Morris v. Real Estate Expert Advisors, LLC

• Decision Date: 03 June 2020
• Docket Number: A20A0038
• Parties: MORRIS v. REAL ESTATE EXPERT ADVISORS, LLC et al.
• Court: Georgia Court of Appeals

355 Ga.App. 286

844 S.E.2d 227

MORRIS

v.REAL ESTATE EXPERT ADVISORS, LLC et al.

A20A0038

Court of Appeals of Georgia.

June 3, 2020

Kynes Law, Leland H. Kynes ; Rafi Law Firm, Michael T. Rafi, Arthur R. York ; Litner & Deganian, Steven M. Litner, Arman M. Deganian, for appellant.

Goodman McGuffey, Adam C. Joffe, Tyler B. Walker, Robert E. NobleIII; Barnes Firm, Jeffrey M. Barnes, for appellees.

Dillard, Presiding Judge.

Whitney Morris appeals from the trial court's grant of summary judgment to Tracy Cousineau and Real Estate Expert Advisors, LLC (‘‘REEA’’) on his claims for personal injuries sustained when he was shot by homeowner Belinda Brooks¹ as he entered her home to take photographs on behalf of REEA and Cousineau. Morris argues the trial court erred in granting summary judgment to the defendants when the trial court (1) relied on the defendants ’ admissions, which were not binding on Morris; (2) concluded that the defendants owed no duty to Morris and thus did not proximately cause his injuries; and (3) alternatively, abused its discretion by refusing Morris's request to extend the time to respond to the defendants’ motion for summary judgment. For the reasons set forth infra , we reverse.²

Viewed in the light most favorable to Morris (i.e. , the nonmoving party),³ the record shows that Brooks hired REEA to sell her Winston, Georgia home. Cousineau, a real estate agent, is the owner and manager of REEA. REEA told Brooks that when it was time for her home to be photographed, she would be contacted to set up an appointment; but that did not happen.

REEA hired Advantage Home Tours to photograph Brooks's home for her real-estate listing and submitted a work order to the Advantage Homes website. Thereafter, an Advantage Homes employee corresponded with a REEA employee to schedule a photography appointment. Advantage Homes confirmed that Brooks's home would be photographed at 9:00 a.m. on February 2, 2018. In turn, Advantage Homes scheduled Morris, a freelance real-estate photographer, for the job.

According to Morris, when he photographs a home, the way he enters the house depends "first and foremost" on the instructions in his work order. These work orders ask real-estate agents to submit all pertinent information to Advantage Homes Tours, and the company then passes that information along to the photographer. And according to Morris, if the instructions say to call the homeowner, knock on the door, or ring the doorbell, he follows those instructions. So, generally, the work order tells Morris everything that he needs to know for a photo shoot.

Here, REEA placed an electronic lockbox on the door to Brooks's home, and the box contained a key to the house. This type of lockbox is accessible via an electronic key or cell-phone application, which allows the real-estate agent to remotely control who accesses the home and when. The work order for Brooks's home included the code to her lockbox, but did not include any instructions to call the homeowner or agent before entering or any instructions related to a security alarm.

Morris arrived at Brooks's home just before 9:00 a.m. and took photographs of the house's exterior. He looked through the windows of the home and believed it appeared staged but unoccupied by an inhabitant. Then, shortly before 9:00 a.m., Morris used the application on his phone to open the lockbox. And at 9:00 a.m. sharp, he retrieved the key and opened the front door. But as the door swung open, a security alarm began to sound loudly. Surprised, Morris immediately looked back in the lockbox for a piece of paper with the security code. He found nothing inside. Morris then entered the home to look for the keypad and any paper containing the security code, but shortly thereafter he was shot from behind by Brooks.

Brooks expected that her real-estate agent would notify her before a photographer came to her home, but that never happened. So, when Morris entered the home, Brooks believed that he was an intruder, retrieved her firearm, and fired in his direction. She missed Morris the first time; but shot again, striking him in the buttocks and causing serious injuries.

Morris later filed suit against Brooks, REEA, and Cousineau, alleging that Cousineau and REEA "had a duty to act as a reasonable person would under the circumstances" and "take reasonable and ordinary steps to ensure [Morris] would be safe at Brooks’[s] home." The complaint further alleged that REEA and Cousineau breached their duty of care by failing to inform Brooks that Morris would enter her home at approximately 9:00 a.m. on the date in question.

