FOURTH DIVISION
MCFADDEN, P. J.,
WATKINS and EPPS, JJ.
NOTICE: Motions for reconsideration must be
received no later than 4:30 pm on the 10th day after
the decision was issued to be deemed timely filed.
https://www.gaappeals.gov/rules
October 19, 2026
In the Court of Appeals of Georgia
A26A1413. BSC REALTY SERVICES, LLC v. VALCOURT
BUILDING SERVICES OF GEORGIA, L.C.
MCFADDEN, Presiding Judge.
This appeal concerns Valcourt Building Services of Georgia, L. C.’s contractual
obligation to indemnify BSC Realty Services, LLC for liability arising from injuries
sustained by Sergio Orellana. Working on behalf of Valcourt, Orellana was pressure
washing a cooling fan atop a commercial building managed by BSC. He fell from a
ladder.
Under the terms of the indemnification provision, Valcourt must indemnify
BSC unless liability for Orellana’s injuries arose from the sole negligence of either
BSC or the building owner. Because fact questions exist as to that issue, the trial court
erred in granting summary judgment to Valcourt on BSC’s third-party claims for breach of contract and indemnification, so we reverse. We also hold that there is no
merit to Valcourt’s argument that we must dismiss this appeal for lack of jurisdiction.
1. Procedural overview
Orellana brought an action against several defendants, including building
manager BSC, seeking damages for injuries he sustained when he fell. He alleged that
the defendants were negligent for failing either to disable power to the fan or to take
steps to prevent it from being re-energized while he was working, and that as a result
the fan blade to rotated and knocked him off the ladder.
BSC then brought a third-party action against Valcourt, a contractor providing
exterior maintenance services to the building, which had contracted with a company
owned by Orellana for some of those services, including pressure washing the cooling
fan. BSC asserted claims against Valcourt for breach of contract and indemnification
based on an indemnification provision in Valcourt’s service agreement with the
building’s owner. Valcourt moved for summary judgment against the third-party
claims, asserting that as a matter of law the indemnification provision did not apply
because any liability for Orellana’s injuries arose from the sole negligence of either
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BSC or the building owner, specifically the failure of the building’s engineers to take
steps to ensure that power to the fan remained cut off while Orellana was washing it.
The trial court granted summary judgment to Valcourt on the third-party claims
on July 28, 2025, and on August 7, 2025, the trial court issued an order directing the
entry of a final judgment on those claims. BSC did not file a timely notice of appeal,
but in September 2025 it moved for the trial court to vacate and reenter those orders.
The trial court granted BSC’s motion and, on November 10, 2025, vacated and
reentered both orders. BSC then timely appealed.
2. Appellate jurisdiction
As an initial matter, Valcourt challenges our appellate jurisdiction. It contends
that we lack jurisdiction because BSC did not timely appeal from the July 28, 2025
summary judgment order and the trial court lacked jurisdiction to vacate and reenter
that order on November 10, 2025, outside the term of court in which the earlier order
was entered. See OCGA § 15-6-3(20) (providing that the terms of court in Gwinnett
County begin on the first Monday in March, June, and December and the second
Monday in September). We disagree.
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It is true that generally, “a trial court has no jurisdiction to change or modify
a judgment outside the term of court in which the judgment was entered.” Stevens v.
Food Lion, 341 Ga. App. 644, 646 (801 SE2d 340) (2017). But that rule applies only to
final judgments. It “has no application to interlocutory rulings so long as the case
continues — from term to term, until final judgment. In civil cases, an interlocutory
ruling does not pass from the control of the court at the end of the term if the cause
remains pending.” Claxton v. Adams, 357 Ga. App. 762, 765(1) (849 SE2d 494) (2020)
(citation modified).
So although the July 2025 summary judgment order was “subject to review by
direct appeal” under OCGA § 9-11-56(h), the case against the various defendants,
including BSC, continued. Consequently the summary judgment order was
interlocutory, and the November 2025 vacatur and reentry of that order was within
the trial court’s authority.
