as a “counterclaim” to Tenet’s claims any claims which Burrowes and Burrowes, P.C. had arising out of the transaction or occurrence that was the basis of Tenet’s claims, i.e., the lease.

As discussed in Robinson v. Stokes, 229 Ga. App. 25, 26 (1) (493 SE2d 5) (1997), the fact that OCGA §§ 9-11-41 and 9-2-61 give a party a right to dismiss and renew claims does not end the analysis. “[A] renewal action, being an action de novo, is subject to valid defenses____ The bar imposed by the doctrine of res judicata ... is such a defense.” Id.

Decided November 30, 2012

Reconsideration denied December 14, 2012

Martin & Martin, Thomas F. Martin, for appellants.

Alston & Bird, William H. Jordan, Samuel R. Rutherford, for appellees.

“A party may not raise issues arising out of the same transaction which should have been pled as a compulsory counterclaim in another separate suit. If the first suit is completed, then res judicata serves to bar proceeding with the second action.” (Citation and punctuation omitted; emphasis in original.) Trust Co. Bank of Northwest Ga. v. Shaw, 182 Ga. App. 165, 166 (2) (355 SE2d 99) (1987).

The doctrine of res judicata prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action.... Three prerequisites must be satisfied before res judicata applies — (1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction.

Waldroup v. Green County Hosp. Auth., 265 Ga. 864, 865-866 (1) (463 SE2d 5) (1995). See also Perrett v. Sumner, 286 Ga. App. 379, 380-381 (2) (649 SE2d 545) (2007); cf. Steve A. Martin Agency, Inc. v. Planters-FIRST Corp., 297 Ga. App. 780, 782-785 (2) (678 SE2d 186) (2009).

All of these prerequisites were met here, and the trial court correctly granted the motion to dismiss.

2. Based on our holding in Division 1, we need not consider Appellants’ second enumeration.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       We note that Appellants’ brief is not in compliance with Court of Appeals Rule 25 (a) (1), in that it contains no citations to the record in this case to assist us in our consideration of the merits of this appeal.

       This order was not appealed and is final and binding on the parties. Hall v. Hall, 240 Ga. 28 (239 SE2d 356) (1977); Hooper v. Harris, 236 Ga. App. 651, 652 (1) (512 SE2d 312) (1999).

       When interpreting a statute courts must give meaning and intent to all words, bearing in mind that “[w]here the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.” Six Flags Over Ga. II v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003).


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A12A1435.
    KAMMERER REAL ESTATE HOLDINGS, LLC v. PLH SANDY SPRINGS, LLC.
    (740 SE2d 635)
   Branch, Judge.

The question in this suit is whether the appellant, defendant below, has a duty pursuant to an express easement to maintain and repair a sewer line that traverses the appellee’s property. We agree with the trial court that the appellant has such a duty as a matter of law, based on the plain language of the relevant deed.

This appeal comes to us following summary judgment in favor of the appellee. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

The material facts are not in dispute. The parties each own tracts of land that, as of 1967, had common ownership that had planned and platted the property for use as a residential subdivision; the subdivision, however, was never built, and thereafter, the land was sold as separate undeveloped commercial real estate lots to the predecessors in title of the current parties. The property is traversed by Trowbridge Road. Appellee PLH Sandy Springs, LLC, now owns a portion of the original property located north of that road (the PLH Property); appellant Kammerer Real Estate Holdings, LLC, now owns a portion of the original property located south of that road (the Kammerer Property). A drainage easement is shown on the 1967 plat running north (which is downhill) from the Kammerer Property, across the road, and across the PLH Property. The line exists today and still carries water across the PLH Property.

In 1977, while they still owned the entire parcel, including the two properties at issue, the common owners transferred the PLH Property to PLH’s predecessors in title by way of a warranty deed (the 1977 Deed). In that deed, the common owners reserved an express sewer easement for the benefit of their remaining parcel, the relevant

language of which follows:

"Also less and except a 20-foot wide sewer easement running in a generally southeasterly direction along the line of an existing 36-inch concrete pipe from the western boundary line of the hereinabove described easement to the northern right-of-way of Trowbridge Road. This easement is reserved by . . . Grantors for the purpose of constructing and maintaining storm or sanitary sewer lines within said tract of land to serve Grantor’s adjacent lands. It is understood that Grantor shall construct, maintain and repair said sewer lines in such a manner so as not to unreasonably interfere with the surface use by Grantee of the easement area. . . . Grantor shall maintain said sewer line in good order and repair and shall promptly restore, repair or replace any damage done to Grantee’s surface use of the easement area, resulting from the construction, maintenance, repair, relocation, alteration or operation of said sewer line.

The once common owners later deeded the Kammerer Property to Kammerer’s predecessor in interest, which, in turn, deeded the property to Kammerer. Neither party contends the easement has been abandoned.

In sum, it is not disputed that the 1977 Deed created a 20-foot wide easement along the pre-existing pipe and that, to this day, the Kammerer Property retains the benefit of that easement across the PLH Property. It is also not disputed that a portion of the old line located on the PLH Property collapsed and is in need of repair. What is disputed, however, is whether the relevant language of the easement obligates Kammerer to make those repairs.

The parties filed cross-motions for summary judgment. In a written order, the trial court construed the deed to mean that Kammerer had the obligation to maintain and repair the existing line, and it reserved the issue of damages for a later hearing. It therefore granted partial summary judgment in favor of PLH and denied Kammerer’s cross-motion.

1. In four enumerations of error, Kammerer contends the trial court misconstrued the deed. We disagree.

Kammerer’s entire argument is based on a contention that the once common owners only reserved an easement “to allow the construction of new storm and sanitary sewer lines” for the purpose of serving the common grantors’ plans to develop the property and, accordingly, any duty to maintain applies only to lines constructed after 1977, not the pre-existing sewer line located on the easement. (Emphasis supplied.) And because no new lines were ever constructed, it contends it has no duty to repair the damage that occurred to the existing line. Kammerer bases its argument on a construction of this sentence of the easement, the highlighted words in particular:

This easement is reserved by the Grantors for the purpose of constructing and maintaining storm and sanitary sewer lines within said tract of land to serve Grantors’ adjacent lands.

Kammerer contends the sewer line at issue was pre-existing and not constructed “pursuant to the 1977 Deed to serve [Kammerer’s] property.” And Kammerer offers extrinsic evidence regarding the meaning of “serving” the Grantors’ adjacent lands. PLH, on the other hand, argues that the plain language of the 1977 Deed requires Kammerer to maintain and repair any sewer line in the easement, regardless of when it was constructed.

The normal rules of contract construction govern review of the meaning of an express easement, which generally presents a question of law for the court. Municipal Elec. Auth. of Ga. v. Gold-Arrow Farms, 276 Ga. App. 862, 866 (1) (625 SE2d 57) (2005). Those rules are well summarized in Gold-Arrow Farms and, foremost, they require us to ascertain the intent of the parties based on the plain language of the agreement as a whole:

The cardinal rule of construction is to ascertain the intent of the parties. Where the contract terms are clear and unambiguous, the court will look to that alone to find the true intent of the parties. To determine the intent of the parties, all the contract terms must be considered together in arriving at the construction of any part, and a construction upholding the contract in whole and every part is preferred. When the language employed by the parties in their contract is plain, unambiguous, and capable of only one reasonable interpretation . . . the language used must be afforded its literal meaning and plain ordinary words given their usual significance.

(Citations and punctuation omitted.) Id. If the instrument contains an ambiguity, courts may look to the surrounding circumstances and consider parol evidence:

An ambiguity is defined as duplicity, indistinctness, an uncertainty of meaning or expression used in a written instrument, and also signifies of doubtful or uncertain nature; wanting clearness or definiteness; difficult to comprehend or distinguish; of doubtful purport; open to various interpretations. Where ambiguities exist, the court may look outside the written terms of the contract and consider all the surrounding circumstances to determine the parties’ intent. Parol evidence may not be considered unless the written instrument is ambiguous.

(Citations and punctuation omitted.) Id. at 866-867 (1).

We now apply those rules of construction to the 1977 Deed. In the 1977 Deed, the easement is defined as “a 20-foot wide sewer easement” running “along the line of an existing 36-inch concrete pipe.” The deed specifically limits the purpose of the easement in certain ways. The first sentence obviously limits the use of the easement to sewers. The second sentence specifically states that the easement is “for the purpose of constructing and maintaining storm or sanitary sewer lines within said tract of land to serve Grantor’s adjacent lands.” This second sentence reinforces the limitation on use to sewer lines, uses the plural “lines,” and allows either storm or sanitary lines; thus, the easement plainly allows multiple sewer lines of different types on the easement. The final sentence mandates that the Grantor “maintain said sewer line[s]” and remedy “any damage done to the Grantee’s surface use of the easement area, resulting from the construction, maintenance, repair, relocation, alteration or operation of said sewer line.” Thus, Kammerer’s duty to maintain multiple sewer lines and the surface of the easement could not be more clear. And, the easement itself does not reveal any intent of the parties to limit the duty to maintain to only newly constructed lines as opposed to all lines in the easement. For the above reasons, we conclude the easement unambiguously provides that Kammerer must maintain all sewer lines on the easement, regardless of when they were built.

