2020 Georgia Code
Title 9 - Civil Practice
Chapter 11 - Civil Practice Act
Article 5 - Depositions and Discovery
§ 9-11-36. Requests for Admission

1. Scope; service; answer or objection; motion to determine sufficiency.
   1. A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of subsection (b) of Code Section 9-11-26 which are set forth in the request and that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party.
   2. Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney; but unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the summons and complaint upon him. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission; and, when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; he may, subject to subsection (c) of Code Section 9-11-37, deny the matter or set forth reasons why he cannot admit or deny it.
   3. The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this subsection, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pretrial conference or at a designated time prior to trial. Paragraph (4) of subsection (a) of Code Section 9-11-37 shall apply to the award of expenses incurred in relation to the motion.
2. Effect of admission. Any matter admitted under this Code section is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission. Subject to Code Section 9-11-16 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits. Any admission made by a party under this Code section is for the purpose of the pending action only and is not an admission by him for any other purpose, nor may it be used against him in any other proceeding.

(Ga. L. 1966, p. 609, § 36; Ga. L. 1967, p. 226, §§ 17, 18A; Ga. L. 1972, p. 510, § 9.)

- Form of request for admission, § 9-11-125.

Admissions generally, § 24-8-821 et seq.

- For provisions of Federal Rules of Civil Procedure, Rule 36, see 28 U.S.C.

- For article surveying Georgia cases in the area of trial practice and procedure from June 1979 through May 1980, see 32 Mercer L. Rev. 225 (1980). For survey article on trial practice and procedure, see 34 Mercer L. Rev. 299 (1982). For note, "Preferential Treatment of the United States under Federal Civil Discovery Procedures," see 13 Ga. L. Rev. 550 (1979).

ANALYSIS

• General Consideration
• Answers and Objections
• Withdrawal or Amendment of Admission
• Use of Admissions
• Summary Judgment

General Consideration

Editor's notes.

- Georgia Laws 1972, p. 510, made substantial revisions to certain Code sections of this chapter dealing with discovery. Prior to the 1972 amendment, this Code section was substantially the same as Ga. L. 1953, p. 224, § 1, and Ga. L. 1959, p. 314, § 1. Hence, decisions based on this Code section prior to its 1972 amendment should be consulted with care.

In light of the similarity of the statutory provisions, decisions under Ga. L. 1953, p. 224, § 1 and Ga. L. 1959, p. 314, § 1, are included in the annotations for this Code section.

- Purpose of rule as to request for admissions is to expedite trial and to relieve the parties of the cost and labor of proving facts which will not be disputed on the trial and the truth of which can be ascertained by reasonable inquiry. Hobbs v. New England Ins. Co., 212 Ga. 513, 93 S.E.2d 653 (1956);(decided under Ga. L. 1953, p. 224, § 1).

Clear intent of this section is to give the trial court discretion to permit parties to respond accurately and truthfully to requests for admissions with a view toward establishing uncontested facts that go to the merits of the case. Mote v. Tomlin, 136 Ga. App. 616, 222 S.E.2d 57 (1975).

Purpose of O.C.G.A. § 9-11-36 is facilitation of proof at trial. Albitus v. F & M Bank, 159 Ga. App. 406, 283 S.E.2d 632 (1981).

Purpose of the 1972 amendment (Ga. L 1972, p. 510, § 9) was to conform discovery provisions of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) to the 1970 amendments to the Federal Rules of Civil Procedure. Cielock v. Munn, 244 Ga. 810, 262 S.E.2d 114 (1979).

- Party responding to a request for admissions must comply strictly and literally with the terms of this section, on peril of having the party's response construed to be an admission. Walker Enters. Inc. v. Mullis, 124 Ga. App. 305, 183 S.E.2d 534 (1971).

- Trial court erred in denying the administrator's motion to withdraw the admissions after erroneously placing the burden to show a lack of prejudice on the administrator rather than the provider. Carter v. VistaCare, LLC, 335 Ga. App. 616, 782 S.E.2d 678 (2016).

Admissions are not part of the pleadings but are in the nature of evidence relating to the proof, and must be introduced in evidence before the admissions can be considered by the trier of fact. Brooks v. Roley & Roley Eng'rs, Inc., 144 Ga. App. 101, 240 S.E.2d 596 (1977); National Bank v. Hill, 148 Ga. App. 688, 252 S.E.2d 192 (1979).

Requests for admissions and responses thereto are not pleadings. Ross & Ross Auctioneers v. Testa, 96 Ga. App. 821, 101 S.E.2d 767 (1958); Forsyth v. Peoples, Inc., 114 Ga. App. 726, 152 S.E.2d 713 (1966);(decided under Ga. L. 1953, p. 224, § 1).

Requests for admissions and responses thereto constitute matters of proof and of evidence, and before the admissions can be considered by the trier of fact the admissions must be introduced in evidence. Forsyth v. Peoples, Inc., 114 Ga. App. 726, 152 S.E.2d 713 (1966);(decided under Ga. L. 1959, p. 314, § 1).

Requests for admissions and responses thereto constitute matters of proof and of evidence. Brooks v. Roley & Roley Eng'rs, Inc., 144 Ga. App. 101, 240 S.E.2d 596 (1977).

In "notice pleading" plaintiff need not spread out the plaintiff's evidence in the plaintiff's complaint, but may wait and place the evidence into the record by discovery and other pretrial procedures. McDaniel v. Pass, 130 Ga. App. 614, 203 S.E.2d 903 (1974).

- Civil Practice Act, O.C.G.A. Ch. 11, T. 9, contains no provision whereby a party may treat a discovery request by the opposing party as a nullity. Under paragraph (a)(2) of O.C.G.A. § 9-11-36, a party must either respond to or object to a request for admission within 30 days or the request is deemed admitted. Concert Promotions, Inc. v. Haas & Dodd, Inc., 167 Ga. App. 883, 307 S.E.2d 763 (1983).

- In form and substance admission under O.C.G.A. § 9-11-36 is comparable to admission in pleadings or stipulation of facts and as such is generally regarded as a judicial admission rather than an evidentiary admission of a party. Albitus v. F & M Bank, 159 Ga. App. 406, 283 S.E.2d 632 (1981); Williams v. Calhoun, 175 Ga. App. 332, 333 S.E.2d 408 (1985).

- Requests for admission under subsection (a) of O.C.G.A. § 9-11-36 are not objectionable even if the admissions require opinions or conclusions of law as long as the legal conclusions relate to the facts of the case. G.H. Bass & Co. v. Fulton County Bd. of Tax Assessors, 268 Ga. 327, 486 S.E.2d 810 (1997), reversing G.H. Bass & Co. v. Fulton County Bd. of Tax Assessors, 222 Ga. App. 118, 473 S.E.2d 253 (1996).

