There's an old axiom that "saying something don't make it so." A recent Georgia Court of Appeals opinion reached a similar conclusion when it revived a lawsuit that a trial judge dismissed after accepting defense statements as being binding on the plaintiff, who had not admitted them.

While the defendants had stated in their admissions that they "owed no duty" to a freelance photographer shot while attempting to photograph a home being listed for sale, he had admitted no such thing and the judge was wrong to base his summary judgment order on that assertion, the appeals court said.     

The case began in January 2018 after Belinda Brooks retained real estate broker Tracy Cousineau and her company, Real Estate Expert Advisors, to market Brooks' home in Douglas County. 

REEA in turn hired Advantage Home Tours to photograph the property, and it assigned photographer Whitney Morris to take the pictures. 

According to court filings, Morris said the general procedure is for real estate agents to provide instructions as to how to access a home: call the homeowner, knock on the door, ring the doorbell and so forth.

In this case, there was an electronic lockbox on the door holding the key that could be opened with an electronic device or cellphone app. 

Morris was provided the lockbox code but was not given any instructions to call the agent before entering the house.  

"In contrast, another work order for the same day from a different realtor included the instruction, 'Please call agent on way,'" said Morris' appellate brief.

Morris showed up at the house about 9 a.m. and photographed the exterior. He "looked through the windows of the home and believed it appeared staged but unoccupied by an inhabitant," so he used his phone app to open the lockbox, retrieve the key and opened the door.

A security alarm went off, and Morris went inside to see if there was an alarm keypad and code inside.

An alarmed Brooks came out with a gun and shot at Morris. She missed the first time as he hid behind a wall. She shot again when he emerged, hitting him in the buttocks and causing "serious injuries."

Morris sued Brooks, the broker and her company in Gwinnett County State Court, arguing that Cousineau and REEA had a duty to "take reasonable and ordinary steps to ensure [Morris] would be safe at Brooks' home." It also said those defendants breached their duty of care by not informing Brooks about the 9 a.m. photo shoot. 

Before suing, Morris' lawyers sent a presuit demand letter to the defendants. Last August Barnes Firm principal Jeffrey Barnes, representing Cousineu and REEA, sent a reply letter dismissing the lawsuit as frivolous and describing the photographer's conduct as "more like a bungling thief than a so-called 'professional' photographer.'" 

"Mr. Morris's behavior, from the time he arrived at the property through the time he caused himself to get shot inside the house, was, in a word: brain-dead," Barnes wrote.    

During discovery, Morris' requests for admissions to Cousineau included asking whether she admitted to such statements, including those saying she "owed no duty whatsoever to Mr. Morris" and "was not the cause of Mr. Morris' injuries."

Cousineau admitted all of Morris' requests for admission.

There was a pause in discovery and wrangles over depositions, during which Cousineau and REEA filed a motion for summary judgment. In December, Judge Shawn Bratton granted it.

"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'] claims against them,'" said the June 3 opinion penned by Chief Judge Stephen Dillard with the concurrence of Judges Brian Rickman and E. Trenton Brown III.

On appeal, Morris argued among things that Bratton "erred by relying on the defendants' admissions—which were not binding on him, the party who sent the requests for admission—to grant summary judgment to REEA and Cousineau," wrote Dillard. "And in the absence of these admissions, he contends that the trial court erred in doing so. We agree."

"Morris claims that this is a case of first impression in Georgia and … contends that, without the admissions, the defendants failed to present any evidence in support of their motion for summary judgment," Dillard said.  

Although the defense argued that Bratton based his decision on other factors and "suggest it is unnecessary for us to determine whether it was proper to consider their admissions as binding upon Morris, we disagree," Dillard wrote.

"To be sure," he said, "the trial court did conclude that the defendants 'pointed to a lack of evidence of record to support the duty and causation elements of Morris's claim, but we disagree with the court's conclusion that REEA and Cousineau did anything other than rely on their own admissions."

A motion for summary judgment may only be granted if there is "no genuine issue as to any material fact" underlying the complaint, the opinion said. 

"In this case, REEA and Cousineau only discussed their own admissions, not a lack of evidence," Dillard wrote. "And if those admissions were not binding on Morris, without REEA and Cousineau ever arguing a lack of evidence, then Morris was not required to present any counter evidence or materials in affirmative support of his position because REEA and Cousineau did not meet their burden on summary judgment."

Morris is represented by Michael Rafi and Arthur York of the Rafi Law Firm, Leland Kynes of Kynes Law and Steven Litner of Litner & Deganian. 

Rafi said via email that the appellate dispute was sparked by Barnes' presuit letter, which said was "gross, shows absolutely no human compassion or care, and he should be ashamed of himself."

Cousineau and REEA are represented by Barnes, as well as Adam Joffe and Robert Noble III of Goodman McGuffey and Tyler Bryant of Fields Howell.

They did not respond to a request for comment on the opinion, and Barnes also did not respond when apprised on Rafi's comments concerning his letter.