Finally, even if we were to find an ambiguity in the deed (which we do not) and consider Kammerer’s expert evidence regarding the intent of the parties, we would reach the same result. The expert averred that as the property is currently configured, with certain commercial buildings and parking lots, the water on the Kammerer Property drains through sewer lines not located on the easement at issue here and, therefore, not through the original 36-inch concrete sewer line. Kammerer contends this evidence shows the original sewer line does not “serve the Grantors’ adjacent lands” as required in the emphasized language in this sentence in the 1977 deed:

This easement is reserved by... Grantors for the purpose of constructing and maintaining storm or sanitary sewer lines within said tract of land to serve Grantor’s adjacent lands.

Kammerer concludes that the plain meaning of this sentence, together with the fact that it does not use the original 36-inch line, shows that it has no duty to maintain the original line.

This conclusion is flawed because Kammerer’s expert failed to present any evidence of the intent of the parties at the time of execution of the 1977 Deed.

Where the language of an instrument in writing is ambiguous, and may be fairly understood in more ways than one, it should be taken in the sense put upon it by the parties at the time of its execution, and the court will hear evidence as to the facts and surroundings, and decree according to the truth of the matter.

Irwin v. Young, 212 Ga. 1, 7 (90 SE2d 22) (1955). See also Dooley v. Dun & Bradstreet Software Svcs., 225 Ga. App. 63, 65 (483 SE2d 308) (1997) (“It is the parties’ intent at the time the contract is made that governs.”); OCGA § 13-2-2 (1) (“if there is an ambiguity, latent or patent, it may be explained”). When examining the property, Kammerer’s expert only opined about the current use of the Kammerer Property. And although he avers that he inspected two “Land Title Surveys” as a part of his investigation, neither document is in the record. See Hughey v. Emory Univ., 168 Ga. App. 239, 240 (308 SE2d 558) (1983) (material on which expert relies must be attached or sufficiently identified and included in the record). Therefore Kammerer has failed to provide any evidence bearing on the intent of the original owners in connection with the 1977 Deed or evidence to show that the original 36-inch sewer line did not serve the original owners’ lands.

2. Kammerer’s argument that the trial court erred by finding as a matter of fact that a 48-inch section of pipe had been added after 1977 is moot given that Kammerer had a duty to maintain all sewer pipes within the easement, old and new.

3. Kammerer also contends the court erred by granting PLH partial summary judgment because PLH failed to join the City of Sandy Springs and the Fulton County Board of Education as necessary parties. See OCGA §§ 9-11-12 (b) (7); 9-11-19. In its answer, Kammerer raised the defense with regard to Sandy Springs but not the Board. But even with regard to Sandy Springs, Kammerer never filed a motion to dismiss or otherwise elicited a ruling from the trial court on the matter.

“Where it is claimed that the plaintiff has failed to join an indispensable party, the issue must be raised by motion to dismiss filed pursuant to OCGA § 9-11-19. Otherwise, such defenses are deemed waived.” Jones v. Dykes, 231 Ga. App. 110, 111 (4) (497 SE2d 828) (1998) (in an action to cancel a deed, issue of whether grantor was a necessary party was waived by failing to file a motion to dismiss) (punctuation omitted); Wiepert v. Stover, 298 Ga. App. 683, 685 (2) (680 SE2d 707) (2009) (same defense waived by failure to file motion to dismiss). See, e.g., Reece v. Smith, 276 Ga. 404, 406 (2) (577 SE2d 583) (2003) (although appellant raised issue in his first pleading, he never sought to join party in the suit).

Furthermore, “issues presented for the first time on appeal furnish nothing for this Court to review, for this is a court for correction of errors committed by the trial court where proper exception is taken.” (Citation and punctuation omitted.) Southside Planning & Dev. v. Commercial Cas. Ins. Co., 273 Ga. App. 704, 705 (615 SE2d 828) (2005) (regarding defense of indispensable party).

4. Finally, Kammerer’s argument that we should reverse because the trial court considered PLH’s motion for summary judgment even though it was filed after the deadline for motions under the court’s scheduling order is without merit. See generally Cooper-Bridges v. Ingle, 268 Ga. App. 73, 75 (1) (601 SE2d 445) (2004) (“trial court has broad discretion in regulating its business and in scheduling trials”) (punctuation and footnote omitted); DeClue v. City of Clayton, 246 Ga. App. 487, 493 (4) (540 SE2d 675) (2000) (same); Uniform Superior Court Rules 6.6, 8.1.

Judgment affirmed.

Miller, P. J., and Ray, J., concur.

On Motion for Reconsideration.

On motion for reconsideration, Kammerer asserts that this Court failed to address its argument that PLH failed to proffer undisputed evidence that the original sewer line “served” its property. Kammerer, however, waived this argument.

In the trial court — both in its briefs and at oral argument — Kammerer’s sole argument was that its duties under the easement pertained only to sewer lines that it (or its predecessor in title) constructed subsequent to the 1977Deed, and that, because it had not constructed any new sewer lines or “additional facilities,” it could not be liable for the repair and maintenance of the pre-1977 sewer line. In its order, the trial court restated Kammerer’s argument using the same words. On appeal, Kammerer made the same argument, but in so doing, Kammerer frequently quoted language in the 1977 Deed that states that the easement was “reserved by . . . Grantors for the purpose of constructing and maintaining storm or sanitary sewer lines within said tract of land to serve Grantor’s adjacent lands.” Kammerer focused on the phrase “constructing and maintaining”; it never asked this Court to construe the word “serve,” nor did it specifically argue that the original sewer line did not “serve” the Kammerer property. On motion for reconsideration, Kammerer contends we overlooked this argument.

As a general rule, “absent special circumstances [not applicable here], an appellate court need not consider [legal] arguments raised for the first time on appeal.” Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 829 (2) (573 SE2d 389) (2002). But an argument on a factual issue that is part of the movant’s prima facie case is not waived by failing to raise it in the trial court. Dental One Assoc. v. JKR Realty Assoc., 269 Ga. 616, 617-618 (1) (501 SE2d 497) (1998). As explained by the Supreme Court, Dental One holds the following:

[T]o be entitled to summary judgment, a party who bears the burden of proof at trial must present the trial court with the facts showing its entitlement to judgment. When the record fails to contain the facts supporting the grant of summary judgment, the non-movant may argue this ground to the appellate court regardless of whether the non-movant asserted an “objection to the prima facie case.”

Pfeiffer, 275 Ga. at 830 (3), citing Dental One.

Here, however, Kammerer’s new argument would require us to construe the meaning of the term “serve,” determine whether the word was ambiguous, and if so, consider parol evidence on the meaning. And whether a contract is ambiguous is a question of law for the court. Roberson v. Leone, 315 Ga. App. 459, 462 (726 SE2d 565) (2012); Rentrite, Inc. v. Sentry Select Ins. Co., 293 Ga. App. 643, 644 (667 SE2d 888) (2008). Thus, Kammerer’s new argument is not one asserting that the record fails to contain the facts supporting the grant of summary judgment. Rather, it presents a question of law, or, at best, a mixed question of law and fact. Accordingly, the general rule of waiver in Pfeiffer, not the factual issue exception articulated in Dental One, applies, and Kammerer has waived the new argument for the purpose of appeal.

Decided November 14, 2012

Reconsideration denied December 14, 2012.

Taylor, English & Duma, E. Payton Nunez, CraigK. Pendergrast, for appellant.

Jackel & Phillips, Dana L. Jackel, Christopher L. Phillips, for appellee.

Motion for reconsideration denied.

       We remind the parties and the bar that the Rules of the Court of Appeals require that record and transcript citations must he to the volume or part of the record or transcript and the page numbers that appear on the appellate records or transcript as sent from the court below. See Rule 25 (a) (1). This means that parties should not cite to the internal page number of a document included in the record, such as a deposition or affidavit, but rather to the record page number.

       Generally, an easement is a right to use or control land owned by another “for a specific limited purpose.” Black’s Law Dictionary (9th ed. 2009). See also Brown v. Tomlinson, 246 Ga. 513, 514 (272 SE2d 258) (1980) (“a special purpose”).


text:
    A12A1484, A12A1485.
    A12A2421.
    NUVELL NATIONAL AUTO FINANCE, LLC v. MONROE GUARANTY INSURANCE COMPANY (two cases). RENAISSANCE RECOVERY SOLUTIONS, LLC v. MONROE GUARANTY INSURANCE COMPANY.
    (736 SE2d 463)
   Adams, Judge.

At issue in all three of these appeals is the interpretation of a commercial automobile insurance policy, and the appeals have been consolidated for our consideration.

All three appeals also involve either the grant or denial of motions for summary judgment. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

The basic facts underlying the issue of insurance coverage are not disputed. In brief, Lidie Joseph Clements purchased a 2004 Dodge Ram truck from an Augusta dealership, financed through Nuvell National Auto Finance, LLC (Nuvell). For various reasons, Clements fell behind on his payments and agreed to a voluntary repossession of the truck. Nuvell faxed a request for repossession to Renaissance Recovery Solutions, LLC (Renaissance), a repossession management company with which Nuvell had a contract for repossession services. Monroe Guaranty Insurance Company issued three policies to Renaissance, including the Commercial Auto Policy involved here. On March 1, 2006, Nuvell and Renaissance entered into an indemnity agreement pursuant to which Nuvell was issued a certificate of insurance reflecting Monroe as the insurer. Nuvell, however, was not added to the policy as a named insured.