- Claimant's admission in judicio against the claimant's own interests was binding upon the claimant since a solemn admission in judicio is conclusive as a matter of law on the matter stated and cannot be contradicted by other evidence unless it is withdrawn or amended on formal motion. Piedmont Aviation, Inc. v. Washington, 181 Ga. App. 730, 353 S.E.2d 847 (1987); Britt v. West Coast Cycle, 198 Ga. App. 525, 402 S.E.2d 121 (1991); Pulte Home Corp. v. Woodland Nursery & Landscapes, Inc., 230 Ga. App. 455, 496 S.E.2d 546 (1998); McCoy v. West Bldg. Materials of Ga., Inc., 232 Ga. App. 620, 502 S.E.2d 559 (1998).

- Even though un-withdrawn or unamended admissions are conclusively established, such admissions are not binding on a coparty. Batchelor v. State Farm Mut. Auto. Ins. Co., 240 Ga. App. 366, 526 S.E.2d 68 (1999); Ferguson v. Duron, Inc., 244 Ga. App. 19, 534 S.E.2d 142 (2000).

- Admission under discovery procedure is generally regarded as a judicial admission (and thus conclusive unless allowed by the court to be withdrawn) rather than an evidentiary admission (which may be contradicted or explained). Stone v. Lenox Enters., Inc., 176 Ga. App. 696, 337 S.E.2d 451 (1985).

- Court has discretion under subsection (a) of this section only when a party moves to determine the sufficiency of the answers or objections filed to the request. Mountain View Enters. Inc. v. Diversified Sys., 133 Ga. App. 249, 211 S.E.2d 186 (1974).

- Form of a request for admission should take on the appearance of a pleading as illustrated in Ga. L. 1966, p. 609, § 25 (see now O.C.G.A. § 9-11-125). A & D Barrel & Drum Co. v. Fuqua, 132 Ga. App. 827, 209 S.E.2d 272 (1974).

- If proper objection is made to a request for admissions which is so broad that the admission covers the whole case, the request for admissions will not be permitted. Walker Enters. Inc. v. Mullis, 124 Ga. App. 305, 183 S.E.2d 534 (1971).

- Although the decedent's sister argued that the executor of the estate failed to respond sufficiently to two of the requests for admission, to which the executor stated that the executor lacked sufficient knowledge to admit or deny the requests, the requests did not undermine the probate court's determination that the decedent possessed the necessary testamentary capacity because the two requests for admission involved union benefits and life insurance proceeds to be paid to the decedent's heirs, and the admissions did not relate to the decedent's mental capacity to execute a will. O'Callaghan v. Samples, 354 Ga. App. 42, 840 S.E.2d 139 (2020).

- Trial court did not abuse the court's discretion in concluding that the county did not present credible evidence to refute the admissions as the construction manager's affidavit conflicted with the county's responses regarding the change orders. Fulton County v. SOCO Contr. Co., Inc., 343 Ga. App. 889, 808 S.E.2d 891 (2017).

- Requests for admissions and responses thereto constitute matters of proof and of evidence, and before they can be considered by the trier of fact they must be introduced in evidence. Moore v. Hanson, 224 Ga. 482, 162 S.E.2d 429 (1968).

Cited in Stubbs v. State Farm Mut. Auto. Ins. Co., 120 Ga. App. 750, 172 S.E.2d 441 (1969); Getz Exterminators, Inc. v. Walsh, 124 Ga. App. 402, 184 S.E.2d 358 (1971); Baranan v. Kazakos, 125 Ga. App. 19, 186 S.E.2d 326 (1971); Turner v. Bank of Zebulon, 128 Ga. App. 404, 196 S.E.2d 668 (1973); Smith v. Billings, 132 Ga. App. 201, 207 S.E.2d 683 (1974); Osceola Inns v. State Hwy. Dep't, 133 Ga. App. 736, 213 S.E.2d 27 (1975); Contract Mgt. Consultants, Inc. v. Huddle House, Inc., 134 Ga. App. 566, 215 S.E.2d 326 (1975); Salem v. Lawyers Coop. Publishing Co., 137 Ga. App. 536, 224 S.E.2d 502 (1976); Strickland v. Citizens & S. Nat'l Bank, 137 Ga. App. 538, 224 S.E.2d 504 (1976); Reid v. Minter, 137 Ga. App. 799, 224 S.E.2d 849 (1976); Ideal Paint Contractors, Inc. v. Home Mart Bldg. Ctrs. Inc., 141 Ga. App. 830, 234 S.E.2d 670 (1977); Crider v. Pepsi Cola Bottlers, 142 Ga. App. 304, 235 S.E.2d 683 (1977); E.K. Wright Constr. Co. v. Dixie Metal Co., 143 Ga. App. 14, 237 S.E.2d 414 (1977); Post-Tensioned Constr., Inc. v. VSL Corp., 143 Ga. App. 148, 237 S.E.2d 618 (1977); Herring v. Herring, 143 Ga. App. 286, 238 S.E.2d 240 (1977); Bramblett v. Whitfield Fin. Co., 143 Ga. App. 853, 240 S.E.2d 230 (1977); In re Boswell, 242 Ga. 313, 249 S.E.2d 13 (1978); Shell v. Brownlow, 242 Ga. 475, 249 S.E.2d 618 (1978); Record Shack of Atlanta, Inc. v. Daugherty, 147 Ga. App. 753, 250 S.E.2d 154 (1978); Master v. Savannah Sur. Assocs., 148 Ga. App. 678, 252 S.E.2d 186 (1979); Booker v. Southern Steel & Aluminum Prods., Inc., 150 Ga. App. 306, 257 S.E.2d 375 (1979); Kersey v. American Fed. Sav. & Loan Ass'n, 150 Ga. App. 445, 258 S.E.2d 65 (1979); Cable Masters, Inc. v. Shaw, 151 Ga. App. 153, 259 S.E.2d 157 (1979); Cielock v. Munn, 244 Ga. 810, 262 S.E.2d 114 (1979); ETI Corp. v. Hammett, 152 Ga. App. 1, 262 S.E.2d 211 (1979); Peppers v. Siefferman, 153 Ga. App. 206, 265 S.E.2d 26 (1980); Cielock v. Munn, 153 Ga. App. 275, 266 S.E.2d 806 (1980); Young v. Brown, 154 Ga. App. 452, 268 S.E.2d 729 (1980); Williams v. Coca-Cola Co., 158 Ga. App. 139, 279 S.E.2d 261 (1981); National Bank v. Hill, 161 Ga. App. 499, 288 S.E.2d 365 (1982); Smith v. Hartford Fire Ins. Co., 162 Ga. App. 26, 289 S.E.2d 520 (1982); Ashburn Motor Inn, Inc. v. White Adv. Int'l, 164 Ga. App. 438, 296 S.E.2d 220 (1982); Spires v. Relco, Inc., 165 Ga. App. 4, 299 S.E.2d 58 (1983); Eunice v. Citicorp Homeowners, Inc., 167 Ga. App. 335, 306 S.E.2d 395 (1983); Laurens County Convalescent Ctr. Inc. v. Ernest Jones & Assocs., 168 Ga. App. 705, 310 S.E.2d 282 (1983); Battle v. Strother, 171 Ga. App. 418, 319 S.E.2d 887 (1984); Carr v. Nodvin, 178 Ga. App. 228, 342 S.E.2d 698 (1986); Hamrick v. Greenway, 257 Ga. 287, 357 S.E.2d 580 (1987); Shankweiler v. McCall Procter/Densham, Ltd., 183 Ga. App. 257, 358 S.E.2d 657 (1987); Amason, Inc. v. Metromont Materials Corp., 185 Ga. App. 509, 364 S.E.2d 637 (1988); Behar v. Aero Med Int'l, Inc., 185 Ga. App. 845, 366 S.E.2d 223 (1988); Waits v. Makowski, 191 Ga. App. 794, 383 S.E.2d 175 (1989); Cincinnati Ins. Co. v. Perimeter Tractor & Trailer Repair, Inc., 192 Ga. App. 243, 384 S.E.2d 449 (1989); Southern Int'l Pictures, Inc. v. Friedman, 201 Ga. App. 87, 410 S.E.2d 51 (1991); Goins v. Howell, 201 Ga. App. 237, 410 S.E.2d 755 (1991); F.P.I. Atlanta Ltd. v. Price, 211 Ga. App. 634, 440 S.E.2d 63 (1994); Morrison v. Georgia N.E.R.R., 217 Ga. App. 253, 456 S.E.2d 731 (1995); Dean v. NationsBank, 226 Ga. App. 370, 486 S.E.2d 647 (1997); Milburn v. Nationwide Ins. Co., 228 Ga. App. 398, 491 S.E.2d 848 (1997); Mazdak Auto Towing & Serv., Inc. v. Midcontinental Group, Inc., 231 Ga. App. 859, 501 S.E.2d 44 (1998); Neal v. State Farm Fire & Cas. Co., 300 Ga. App. 68, 684 S.E.2d 132 (2009); Martin v. Fulton County Bd. of Registration & Elections, 307 Ga. 193, 835 S.E.2d 245 (2019).

