FIRST DIVISION BARNES, P. J., MARKLE and HODGES, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
March 26, 2026
In the Court of Appeals of Georgia A26A0113. LOVELESS v. GSH INVESTMENTS, LLC.
BARNES, Presiding Judge.
After she was injured when an exterior staircase collapsed at an apartment
complex, Monnie Loveless brought this premises liability action against the owner of
the complex, GSH Investments, LLC (“GSH”). The trial court denied two of
Loveless’ motions to compel additional discovery and granted GSH’s motion for
summary judgment. On appeal, Loveless contends that genuine issues of material fact
precluded the grant of summary judgment in favor of GSH. She also challenges the
trial court’s denial of her motions to compel. For the reasons discussed below, we
reverse the trial court’s grant of summary judgment to GSH and affirm the court’s
denial of the motions to compel. 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 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.
Pollard v. Deloach, 372 Ga. App. 303, 304(1) (903 SE2d 329) (2024). See OCGA § 9-
11-56(c).
So viewed, the evidence shows that in July 2020, GSH purchased the Drew
Lane Apartments located in Walker County, Georgia. The complex included
apartment buildings and duplexes. Several duplexes were designed with a set of
wooden stairs that ascended from the ground to a covered landing where the entrances
to two rental units were located.
While GSH was in the process of securing financing for the purchase of the
apartment complex, the bank underwriting the loan obtained an appraisal report for
the complex that was shared with GSH. At the time of the appraisal, approximately
50 percent of the rental units were occupied. The appraisal report described the
condition of the buildings as “below average” in light of “deferred maintenance” and
noted that the units needed “remodeling/updating.” The report further specified that
2 GSH “plan[ned] to update units and correct deferred maintenance prior to re-leasing
units.”
GSH was also provided with a survey report prepared for its insurer. The
survey report included an evaluation of one of the duplexes and noted “maintenance
concerns” with the “[e]xterior [f]acade,” the gutters and downspouts, and the roof.
The report also indicated that the “[r]oof has algae streaking, lifting shingles, and
granular loss on all slopes,” and that there was “[d]ebris in the gutters on the rear.”
After receiving the appraisal and survey reports, GSH did not perform an
inspection of the exteriors of the buildings or of the stairways to the duplexes as part
of its renovations to the rental units. GSH did not establish a formal inspection
process for the premises and instead relied on tenants and prospective tenants to
identify and report any problems that needed correction.
After purchasing the apartment complex, GSH began renovating the rental
units so that they could be leased to new tenants and began advertising units for lease.
Because of the ongoing renovation work, GSH required prospective tenants to get
approval before viewing any of the rental units. However, the leasing office was
located approximately 30 minutes away from the apartment complex, and GSH
3 sometimes allowed prospective tenants to view unlocked rental units unaccompanied
by and without the supervision of any employees.
In early August 2020, Loveless’ adult daughter, Amanda Loveless,1 saw an
online advertisement for the apartment complex and submitted a rental application.
After Amanda was approved to rent an apartment, she visited the apartment complex
four times. GSH allowed Amanda to visit the rental units as they were being renovated
so that she could choose which unit she wanted to rent, left the units unlocked, did not
require her to schedule a particular time for a visit, and did not supervise or meet with
her at the complex when she visited. GSH representatives never restricted Amanda
from bringing friends or family with her during the visits. During her second and third
visits to the apartment complex, Amanda brought a friend, and on her fourth visit she
brought Loveless, her children, and her niece.
Before her first and second visits, Amanda spoke with a GSH representative
and was given permission to go to the apartment complex and look at the different
units that were in the process of being renovated. Before her third visit, Amanda
learned that unit 11, one of the duplex units, would be the first to have its renovations
1 We will refer to Amanda Loveless by her first name for clarity. 4 completed and was available to rent, and she spoke with a GSH representative about
visiting it. The representative gave her permission to visit the unit.
Unit 11 had several wooden stairs that led up to a landing that it shared with
another unit, and Amanda did not notice any problems with the staircase when she
traversed it during her third visit. After visiting unit 11, Amanda texted with a GSH
representative about additional renovations to the interior of the unit. On September
1, 2020, Amanda paid a rental deposit for unit 11, and the parties scheduled September
11 as the date for her to sign the lease and move in.
