Brown, Judge.The Turfgrass Group, Inc. appeals from the trial court’s order granting summary judgment in favor of Georgia Cold Storage Co., as well as the trial court’s earlier order denying partial summary judgment in its favor on the applicability of these same contract terms. Turfgrass asserts that the trial court erred by concluding that it is bound by the contractual terms and conditions listed on the reverse side of Cold Storage’s warehouse receipts. For the reasons explained below, we reverse the trial court’s grant of summary judgment to Cold Storage and affirm its denial of Turfgrass’s motion for partial summary judgment. “On appeal, we review the grant or denial of summary judgment de novo, construing the evidence and all inferences in a light most favorable to the nonmoving party.” (Citation and punctuation omitted.) Seki v. Groupon, Inc., 333 Ga. App. 319 (775 SE2d 776) (2015). So viewed, the record shows that beginning in June 2006, Turfgrass began storing its excess seed in a temperature-controlled Cold Storage warehouse. It subsequently stored additional seed in June 2007, July 2008, August 2008, and June 2009. The parties did not enter into a written and signed storage agreement.In June 2010, Turfgrass discovered that some of its stored seed was damaged by rodents and water. It notified Cold Storage about the problem by telephone. Turfgrass did not take any “serious activity” in connection with the loss “for some period of time” because one of its principals assumed “a very legitimate long-term big company” like Cold Storage would “take care of it” and make it “right.” After Cold Storage was unresponsive to Turfgrass’s attempts to resolve its complaint, Turfgrass sent an invoice in the amount of $9,625 to Cold Storage for the damaged seed on December 29, 2010. On January 4, 2011, Cold Storage sent Turfgrass a check for $275 based upon a stipulated damage amount of $.50 per pound for damaged product contained in the “Contract Terms and Conditions” printed on the reverse side of its warehouse receipt. This form states:SECTION 10 – NOTICE OF CLAIM AND FILING OF SUIT(a) COMPANY shall not be liable for any claim of any type whatsoever for loss and/or destruction of and/or damage to GOODS unless such claim is presented, in writing, within a reasonable time, not exceeding 60 days after STORER learns or, in the exercise of reasonable care, should have learned of such loss, destruction and/or damage.(b) As a condition precedent to making any claim and/or filing any suit, STORER shall provide COMPANY with a reasonable opportunity to inspect the GOODS which are the basis of STORER’S claim.(c) NO LAWSUIT OR OTHER ACTION MAY BE MAINTAINED BY STORER OR OTHERS AGAINST COMPANY WITH RESPECT TO THE GOODS UNLESS A TIMELY WRITTEN CLAIM HAS BEEN MADE AS PROVIDED IN PARAGRAPH (a) OF THIS SECTION AND UNLESS STORER HAS PROVIDED WAREHOUSEMAN WITH A REASONABLE OPPORTUNITY TO INSPECT THE GOODS AS PROVIDED IN PARAGRAPH (b) OF THIS SECTION AND UNLESS SUCH LAWSUIT OR OTHER ACTION IS COMMENCED WITHIN NINE (9) MONTHS AFTER STORER LEARNS OR, IN THE EXERCI[S]E OF REASONABLE CARE, SHOULD HAVE LEARNED OF THE LOSS AND/OR DESTRUCTION OF AND/OR DAMAGE TO THE GOODS. A principal of Turfgrass admitted receiving the January 4, 2011 letter, including the check and the attached “contract terms and conditions.” He stated that this was the first time he learned of such “terms and conditions” and denied that Turfgrass “ever enter[ed] into a contract based on terms and conditions in this document that our seed would not be protected in cold storage.” He testified that he had “a little bit of a reaction to it when [he] saw it” and described the $275 check as a “disgustingly small” response to their claim for damages. Turfgrass did not cash the check. Cold Storage’s office manager, Wanda Hingle, averred in an affidavit that Turfgrass “acknowledged receipt of, and responded to” the January 4, 2011 letter. She did not explain the nature of Turfgrass’s response to the letter, and the record contains no further information about it.In January or February 2011, Cold Storage began having repeated cooling issues in a portion of its warehouse where Turfgrass’s seed was stored. In May 2011, Turfgrass’s farm manager went to Cold Storage to retrieve seed for a customer and discovered that seed bags had been damaged by water and rodents. He registered another complaint at Cold Storage’s office, telling them “this was totally unacceptable” and that Turfgrass would need help to sort the seed and rebag it. A Cold Storage supervisor “came in and looked at” the damaged seed. Based upon this second incident of damaged seed, Turfgrass inspected more of its stored seed and found that some of it was “just in terrible shape.” On May 19, 2011, Turfgrass removed all of its seed from Cold Storage’s warehouse. On July 5, 2013, Turfgrass filed a complaint against Cold Storage, asserting that Cold Storage had improperly stored its seed, resulting in damages “in the principal amount of $492,902.” In its answer, Cold Storage asserted that Turfgrass’s claims were barred based upon its failure to comply with the contractual period of limitation and conditions precedent listed on the back page of its warehouse receipt form.With regard to Turfgrass’s notice of or assent to the terms and conditions of the warehouse receipts, the record shows that its farm manager and principal testified that they never saw or received the warehouse receipts and that a search of Turfgrass records did not reveal any warehouse receipts. They claim that Turfgrass did not learn of the purported existence of the warehouse receipts until after they received the January 4, 2011 letter from Cold Storage. At that point in time, the last deposit of stored seed had taken place one and a half years earlier. According to an invoicing clerk employed by Cold Storage, Donna Whitman, Cold Storage’s normal business practice was to complete a warehouse receipt and mail it to the customer either the same “day that shipments are received or the next business day.” Whitman testified in her deposition that receiving