Answers and Objections

1. In General

Written answer or objection required addressed to the matter, signed by the party or by the party's attorney. Hilton Hotels Corp. v. Withrow Travel Serv., Inc., 150 Ga. App. 435, 258 S.E.2d 59 (1979).

- Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) does not require responses to requests for admission to be made under oath. Mundt v. Olson, 155 Ga. App. 145, 270 S.E.2d 344 (1980); as to necessity of sworn answers under this section prior to amendment by Ga. L. 1972, p. 510, § 9, see Abbott-Bridges Wood Prods., Inc. v. Argonaut Ins. Co., 131 Ga. App. 754, 206 S.E.2d 722 (1974) and Burge v. High, 147 Ga. App. 267, 248 S.E.2d 546 (1978), overruled on other grounds, Hilton Hotels Corp. v. Withrow Travel Serv., Inc., 150 Ga. App. 435, 258 S.E.2d 59 (1979).

- Deposition of the defendant taken by the plaintiff and not placed in the record is not an objection or response to a request for an admission to avoid being bound by a failure to answer. Shepherd v. Shepherd, 164 Ga. App. 185, 296 S.E.2d 151 (1982).

Party may contradict the party's previous answer to an interrogatory. Albitus v. F & M Bank, 159 Ga. App. 406, 283 S.E.2d 632 (1981).

- Party's late response to request for admission constituted conclusive admission of all matters contained in the request, regardless of fact of timely answering of interrogatories which tended to contradict the matters deemed admitted. Stone v. Lenox Enters., Inc., 176 Ga. App. 696, 337 S.E.2d 451 (1985).

- Trial court, in adopting the legal owners' reasoning in the court's order, either improperly found that equitable owner failed to timely respond at all or, without a hearing, improperly found that the supplemental responses were insufficient. Badichi v. Albion Trading, Inc., 341 Ga. App. 375, 801 S.E.2d 75 (2017).

- Regardless of when the executor of the estate filed the responses to the requests for admission with the probate court, the responses were timely served within the required 30-day period because the executor was required to respond by Monday, August 13, 2018, as the 30th day after service fell on a Saturday and the record showed that the executor timely served the responses by placing the responses in the mail on August 13, 2018. O'Callaghan v. Samples, 354 Ga. App. 42, 840 S.E.2d 139 (2020).

2. Insufficient and Evasive Responses

General statement of inability to admit or deny.

- General statement that the answering party can neither admit nor deny, unaccompanied by reasons, will be held an insufficient response, and the court may either take the matter as admitted or order a further answer. Gregory v. Vance Publishing Corp., 130 Ga. App. 118, 202 S.E.2d 515 (1973). But see Clements v. Toombs County Hosp. Auth., 175 Ga. App. 651, 334 S.E.2d 188 (1985).

Insufficient answer may be deemed an admission by the court only after the requesting party has questioned by motion the sufficiency of the answers and a hearing on the motion has been held. Clements v. Toombs County Hosp. Auth., 175 Ga. App. 651, 334 S.E.2d 188 (1985).

Corporation gave unresponsive answers to the requests for admission and thus admitted the matters therein; the husband made a proper request when asking the corporation to admit that the corporation had a duty to the public to provide health care providers who were duly licensed to render the particular level of health care provided. Wellstar Health Sys. v. Green, 258 Ga. App. 86, 572 S.E.2d 731 (2002).

- Court overruled that portion of Gregory v. Vance Pub. Co. RP., 130 Ga. App. 118, 202 S.E.2d 515 (1973) which permits a trial court sua sponte to deem an insufficient answer to be an admission, and reaffirmed the holding in Smith v. Billings, 132 Ga. App. 201, 207 S.E.2d 683 (1974), to the effect that a motion to determine in a hearing the sufficiency of answers is necessary before responses to a request for admissions may be deemed insufficient and deemed admitted. Clements v. Toombs County Hosp. Auth., 175 Ga. App. 651, 334 S.E.2d 188 (1985).

- It is not sufficient to limit answer to "for want of sufficient information." Gregory v. Vance Publishing Corp., 130 Ga. App. 118, 202 S.E.2d 515 (1973). But see Clements v. Toombs County Hosp. Auth., 175 Ga. App. 651, 334 S.E.2d 188 (1985).

- Response which is ambiguous or evasive may be declared an unqualified admission if the opposing party makes a motion that a determination of sufficiency be made, but in the absence of such a motion, the trial court is not authorized to declare a response an unqualified admission. Match Point, Ltd. v. Adams, 148 Ga. App. 673, 252 S.E.2d 90 (1979), overruled on other grounds, Mock v. Canterbury Realty Co., 152 Ga. App. 872, 264 S.E.2d 489 (1980).

- When the plaintiff contended that the defendant's answer to the complaint and to discovery was evasive and should be treated as an admission, the Court of Appeals did not agree, as the defendant's answers consistently denied any liability on the defendant's part, hardly an evasion under the circumstances. Johns v. Leaseway of Ga., Inc., 166 Ga. App. 472, 304 S.E.2d 555 (1983).

