Holcomb Invs. Ltd. v. Keith Hardware, Inc.

• Decision Date: 09 March 2020
• Docket Number: A19A2422
• Citation: 354 Ga.App. 270,840 S.E.2d 646
• Parties: HOLCOMB INVESTMENTS LIMITED v. KEITH HARDWARE, INC. et al.
• Court: Georgia Court of Appeals

354 Ga.App. 270

840 S.E.2d 646

HOLCOMB INVESTMENTS LIMITED

v.KEITH HARDWARE, INC. et al.

A19A2422

Court of Appeals of Georgia.

March 9, 2020

Nicholas Thomas Protentis, Eric David Miller, Atlanta, for Appellant.

Jason Digges Darneille, John E. Hall Jr., Atlanta, David Michael Williams, for Appellee.

Miller, Presiding Judge.

Keith Hardware, Inc., a commercial tenant of Holcomb Investments Ltd., received a delivery of plastic totes containing volatile chemicals from Ace Hardware Company, and one of these totes was the apparent origin of a fire that caused extensive damage to Holcomb's building. Holcomb appeals from the trial court's grant of summary judgment to Keith Hardware and Ace Hardware as well as the trial court's denial of its cross-motion for summary judgment.

Holcomb argues that (1) it was entitled to summary judgment on its breach of contract claim based on the indemnification clause in its lease with Keith Hardware; (2) as to both Keith Hardware and Ace Hardware, the trial court erred in finding that there were no jury questions as to negligence and also erred in failing to view the facts in a light most favorable to Holcomb; and (3) the trial court erred in finding that, as against Keith Hardware, the doctrine of res ipsa loquitur was inapplicable. We determine that (1) Holcomb's indemnification argument is beyond this Court's proper scope of review because the trial court did not address it; and (2) the trial court erred in granting summary judgment to both Keith Hardware and Ace Hardware on Holcomb's negligence claims. Accordingly, we vacate the trial court's denial of Holcomb's motion for summary judgment and reverse the trial court's grant of summary judgment to Keith Hardware and Ace Hardware.

"A trial court properly grants a motion for summary judgment when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." (Citation omitted.) Villareal v. TGM Eagle's Pointe, Inc. , 249 Ga. App. 147, 547 S.E.2d 351 (2001). "On appeal of a grant of summary judgment, we conduct a de novo review, and we view the evidence in the light most favorable to the nonmoving party." (Citation omitted.) Id.

So viewed, the record shows that Keith Hardware was a commercial tenant that operated a hardware store in Holcomb's building. In 2015, while Randall Thomas was working at the store, an Ace Hardware delivery truck driver dropped off pallets and plastic totes. As soon as the driver, Jeffrey Hill, unloaded the first pallet from the truck, Thomas asked about a "god awful smell" emanating from the pallet. Hill replied, "I don't know." Thomas deposed that he had never smelled the scent before but described it as a "chemical" scent, and he also testified that due to the material(s) emitting the scent, his eyes hurt and his nose burned. Neither Thomas nor Hill made a closer inspection of the pallet to investigate the scent. Thomas carried the pallet into the store and pushed it far into the stockroom, which was located in a corner of the building. He then placed three additional seven-foot pallets in front of the pallet that had been emitting the chemical scent and closed the door to the stockroom.

Thomas then began unloading other pallets which he had placed at the front of the store by the sales area. Approximately 20 minutes after bringing the first pallet into the store, Thomas began smelling the same chemical scent from the front of the store, but continued working for approximately five more minutes. He then decided to investigate and heard "crackling and popping" in the corner of the store where the stockroom was located. Upon entering the stockroom, Thomas saw flames coming out of a plastic tote from the same pallet that had emitted the chemical scent. By then, the fire was already "intense," and Thomas determined that he could not put it out with an extinguisher. The fire spread and ultimately caused extensive damage to Holcomb's building, resulting in a loss of $116,262.47, which was not covered by insurance.

Holcomb's expert, Douglas Byron, a forensic chemist specializing in fire debris analysis, opined to a reasonable degree of scientific certainty that the fire was caused by a "self-heating" reaction inside the tote, from "materials that are incompatible with each other." In his written report, Byron concluded, "to a reasonable degree of scientific certainty," that "Ace Hardware [had] improperly and unsafely plac[ed] incompatible chemicals and materials in the same container." He explained, "[s]ome of these chemicals and materials likely broke open and mixed with each other leading to a chemical reaction and ensuing spontaneous combustion event that resulted in the subject fire."