But before Morris filed suit, he received a letter from Cousineau's counsel, opining that Morris "conducted himself more like a bungling thief than a so-called ‘professional’ photographer" while at Brooks's home, that he was a "victim of his own stupidity and was the cause of his injuries," and that his "behavior, from the time he arrived at [the home] through the time he caused himself to get shot inside ..., was, in a word: braindead." As a result, during discovery, Morris sought to confirm whether Cousineau actually believed what her counsel said in this letter, which Morris considered to be "outlandish" statements. So, he sent requests for admission to Cousineau in which he quoted the statements from this letter verbatim. In other words, Morris's requests for admission did not ask Cousineau to admit whether she believed those statements were true, just to admit the statements themselves. Cousineau thereafter admitted all of Morris's requests for admission, including these verbatim statements, which included that she "owed no duty whatsoever to Mr. Morris," that she "was not the cause of Mr. Morris's injuries," and that REEA "did not cause injury to Mr. Morris."

Discovery was then delayed for several months due to a pending motion to dismiss, which Brooks first filed on April 19, 2018, on the ground of statutory immunity,⁴ and which stayed discovery until the motion was denied on June 25, 2018.⁵ Then, on July 17, 2018, Cousineau filed a motion to dismiss on the ground that she could not be held liable because she did not participate in Brooks's listing. The stay on discovery from this motion was then lifted when the trial court issued an order converting the motion to dismiss into one for summary judgment on September 18, 2018. The court gave Morris 35 days in which to respond to the converted motion for summary judgment (i.e. , by October 22, 2018).

In an affidavit filed as an exhibit to her motion, Cousineau averred that (1) she was a member and manager of REEA but was not hired by Brooks to be the listing agent, although another REEA agent was listed; (2) because she was not hired by Brooks, she was not personally responsible for coordinating and communicating photography appointments with Brooks; and (3) she had no involvement with or knowledge of the photography appointment. And after Cousineau answered the above-referenced requests for admission, REEA and Cousineau filed a joint motion for summary judgment on October 15, 2018, arguing that they owed no duty of care to Morris and, thus, did not proximately cause his injuries. In the alternative, they argued they were entitled to summary judgment on the grounds that Morris's contributory or comparative negligence barred recovery because his injuries were solely caused by his own conduct.

When filing their joint motion, REEA and Cousineau further asked the court to require Morris to respond to all of the motions for summary judgment within the original deadline for Cousineau's singular motion (i.e. , October 22, 2018). The trial court never ruled upon the request to consolidate the response deadline; but Morris responded to the motion within this period (on October 19, 2018), while also requesting a continuance of 45 days after the close of discovery. In doing so, Morris cited scheduled depositions that had yet to take place—including Cousineau's deposition, which was scheduled for October 18, 2018, the day before Morris filed his response. Morris also claimed that he had been unable to "secure affidavits from Brooks, Cousineau, REEA, or its employees."

On November 19, 2018, REEA and Cousineau filed a motion seeking a protective order in response to a second request for production of documents that Morris sent on September 24, 2018. Then, on November 30, 2018, REEA and Cousineau filed a joint reply in support of their motion for summary judgment. They mentioned that, since filing their motion for summary judgment, Cousineau had been deposed on October 18, 2018; Brooks and her husband were deposed on November 2, 2018; and Brooks's home was inspected on November 2, 2018. On December 3, 2018, Morris filed an amended complaint for damages. Then, on December 12, 2018, the defendants noticed the filing of original discovery in the form of Morris's deposition, taken on December 5, 2018. They also requested that Morris file the depositions of Cousineau, taken on October 18, and Brooks and her husband's depositions, taken on November 2, 2018.

Following a hearing on December 3, 2018, at which Morris again mentioned additional depositions that were scheduled but had not yet occurred, the trial court granted the joint motion for summary judgment. In doing so, the trial court relied on the defendants’ admissions and pointed to a "lack of evidence of record to support the duty and causation elements of [Morris's] claims against them." The court also denied Morris's request for a continuance, concluding that "[i]t does not appear from [Morris's] affidavits ... that he cannot ... present by affidavits facts essential to justify his opposition."⁶ This appeal by Morris follows.

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."⁷ And we apply a de novo standard of review to appeals from a grant of summary judgment, viewing the evidence and all reasonable conclusions and...