Renaissance contacted Renovo Services, LLC (Renovo), a repossession company, to pick up the truck. Renovo retained several independent contractors, including Michael Brown, for repossessing vehicles. Renovo owned the wreckers, and the drivers leased them on a per job basis. When Brown went to repossess the truck, Clements’ friend, William Jacobs, Jr., was run over by the tow truck and killed.

In Case No. A12A1484, Pamela Jacobs, individually and on behalf of her deceased husband, sued Michael Brown, Nuvell, Renaissance, and Renovo for wrongful death, wrongful repossession, negligent hiring and retention, and other claims. The Jacobs case proceeded to trial on November 28, 2011, and the jury awarded a verdict of $2.5 million. Judgment was entered accordingly and has been satisfied. Nuvell filed a third-party claim against Renaissance and Monroe, claiming it was an insured under the Commercial Auto Policy and that Renaissance had agreed to indemnify it. Nuvell appeals from the trial court’s denial of its motion for summary judgment against Monroe and the grant of Monroe’s motion for summary judgment on the basis that Nuvell was not an insured.

In Case No. A12A2421, Renaissance appeals from the grant of Monroe’s motion for summary judgment and the denial of its motion for partial summary judgment in the Jacobs litigation on the issue of insurance coverage.

In Case No. A12A1485, Cindy Clements, individually and on behalf of her deceased husband Lidie Joseph Clements, sued the same defendants on similar claims, excluding wrongful death. This case was settled in mediation in July 2011, and was dismissed with prejudice on August 12,2011. Nuvell filed a similar third-party claim against Renaissance and Monroe and appeals the trial court’s denial of its motion for summary judgment and the grant of Monroe’s motion for summary judgment on the basis that Nuvell was not an insured.

In the Jacobs litigation, Nuvell, Renaissance, and Renovo sought partial summary judgment on Jacobs’ claim for wrongful repossession. In denying their motions on November 7, 2011, the trial court found that the act of repossession had not ended when J acobs was run over and that Mrs. Jacobs, although not the debtor, had standing to bring an action for wrongful repossession. In reaching these legal conclusions, the trial court found the following facts: Clements advised Nuvell on March 30, 2009, to use his cell phone number when contacting him about the voluntary repossession of his truck. On April 7, 2009, Clements advised Nuvell that the truck was located at his residence and that his cell phone number should be used to contact him. On April 9, 2009, Nuvell completed its internal procedures to approve the voluntary surrender and repossession of the truck. At 4:05 p.m., Nuvell made a system entry to assign the repossession to Renaissance, in accordance with the 2006 agreement between the companies which provided “that Renaissance would act as an independent contractor when making vehicle repossessions and recoveries on behalf of Nuvell.” At 4:47 p.m., Clovie Zamarripa, a Renaissance employee, attempted to contact Clements on his home phone, got no answer and left no message. At 4:49 p.m., Renaissance assigned recovery of the truck to Renovo, a field repossession company. At 5:11 p.m., Renovo assigned recovery of the truck to Michael Brown pursuant to a February 3, 2009, “Independent Recovery Contractor Agreement.”

At 6:32 p.m., while Michael and Victoria Brown, his wife, were sitting in the Renovo-owned tow truck within sight of the Clements residence, Victoria Brown called Clements on his cell phone and told him a recovery driver was on the way to his residence to pick up the truck. Clements advised that his agreement with Nuvell was that he would have sufficient advance notice to enable him to remove his tool box and other property from the truck. He withdrew his consent for voluntary repossession and told Victoria the repossession driver was not to get the truck but could return the next day. Victoria Brown told Clements that she would recall the driver and send him back the next day. Rather than leave, however, Michael Brown called Renovo and told Renovo the substance of Victoria’s conversation with Clements, including the fact that Clements had withdrawn his consent to voluntary repossession. In response to Brown’s request for direction, Renovo called Renaissance “and there is some evidence in the record that either Renovo or Renaissance then called Nuvell for further direction . . . but no evidence as to what, if any additional direction Nuvell provided that day.” At this point, Pamela Jacobs arrived, parked her van behind Clements’ truck, and went inside to visit with Cindy Clements while they awaited the return of their husbands so they could all go to dinner.

Renaissance directed Renovo to instruct Brown to pick up Clements’ truck. Renovo told Brown that the repossession was now involuntary and, according to Brown, he was told “if you see my unit, get it.” Renovo’s electronic record keeping system reflects an entry evidencing the call from Brown, the direction from Renaissance to Renovo and from Renovo to Brown as follows: “Agent called advising that he spoke to the debtor and he confirmed that the unit is at the given, but said DO NOT pick unit up as he’s out of town. Called client Clovie [Zamarripa, a Renaissance employee] and was advised to pick up this unit. Agent will secure and advise.” This direction was in direct conflict with Renovo’s policies which state a contractor should back off if there is objection to recovering the collateral.

Brown backed the Renovo tow truck down the adjacent street, across Roswell Drive, the street in front of the Clements’ home, and across the Clements’ front yard so he could attach the tow to the Clements’ truck. He began attempting to pull the truck out from between the Clements’ house and the Jacobs’ van, but every attempt caused the Clements’ truck to strike the Jacobs’ van, causing damage to both vehicles and a loud banging noise heard throughout the neighborhood. Mrs. Clements went outside in response to the noise and began screaming for Brown to stop tearing up the two vehicles. At some point, Mrs. Clements was knocked to the ground when the passenger door of the tow truck was opened on her. She got up and continued to yell that they would give the truck to them. At this point, Clements and Jacobs drove up, and Clements ran into the front yard to join his wife’s protestations. A neighbor observed all of this and heard the Clements both repeatedly offer to voluntarily give up the truck and get the keys if Brown would simply stop damaging both vehicles. Jacobs got out of his truck and either was in the front yard or in the street near his truck. Brown, using an automated release mechanism inside the Renovo tow truck, backed up one last time and released the truck, damaging it. Michael Brown then accelerated across the Clements’ front yard and swerved the truck toward Clements and Jacobs, requiring Clements to dive out of the way in order to avoid being hit. Immediately thereafter, the driver’s door of the Renovo tow truck opened, striking Jacobs and knocking him down and under the truck where the dual rear wheels ran up his body across his legs, torso and chest, resulting in what proved to be fatal injuries.

Monroe issued Commercial Auto Policy# CA 0012283, effective November 23, 2008 through November 23, 2009. The policy listed Renaissance Recovery Solutions, LLC as “named insured.” An endorsement was later issued, stating that “[t]he Named Insured ... is amended to include . . .” Renovo Services along with Emerald Ventures, Inc. and Skip Pros LLC. Skip Pros LLC is also a sister company of Renovo.

Item Two of the policy declarations provides liability coverage for covered autos listed in Symbols 8 and 9 of the Business Auto Coverage Form. Symbol 9, at issue here, states:

Nonowned “Autos” Only. Only those “autos” you do not own, lease, hire, rent or borrow that are used in connection with your business. This includes “autos” owned by your “employees,” partners (if you are a partnership), members (if you are a limited liability company), or members of their households but only while used in your business or your personal affairs.

This form further states that “[throughout this policy the words ‘you’ and ‘your’ refer to the Named Insured shown in the Declarations.” And Section V of the policy, labeled “Definitions,” provides in subsection G: “ ‘Insured’ means any person or organization qualifying as an insured in the Who Is An Insured provision of the applicable coverage. Except with respect to the Limit of Insurance, the coverage afforded applies separately to each insured who is seeking coverage or against whom a claim or ‘suit’is brought.” (Emphasis supplied.)

Section II, “Liability Coverage,” provides in subsection A: “Coverage” that “[w]e will pay all sums an ‘insured’ legally must pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies, caused by an ‘accident’ and resulting from the ownership, maintenance or use of a covered ‘auto.’ ”

Sub-subsection 1, “Who Is An Insured,” states that “[t]he following are ‘insureds’; a. You for any covered ‘auto’, b. Anyone else while using with your permission a covered ‘auto’ you own, hire or borrow . . . . [] c. Anyone liable for the conduct of an ‘insured’ described above but only to the extent of that liability.”

Case No. A12A2421

1. Renaissance’s first two enumerations are that the trial court erred in denying its motion for partial summary judgment and granting Monroe’s motion for summary judgment on the issue of insurance coverage.

The trial court, in finding that Renaissance was not covered for this incident, concluded that because both Renovo and Renaissance were insureds under the policy and Renovo owned the tow truck at issue, the tow truck was not a “non-owned” auto as to both insureds. Further, the trial court concluded that the tow truck was not being used in connection with Renaissance’s business.

We find, as did the trial court, that, since the policy was issued and delivered in Michigan, Michigan substantive law applies to interpretation of the policy. Convergys Corp. v. Keener, 276 Ga. 808, 811 (582 SE2d 84) (2003) (Georgia adheres to the traditional rule of lex loci contractus, i.e., contracts are governed by the law of the place where they were made.).