The Civil Practice Act does authorize trial courts to “direct the entry of a final
judgment” on a interlocutory order. OCGA § 9-11-54(b). But, “unless the court
otherwise directs,” a final judgment is entered only upon “[t]he filing with the clerk
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of a judgment, signed by the judge with the fully completed civil case disposition form[.]”
OCGA § 9-11-58(b) (emphasis added).
Here, even though the trial court directed the entry of a final judgment as to the
third-party claims under OCGA § 9-11-54(b), that judgment was not entered because,
as Valcourt concedes, Valcourt did not file a civil case disposition form as to those
claims. OCGA § 9-11-58(b) reiterates, “The entry of the judgment shall not be made
by the clerk of the court until the civil case disposition form is filed.”Id.
Valcourt argues that it does not matter that no final judgment was entered
under OCGA § 9-11-58(b), because the requirement of a civil case disposition form
does not affect the finality of the trial court’s judgment for purposes of the Appellate
Practice Act. See Horesh v. DeKinder, 295 Ga. App. 826, 829-30(1) (673 SE2d 311)
(2009). It is true that we have held, “[w]hat additional requirements are imposed by
the Civil Practice Act for entry of a judgment are simply not relevant for purposes of
the Appellate Practice Act, which has its own definition of when a judgment is entered.”
GMC Group v. Harsco Corp., 293 Ga. App. 707, 708 (667 SE2d 916) (2008) (emphasis
supplied). See OCGA § 5-6-31.
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But the resolution of the dispositive jurisdictional issue in this case — the trial
court’s authority to vacate and reenter the July 28 summary judgment order —
implicates the Civil Practice Act rather than the Appellate Practice Act. Because no
final judgment was entered on the third-party claims under OCGA § 9-11-58(b), for
purposes of the Civil Practice Act the summary judgment order remained
interlocutory and the trial court retained the authority to vacate and reenter it. See
Claxton, 357 Ga. App. at 765(1). BSC timely initiated appellate proceedings from that
reentered order, so we have jurisdiction over this appeal and we decline Valcourt’s
request that we dismiss it.
3. Summary judgment
Turning to the merits of this appeal, summary judgment is appropriate “if the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law[.]” OCGA § 9-11-56(c). We review a grant of summary judgment de novo, viewing “the evidence, and
all reasonable inferences drawn therefrom, in the light most favorable to the
nonmovant.” State of Ga. v. Federal Defender Program, __ Ga. __, __(3) (931 SE2d
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123) (2026) (quotation marks omitted). To the extent that the trial court improperly
made findings on disputed facts in the summary judgment order, as BSC contends,
“[w]e do not rely on those disputed findings but, instead, review the record de
novo[.]” Id. at __(3) n. 8.
(a) Facts
Viewed in the light most favorable to BSC, the evidence shows that, as stated
above, Valcourt entered into a contract with the owner of the commercial building at
issue in this case to provide exterior maintenance services. The contract contained a
provision under which Valcourt agreed to indemnify the building owner and the
building manager, BSC, which stated, in relevant part:
INDEMNIFICATION – Contractor [Valcourt] shall indemnify and save
harmless Manager [BSC] and Owner and their respective subsidiaries,
affiliates, shareholders, directors, officers, partners and employees from
and against any and all liability, claims and demands on account of
damage to any property or injury to persons including death resulting
therefrom, losses, damages, expenses (including attorneys’ fees and
investigation costs), payments, recoveries and judgments in connection
therewith arising out of or caused in any manner by the acts or omissions
of Contractor, its employees, Managers or subcontractors or the
performance or failure to perform any Services under this Contract or
the breach of any provision or obligation set forth herein by Contractor,
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or Contractor’s employees or Managers or subcontractors excepting only
liability arising from the sole negligence of Owner or Manager. Contractor
shall, at its own expense, defend any and all actions brought against
Manager or Owner based upon any of the foregoing and shall pay all
attorneys’ fees and all other expenses, and promptly discharge any
judgments, settlements or compromises arising therefrom.