clerks were responsible for preparing the warehouse receipts and mailing them by ordinary mail to the customer. Cold Storage presented no evidence from the particular receiving clerk who prepared the warehouse receipts purportedly mailed to Turfgrass between 2006 and 2009. Whitman could not identify who sent the warehouse receipts to Turfgrass in 2006, and identified six different people who acted as the receiving clerk handling warehouse receipts for Cold Storage between 2006 and 2014.Whitman also averred the following in her affidavit: Since before 2006 and after 2009,[1] Georgia Cold Storage’s business practice with regard to warehouse receipts has been as follows. When a shipment is received by Georgia Cold Storage, information regarding the shipment is entered by a clerk into Georgia Cold Storage’s computer system, which generates a warehouse receipt. The warehouse receipt would then be printed in duplicate on special paper, which has the terms and conditions of storage pre-printed on the reverse side of the paper. In 2006, Georgia Cold Storage used Okidata dot matrix printers that printed warehouse receipts on carbon-type paper, simultaneously creating two copies of warehouse receipts, with the terms and conditions on the back of the first page. At some point after that, Georgia Cold Storage transitioned to laser printers, which would print two copies of each warehouse receipt, with the terms and conditions on the back of each page. After the warehouse receipts were printed, one copy of the warehouse receipt would be signed and mailed to the customer via regular first class mail to the customer’s billing address. The other copy would be kept for filing by Georgia Cold Storage.
Copies of the warehouse receipts Cold Storage claims it mailed to Turfgrass are attached to Whitman’s affidavit. The warehouse receipts for deliveries made in June 2006 and June 2007 contain the following statement at the bottom of the first page: “The goods are stored subject to all the terms and conditions stated in the reverse hereof. Said terms and conditions constitute a contract to which customer agrees by the acceptance of this Warehouse Receipt.” Immediately underneath the statement are the words “GEORGIA COLD STORAGE CO.” in bold, and underneath these words the following signature line appears: “By: __________.” The signature line on these warehouse receipts is blank. Based upon the amount of spacing between the words Georgia Cold Storage Co. and the signature line, as well as the content of the language appearing immediately above the words Georgia Cold Storage Co., it is unclear whether the document called for the bailor or the bailee to sign in the space provided. Warehouse receipts for deliveries made in July 2008, August 2008, and June 2009 have no signature line on the front page. Very small print appears at the bottom of the front page of the warehouse receipt which states: “Terms:” followed by a large amount of space to the right of the word. In the center of the page on the same line, the form then states in the same small print: “This contract contains a limitation of liability,” followed by approximately five blank spaces before the words “Refer to terms and conditions on file or attached.” These words were set in a much smaller font than the rest of the document and were not in bold.Cold Storage asserts that Turfgrass received additional notice of these terms and conditions in June 2009. Hingle averred that on June 12, 2009, she mailed a letter to all of Cold Storage’s customers, including Turfgrass, reminding them of the terms and conditions of the warehouse receipts. She asserts that she mistakenly dated the printed letter for June 12, 2002, instead of June 12, 2009, and that no similar letter was mailed on June 12, 2002. Hingle handwrote the date 2009 beside the typewritten date on the letter attached to her affidavit. Turfgrass denies receiving this letter, and asserted in its discovery responses that this letter was fabricated by Cold Storage. Turfgrass moved for partial summary judgment in its favor on the applicability of Cold Storage’s contractual defenses derived from the preprinted terms on the reverse side of its warehouse receipts. The trial court denied the motion based upon its conclusion that issues of fact existed with regard to Turfgrass’s receipt of the warehouse receipts. Five months later, Cold Storage moved for summary judgment in its favor based upon the same language and additional discovery materials filed with the trial court. Based upon a Uniform Commercial Code provision regarding warehouse receipts, OCGA § 11-7-201, the trial court concluded as a matter of law that Turfgrass did not need to receive the warehouse receipt in order for its terms to be enforceable. In its view, evidence that Cold Storage routinely mailed the warehouse receipts demonstrated that they were “issued” within the meaning of OCGA § 11-7-201 and the listed conditions on the reverse side were therefore binding against Turfgrass as a matter of law. Based upon this finding, the trial court concluded that Turfgrass’s complaint was barred by its failure “to provide written notice of its claim within sixty days and institute legal action within ninety days of discovery of damages to its product . . .”[2] In our view, the trial court erred in its legal analysis by focusing solely upon whether the warehouse receipts were “issued” under Article 7 of Georgia’s Commercial Code. OCGA § 11-7-101 states that Article 7 “shall be known and may be cited as [the] “Uniform Commercial Code — Documents of Title.” Our Code defines a “[d]ocument of title” to include awarehouse receipt . . . and any other document which in the regular course of business or financing is treated as adequately evidencing that the person in possession of it is entitled to receive, hold, and dispose of the document and the goods it covers. To be a document of title, a document must purport to be issued by or addressed to a bailee and purport to cover goods in the bailee’s possession which are either identified or are fungible portions of an identified mass.