3. Failure to Answer or Object

Effect of failure to answer or object.

- Request for admission to which the plaintiff makes no objection and does not otherwise answer within the time designated stands admitted; no order of court declaring this to be so is necessary. Hudgins & Co. v. Southland Ice Co., 104 Ga. App. 150, 121 S.E.2d 193 (1961);(decided under Ga. L. 1959, p. 314, § 1).

One who has not, within the time allowed for answering or objecting to requests for admissions, answered, objected to, or moved for and obtained an extension of time for responding to such requests, shall be deemed to have admitted the requests, subject only to such remedy as may be afforded to the person on motion under subsection (b) of this section. National Bank v. Merritt, 130 Ga. App. 85, 202 S.E.2d 193 (1973); Porter v. Murlas Bros. Commodities, 134 Ga. App. 96, 213 S.E.2d 190 (1975).

Unless a proper response to requests for admissions is timely filed, the requests are admitted as a matter of law. Hammett v. Bailey, 147 Ga. App. 105, 248 S.E.2d 180 (1978).

Absence of timely answers has effect of establishing conclusively facts and documents referred to in request for admissions, when no motion is made seeking permission for late filing of answers and no motion is made seeking permission to withdraw admissions resulting from failure to serve answers in the limited time. Burge v. High, 147 Ga. App. 267, 248 S.E.2d 546 (1978).

When requests for admission are filed and served, the opposite party must either answer or state an objection to the requests, upon penalty of being taken to admit the subject matter thereof. Thompson v. Berman, 147 Ga. App. 740, 250 S.E.2d 190 (1978).

When the defendant failed to answer requests for admissions, the matters contained in the requests were admitted to this section. National Bank v. Hill, 148 Ga. App. 688, 252 S.E.2d 192 (1979).

When a party served with a request for admission does not serve an answer or objection and does not move for an extension of time or to withdraw the admissions resulting from a failure to answer, the matter stands admitted. Albitus v. F & M Bank, 159 Ga. App. 406, 283 S.E.2d 632 (1981).

In an action which an insured filed against an insurance company, seeking recovery of excessive premiums and punitive damages based on a claim of fraud, the trial court correctly granted the insurance company's motion in limine to strike the insured's demand for punitive damages because the insured did not answer a request for admission which the company served on the insured. Vaughn v. Metro. Prop. & Cas. Ins. Co., 260 Ga. App. 573, 580 S.E.2d 323 (2003).

Because the pool installers failed to respond to a pool purchaser's request for admissions, pursuant to O.C.G.A. § 9-11-36(a), those admissions were deemed admitted and were sufficient to establish the purchaser's claims of fraud and conspiracy to defraud, and accordingly, summary judgment was properly granted to the purchaser on those claims; however, summary judgment to the purchaser was error on the purchaser's claim that the installers violated the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., as there was no evidence that the actions by the installers were introduced into the stream of commerce or were reasonably intended to impact on any market other than on the purchaser, and the commensurate awards of attorney fees and treble damages, pursuant to O.C.G.A. § 10-1-399(c) and (d), were vacated. Brown v. Morton, 274 Ga. App. 208, 617 S.E.2d 198 (2005).

Trial court did not err when the court granted a landlord's summary judgment motion as to liability and damages in a conversion of collateral suit after a tenant failed to respond to the landlord's requests for admission; the landlord established the existence and enforceability of a security agreement, the value of the collateral described therein, and the tenant's conversion of that collateral. Von Tonder v. Payne, 275 Ga. App. 28, 619 S.E.2d 730 (2005).

Trial court erred in denying the relatives' motion for summary judgment against the uncle on the relatives' claims for ejectment and fraud in connection with real property once owned by the uncle because the uncle's failure to respond to the relatives' request for admissions had the effect of admitting the matters covered therein and the failure to respond to the relatives summary judgment motion meant that there were no remaining issues for trial against the uncle. Bowman v. Century Funding, Ltd., 277 Ga. App. 540, 627 S.E.2d 73 (2006).

In a finance corporation's suit to recover a deficiency balance on an installment sales contract for a log loader, the trial court properly granted the corporation summary judgment upon concluding that no genuine issues of material fact existed based on the defending trucking company and the company's president failing to answer the requests for admissions that were served simultaneously with the complaint. By failing to respond and never challenging the trial court's denial of the motion to withdraw the admissions filed by the trucking company and the company's president, the following allegations were deemed admitted: that true and correct copies of the relevant documents, including the demand for payment were received; that the president executed the installment sales contract and the guaranty; that the president failed to make payments thereunder; that the principal balance due under the contract and guaranty was $ 34,442.44 as of a certain date; and that the money was owed to the finance corporation. JJM Trucking, Inc. v. Caterpillar Fin. Servs. Corp., 295 Ga. App. 560, 672 S.E.2d 529 (2009).

Debtor's failure to respond to requests for admission served after the debtor objected to improper venue was not excused by the objection to venue and, after a transfer of venue, the transferee trial court properly granted summary judgment to the creditor based on the debtor's admissions in the transferor court, pursuant to O.C.G.A. § 9-11-36. Jackson v. Nemdegelt, Inc., 302 Ga. App. 767, 691 S.E.2d 653 (2010).

Trial court did not err in granting summary judgment to a mortgagee on the mortgagors' claims for wrongful eviction and trespass because the mortgagors failed to adhere to O.C.G.A. § 9-11-36(a)(2) since the mortgagors never answered or objected to the mortgagees' requests for admission within the statutory time period, and thus, the requests were deemed admitted by the mortgagors; the mortgagor's reliance upon § 9-11-36(b) was misplaced under the circumstances because the parties modified the statutory discovery procedures by stipulation pursuant to O.C.G.A. § 9-11-29(2). Ikomoni v. Exec. Asset Mgmt., LLC, 309 Ga. App. 81, 709 S.E.2d 282 (2011).

In an employment dispute, the trial court was authorized to find that the employer was served with requests for admissions, based on the employee's counsel's assertion, pursuant to O.C.G.A. § 9-11-5(b), and therefore partial summary judgment based on matters deemed admitted was proper. Am. Radiosurgery, Inc. v. Rakes, 325 Ga. App. 161, 751 S.E.2d 898 (2013).

- Failure of the defendant to reply to the plaintiff's request for an admission of the genuineness of documents established the documents' genuineness, but not the documents' accuracy. Stalvey v. Osceola Indus., Inc., 124 Ga. App. 708, 185 S.E.2d 629 (1971).

When a litigant relied upon the legal effect of failure to respond to requests for admission and the nonresponding party did not move to withdraw admissions or avail itself of any of the variety of responses available under O.C.G.A. § 9-11-36 and chose not to seek the liberal remedies afforded to parties under the statute to avoid the consequences of a failure to respond, the subject matter of the requests for admission stood admitted. Solis v. Lamb, 244 Ga. App. 8, 534 S.E.2d 582 (2000); Mays v. Ed Voyles Chrysler-Plymouth, Inc., 255 Ga. App. 357, 565 S.E.2d 515 (2002).

