ETI CORPORATION v. Hammett

140 Ga. App. 618 (1976)

231 S.E.2d 545

ETI CORPORATION v. HAMMETT.

52812.

Court of Appeals of Georgia.

Argued October 12, 1976.

Decided December 1, 1976.

Valianos, Joh & Homer, Christopher Valianos, for appellant.

Edwards, Awtrey & Parker, G. Grant Brantley, for appellee.

MARSHALL, Judge.

Hammett sued ETI on a note for $11,984.17, secured by certain real estate. ETI, appellant herein, answered and defended on the ground of satisfaction of the note by foreclosure on the property which secured the note. During discovery, on November 19, 1975, ETI served *619 counsel for Hammett with a request for admissions. Hammett never answered nor objected to the request, and on January 28, 1976, ETI moved for summary judgment based on facts admitted by Hammett's failure to answer. At the summary judgment hearing Hammett's counsel was permitted by the court to controvert facts which were admitted by his failure to answer. Based on these controverted facts, the trial court entered an order denying summary judgment. From this denial ETI sought and this court granted interlocutory appeal. Held:

The issue is whether facts admitted by failure to timely answer a request for admissions under CPA § 36 (a) (Code Ann. § 81A-136 (a)) may be controverted by statement of counsel in a summary judgment hearing. CPA § 36 (b) (Code Ann. § 81A-136 (b)) provides: "Any matter admitted under this section is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission." (Emphasis supplied.) The record does not disclose any motion being filed by Hammett pursuant to this section.

In Porter v. Murlas Bros. Commodities, Inc., 134 Ga. App. 96 (213 SE2d 190), the defendant failed to answer requests for admission and the plaintiff moved for summary judgment based thereon. The trial court denied summary judgment and allowed the defendant to answer the request for admissions even though defendant did not file a motion pursuant to CPA § 36 (b). This court reversed holding that it was error to allow the request to be answered after the 30-day time period, in the absence of a motion being filed. Hammett has not attempted to distinguish that case and we see no distinction. See also Nat. Bank of Ga. v. Great Southern Business Enterprises, 130 Ga. App. 221, 222 (202 SE2d 848); Nat. Bank of Ga. v. Merritt, 130 Ga. App. 85 (202 SE2d 193).

The judgment is reversed and the case is remanded to the trial court with direction to reconsider ETI's motion for summary judgment based on evidence of record, including the matters conclusively established by the request for admissions as well as other relevant evidence which does not controvert those matters, and to enter an order thereon.

Judgment reversed and remanded with direction. *620 Quillian P. J., and McMurray, J., concur.