One of the services Valcourt agreed to perform under its contract with the
building owner was to pressure wash the building’s cooling tower fans. That work was
performed by a separate entity owned by Orellana, International Maintenance
Services, LLC, pursuant to a contract with Valcourt.
BSC takes several steps when a worker such as Orellana comes to the building
to pressure wash the fans. Before the fans can be cleaned, the building’s engineers
(who work for an entity affiliated with BSC) must turn off the power to them. At the
time of Orellana’s fall, there were no written procedures for doing so. However,
typically the following occurred: The person performing the cleaning would retrieve
an access key from the engineers and let them know which tower would be cleaned.
The engineers would shut power off to that tower, either through a computer system
in the engineers’ office (the building automation system) or by using a touchpad and
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lever in a locked rooftop electrical room, and then inform the worker that this had
occurred. Once the worker finished cleaning the tower, he would inform the engineers
that power could be restored.
Federal Occupational Safety and Health Administration regulations establish
standards for what is known as a “lockout/tagout” process to ensure that equipment,
such as the cooling tower fans, is not unexpectedly re-energized while someone is
servicing or maintaining it. See 29 CFR 1910.147. In this case, the building’s engineers
could use a “lockout/tagout” process if they shut off the power to the cooling tower
fans from the rooftop electrical room, but not if they turned off the power through the
building automation system. Orellana’s expert witness testified that, by attempting to
turn off the power only through the building automation system, the engineers did not
properly de-energize the fan.
On the day of Orellana’s fall, October 7, 2021, Orellana arrived at the building,
checked in with one of the engineers, obtained the access key, identified the first
cooling tower fan he intended to wash, and received confirmation that power to that
fan had been shut off. He washed the fan, informed the engineers that he had finished,
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and received verification that the power had been shut off to the next fan he intended
to wash, which was in another cooling tower.
Orellana went to that next cooling tower and watched the fan in it stop rotating.
He climbed a ladder and held a fan blade with one hand to keep the fan still. He held
the hose of the pressure washer with his other hand, keeping both of his feet on the
ladder. Orellana began to pressure wash the fan. He then heard a “click” and the fan
began to rotate again. This knocked Orellana off balance, and he fell off of the ladder.
He was seriously injured in the fall.
The record does not contain direct evidence addressing whether or not the
second cooling tower fan had been re-energized while Orellana was cleaning it. There
is no testimony from the engineer who shut off the power to it. The building
automation system logs for that day, which would have shown when the power was
turned on and off, were not preserved.1 Orellana testified that he believes power had
1
The loss of these logs is the subject of a motion for spoliation sanctions that Orellana filed in the primary action. After the trial court granted summary judgment to Valcourt in the third-party action (but before the trial court vacated and re-entered that order), the trial court granted Orellana’s sanctions motion and stated that he likely would charge the jury in Orellana’s action on the spoliation presumption, see Suggested Pattern Jury Instructions (Civil) § 02.160 (5th ed. 2007), and would exclude testimony about what any person saw in the logs. The record before us contains deposition testimony from the person then serving as senior chief engineer
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been restored to the fan. But the record also contains evidence both that the force of
water from a pressure washer could cause the fan to rotate without power and that the
fan makes little to no noise when it is re-energized. And Orellana’s co-worker, who did
not witness the fall but assisted Orellana on the scene shortly afterward, observed the
fan blades moving slowly and slowing down.
(b) Analysis
BSC’s third-party claims rest on Valcourt’s obligation, under its contract with
the building owner, to indemnify BSC for liability arising from Orellana’s injuries. As
detailed above, the contract excepts from that obligation “liability from the sole
negligence of [the building owner] or [BSC].” In granting summary judgment to
Valcourt, the trial court rejected BSC’s argument that there is a question of fact as to
whether or not the fan was re-energized during Orellana’s work, or whether it moved
on its own due to the force of the water. But as stated above, there was no direct
evidence regarding whether or not the fan had power at the time Orellana fell. And we
agree with BSC that the circumstantial evidence on that issue was not undisputed.
that he did not see anything unusual in the logs when he looked at them after Orellana fell. In our review of the record we have not found any deposition testimony more specifically addressing what anyone saw in the logs.