An insurance policy is an agreement between parties that a court interprets “much the same as any other contract” to best effectuate the intent of the parties and the clear, unambiguous language of the policy. Auto-Owners Ins. Co. v. Churchman, 440 Mich. 560, 566 (489 NW2d 431) (1992). In doing so, the court looks to the contract as a whole and gives meaning to all of its terms. Id., citing Fresard v. Michigan Millers Mut. Ins. Co., 414 Mich. 686, 694 (327 NW2d 286) (1982).

“Interpretation of an insurance policy ultimately requires a two-step inquiry: first, a determination of coverage according to the general insurance agreement and, second, a decision regarding whether an exclusion applies to negate coverage.” Auto-Owners Ins. Co. v. Harrington, 455 Mich. 377, 382 (565 NW2d 839) (1997). The insurer bears the burden of proving an absence of coverage. Fresará, supra.

(a) In determining coverage here, we must determine whether the trial court was correct in determining that if any insured owned the tow truck, it was not a “non-owned” auto as to any other insured. We conclude, as urged by Renaissance, that this decision by the trial court was incorrect.

The purpose of the separation-of-insured clauses, such as that contained in Section V, subsection G above, is to provide each insured with separate coverage, as if each were separately insured with a distinct policy. Chrysler Ins. Co. v. Greenspoint Dodge, 297 SW3d 248, 253 (Tex. Sup. Ct. 2009). See also Northwest G. F. Mut. Ins. Co. v. Norgard, 518 NW2d 179, 182 (N.D. Sup. Ct. 1994). As held in Commercial Standard Ins. Co. v. American Gen. Ins. Co., 455 SW2d 714, 721 (Tex. Sup. Ct. 1970),

“The insured” does not refer to all insureds; rather, the term is used to refer to each insured as a separate and distinct individual apart from any and every other person who may be entitled to coverage thereunder. When a claim is made against one who is an “insured” under the policy, the latter is “the insured,” for the purpose of determining the company’s obligations with respect to such claim.

We find, under the circumstances here, that the terms “unowned auto” and “named insured,” as used by Monroe in the policy, are ambiguous, see Ooida Risk Retention Group v. Williams, 579 F3d 469, 472 (5th Cir. 2009), and, therefore, the policy must be construed in favor of the insured. Farm Bureau Mut. Ins. Co. v. Nikkel, 460 Mich. 558, 566 (596 NW2d 915) (1999); Arco Indus. Corp. v. American Motorists Ins. Co., 448 Mich. 395, 402-403 (531 NW2d 168) (1995).

In considering this issue, we are persuaded by the decision of the Indiana Court of Appeals in Indiana Ins. Co. v. O.K. Transport, 587 NE2d 129 (Ind. Ct. App. 1992). There, the court considered an insurance policy which listed two separate legal entities controlled by the same family as the “insured.” The business insurance policy issued by Indiana Insurance Company (Indiana) listed “OK Transport, Inc.” and “Oscar Koester & Sons” (partnership) as the insured. The claim arose when a pick-up owned by Oscar Koester & Sons and driven by Johnnie Koester, acting within the scope of his employment for O.K. Transport, struck and injured another motorist. After the consent judgment was paid by the auto liability insurance company to the injured parties, the injured parties sought the excess unpaid judgment from Indiana. Id. at 130.

The question was whether each entity was considered a separate insured and whether the pick-up was a “nonowned” vehicle as to O.K. Transport. The trial court, affirmed by the court of appeals, relied on the policy’s clause that found “the insurance afforded applies separately to each insured who is seeking coverage or against whom a claim is made or suit is brought.” Indiana Ins. Co., 587 NE2d at 131. Because the “named insured” provision listing two entities did not reveal whether the two were to be considered as a single entity or as two separate entities, the policy was construed in favor of the insured and it was concluded that a vehicle owned by one but not the other would be covered as to the nonowning insured.

We adopt this reasoning and, therefore, conclude that the trial court erred in finding that the tow truck was not a “non-owned” auto as to Renaissance, and thus Renaissance was entitled to partial summary judgment on this ground.

(b) We also find that the trial court erred in concluding that the tow truck was not being used “in connection with” the business of Renaissance.

In determining whether the tow truck was used “in connection with” the business of Renaissance, the trial court relied on the standard set out in CMH Homes v. United States Fidelity & Guaranty Co., 2007 U. S. Dist. LEXIS 12795 (E.D. Tenn. 2007), with which we agree. That case also involved an issue in an insurance policy using the same “non-owned auto” language and found that “the key language in the non-owned auto section of the policy is ‘used in connection with your business.’ ” Id. at *9 § III. Two factors were identified to determine whether a nonowned auto was used “in connection with [an insured’s] business.” “The first factor is the extent to which the vehicle at issue was used in the course and scope of the insured’s business. The second factor in determining whether the use was ‘in connection with’ the insured’s business is the extent to which an insured held or exerted a right of control over the vehicle and its driver.” Id. (Citations omitted.) Because the phrase “in connection with the business” of Renaissance is not defined in the Monroe policy, it is to be given its ordinary and plain meaning, avoiding a technical or strained construction, and any ambiguity is to be resolved in favor of Renaissance. Hosking v. State Farm Mut. Automobile Ins. Co., 198 Mich. App. 632, 633 (499 NW2d 436) (1993).

In examining these two factors, we note that in the trial court’s unappealed order denying summary judgment on the issue of wrongful repossession, the trial court cited the 2006 agreement between Nuvell and Renaissance in which Renaissance agreed that it would “repossess vehicles and/or attempt to locate customers or vehicles” and that it would act as an independent contractor “when making vehicle repossessions and recoveries on behalf of Nuvell.” The trial court also found in this order that “Renaissance, after having been contacted by Renovo and advised of the developments, directed Renovo to instruct Brown to pick up the Clements’ Truck that day.”

In the order appealed, however, the trial court concluded that Renaissance was “a forwarder that acts as a middle man between finance companies and repossession companies. [Renaissance]’s business does not include physically repossessing vehicles. That is Renovo’s business.” (Emphasis supplied.) Carried to its logical extreme, however, the trial court’s reasoning would also preclude finding that Renovo was in the repossession business because it subcontracted with Michael Brown as an independent contractor to go and physically repossess the vehicle, even though the tow truck was owned by Renovo and leased to Brown. These facts would indicate that Renovo was in the wrecker leasing business.

Nuvell’s corporate representative deposed that Nuvell contracted with Renaissance to handle repossessions for eight companies whose accounts Nuvell serviced. Renaissance’s corporate representative deposed that “[a] forwarding company is a repossession management company that accepts orders from lenders, assigns those orders out to a network of agencies that deploy trucks required to pick up collateral, automotive or rolling stock.” He further explained that “the value proposition of a company like Renaissance ... is that we are the hub of information for the lender.” Both the tow truck driver and a customer, such as Nuvell, communicated with each other regarding repossession of vehicles through Renaissance, as occurred with Clements’ truck.

Viewed with all inferences in favor of Renaissance, we conclude that the tow truck was being used “in connection with the business” of Renaissance and that Renaissance was entitled to summary judgment on this issue.

2. Renaissance also urges that the trial court erred in granting Monroe’s motion for summary judgment because the indemnity agreement between Nuvell and Renaissance is an “insured contract” under the policy, thereby providing coverage.*

By order of November 15, 2011, the trial court granted Nuvell’s motion for partial summary judgment in Case No. A12A1484, the Jacobs case, finding that Nuvell was entitled to contractual indemnification by Renaissance for all claims against it. That order is also not the subject of any appeal and is binding between the parties. OCGA § 9-12-40; see Hall, supra; Hooper, supra. The March 1, 2006 agreement between Nuvell and Renaissance provided in paragraph 8 that

[cjontractor [Renaissance] will indemnify and hold harmless [Nuvell]... from any and all liabilities, losses, damages costs, and expenses (including reasonable attorneys’ fees and legal expenses), suits, and/or causes of action... arising out of [Renaissance’s] negligent, reckless, or willful misconduct in the performance of any Services under this Agreement, and any Services performed by any entity, person or company to which Contractor assigns Services whether with or without knowledge of [Nuvell], and from [Renaissance’s] breach of any covenant, representation or warranty set forth in this agreement or in [Nuvell’s] Policy on Repossession and Location Information.

The insurance policy provides in Section II, subsection “B. Exclusions” that

[t]his insurance does not apply to any of the following:... 2. Contractual Liability assumed under any contract or agreement. But this exclusion does not apply to liability for damages: a. Assumed in a contract or agreement that is an “insured contract” provided that the “bodily injury” or “property damage” occurs subsequent to the execution of the contract or agreement; or b. That the “insured” would have in the absence of the contract or agreement.

(Emphasis supplied.)

In Section V-Definitions, subsection H 5, “insured contract” is defined as

[t]hat part of any other contract or agreement pertaining to your business ... under which you assume the tort liability of another to pay for “bodily injury” or “property damage” to a third party or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement.

According to Section IV, subsection B 5, “Other Insurance,” sub-subsection c. provides that liability coverage is primary for any liability assumed under an “insured contract.”