On September 4, 2020, Amanda visited the apartment complex for a fourth
time. Amanda took Loveless with her to unit 11 so that Loveless could “check out”
the unit as “security” before Amanda moved into the unit. Amanda did not speak
again with a GSH representative before the fourth visit, believing that she had
permission to revisit unit 11 in light of their prior conversations.
After Amanda and Loveless arrived at unit 11, Amanda successfully walked up
the staircase to the landing in front of the unlocked unit door. However, as Loveless
ascended the staircase, it collapsed suddenly and without warning, and she fell
backwards, suffering a severe laceration to her right leg.
5 A licensed professional engineer retained by Loveless evaluated the exterior of
the duplex and photographs of the collapsed staircase to unit 11, and she concluded
that the collapse of the stairs was caused by wood rot, that the wood rot was caused
by water damage, and that the water damage was caused by improper gutter
maintenance. The engineer further noted that photographs of the collapsed staircase
showed that the stairs had visible dark discoloration, which, she opined, was a “sign
that there [was] something wrong” and was indicative of concentrated roof runoff and
potential wood rot.
Loveless commenced this premise liability suit against GSH,2 asserting that she
was an invitee of GSH at the time of the staircase collapse, that GSH had actual
and/or constructive knowledge of the hazard posed by the stairs, and that GSH was
liable for failing to exercise ordinary care to keep the premises safe as required by
OCGA § 51-3-1. GSH answered, denying liability. As the litigation progressed, several
discovery disputes arose between the parties, and while the trial court partially granted
Loveless’ first motion to compel, the court denied her second and third motions.
2 Loveless also initially sued GSH Properties Corporation and several John Doe defendants, but the trial court later entered a consent order dismissing those parties from the case without prejudice. 6 GSH moved for summary judgment, and the trial court granted the motion.
The trial court concluded that the uncontroverted evidence showed that GSH did not
grant Amanda or Loveless permission to visit unit 11 on September 4 and, as a result,
Loveless was a trespasser rather than an invitee or licensee as a matter of law. The
court further concluded that GSH owed no duty of care to Loveless as a trespasser
because the evidence showed that it did not know of her presence on the premises,
and that even if Loveless was an invitee, there was no evidence that GSH had actual
or constructive knowledge of the hazard posed by the staircase. Loveless now appeals
from the trial court’s summary judgment order.3
1. Loveless contends that the trial court erred in concluding as a matter of law
that she was a trespasser. According to Loveless, there was evidence from which a jury
could find that she occupied the status of an invitee when she accompanied Amanda
3 The trial court vacated its original summary judgment order and re-entered it because the parties were not given proper notice of the original order. Loveless then filed a timely notice of appeal from the re-entered order, as allowed by Cambron v. Canal Ins. Co., 246 Ga. 147, 148–49(1) (269 SE2d 426) (1980) (disapproved in part on other grounds by Wright v. Young, 297 Ga. 683, 684 n.3 (777 SE2d 475) (2015)). See JPMorgan Chase Bank, N. A. v. Whitaker, 376 Ga. App. 254, 262(2) (918 SE2d 425) (2025). 7 to unit 11 and was injured on the staircase. We conclude that a genuine issue of
material fact exists as to Loveless’ status on the premises at the time of her injury.
The duty owed by a landowner to keep its premises safe for visitors varies to a
certain degree depending on whether the person entering the premises is a trespasser,
invitee, or licensee. See OCGA §§ 51-3-1, 51-3-2, 51-3-3; Cham v. ECI Mgmt. Corp.,
311 Ga. 170, 173(2)(a) (856 SE2d 267) (2021).4 If the person is an invitee, the
landowner owes her a duty “to exercise ordinary care in keeping the premises and
approaches safe.” OCGA § 51-3-1. See Cham, 311 Ga. at 173(2)(a). A landowner
generally owes a lesser duty to refrain from wilfully or wantonly injuring a licensee or
trespasser. See OCGA §§51-3-2(b), 51-3-3(b); Brazier v. Phoenix Grp. Mgmt., 280 Ga.
App. 67, 73(2) (633 SE2d 354) (2006).