- Facts admitted by failure to timely answer a request for admissions may not be controverted by statement of counsel at a summary judgment hearing. Eti Corp. v. Hammett, 140 Ga. App. 618, 231 S.E.2d 545 (1976).

Evidence is not admissible to controvert matters deemed to have been admitted by failure to answer requests for admission even though the substance of the matter deemed admitted has been denied in the answer to the complaint. Albitus v. F & M Bank, 159 Ga. App. 406, 283 S.E.2d 632 (1981).

- Failure to serve the opposing party with objections and failure to request a hearing on objections prior to the call of the case for the trial were sufficient grounds to authorize the trial court to find that the defendant waived the defendant's objections. Ehlers v. Butler, 127 Ga. App. 9, 192 S.E.2d 398 (1972).

- When a general objection is made to a pleading or evidence as a whole, part of which is not subject to the objection, the entire objection fails in its office as a critic. McDaniel v. Pass, 130 Ga. App. 614, 203 S.E.2d 903 (1974).

- It was error to find that pro se defendants failed to respond to requests for admission under O.C.G.A. § 9-11-36(b). Although the defendants stated that the defendants were answering the complaint, it was clear from the number and the content of the responses that the defendants were responding to the requests for admission rather than to the complaint; furthermore, a reasonable interpretation of the statement with which all three defendants' answers concluded was not that the defendants were not responding to any discovery requests, but that having responded to the requests for admission, the defendants would not be responding to the remaining discovery requests. Robinson v. Global Res., Inc., 300 Ga. App. 139, 684 S.E.2d 104 (2009).

4. Extension of Time

Authority of court to extend time for answering.

- Trial judge has authority under Ga. L. 1967, p. 226, §§ 5 and 6 (see now O.C.G.A. § 9-11-6(b)) to grant an extension of time for filing answers to a request for admissions of fact. National Bank v. Great S. Bus. Enters. Inc., 130 Ga. App. 221, 202 S.E.2d 848 (1973).

Pursuant to O.C.G.A. § 9-11-36(b), a trial court properly granted a bank a one-day extension to respond to a request to admit after the bank served the bank's response one day late because the trial court found excusable neglect based on the bank's counsel's mistaken belief that the opposing party's counsel had granted a one-day extension in which to respond. 131 Ralph McGill Blvd., LLC v. First Intercontinental Bank, 305 Ga. App. 493, 699 S.E.2d 823 (2010).

Because a party served the party's requests for admissions by mail, three days were added to the prescribed thirty-day response period pursuant to O.C.G.A. § 9-11-6(e). Patel v. Columbia Nat'l Ins. Co., 315 Ga. App. 877, 729 S.E.2d 35 (2012).

- Whether to allow responses to request for admissions after the statutory time for filing has passed is within the discretion of the trial judge, and the judge's decision will not be interfered with unless it clearly appears that this discretion has been abused. Davenport v. Smith, 157 Ga. App. 870, 278 S.E.2d 691 (1981).

Trial court did not err by granting summary judgment to an insurer on an insured's claim because the court was authorized to find that the facts were undisputed in that the insured's untimely response to requests for admissions which were submitted by the insurer constituted an admission of the facts and the insured did not seek to withdraw that admission in accordance with O.C.G.A. § 9-11-36(b). Patel v. Columbia Nat'l Ins. Co., 315 Ga. App. 877, 729 S.E.2d 35 (2012).

- Within the time allowed under subsection (a) of this section for filing answers to a request for admissions, the judge may grant an extension with or without a motion; however, if such time has expired, there must be a motion to allow late filing. National Bank v. Great S. Bus. Enters. Inc., 130 Ga. App. 221, 202 S.E.2d 848 (1973).

While the trial judge has authority to grant extensions of time for filing after the time for answering has expired, there must be a motion for withdrawal of the admissions under subsection (b) of Ga. L. 1972, p. 510, § 9 (see now O.C.G.A. § 9-11-36) or a motion to allow late filing under Ga. L. 1967, p. 226, §§ 5 and 6 (see now O.C.G.A. § 9-11-6(b)). Custom Farm Servs., Inc. v. Faulk, 130 Ga. App. 583, 203 S.E.2d 912 (1974).

- Court may allow additional time when the failure to respond is due to excusable neglect, and is not prejudicial to the party requesting admissions. Coolik v. Hawk, 133 Ga. App. 626, 212 S.E.2d 7 (1974).

- While this section places no restriction on the court's discretion to allow an extension after the time for reply has passed, such an extension should not be allowed without reason or when it will prejudice the opposing party. Taylor v. Hunnicutt, 129 Ga. App. 314, 199 S.E.2d 596 (1973).

Withdrawal or Amendment of Admission

Showing required.

- Allowance of motion to withdraw admissions resulting from failure to answer request therefor should be decided by determination of whether preservation of the merits of the action would be subserved thereby; upon a determination that such will be the case, burden shifts to the opposite party to satisfy the court that depriving the party of the resulting default judgment will prejudice the party in maintaining an action on the merits. Alexander v. H.S.I. Mgt., Inc., 155 Ga. App. 116, 270 S.E.2d 325 (1980).

Consideration of a motion to withdraw admissions must be on the basis of whether the presentation of the merits of the action will be subserved thereby and whether the respondent can satisfy the court that withdrawal or amendment will prejudice the respondent in maintaining an action on the merits. Wells v. Whitemarsh Contractors, 160 Ga. App. 176, 286 S.E.2d 752 (1981), rev'd on other grounds, 249 Ga. 194, 288 S.E.2d 198 (1982).

An attempt to withdraw or amend admissions must be accompanied by a showing that the merits of the case will be subserved. Yarbrough v. Magbee Bros. Lumber & Supply Co., 189 Ga. App. 299, 375 S.E.2d 471 (1988).

In a negligence case, the trial court did not abuse the court's discretion by denying the defendants' motion to withdraw the defendants' admission that the defendants performed some repairs on the tractor trailer five days after the collision because the trial court concluded that the evidence produced by the defendants to support the defendant's motion to withdraw was not credible; thus, the defendants failed to meet the defendants' burden of showing that the defendants' admission would have been refuted at trial by admissible evidence having a modicum of credibility. Howard v. Alegria, 321 Ga. App. 178, 739 S.E.2d 95 (2013).

- Trial court did not err in allowing the withdrawal of admissions when, although no parties presented evidence, a review of the record revealed that the admissions could be refuted by admissible evidence. Saleem v. Snow, 217 Ga. App. 883, 460 S.E.2d 104 (1995).

- Party moving to withdraw must show that admitted request for admission either can be refuted by admissible evidence having a modicum of credibility or is incredible on its face, and that the denial is not offered solely for purposes of delay. Johnson v. City Wide Cab, Inc., 205 Ga. App. 502, 422 S.E.2d 912 (1992).

In a wrongful foreclosure proceeding, a motion to withdraw admissions instituted by a buyer and another was properly denied because they failed to meet their burden of demonstrating that the merits of the action would have been served by the withdrawal of the admissions since they did not provide even a slight showing that the denials were supported by admissible evidence. Ledford v. Darter, 260 Ga. App. 585, 580 S.E.2d 317 (2003).