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Circumstantial evidence is “evidence which does not constitute direct proof
with regard to the issue of fact or the hypothesis sought to be proven by the evidence;
rather, circumstantial evidence constitutes proof of other facts consistent with the
hypothesis claimed.” Patterson v. Kevon, LLC, 304 Ga. 232, 236 (818 SE2d 575)
(2018) (quotation marks omitted). It
may be sufficient for a plaintiff’s claim to survive summary judgment, if
other theories are shown to be less probable. There is no requirement
that other theories be conclusively excluded[.] In those circumstances,
the question as to the sufficiency of the circumstantial evidence, and its
consistency or inconsistency with alternative hypotheses, is a question
for the jury.
Id. at 236 (citation modified).
The evidence that Orellana heard a “clicking” noise and then the fan began to
rotate permits an inference that the fan was re-energized. But the evidence does not
demand that inference, and other evidence contradicts the inference: the evidence that
the fan makes little to no noise when the power is turned on, the evidence that the
force of water from pressure washing can move the fan even if it does not have power,
and the evidence that the fan began slowing down after Orellana’s fall.
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A party opposing summary judgment, such as BSC, is entitled “to have all
reasonable inferences from the evidence drawn in [its] favor.” McBee v. Aspire at West
Midtown Apts., 302 Ga. 662, 663(1) (807 SE2d 455) (2017). A jury could reasonably
infer that the fan began to rotate because it was struck by water from Orellana’s
pressure washer, rather than because it was re-energized partway through Orellana’s
work. Although it is true, as Valcourt asserts, that “inferences cannot be based on
mere conjecture or possibility or upon evidence which is too uncertain or
speculative[,]” Mannion & Mannion v. Mendez, 355 Ga. App. 28, 31 (842 SE2d 334)
(2020) (quotation marks omitted), we disagree that causation in this case is merely a
matter of pure speculation or conjecture. As stated above, there is no direct evidence
establishing whether or not the fan had been re-energized when Orellana fell, and the
circumstantial evidence cited by BSC supports its theory that the rotation of the fan
was caused by the force of the water from Orellana’s pressure washer, rather than the
restoration of power to the fan. This is sufficient to create a factual dispute as to
whether or not the fan had been re-energized. See Patterson, 304 Ga. at 236-37
(holding that summary judgment was not appropriate where there was no direct
evidence on the dispositive issue and the party opposing summary judgment presented
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evidence that, “although circumstantial, contradicted point by point the assertions
made in [the movant’s] motion for summary judgment”); Parke Towne N. Apts. v.
Castro, 349 Ga. App. 692, 696-97(4) (824 SE2d 730) (2019) (finding sufficient
evidence of causation for plaintiff’s premises liability claim to survive summary
judgment where there was no direct evidence showing why he fell but there was
circumstantial evidence that he lost his balance and fell over a railing); Miller v. Turner
Broad. System, 339 Ga. App. 638, 643(1) (794 SE2d 208) (2016) (finding sufficient
evidence of causation for plaintiff’s premises liability claim to survive summary
judgment where there was no direct evidence of whether or not the injured plaintiff
knew a circuit had not been turned off when he tested it).
This factual dispute precludes summary judgment to Valcourt on the thirdparty claims. It goes to the issue of causation: whether Orellana’s injuries arose from
the alleged negligence of the building’s engineers in failing to take steps to ensure that
the fan was not re-energized during Orellana’s work. Because a dispute exists as to
whether the fan in fact was re-energized, Valcourt cannot show, as a matter of law,
that Orellana’s injuries arose from the sole negligence of BSC or the building owner,
and thus the exception to the contract’s indemnification provision applies.
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Given this conclusion, we do not reach BSC’s argument that genuine issues of
material fact exist regarding whether Orellana’s injuries arose in part from negligence
on the part of Valcourt with regard to the training provided to Orellana.
Judgment reversed. Watkins and Epps, JJ., concur.
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