Byron could not say with certainty which materials had combined to start the fire. Using the shipment manifest, however, and accounting for Thomas's observation of the "awful" scent, Byron ultimately concluded that "the most likely scenario" was that muriatic acid and pool chlorine had combined to spontaneously combust.¹ Although Byron testified as to a few combinations of materials that may have combusted, he explained, "the only thing that we've identified that can produce a horrific, god awful smell, would be the reacting of those two compounds." While he was not "a hundred percent" certain that the muriatic acid and chlorine had combined to cause the fire, he testified, "as the evidence goes and the testimony, ... that's really the only thing we had in this case." Byron had not performed any tests showing that these two compounds combined to cause a fire, but he testified that an exothermic reaction had been "known to happen" when they combined. The record does not show that any other investigator or the fire department determined a cause for the fire.

Holcomb filed suit against Keith Hardware and Ace Hardware in the State Court of Walker County, raising both breach of contract and negligence claims. Holcomb claimed that Keith Hardware had breached its lease agreement to keep the leased space in a habitable, safe, and good condition by storing unsafe, combustible materials in Holcomb's building. As part of its negligence claims against both defendants, Holcomb alleged that Keith Hardware was negligent in accepting the combustible materials and storing them in the building and that Ace Hardware was negligent in delivering such materials. Both defendants filed motions for summary judgment. Keith Hardware argued that Holcomb's negligence claim failed because the cause of the fire was undetermined and that Holcomb's breach of contract claim failed in the absence of a showing of negligence. Ace Hardware argued that it had packed the subject tote in accordance with the federal guidelines, which preempt state law tort claims, and that Holcomb's negligence claim failed on the causation element. Holcomb filed a cross-motion for summary judgment against Keith Hardware, contending that the clear and unambiguous terms of the lease agreement required Keith Hardware to indemnify Holcomb for its damages and that Keith Hardware was also contractually obligated to pay Holcomb's legal expenses, attorney fees, and interest.

After a hearing, the trial court granted summary judgment in favor of Keith Hardware and Ace Hardware and denied Holcomb's cross-motion for summary judgment. The trial court determined that Holcomb's negligence claims against both defendants failed as a matter of law because Holcomb's evidence regarding causation was speculative and that Holcomb had no breach of contract action against Keith Hardware in the absence of a showing of negligence. This appeal ensued.

1. First, Holcomb contends that the trial court erred in denying its cross-motion for summary judgment on its breach of contract claim against Keith Hardware because an indemnification clause in the lease agreement required Keith Hardware to indemnify Holcomb for its damages. This argument, however, is beyond the proper scope of our review because the trial court did not address it.

The indemnification clause in the lease agreement between Holcomb and Keith Hardware provided in part as follows:

Tenant shall indemnify ... Landlord against all liabilities, expenses and losses, incurred by Landlord as the result of (a) damage or injury to Landlord, the Premises, or property or person of anyone else, if due to the act or neglect of Tenant or anyone under Tenant's control or employ; (b) failure by Tenant to perform any covenants required to be performed by Tenant hereunder; and/or (c) Tenant's failure to comply with any requirements of any governmental authority.

In its cross-motion for summary judgment, Holcomb argued that this contractual clause required Keith Hardware to indemnify or compensate Holcomb for the fire damage and losses. In Holcomb's view, Thomas's "act" of bringing a suspicious pallet into the building led to the fire and subsequent destruction of the building. But the trial court did not address this argument in its order denying Holcomb's summary judgment motion. "Thus, if we were to conclude that the trial court erred, it would be on account of an issue never ruled on below." Nebo Ventures, LLC v. NovaPro Risk Solutions, L.P. , 324 Ga. App. 836, 848 (4), 752 S.E.2d 18 (2013).

[W]hen this Court reviews a decision of a trial court on a motion for summary judgment, it sits as a court for the correction of errors of law. An error of law has as its basis a specific ruling made by the trial court. And although in certain instances an appellate court can review a record and determine that a summary judgment ruling was right for some reason other than that given by the trial court, an appellate court should not consider whether the trial court was ‘wrong for any reason.’

(Citation omitted.) Piedmont Hosp., Inc. v. D.M. , 335 Ga. App. 442, 448-449 (3), 779 S.E.2d 36 (2015). Holcomb's argument is therefore beyond our proper scope of review. Id. at 449 (3), 779 S.E.2d 36 ; Earls v. Aneke , 350 Ga. App. 455, 461 (1), 829 S.E.2d...