Trial court committed no error in determining that a company's original responses to the requests for admission were defective and should be stricken and that the requests for admission were deemed admitted by operation of law because the company failed to move to withdraw or amend the admissions, which left no genuine issue of material fact in dispute and the creditor was entitled to judgment as a matter of law on the open account claim against the company. Brougham Casket & Vault Co., LLC v. DeLoach, 323 Ga. App. 701, 747 S.E.2d 707 (2013).

- Applicant in a motion to withdraw admissions is not required to show "providential cause" or "excusable neglect," but the trial court should follow the language of the statute in making the court's determination. Moore Ventures Ltd. Partnership v. Stack, 153 Ga. App. 215, 264 S.E.2d 725 (1980); Whitemarsh Contractors v. Wells, 249 Ga. 194, 288 S.E.2d 198 (1982).

- Denial of an individual's motion to withdraw admissions was error, and a summary judgment in favor of a lessor based on the admission was error, since presentation of the merits of the action by the lessor against the individual to recover on a lease would be subserved by permitting the individual to withdraw the admissions, and the lessor failed to show that withdrawal would prejudice the lessor in maintaining the lessor's action on the merits. Bailey v. Chase Third Century Leasing Co., 211 Ga. App. 60, 438 S.E.2d 172 (1993).

Trial court did not abuse the court's discretion in allowing the defendant to withdraw admissions after the defendant produced evidence negating the admissions, including affidavits and depositions, and the court determined that the plaintiff would not be prejudiced in maintaining the action on the merits. Rowland v. Tsay, 213 Ga. App. 679, 445 S.E.2d 822 (1994); U.B. Vehicle Leasing, Inc. v. Vision Int'l, Inc., 224 Ga. App. 611, 481 S.E.2d 597 (1997).

- Under this section, the burden is on the one who has failed to answer to be bound by the resulting "admissions" unless the person takes the initiative and files a motion under subsection (b) of this section and succeeds in defeating such admissions. National Bank v. Merritt, 130 Ga. App. 85, 202 S.E.2d 193 (1973); Meadows v. Dalton, 153 Ga. App. 568, 266 S.E.2d 235 (1980); Taylor v. Cameron & Barkley Co., 161 Ga. App. 750, 289 S.E.2d 820 (1982); Atlanta Cas. Co. v. Goodwin, 205 Ga. App. 421, 422 S.E.2d 76 (1992).

Party who fails to answer within the required time may seek to withdraw the party's admissions, but the party must take the initiative and file a motion or otherwise the party is bound thereby. National Bank v. Great S. Bus. Enters. Inc., 130 Ga. App. 221, 202 S.E.2d 848 (1973).

Failure to object to or respond to requests for admissions constitutes an admission of the requests, to avoid being bound by which the one who fails to answer must move to withdraw such admissions, and when such party makes no such motion, the admissions made by the failure to timely respond to the requests are binding. Tyson v. Automotive Controls Corp., 147 Ga. App. 409, 249 S.E.2d 99 (1978).

Burden is on the one failing to answer to take the initiative and file a motion under subsection (b) of O.C.G.A. § 9-11-36 to withdraw or amend the admissions. Karat Enters. v. Marriott Corp., 196 Ga. App. 769, 397 S.E.2d 44 (1990).

- Party opposing motion to withdraw has burden of establishing prejudice in maintaining the party's action or defense on the merits from withdrawal or amendment to the answers. Moore Ventures Ltd. Partnership v. Stack, 153 Ga. App. 215, 264 S.E.2d 725 (1980); Dorfman v. Lederman, 154 Ga. App. 473, 268 S.E.2d 767 (1980).

Being compelled to try the merits of a case does not constitute the type of prejudice needed to warrant denial of a motion to withdraw admissions. Johnson v. City Wide Cab, Inc., 205 Ga. App. 502, 422 S.E.2d 912 (1992).

- By being forced to try a case rather than take a default, a party is not prejudiced in trying the merits of the case. Alexander v. H.S.I. Mgt., Inc., 155 Ga. App. 116, 270 S.E.2d 325 (1980).

Fact that a party's opponent relied on the admissions and expended time and resources on what appeared to be a well advised motion for summary judgment, and would have to try the case on the merits, was insufficient prejudice to warrant denying the party's motion to withdraw the admissions. Riberglass, Inc. v. ECO Chem. Specialties, Inc., 194 Ga. App. 417, 390 S.E.2d 616, cert. denied, 194 Ga. App. 912, 390 S.E.2d 616 (1990).

- Depriving a party of a judgment by default is not the kind of prejudice envisioned by subsection (b) of this section. Moore Ventures Ltd. Partnership v. Stack, 153 Ga. App. 215, 264 S.E.2d 725 (1980); Dorfman v. Lederman, 154 Ga. App. 473, 268 S.E.2d 767 (1980); Hanson v. Farmer, 163 Ga. App. 561, 295 S.E.2d 343 (1982).

Since failure to move to have admissions withdrawn or amended forecloses remedial action requests for admission which were not answered or objected to are deemed admitted. Hammett v. Bailey, 147 Ga. App. 105, 248 S.E.2d 180 (1978); Drummond v. Brown, 149 Ga. App. 248, 253 S.E.2d 868 (1979).

Admission which would otherwise result from failure to make timely answer should be avoided when to do so will aid in the presentation of the merits of the action and will not prejudice the party who made the request. Franks v. Reid, 134 Ga. App. 94, 213 S.E.2d 193 (1975); Moore Ventures Ltd. Partnership v. Stack, 153 Ga. App. 215, 264 S.E.2d 725 (1980).

- When the trial court's order granting summary judgment to appellee and effectively denying the appellant's motion to withdraw admissions reflected that court's failure to consider the merits of the motion within the parameters of the two-pronged test of O.C.G.A. § 9-11-36, the case was reversed and remanded to the trial court for the presentation and consideration of evidence pertinent to the appellant's motion to withdraw admissions. Watson v. McDowell & Son, Inc., 204 Ga. App. 635, 420 S.E.2d 88 (1992).

- Doctors' withdrawal of admissions and submission of responses to the patient's discovery requests was properly permitted after the doctors presented responses to the patient's requests for admissions, as well as affidavits to show that their responses were meritorious and not interposed solely for the purposes of delay, and when the record supported a finding that the merits would be subserved by allowing withdrawal, and that the patient would not be prejudiced by the withdrawal. Brankovic v. Snyder, 259 Ga. App. 579, 578 S.E.2d 203 (2003).

Trial court did not err in allowing the withdrawal of admissions made by operation of law pursuant to O.C.G.A. § 9-11-36(b) because O.C.G.A. § 9-11-16(b), governing pretrial orders, did not apply to limit the trial court's discretion to permit withdrawal of the disputed admissions after the trial court's June 5 scheduling order was not intended as a pretrial order. Velasco v. Chambless, 295 Ga. App. 376, 671 S.E.2d 870 (2008).