4 “The statutory source of a landlord’s liability rests on the location of the alleged cause of the plaintiff’s injury. If the alleged cause of the injury is in an area possessed by a tenant, then OCGA § 44-7-14 governs. If it is in an area possessed by the landlord, then OCGA § 51-3-1 et seq. governs.” Pollard, 372 Ga. App. at 305(2) (citation modified). See Cham, 311 Ga. at 177–80(2)(b). Loveless was injured on an exterior staircase that led to a landing shared by unit 11 and another unit, and there is no evidence that GSH as the landlord “had fully parted with [its] possession and the right of possession of that staircase and landing.” Pollard, 372 Ga. App. at 305(2) (citation modified). The principles of premises liability set out in OCGA § 51-3-1 et seq. therefore govern GSH’s liability. Id. 8 “A trespasser is one who, though peacefully or by mistake, wrongfully enters
upon property owned or occupied by another.” Jones v. Barrow, 304 Ga. App. 337,
338(1) (696 SE2d 363) (2010) (citation modified). “An invitee is someone whom a
landowner, by express or implied invitation, induces or leads to come upon his
premises for any lawful purpose,” while a licensee “is a person who is neither a
customer, a servant, nor a trespasser, who does not stand in any contractual relation
with the landowner, and who is permitted to go on the premises merely for her own
interests, convenience, or gratification.” Howard v. Gram Corp., 268 Ga. App. 466,
467 (602 SE2d 241) (2004). See OCGA §§ 51-3-1, 51-3-2(a). “When there is
conflicting evidence as to the legal status of the injured party, the question is rightfully
left to the jury.” Ga. Dept. of Corr. v. Couch, 312 Ga. App. 544, 546(1)(a) (718 SE2d
875) (2011). Mindful of these principles, we turn to the trial court’s summary
judgment ruling.
In concluding that Loveless was a trespasser, the trial court found that the
uncontroverted evidence showed that GSH did not invite or grant permission to
Amanda, or by extension Loveless, to visit unit 11 on September 4. The trial court
relied on the undisputed fact that a GSH representative never gave Amanda and
9 Loveless express permission to enter the premises on that specific date and on the
affidavit of a GSH representative averring that GSH had a policy of requiring visitors
to get authorization before any visit to the apartment complex in light of the ongoing
renovations. The trial court also found that there was no evidence that “GSH took any
action to induce or lead [Loveless] to come to the premises.” In reaching these
conclusions, however, the trial court did not take into account evidence from which
a jury could find that Amanda had an implied invitation from GSH to revisit unit 11
before signing her lease agreement and to bring a friend or family member with her.
“An implied invitation is one which is held to be extended by reason of the
owner doing something or permitting something to be done which fairly indicates to
the person entering that his entry and use of the property is consistent with the intents
and purposes of the owner.” Sanderson Farms v. Atkins, 310 Ga. App. 423, 425(1) (713
SE2d 483) (2011) (quotation marks omitted). “An invitation may arise from known
customary use, and it may be inferred from conduct or from any state of facts upon
which it naturally and necessarily arises.” Frazier v. Godley Park Homeowners Ass’n,
342 Ga. App. 608, 609 (804 SE2d 176) (2017) (quotation marks omitted).
10 Amanda and Loveless’ deposition testimony reflect that while Amanda
admittedly did not speak again with the GSH representative before her return visit to
unit 11 on September 4, she had previously been granted permission from the
representative to view unit 11; she was engaged in discussions with the representative
about the status of the renovations to unit 11; she had paid a deposit on the unit and
had a date scheduled for signing her lease and moving in; and the representative had
never expressed any restrictions on how many times she could visit. Amanda further
testified that unit 11 had been left unlocked, that GSH representatives did not require
her to schedule a particular time for visits, and the GSH representatives did not
supervise or meet with her at the premises whenever she visited. Additionally,
Amanda testified that GSH had never expressed any restrictions on her bringing
someone else with her to the premises, and she had brought a friend with her for two
prior visits without incident. Construed in the light most favorable to Loveless as the
non-movant on summary judgment, Amanda and Loveless’ deposition testimony
would support a finding that Amanda had an implied invitation from GSH to revisit
unit 11 on September 4 and to bring a family member such as Loveless with her. See
11 Frazier, 342 Ga. App. at 609; Sanderson Farms, 310 Ga. App. at 425(1). The trial court
therefore erred in finding that Loveless was a trespasser as a matter of law.
A genuine issue of material fact also exists as to whether Loveless was an invitee
or a licensee. As our Supreme Court has explained, “the determining question as to
whether a visitor is an invitee by implication or a licensee is whether or not the owner
or occupant of the premises will receive some benefit, real or supposed, or has some
interest in the purpose of the visit.” Cham, 311 Ga. at 174(2)(a) (quotation marks
omitted). Put another way, “a person may be deemed an invitee if his presence on the
property is of mutual benefit to both him and the landowner”; in contrast, “a licensee
falls between an invitee and a trespasser and is one who is permitted, either expressly
or impliedly, to go on the premises of another, but merely for his own interest,
convenience, or gratification.” Id. (citation modified).