Therefore, Nuvell’s liability assumed by Renaissance under the indemnity agreement shifts to Monroe because coverage under the Monroe policy applies to any liability of Renaissance resulting from the lawsuit. Accordingly, Renaissance was entitled to summary judgment on this ground also. Cf. State Farm Fire & Cas. Co. v. Zurich Ins. Co., 111 F3d 42, 44 (6th Cir. 1997).

Case Nos. A12A1484 and A12A148S

3. Because we have concluded in Divisions 1 and 2 that Monroe is ultimately liable to Renaissance and, through the indemnity agreement, to Nuvell, we need not address the merits of Nuvell’s appeals, as they have been rendered moot.

Decided November 30, 2012

Reconsideration denied December 14, 2012

McCullough, Payne & Haan, John G. McCullough, Dennis, Corry, Porter & Smith, Stephanie C. Patel, for appellants.

Goodman, McGuffey, Lindsey & Johnson, Stephanie F. Glickauf, for appellee.

“Given that there is no existing controversy remaining between the parties, ‘any decision regarding denial of [Nuvell’s motion for summary judgment] would be of no benefit to [Nuvell], thereby rendering the issues raised in [these] appeal[s] moot.’ ” (Citations omitted.) Santasiero v. Abernathy, 304 Ga. App. 569, 571 (1) (696 SE2d 352) (2010).

Appeals dismissed in Case Nos. A12A1484 and A12A1485. Judgment reversed in Case No. A12A2421. Barnes, P. J., and McFadden, J., concur.

       Clements did not die directly from the injuries suffered in the incident, but died later, according to his wife, from the cumulative effects of losing Jacobs, his friend and business partner, and other stressors.

       This order was not appealed following entry of final judgment and is final and binding on the parties. Hall v. Hall, 240 Ga. 28 (239 SE2d 356) (1977); Hooper v. Harris, 236 Ga. App. 651, 652 (1) (512 SE2d 312) (1999).

       Renovo Services, LLC is the parent company of both Renovo Services, the repossession company, and Renaissance, the repossession management company. Renaissance and Renovo maintain operations centers in Grand Rapids, Michigan.

       Michael Brown pled guilty to vehicular homicide and criminal damage to property in the second degree. Victoria Brown pled guilty to simple battery and criminal damage to property in the second degree.

       “[A] covered ‘auto’ you own, hire or borrow” is directly contradictory to the definition of “non-owned” auto in symbol 9, set out above.

       Based on our rulings in Division 1, we need not consider Renaissance’s third enumeration regarding disputes of fact.

       Nuvell’s common law claim for indemnification against Renovo remains pending below.


author: Miller, Presiding Judge.

text:
    A12A1509, A12A1510.
    LAYER v. CLIPPER PETROLEUM, INC.; and vice versa.
    (735 SE2d 65)
   Miller, Presiding Judge.

Mike Layer sued Clipper Petroleum, Inc., to recover unpaid commissions and cash advances under a supply contract and two related contracts providing for the sale and delivery of petroleum products to a gas station. Layer raised claims for breach of contract, quantum meruit, breach of the implied covenant of good faith and fair dealing, punitive damages and attorney fees under OCGA § 13-6-11. Clipper Petroleum denied liability for Layer’s claims and counterclaimed for breach of contract, lost profits, unjust enrichment and attorney fees under OCGA §§ 13-1-11 and 13-6-11. Following discovery, both parties filed cross-motions for summary judgment. The trial court denied Layer’s motion for partial summary judgment. The trial court partially granted and partially denied Clipper Petroleum’s motion for summary judgment.

The instant cross-appeals ensued. In Case No. A12A1509, Layer contends that the trial court erred in (1) concluding that no material issues exist as to whether the related contracts could have survived foreclosure of the property; (2) applying the theory of anticipatory repudiation to the facts of the case; and (3) failing to grant partial summary judgment to Layer for damages due under the related contracts. In Case No. A12A1510, Clipper Petroleum contends that it was entitled to summary judgment on (1) Layer’s claims for compensatory damages under the related contracts prior to the foreclosure; (2) Layer’s claims for breach of the implied covenant of good faith and fair dealing, attorney fees and punitive damages; and (3) its counterclaims. We affirm the trial court’s rulings in Case No. Á12A1509. We affirm in part and reverse in part the trial court’s rulings in Case No. A12A1510, since the trial court erred in failing to grant summary judgment to Clipper Petroleum on Layer’s breach of contract claim for cash advances, his claim for breach of the implied contract of good faith and fair dealing with regard to payment of cash advances, and his punitive damages claim.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a [grant or] denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citations and footnote omitted.) GEICO Gen. Ins. Co. v. Wright, 299 Ga. App. 280, 281 (682 SE2d 369) (2009).

So viewed, the evidence shows that Clipper Petroleum is a petroleum supplier that provides gasoline to operators of retail gasoline stations and convenience stores. Clipper Petroleum entered into a supply contract (the “Supply Contract”) with Layer’s parents, which provided for the sale and delivery of Exxon branded petroleum products to their gasoline station. Clipper Petroleum, Layer’s parents, and Layer also entered into a Cash Advance Agreement, which provided for cash advances, including $.03 per gallon on all gasoline delivered for four years, and the costs of branding the station as an Exxon Franchise. Clipper Petroleum, Layer and Layer’s parents (collectively “the Layers”) also entered into a Purchaser Commission Agreement, providing for the payment to Layer of $.005 for each gallon of gasoline purchased and paid for by the operator of the property. The Cash Advance Agreement and the Purchaser Commission Agreement (collectively the “Related Contracts”) incorporated the Supply Contract by reference. The Layers secured construction loans on the property, and built an Exxon-branded gas station and convenience store. The new gas station opened around November or December 2004, and Clipper Petroleum began supplying petroleum to the gas station pursuant to the parties’ agreements. Clipper Petroleum paid Layer $1,605.67 under the Purchaser Commission Agreement based on the sale of gasoline through July 2005. Clipper Petroleum never advanced any cash to Layer under the Cash Advance Agreement.

In 2005, the loans on the property went into default, and the bank took over management of the property. After receiving the default notice, Clipper Petroleum stopped making payments on the Related Contracts. The bank foreclosed on the property in October 2005, and sold the property to a new owner.

Layer sued Clipper Petroleum to recover unpaid commissions and cash advances under the Related Contracts. Layer filed a motion for summary judgment as to his claims for breach of the Related Contracts only. Clipper Petroleum filed a motion for summary judgment on all of Layer’s claims and its counterclaims.

The trial court denied Layer’s motion for partial summary judgment. The trial court partially granted Clipper Petroleum’s motion for summary judgment, finding that the Related Contracts did not survive the foreclosure of the gas station. The trial court also granted summary judgment to Clipper Petroleum on Layer’s quantum meruit claim, finding that the issue of repayment was governed by the parties’ express contract. The trial court partially denied summary judgment to Clipper Petroleum finding that a factual issue remained as to whether the Layers’ failure to stay current on the property loans amounted to an unqualified repudiation of the Supply Contract prior to foreclosure of the property. The trial court also denied Clipper Petroleum summary judgment on Layer’s claim for breach of the implied covenant of good faith and fair dealing under the Related Contracts to the extent that claim applied to the period of time prior to the foreclosure. The trial court denied summary judgment to Clipper Petroleum on Layer’s claims for punitive damages and attorney fees, finding that summary judgment as to those counts would be premature. The trial court denied summary judgment to Clipper Petroleum on its counterclaims. The trial court issued a certificate of immediate review, which this Court granted.

Case No. A12A1S09

1. Layer contends that the trial court erred in granting partial summary judgment to Clipper Petroleum on his claims for breach of the Related Contracts since genuine issues of fact existed as to whether the Related Contracts could have survived the foreclosure of the property. We disagree.

“The elements for a breach of contract claim in Georgia are the (1) breach and the (2) resultant damages (3) to the party who has the right to complain about the contract being broken.” (Citation, punctuation and emphasis omitted.) Canton Plaza v. Regions Bank, 315 Ga. App. 303, 306 (1) (732 SE2d 449) (2012). The Supply Contract pertinently provided:

(1) Sales of Petroleum Products. During the term of this Agreement the Supplier [(Clipper Petroleum)] shall sell and deliver to Purchaser [(Layer’s parents)] motor gasoline, diesel fuel, kerosene, and other petroleum products (hereinafter collectively called “Products”) as hereinafter described. Supplier shall be the exclusive-supplier of Products to Purchaser during the terms of this agreement. Purchaser covenants and agrees to offer for sale at the [“Property”] only such Products as are supplied and delivered by Supplier for the full duration of the term of this Agreement [.]
(2) Term. The term of this Agreement shall be for a period of ten years [.]
(3) Delivery. All Products sold under this Agreement shall be delivered by Supplier to the storage tanks at the Property located at 1296 Atlanta Hwy, Auburn, Georgia, 30011.