Trial court did not abuse the court's discretion in granting a lessee's motion to withdraw admissions that had been deemed admitted by virtue of the lessee's failure to respond to discovery because although the lessee's failure to respond to a lessor's request resulted in an admission that the lessee was jointly liable for the debts of a limited liability company (LLC), the lessee was not a party to nor a guarantor of the lease agreement, and that evidence was sufficient to refute the lessor's allegations that the lessee shared personal liability for the debts of the LLC and to further conclude that the lessee's denial of liability was not simply a delaying tactic; the lessor did not establish that the withdrawal would prejudice the lessor in maintaining the action on the merits. ABA 241 Peachtree, LLC v. Brooken & McGlothen, LLC, 302 Ga. App. 208, 690 S.E.2d 514 (2010).

As the evidence was sufficient to show that a business entity had refuted its admissions and that its motion to withdraw was not solely interposed for delay, and property owners did not show prejudice, the trial court did not abuse the court's discretion when the court allowed the entity to withdraw the entity's admissions. Elrod v. Sunflower Meadows Dev., LLC, 322 Ga. App. 666, 745 S.E.2d 846 (2013).

In a suit on open account, the customer's shareholders' motion to withdraw the shareholders' admissions on the basis that settlement negotiations had been ongoing and the parties had agreed to extend the discovery period until negotiations were complete, along with the shareholders' filing responses to the requests and the proponent's failure to show prejudice, supported the trial court's decision to allow withdrawal of the admissions. Heath v. Color Imprints USA, Inc., 329 Ga. App. 605, 765 S.E.2d 751 (2014).

- As no evidence was provided showing that the presentation of the merits would have been subserved by allowing the withdrawal or amendment of admissions, no testimony having been offered, it was assumed on appeal that the order denying the motion to withdraw was correct. Worth v. Alma Exch. Bank & Trust, 171 Ga. App. 748, 320 S.E.2d 816 (1984).

When pro se defendant did not satisfy the defendant's burden of showing that the presentation of the merits would be subserved by allowing a withdrawal of the defendant's admissions, the trial court did not err in denying the motion. Howell v. Styles, 221 Ga. App. 781, 472 S.E.2d 548 (1996).

In a suit involving the defendant defaulting on loans secured by property that was allegedly tortiously converted by sale, the trial court's denial of the defendant's motion to withdraw the defendant's admissions was upheld because the defendant only presented a self-serving affidavit of its CEO and gave no explanation for the direct contradictions to support its new denials. Rebel Auction Co. v. Citizens Bank, 343 Ga. App. 81, 805 S.E.2d 913 (2017).

- Court may grant a motion to withdraw: (1) when the presentation of the merits will be subserved thereby; and (2) the party obtaining the admission fails to satisfy the court that the withdrawal will prejudice maintaining the party's action or defense on the merits. If the movant satisfies the court on the first prong, the burden is on the respondent to satisfy the second prong. A party failed to satisfy the first prong of the test when the party only gave an explanation for not responding to the request that it was "due to oversight of counsel since the answer was prepared at the last minute." Intersouth Properties, Inc. v. Contractor Exch., Inc., 199 Ga. App. 726, 405 S.E.2d 764 (1991).

- As the trial court applied the correct legal principal concerning the second prong of the withdrawal test, any error resulting from applying "excusable neglect" as an additional basis for denying the motion to withdraw would constitute harmless error. Marlowe v. Lott, 212 Ga. App. 679, 442 S.E.2d 487 (1994).

- Since no hearing was held on the appellant's motion to withdraw admissions, no evidence as to whether the merits of the action would be subserved by allowing withdrawal and whether withdrawal would prejudice appellee in maintaining an action were presented for the trial court's consideration, and the trial court's order granting summary judgment to appellee and effectively denying appellant's motion to withdraw admissions was reversed and remanded for presentation and consideration of evidence pertinent to the appellant's motion. Hanson v. Farmer, 163 Ga. App. 561, 295 S.E.2d 343 (1982).

- In a purported widow's proceeding seeking an award of a year's support from a decedent's estate for her child and herself, the trial court did not abuse the court's discretion under O.C.G.A. § 9-11-36(b) in refusing to allow the purported widow to withdraw her admission that she was married to another man when she allegedly married the decedent as the trial court implicitly found that the probative value of the evidence which the widow submitted to show that she was not married to the other man when she married the decedent, including her self-serving affidavit and a passport application in which she identified herself as single, was inadequate to show that she could prove the validity of her marriage to the decedent by admissible evidence having a modicum of credibility if her motion was granted. Crowther v. Estate of Crowther, 258 Ga. App. 498, 574 S.E.2d 607 (2002).

Denial of a defendant's motion to withdraw admissions under O.C.G.A. § 9-11-36(b) was proper because the defendant failed to establish that presentation of the merits would have been subserved by permitting the withdrawal; the defendant's pleadings contained perfunctory denials and failed to present or refer to any admissible evidence. Turner v. Mize, 280 Ga. App. 256, 633 S.E.2d 641 (2006).

Trial court properly denied a real estate seller's motion to withdraw the seller's admissions. The trial court was authorized to construe the inconsistent statements of the seller's principal against the seller, absent a reasonable explanation to explain the contradiction; moreover, the principal's contention that the parties expressly agreed to give the seller the authority to unilaterally increase the sales price without notice would vitiate the sales agreement. Fox Run Props, LLC v. Murray, 288 Ga. App. 568, 654 S.E.2d 676 (2007).

In a premises liability suit brought by the parents of a decedent, the trial court did not err in denying the parents' motion to withdraw their admissions. The parents failed to present evidence contradicting the admissions to be withdrawn, which helped establish that the decedent voluntarily entered into a violent fight with an acquaintance to resolve a personal money dispute. Porter v. Urban Residential Dev. Corp., 294 Ga. App. 828, 670 S.E.2d 464 (2008).

It was not error, in a workers' compensation case, to deny the motion of an employer and insurer to withdraw or amend the employer's and insurer's deemed admissions to a worker's requests for admission because: (1) the employer and insurer did not answer the requests, resulting in the deemed admissions under O.C.G.A. § 9-11-36(a)(2) and (b); and (2) any error in denying the motion was harmless as the admissions were cumulative of other evidence showing the worker's disability. Ready Mix USA, Inc. v. Ross, 314 Ga. App. 775, 726 S.E.2d 90 (2012), cert. denied, No. S12C1202, 2012 Ga. LEXIS 664 (Ga. 2012).

Trial court did not abuse the court's discretion in denying a personal guarantor's request to withdraw the guarantor's admissions because the matters in the requests for admissions were admitted by operation of law, pursuant to O.C.G.A. § 9-11-36(a)(2), when the guarantor failed to answer the requests within 30 days of service. Moreover, the guarantor made no attempt in the trial court to show that the admissions were incredible on their face or to present admissible, credible evidence refuting the admissions. Brooks v. Multibank 2009-1 RES-ADC Venture, LLC, 317 Ga. App. 264, 730 S.E.2d 509 (2012).