At her deposition, Amanda testified that she took Loveless with her to view unit
11 on September 4 so that Loveless could “check out” the renovated unit as
“security” before Amanda moved into the unit. Amanda’s testimony, construed in
the light most favorable to Loveless as the non-moving party, reflects that Loveless
accompanied Amanda to the premises to look over unit 11 and confirm whether
12 Amanda should go through with signing the lease. A commercial landlord clearly has
an interest in the purpose of a visit when a potential tenant brings a guest to help them
check out or inspect the premises before closing on a lease, and the landlord directly
benefits from the visit if it helps induce completion of the lease transaction.
Accordingly, there is evidence from which a jury could find that Loveless was an
invitee when she visited unit 11 and was injured on the staircase. See Cham, 311 Ga.
at 183(3) (jury could conclude that individual was an invitee, where his presence on
the premises benefitted the landlord by inducing someone else to lease an apartment
there); Etheridge Motors v. Haynie, 103 Ga. App. 676, 680(3) (120 SE2d 317) (1961)
(friend who accompanied an invitee to a business to inspect repair work done there
also was an invitee). Alternatively, however, a jury could find from the evidence that
Loveless was on the premises simply to accompany Amanda there and to view the
rental unit for her own gratification and thus was more properly considered a licensee.
See Howard v. Gram Corp., 268 Ga. App. 466, 468 (602 SE2d 241) (2004) (holding
that a plaintiff who was on the premises “just to be with her” daughter was a
licensee). Given the record in this case, a jury must resolve Loveless’ status on the
premises when she sustained her injury. See Couch, 312 Ga. App. at 546(1)(a).
13 For the foregoing reasons, the trial court erred in determining as a matter of law
that Loveless occupied the status of a trespasser. Rather, there is a genuine issue of
material fact as to whether Loveless was a trespasser, licensee, or invitee.
2. GSH urges us to affirm the trial court’s order as right for any reason on the
ground that it did not breach any duty owed to Loveless. In granting summary
judgment to GSH, the trial court found that even if Loveless was an invitee to whom
GSH owed a higher duty, GSH did not breach its duty to her because there was no
evidence that it had actual or constructive knowledge of the hazard posed by the
staircase. As discussed in Division 1, there remain factual questions about Loveless’
status on the property, making it premature to resolve what specific duty was owed
to her. But even if we assume that Loveless was an invitee to whom GSH owed a
higher duty, we cannot affirm the trial court’s order on the alternative ground because
there are factual questions regarding GSH’s knowledge of the hazard.
If Loveless was an invitee, GSH owed her a duty to exercise ordinary care in
keeping unit 11 and its approaches safe pursuant to OCGA § 51-3-1. See Cham, 311 Ga.
at 173(2)(a). To recover on her claim under OCGA § 51-3-1, Loveless must establish,
among other things, that GSH “had actual or constructive knowledge of the hazard.”
14 Pollard, 372 Ga. App. at 306(3) (quotation marks omitted). Issues regarding knowledge
“are generally not susceptible of summary adjudication, and summary judgment is
granted in a premises liability case only when the evidence is plain, palpable, and
undisputed.” Id. (citation modified).
Loveless presented evidence, through the licensed professional engineer, that
the staircase collapsed as the result of wood rot, which in turn was caused by water
damage resulting from improper gutter maintenance. Because there is no evidence
that GSH had actual knowledge of the wood rot and water damage to the stairs, the
determinative question is whether there is evidence of GSH’s constructive
knowledge.
The duty of an owner or occupier of property to exercise ordinary care in keeping the premises safe includes inspecting the premises to discover possible dangerous conditions of which the owner/occupier does not have actual knowledge. So an owner/occupier is generally on constructive notice of what a reasonable inspection in the exercise of ordinary care would reveal. A property owner’s constructive knowledge of a hazard may be inferred when there is evidence that the owner lacked a reasonable inspection procedure.