The Cash Advance Agreement pertinently provided:

1. Supply Contract. Supplier and Purchaser have entered into a Petroleum Product Supply Agreement (“Supply Contract”) for the supply of motor fuel products (“Products”) to Purchaser’s retail outlet located at 1296 Atlanta Hwy, Auburn, Ga. 30011 (the “Property”).
2. Cash Advance. Supplier agrees on the terms and conditions hereof, to pass through the Supplier’s Brand Incentive Program Payments/Rebates to Purchaser’s Designee [(Layer)]____The Cash Advance shall be paid to Purchaser’s Designee within thirty (30) days of receipt of such funds by Supplier from [its] Brand.
3. Repayment. The Cash Advance shall be repaid as follows:
Purchaser shall receive a credit against the outstanding Cash Advance balance in the amount of 100% of the Cash Advance at the end of the full ten (10) year period from the first month of volume submission to Supplier’s Brand for the Cash Advance during which the Purchaser is a branded dealer supplied by Supplier at the Property pursuant to the Supply Contract. Purchaser shall immediately repay to Supplier the entire Cash Advance balance at any time within ten (10) years of the first month of volume submission to Supplier’s Brand for the Cash Advance, upon the occurrence of any of the following events:
(1) For any reason, Purchaser’s current or any future Supply Contract with Supplier for the Property is terminated, not renewed or assigned without the express written consent of Supplier.
(3) Purchaser fails to perform any other obligation under this Agreement or the Supply Contract.

The Purchaser Commission Agreement pertinently provided:

1. Supply Contract. Supplier and Purchaser have entered into a Petroleum Product Supply Agreement of even date herewith (hereinafter, the “Supply Contract”) for the supply of Exxon or other branded motor gasoline to Purchaser’s retail convenience store outlet located at 1296 Atlanta Hwy., Auburn, Georgia in Barrow County, Georgia [.]
2. Commission to Purchaser. So long as this Agreement has not been terminated and no event of default exists under the Supply Contract or this Agreement, for the entire term . . . of the Supply Contract, for each and every gallon of gasoline purchased and paid for by the then current operator of the Property, Purchaser’s Designee (and not the then-current operator of the Property, if different from Purchaser) shall receive from Supplier the sum of One-Half Cent ($.005) per gallon for each gallon of gasoline sold by Supplier to the operator and paid for by the operator of the Property pursuant to the Supply Contract (such amount is referred to as the “Commission”). Supplier shall make all Commission payments pursuant to this paragraph on a monthly basis (no later than the thirtieth (30th) day of the month for the previous month’s sales to the Property).
4. The term of this Agreement shall be deemed to be coextensive with the term of the Supply Contract.

“Where the language of a contract is plain and unambiguous,... no construction is required or permissible and the terms of the contract must be given an interpretation of ordinary significance.” (Citations and punctuation omitted.) Richard Bowers & Co. v. Creel, 280 Ga. App. 199, 200-201 (1) (633 SE2d 555) (2006); see also Canton Plaza, supra, 315 Ga. App. at 308-309 (3) (the contract alone is looked to where the language is clear and unambiguous).

The trial court found that the Supply Contract was breached when the Layers lost the property in foreclosure because the foreclosure made it impossible for Clipper Petroleum to supply gasoline to the Layers’ gas station pursuant to the Supply Contract. The trial court concluded that, as a result of the breach, Clipper Petroleum’s obligations to make payments under the Related Contracts ended since those contracts were dependent upon gasoline deliveries to the property.

The Related Contracts clearly and unambiguously provided that Clipper Petroleum’s obligations thereunder were contingent upon the Layers’ performance under the Supply Contract. In turn, the Supply Contract required the Layers to order and accept delivery of petroleum products to the Layers’ gas station for a ten-year period. Notably, both the Cash Advance Agreement and the Purchaser Commission Agreement, incorporated the Supply Contract by reference. The Cash Advance Agreement specifically obligated the Layers to repay immediately any cash advances they received if the Supply Contract was terminated or they failed to perform any of their obligations under the Supply Contract. The term of the Purchaser Commission Agreement was co-extensive with the term of the Supply Contract, and the Purchaser Commission Agreement provided for the payment of commissions to Layer only if the Supply Contract had not been terminated and no default under the Supply Contract existed.

When the property was foreclosed upon in October 2005, the Layers lost their possessory rights to the property. See, e.g., Bradley v. JPMorgan Chase Bank, 289 Ga. App. 704, 705 (658 SE2d 240) (2008); Bellamy v. Fed. Deposit Ins. Corp., 236 Ga. App. 747, 750-751 (1) (512 SE2d 671) (1999). More importantly, when they lost their possessory rights to the property, the Layers became unable to perform under the Supply Contract. The new owner of the property had the right to use it for any lawful purpose and was not bound by the terms of the Supply Contract, which created personal obligations between the parties that did not run with the land. See Copelan v. Acree Oil Co., 249 Ga. 276, 277-278 (2) (290 SE2d 94) (1982) (lease agreement providing for supply of wholesale petroleum products to former owner’s gas station created no estate for years or interest in the land, so wholesale petroleum distributor had no right to use the property following its foreclosure and sale).

Layer argues that foreclosure of the property could have been prevented if Clipper Petroleum had timely made payments under the Related Contracts. Clipper Petroleum’s failure to make any payments under the Related Contracts, however, did not excuse Layer’s failure to meet his payment obligations under his loan. Thus, the trial court properly found that the foreclosure effectively terminated the Supply Contract, which in turn, ended Clipper Petroleum’s obligation to make any payments to Layer under the Related Contracts.

2. Layer contends that the trial court erred in finding that a question of fact existed as to whether the theory of anticipatory repudiation applied in this case. Again, we disagree.

The anticipatory repudiation of a contract occurs when one party thereto repudiates his contractual obligation to perform prior to the time such performance is required under the terms of the contract. Thus when one party to a bilateral contract of mutual dependent promises absolutely refuses to perform and repudiates the contract prior to the time of his performance, the innocent party is at liberty to consider himself absolved from any future performance on his part. The breach which will form the basis for an anticipatory breach of contract action is an unqualified repudiation of the entire contract prior to the time for performance.

(Citation, punctuation and emphasis omitted.) Coffee Butler Sue. v. Sacha, 258 Ga. 192, 193 (1) (366 SE2d 672) (1988). It is ordinarily a question for the trier of fact as to whether a party to a contract engaged in conduct sufficient to give rise to a repudiation of the contract and amount to an anticipatory breach. See Jones v. Solomon, 207 Ga. App. 592, 594 (1) (428 SE2d 637) (1993).

When the Layers defaulted on their loan payments, they lost management control over the property prior to the foreclosure. A jury could find that the Layers’ loss of management control over the property prior to the foreclosure resulted in an anticipatory breach since the Layers could no longer perform their obligations under the Supply Contract. Cf. Esquire Carpet Mills v. Kennesaw Transp., 186 Ga. App. 367, 370 (3) (367 SE2d 569) (1988) (a jury question remained regarding whether the appellant’s late payment under the parties’ agreement, together with other information available to the appellee, constituted a repudiation of the contract, sufficient to amount to anticipatory breach). A jury could also find that the anticipatory breach occurred prior to the time when Clipper Petroleum’s obligations to advance any monies under the Cash Advance Agreement, or make any additional monthly commission payments under the Purchaser Commission Agreement came due. Thus, the trial court did not err in finding that a question of fact remained as to whether the Layers’ default on their loans amounted to an unqualified repudiation of the Supply Contract prior to the foreclosure.

3. Layer contends that the trial court erred in failing to enter partial summary judgment in his favor for damages owed by Clipper Petroleum under the Related Contracts. His contentions are without merit.

(a) The provisions of the Cash Advance Agreement clearly provided that any funds advanced to Layer ultimately were required to be repaid by Layer over the course of the Supply Contract. The cash advances were immediately repayable if the Supply Contract was terminated. As discussed above, the foreclosure terminated the Supply Contract. Since Layer would have been required to repay any cash advances upon termination of the Supply Contract, he has not shown that he was damaged by Clipper Petroleum’s failure to make the cash advances. Therefore, the trial court properly denied summary judgment to Layer on his claim for damages under the Cash Advance Agreement.

(b) The Purchaser Commission Agreement required Clipper Petroleum to pay Layer $.005 per gallon, on a monthly basis, for each gallon of gasoline purchased and paid for by the operator of the property, as long as no event of default existed under the Supply Contract. Clipper Petroleum paid Layer $1,605.67 under the Purchaser Commission Agreement based on the sale of gasoline through July 2005, but made no further payments under this contract.

Clipper Petroleum’s obligation to pay Layer commissions under the Purchaser Commission Agreement ended when the Supply Contract was terminated by the October 2005 foreclosure. Cf. Fernandes v. Manugistics Atlanta, 261 Ga. App. 429, 433 (2) (582 SE2d 499) (2003) (holding that a former employee was entitled to only those commissions that he both earned and that were payable up to and including the date of his termination). Clipper Petroleum, however, stopped making payments under the Purchaser Commission Agreement in July 2005. As stated in Division 2 above, a question of fact exists regarding whether an anticipatory breach of the Supply Contract occurred prior to the time when Clipper Petroleum’s obligations to make any additional monthly commission payments under the Purchaser Commission Agreement came due. Thus, the trial court properly denied Layer’s motion for partial summary judgment on his claims for damages under the Purchaser Commission Contract.

Case No. A12A1510

4. Clipper Petroleum contends that it was entitled to summary judgment on Layer’s claims for damages under the Cash Advance Agreement prior to the foreclosure. We agree.

As explained in Division 3 (a) above, the evidence showed that the foreclosure terminated the Supply Contract, and the Cash Advance Agreement required the Layers to repay immediately the entire cash advance balance upon termination of that contract. Since the undisputed evidence shows that Layer was not entitled to prevail on his claim for damages under the Cash Advance Agreement, Clipper Petroleum was entitled to summary judgment on this issue. The trial court’s decision must be reversed on this ground.

5. Clipper Petroleum contends that it was entitled to summary judgment on Layer’s claim for damages under the Purchaser Commission Agreement prior to the foreclosure. We disagree.

For the reasons previously explained in Division 3 (b) above, a question of fact remains regarding whether Layer was entitled to commissions for the sale of gasoline between the end of July 2005 and the October 2005 foreclosure of the property. It thus follows that the trial court properly denied summary judgment to Clipper Petroleum on this issue.

6. Clipper Petroleum contends that it was entitled to summary judgment on Layer’s claim for breach of the implied covenant of good faith and fair dealing under the Related Contracts for the period of time prior to the foreclosure. We agree in part, and reverse the trial court’s denial of summary judgment to Clipper Petroleum to the extent this claim related to Layer’s claim for damages under the Cash Advance Agreement.

“Every contract implies a covenant of good faith and fair dealing in the contract’s performance and enforcement.” Secured Realty Investment v. Bank of North Ga., 314 Ga. App. 628, 630 (1) (b) (725 SE2d 336) (2012). “The implied covenant modifies and becomes part of the provisions of the contract, but the covenant cannot be breached apart from the contract provisions that it modifies and therefore cannot provide an independent basis for liability.” Myung Sung Presbyterian Church v. North American Assn. of Slavic Churches & Ministries, 291 Ga. App. 808, 810 (2) (662 SE2d 745) (2008). Since Layer could not prevail on his claims under the Cash Advance Agreement, he likewise could not prevail on his claim for breach of the implied covenant premised on the Cash Advance Agreement. Clipper Petroleum was entitled to summary judgment on that ground.

However, as we explained in Division 3 (b) above, a question of fact remains regarding whether Clipper Petroleum was obligated to pay Layer commissions under the Purchaser Commission Agreement for the sale of gasoline between the end of July 2005 and the October 2005 foreclosure of the property. Thus, the trial court properly denied summary judgment to Clipper Petroleum to the extent his claim for breach of the implied covenant of good faith and fair dealing applied to the Purchaser Commission Agreement for the time period prior to the foreclosure. See Techbios, Inc. v. Champagne, 301 Ga. App. 592, 595 (1) (688 SE2d 378) (2009) (plaintiff adequately set forth a claim for breach of contract, and duties imposed under that contract served as a sufficient basis for the plaintiff’s claim for breach of the implied covenant of good faith and fair dealing).

7. Clipper Petroleum further contends that it was entitled to summary judgment on Layer’s claim for attorney fees under OCGA § 13-6-11. We discern no error.

OCGA § 13-6-11 provides:

The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.

“Questions concerning bad faith under this statute are generally for the jury to decide, and the trial court may grant judgment as a matter of law on such issues only in the rare case where there is absolutely no evidence to support the award of expenses of litigation.” (Citation and punctuation omitted.) Hewitt Assoc. v. Rollins, Inc., 308 Ga. App. 848, 853 (3) (708 SE2d 697) (2011). Summary judgment on Layer’s claim for attorney fees would be premature because his claim for breach of the Purchaser Commission Agreement prior to foreclosure of the property and his claim for breach of the implied covenant of good faith and fair dealing as it relates to that contract remain pending. Thus, the trial court properly denied summary judgment to Clipper Petroleum on Layer’s claim for attorney fees.

8. Clipper Petroleum also contends that it was entitled to summary judgment on Layer’s claim for punitive damages. Since Clipper Petroleum’s claim has merit, we reverse the trial court’s judgment on this ground.

OCGA § 13-6-10 provides that punitive damages are not recoverable in contract cases. This is true, even if the refusal to pay is made in bad faith. See Horne v. Drachman, 247 Ga. 802, 808-809 (6) (280 SE2d 338) (1981). “In certain rare situations, where the breach of contract entails an act of fraud, punitive damages may be imposed.” Parsells v. Orkin Exterminating Co., 172 Ga. App. 74, 76 (322 SE2d 91) (1984). Layer’s complaint for breach of contract, quantum meruit and breach of the implied covenant of good faith and fair dealing raised contract claims only. Layer pointed to no evidence of fraud. Thus, he was not entitled to punitive damages. See, e.g., id. (punitive damages not available where appellant failed to demonstrate a cause of action in fraud).

9. Lastly, Clipper Petroleum contends that it was entitled to summary judgment on its counterclaim for breach of the Related Contracts. We discern no error.

Clipper Petroleum argued that it was entitled to reimbursement of monies it paid to Layer under the Related Contracts prior to the foreclosure of the property, and that Layer’s retention of those monies constituted unjust enrichment. However, the theory of unjust enrichment does not lie where there is an express contract. See Pryor v. CCEC, Inc., 257 Ga. App. 450, 452 (4) (571 SE2d 454) (2002). Furthermore, the undisputed evidence showed that Clipper Petroleum did not suffer damages under the Cash Advance Agreement since it never paid any cash advances. The evidence also showed that Clipper Petroleum only paid Layer commissions under the Purchaser Commission Agreement based on the sale of gasoline through July 2005. Clipper Petroleum’s alleged entitlement to reimbursement of any of the commissions it paid under the Purchaser Commission Agreement depends on the factual issue of whether Layer breached the Supply Contract and the Related Contracts prior to the foreclosure of the property. Clipper Petroleum also counterclaimed for attorney fees and expenses under OCGA § 13-6-11. Whether Clipper Petroleum is entitled to recover its litigation expenses under this statute is a matter for the jury to decide. See Hewitt, supra, 308 Ga. at 853 (3). For the foregoing reasons, the trial court properly denied summary judgment to Clipper Petroleum on its counterclaims.

Decided November 29, 2012

Reconsideration denied December 14, 2012.

Conowal-Welch, Christopher W. Conowal, for appellant.

Mills & Hoopes, Steven M. Mills, Timothy S. Walls, for appellee.

In sum, we affirm the denial of summary judgment to Layer. We affirm the grant of summary judgment to Clipper Petroleum on Layer’s claims for breach of contract and breach of the implied covenant of good faith and fair dealing for the period of time after the foreclosure of the property. We affirm the denial of summary judgment to Clipper Petroleum on its counterclaims, Layer’s claim for breach of the Purchaser Commission Agreement and Layer’s claim for breach of the implied covenant of good faith and fair dealing as it relates to that contract for the period of time prior to the foreclosure. We reverse the denial of summary judgment to Clipper Petroleum on Layer’s punitive damage claim, Layer’s claim for breach of the Cash Advance Agreement and Layer’s claim for breach of the implied covenant of good faith and fair dealing as it relates to the Cash Advance Agreement.

Judgment affirmed in Case No. A12A1509.

Judgment affirmed in part and reversed in part in Case No. A12A1510.

Ray and Branch, JJ., concur.

       All cites to the record are from Case No. A12A1509 unless otherwise stated.

       The fact that the gas station on the property continued to operate after the foreclosure does not change our analysis because any sales of gasoline after foreclosure of the property were not made as a result of the Supply Contract at issue.

       The Cash Advance Agreement provided for payment of cash advances from Clipper Petroleum to Layer within 30 days of receipt of such funds from Exxon. Clipper Petroleum received the designated funds from Exxon after the Layers defaulted on their loan.

       The trial court granted summary judgment to Clipper Petroleum on Layer’s claim for breach of the implied covenant of good faith and fair dealing for the period of time after the foreclosure.


text:
    A12A1525.
    SAMUELS et al. v. CBOCS, INC.
    (742 SE2d 141)
   Branch, Judge.

Nancy Samuels slipped, fell, and was injured while leaving a Cracker Barrel restaurant in Perry that is owned by CBOCS, Inc. Samuels and her husband filed suit against CBOCS, and the trial court granted summary judgment in favor of the defendant. Samuels appeals that decision, and she also contends the trial court erred by granting summary judgment while her motion to compel discovery was pending. We reverse because the trial court improperly weighed the evidence against Samuels.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

The relevant facts are quite simple. Construed in favor of Samuels, the evidence shows that sometime after 9:00 p.m. on February 10, 2008, Samuels was leaving the restaurant in the dark and was on the way to her car in the restaurant’s asphalt parking lot, which was illuminated, when she stepped on a foreign object and fell. She described the object as a “dark blackish gray” piece of wood approximately four inches long and one-half inch in diameter that rolled when she stepped on it. Samuels picked it up after the fall and gave it to a restaurant employee who came to the scene of the fall after Samuels’ companion sought help. There was some evidence that the object could have been a piece of landscaping mulch from a nearby bed. The evidence also showed that Jerome Griggs was the restaurant manager on duty at the time of the fall. It was Griggs’ responsibility to inspect the grounds every thirty minutes to an hour during his entire shift, yet he had not performed an inspection after his initial inspection when he arrived at 2:00 p.m. And no other employee had inspected the grounds during that time.