15 Pollard, 372 Ga. App. at 306(3) (citation modified). Furthermore, the burden does not
shift to Loveless to show that a reasonable inspection would have revealed the defect
that caused the staircase to collapse “unless [GSH] first demonstrates that there is an
absence of evidence to support the claim that a reasonable inspection would have
discovered this defect.” Id. at 307(3) (citation modified).
GSH has not met that burden. The evidence, construed in favor of Loveless,
showed that the stairs to unit 11 had visible dark discoloration indicative of water
damage and wood rot, and that GSH had received appraisal and survey reports
indicating that there were roof, gutter, and other deferred maintenance issues at the
apartment complex that needed to be addressed before re-leasing units. “[T]he
appearance or character of the premises may impose on the owner a duty to inspect
for defects.” Pollard, 372 Ga. App. at 307(3) (quotation marks omitted). Moreover,
it is undisputed that GSH did not have an inspection procedure in place for the
apartment complex and never inspected the staircase before its collapse, relying
instead on tenants and prospective tenants to inform it of any hazards. Under these
circumstances, a genuine issue of material fact exists as to whether GSH had
constructive knowledge of the hazard posed by the staircase, and the trial court erred
16 in concluding otherwise. See id. (factual issues existed that precluded summary
judgment on issue of property owner’s constructive knowledge of defect in exterior
stair that broke, where “there were indications that the staircase’s fasteners were
failing,” and the property owner and manager did not “engage in any sort of regular
or systematic inspection of the staircase”); Gaskin v. Berry’s Boat Dock, 334 Ga. App.
642, 645 (780 SE2d 83) (2015) (genuine issue of material fact existed as to whether
property owners had constructive knowledge that collapsed pipe posts had been
attached to rotten wood, where the owners “did not establish as a matter of
undisputed fact that they had a reasonable inspection procedure or that the procedure
was carried out at the time of the accident”).
For all of the aforementioned reasons, we reverse the trial court’s grant of
summary judgment to GSH.
3. Loveless contends that the trial court erred in denying her second motion to
compel in which she sought additional deposition testimony from GSH’s OCGA § 9-
11-30(b)(6) representative. In support of her contention that she was “entitled to
depose a competent witness,” Loveless cites to OCGA § 9-11-30(b)(6) and then seeks
17 to incorporate into her appellate brief five pages of legal argument set out in her
motion to compel filed in the trial court.
Incorporating by reference arguments made in the court below
is not approved by this Court and we decline to look in the record for matters which should have been set forth in the brief. Moreover, if we were to permit this practice a party could evade entirely the page limitations on briefs established in our Rules. See Court of Appeals Rule 24(f). Accordingly, we have limited our review of [Loveless’] arguments to those actually made in her appellate brief.
Ellison v. Burger King Corp., 294 Ga. App. 814, 815(1) (670 SE2d 469) (2008). We
therefore are left with Loveless’ single citation to OCGA § 9-11-30(b)(6) as support
for her contentions. “But an assertion of error followed by a legal citation is not legal
argument, which requires, at a minimum, a discussion of the appropriate law as
applied to the relevant facts.” Vick v. State, 376 Ga. App. 716, 722(2) n.5 (920 SE2d
733) (2025) (citation modified). Loveless’ argument therefore is deemed abandoned.
See Court of Appeals Rule 25(d)(1) (“Any enumeration of error that is not supported
in the brief by citation of authority or argument may be deemed abandoned.”); Arnold
v. Fairway Mgmt., 376 Ga. App. 34, 44-45(2)(b)(iii) (918 SE2d 56) (2025).
18 4. Loveless also argues that the trial court erred in denying her third motion to
compel in which she sought to have GSH produce additional tenant information. The
only record citation included in connection with her argument is a citation to one page
of her motion to compel filed in the trial court. However, assertions made in motions
are not evidence. Tahamtan v. Sawnee Elec. Membership Corp., 228 Ga. App. 485, 486
(491 SE2d 918) (1997).
It is axiomatic that the burden is on the appellant to establish error from the record and this burden is not satisfied by mere assertions in [a] . . . brief. Given the appellant’s burden of proving error by the appellate record, where, as here, insufficient information was cited in the record for appellate review, the trial court ruling must be upheld. [Loveless] has failed to meet [her] burden to demonstrate error by the record.
Benchmark Rehab. Partners v. SDJ Logistics, 367 Ga. App. 203, 205(4) (885 SE2d 224)
(2023) (citation modified).
Judgment affirmed in part and reversed in part. Markle and Hodges, JJ., concur.