In its order granting the motion for summary judgment, the trial court held that no inspection would have led to the discovery of the stick and, even if it had, no person inspecting would have felt it necessary to remove the stick:

[T]he facts in this case show that even if the inspection procedure had been followed, the alleged hazard would not have been easily discovered. The incident occurred at night. The stick, as described by [Samuels], was approximately four inches long and one half inch in diameter and a “dark blackish gray” color. Further the stick was lying on dark pavement in the parking lot. Given such factors, it is unlikely that an employee conducting an inspection of the parking lot would have discovered the stick. Additionally, even if the alleged hazard had been discovered, it is still unlikely that an employee performing the inspection would have believed such an object to be a hazard that needed to be removed.

The trial court went on to determine, based on viewing a video of the scene, that the lighting of the parking lot was adequate.

CBOCS is liable “for injuries caused by [its] failure to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1. Thus, CBOCS was “required to exercise ordinary care to protect the invitee from unreasonable risks of harm of which the owner/occupier has superior knowledge.” (Citation omitted.) Robinson v. Kroger Co., 268 Ga. 735, 740 (1) (493 SE2d 403) (1997). In a premises liability action, the plaintiff “must plead and prove that: (1) the defendant had actual or constructive knowledge of the hazard; and (2) the plaintiff, despite exercising ordinary care for his or her own personal safety, lacked knowledge of the hazard due to the defendant’s actions or to conditions under the defendant’s control.” (Footnote omitted.) American Multi-Cinema v. Brown, 285 Ga. 442, 444 (2) (679 SE2d 25) (2009). Thus, to carry its initial burden and to survive a motion for summary judgment, a plaintiff must provide evidence that, when construed in his or her favor, “would enable a rational trier of fact to find that the defendant had actual or constructive knowledge of the hazard.” (Citations omitted.) The Landings Assn. v. Wiliams, 291 Ga. 397, 398 (728 SE2d 577) (2012).

“Constructive knowledge may be inferred when there is evidence that the owner lacked a reasonable inspection procedure.” (Citation omitted.) Food Lion v. Walker, 290 Ga. App. 574, 576 (1) (660 SE2d 426) (2008). “In order to prevail at summary judgment based on lack of constructive knowledge, the owner must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident.” Id. Here, there is no allegation that CBOCS had actual knowledge of the stick in the parking lot. But the plaintiff introduced evidence to show that CBOCS failed to follow its established inspection schedule, thereby raising an inference that CBOCS had constructive knowledge of the object.

In rebuttal, CBOCS points to a line of cases that hold that a defendant who has failed to follow a reasonable inspection schedule may still obtain summary judgment if there is no evidence that the foreign object could have been discovered during a reasonable inspection. See, e.g., Brown v. Host/Taco Joint Venture, 305 Ga. App. 248, 251 (699 SE2d 439) (2010) (plaintiff admitted that grease spot onfloor was not easily visible and therefore failed to establish that defendant could have easily seen and removed grease prior to fall); Chastain v. CF Ga. North DeKalb L.P., 256 Ga. App. 802, 803-804 (569 SE2d 914) (2002) (no evidence reasonable inspection would have discovered a “two and a half foot line of dribbled water” where plaintiff testified that the water was not “easily visible”); Lindsey v. Ga. Bldg. Auth., 235 Ga. App. 718, 720 (1) (509 SE2d 749) (1998) (no inference of constructive knowledge where plaintiff testified that single raised brick on the edge of the landing “was extremely difficult to see”); Rodriquez v. City of Augusta, 222 Ga. App. 383, 384(1) (474 SE2d 278) (1996) (plaintiff admitted that dangerous substance was not visible to the eye).

These cases are, however, distinguishable, in part because in each case the plaintiff essentially admitted that the foreign object or other obstruction could not be seen upon a reasonable inspection. Here, there is no such admission. And there is no other evidence that the stick would have been difficult to see as it lay in the lighted parking lot. Thus, there is an issue of fact on that question. See Gibson v. Halpern Enterprises, 288 Ga. App. 790, 793 (655 SE2d 624) (2007) (question of fact about whether the pea-sized asphalt gravel “which was the same color as the slope” could have been detected on reasonable inspection). See also Food Lion, 290 Ga. App. at 577 (2) (issue of fact as to whether reasonable inspection procedure would have detected chicken blood on floor).

With regard to premises liability cases, the Supreme Court has made plain that

[w]here reasonable minds can differ as to the conclusion to be reached with regard to questions of whether an owner/ occupier breached the duty of care to invitees and whether an invitee exercised reasonable care for personal safety, summary adjudication is not appropriate.

Robinson, 268 Ga. at 740 (1). For the above reasons, summary judgment was not appropriate in this case, and we reverse. Samuels’ second enumeration of error is moot.

Judgment reversed.

Miller, P. J., and Ray, J., concur.

On Motion for Reconsideration.

On motion for reconsideration, CBOCS contends we overlooked controlling case law that provides that an owner of land is not liable for naturally occurring objects that have not become an obvious hazard. CBOCS quotes this language:

In a series of cases involving slips and falls on water on rainy days, and on leaves on fall days, and on ice in winter weather, we have held that where the accumulation of such substances “on a premises is naturally occurring and not attributable to any affirmative action on the proprietor’s part, the proprietor has no affirmative duty to discover and remove it in the absence of evidence that it had become an obvious hazard by means other than natural accumulation.”

Leibel v. Sandy Springs Historic Community Foundation, 281 Ga. App. 390, 392 (636 SE2d 27) (2006), quoting Cleveland v. Snowdrop Properties, 232 Ga. App. 447 (501 SE2d 546) (1998). The cases upon which CBOCS relies include evidence that the item in question was a “naturally occurring” item that came from an identified source. In Leibel, the item was a sweetgum ball from a nearby sweetgum tree. In Augusta Country Club v. Blake, 280 Ga. App. 650 (634 SE2d 812) (2006), the item was a magnolia seed pod from nearby magnolia trees. In Cleveland v. Snowdrop Properties, 232 Ga. App. at 448, the item was wet leaves that “were the natural result of the fall season and the weekend’s rain.” In Columbus Doctors Hosp. v. Thompson, 224 Ga. App. 682 (482 SE2d 705) (1997), the item was ice.

In this case, however, there is no evidence, let alone undisputed evidence, that the object upon which Samuels fell was a naturally occurring substance on the premises. Although there were trees and bushes somewhere on the premises, there is no evidence showing that the piece of wood came from any of these sources. And neither Mrs. Samuels nor her cousin testified that it was a stick from a nearby tree or bush. CBOCS also argues that Samuels admitted that the object was “naturally occurring” because she used the word “stick” to describe it. But that fact alone does not establish as a matter of law that it was a naturally occurring item in the area. For example, the object could have fallen off another vehicle or have been dropped by another customer. Furthermore, in addition to a branch from a tree, “stick” can also mean “a long slender piece of wood.” See http://www. merriam-webster.com/dictionary/stick. It could have been a piece of construction material, or indeed some of the wooden mulch that CBOCS’s manager admitted was located in the nearby landscape beds. Because CBOCS cannot establish as a matter of undisputed fact that the item was naturally occurring, CBOCS cannot show that it was entitled to summary judgment based on the natural object cases.

Decided November 27, 2012

Reconsideration denied December 14, 2012.

Daniel, Lawson, Tuggle & Jerles, Robert R. Lawson, William R. Jerles, Jr., for appellants.

Hall, Booth, Smith & Slover, PaulD. Ivey, Jr., MarkD. Maholick, Lauren K. Dimitri, for appellee.

Finally, CBOCS argues that we relied on improper evidence to raise an issue of fact about whether the stick was “naturally occurring.” In the only applicable sentence, the opinion states, “There was some evidence that the object could have been a piece of landscaping mulch from a nearby bed.” CBOCS argues that the statement is based on speculation and hearsay and, therefore, that it is inadmissible. It is true, as stated in CBOCS’s motion for reconsideration, that Samuels’ cousin had no direct knowledge to show that the piece of wood was a piece of landscaping mulch. But the store manager said that there were beds around the parking spaces at the time of the fall that had a wood mulch material; and Samuels’ cousin saw where Samuels fell and came back to the same location two additional times and saw the material on the parking lot outside the beds. Thus, there was some circumstantial evidence supporting the statement in the opinion.

Motion for reconsideration denied.

       In describing the stick, Samuels likened it to a “Lincoln Log.’

       If the plaintiff is successful, the burden of production then shifts:
      At that point, the burden of production shifts to the defendant to produce evidence that the plaintiff’s injury was caused by his or her own voluntary negligence (intentional disregard of a known risk) or causal negligence (failure to exercise ordinary care for one’s personal safety). If the defendant succeeds in doing so, the burden of production shifts back to the plaintiff to come forward with evidence that creates a genuine dispute of fact on the question of voluntary or causal negligence by the plaintiff or tends to show that any such negligence resulted from the defendant’s own actions or conditions under the defendant’s control.
      (Citations omitted.) The Landings Assn., 291 Ga. at 398-399.

       CBOCS does not argue that the one inspection at 2:00 p.m. constitutes a reasonable inspection procedure.