In a dispute regarding a car restorer's failure to restore a car or return the car, the trial court erred in denying the restorer's motion to withdraw admissions under O.C.G.A. § 9-11-36(b) based on the restorer's failure to submit an affidavit because the restorer's motion to withdraw was verified and therefore constituted evidence that was the functional equivalent of an affidavit. Parham v. Weldon, 333 Ga. App. 744, 776 S.E.2d 826 (2015).

Trial court did not abuse the court's discretion in denying the motion to withdraw admissions as the defendant satisfied the defendant's burden of showing that the defense would be prejudiced by allowing withdrawal of the plaintiff's admissions because the defendant had shown reliance on the plaintiff's admissions as the defendant had not pursued certain discovery procedures, such as taking depositions, retaining experts, and conducting an independent medical examination; and the defendant's ability to alter or amend the defense strategy through employing additional discovery techniques was foreclosed. Burton v. ECI Mgmt. Corp., 346 Ga. App. 668, 816 S.E.2d 778 (2018).

Use of Admissions

Limitation on use of admissions.

- Plain language of subsection (b) of O.C.G.A. § 9-11-36 confines the use of admissions to the action in which the admissions are made and forbids the admissions' use in a subsequent or other action including a renewal action under O.C.G.A. § 9-2-61. Mumford v. Davis, 206 Ga. App. 148, 424 S.E.2d 306 (1992).

After movant creditor sought sanctions, pursuant to Fed. R. Bankr. P. 9011, against the debtor's counsel for alleged misconduct, the court would not consider new allegations that had not been noticed for 21 days, and would not consider admissions made by the debtor in a different proceeding, under O.C.G.A. § 9-11-36(b). Schwindler v. Screen (In re Screen), Bankr. (Bankr. S.D. Ga. June 4, 2004).

Under Georgia law, a matter admitted was conclusively established for the purpose of the state court action only and was not an admission by a debtor for purposes of a nondischargeability action in bankruptcy court. However, the statute did not bar the creditor's reliance on collateral estoppel. Allen v. Morrow (In re Morrow), 508 Bankr. 514 (Bankr. N.D. Ga. 2014).

- In a premises liability action, the trial court erred by withdrawing the defendant's admission as to the condition of the ceiling that collapsed and fell on the plaintiff which deprived the plaintiff of the opportunity to inform the jury that one of the essential elements of the plaintiff's action had been proven as a matter of law, which was not harmless. McClarty v. Trigild Inc., 339 Ga. App. 691, 794 S.E.2d 408 (2016).

- Trial court determination that a policy provided the insured with the default amount of uninsured/underinsured motorist coverage as required by O.C.G.A. § 33-7-11(a)(1) was an amount equal to their policy's liability limit of $100,000 per person was affirmed because there was no evidence that they affirmatively chose a lower amount of coverage and their response to a request for admission did not constitute an admission that their policy provided the statutory minimum amount of UM coverage. Gov't Emples. Ins. Co. v. Morgan, 341 Ga. App. 396, 800 S.E.2d 612 (2017).

Summary Judgment

When summary judgment proper.

- When a party fails to answer a request for admissions within the requisite time and admissions remove all issues of fact, the other party is entitled to the grant of a motion for summary judgment. West v. Milner Enters., Inc., 162 Ga. App. 667, 292 S.E.2d 538 (1982).

Trial court properly granted a homeowners association summary judgment in a foreclosure action for failure to pay property assessments because the defendant admitted that the assessments were owed to the association and was indebted to the association in the amount alleged in the complaint, removing any genuine issue of material fact from the case as to the indebtedness. Adewumi v. Amelia Grove/Ashland Park Homeowners Ass'n, 337 Ga. App. 275, 787 S.E.2d 761 (2016).

By failing to respond to requests for admissions under O.C.G.A. § 9-11-36(a), a resident made admissions which left no material issue of triable fact on the resident's complaint, so the entry of summary judgment against the resident on the merits based on the failure to respond to discovery was proper. Le v. Shepherd's Pond Homeowners Ass'n, 280 Ga. App. 36, 633 S.E.2d 363 (2006).

In an insureds' suit against a construction company regarding the company's mold remediation work on the insureds' home, since the company had filed a counterclaim for unpaid rental fees, summary judgment in favor of the company was proper because the insureds' failure to respond to the company's requests for admissions conclusively established the facts set out in the requests such that no genuine issues of material fact remained for resolution by a jury. Stephens v. Alan V. Mock Construction Co., Inc., 302 Ga. App. 280, 690 S.E.2d 225, cert. denied, No. S10C1012, 2010 Ga. LEXIS 533 (Ga. 2010).

Trial court properly granted the plaintiff summary judgment because the defendant did not avail itself of any of the variety of responses available under O.C.G.A. § 9-11-36 and chose not to seek the liberal remedies afforded to parties under the statute to avoid the consequences of a failure to respond; thus, the defendant admitted that the defendant was indebted to the plaintiff in the amount alleged in the complaint, removing any genuine issue of material fact from the case. Monolith Cos., LLC v. Hunter Douglas Hospitality, Inc., 333 Ga. App. 898, 777 S.E.2d 726 (2015).

- Because the trial court applied the wrong legal standard in refusing to allow the defendants to withdraw the defendants' admissions, and should have applied the standard set forth in O.C.G.A. § 9-11-36(b) and considered whether withdrawal would serve the presentation of the merits and whether it would prejudice the plaintiffs, summary judgment was improper; moreover, the trial court erroneously held that summary judgment was proper because the defendants had shown no excuse for the defendants' former counsel's failure to respond to the plaintiffs' request for admissions as the defendants were not required to make such a showing. Sayers v. Artistic Kitchen Design, LLC, 280 Ga. App. 223, 633 S.E.2d 619 (2006).

- Trial judge was authorized to treat matters covered by request for admissions which were neither objected to nor denied as admitted in considering the plaintiff's motion for summary judgment. Bailey v. Bailey, 227 Ga. 55, 178 S.E.2d 864 (1970).

- When answers to requests for admission were in fact filed after expiration of the statutory time, but without permission for late filing and when there was no motion seeking permission to withdraw the admissions resulting from the failure to respond timely, the answers could not be considered by the trial court in ruling on a motion for summary judgment. Albitus v. F & M Bank, 159 Ga. App. 406, 283 S.E.2d 632 (1981).

- Supplier, which sought to collect amounts owed on an open account from a contractor and a guarantor, was entitled to summary judgment because the contractor's and the guarantor's failure to respond to a request for admissions resulted in the admission of all of the material facts supporting the supplier's claims under O.C.G.A. § 9-11-36(a)(2). Powerhouse Custom Homes, Inc. v. 84 Lumber Co., L.P., 307 Ga. App. 605, 705 S.E.2d 704 (2011).

Trial court did not err in granting summary judgment to a surety on the issues of breach of contract and declaratory judgment because the Georgia Department of Corrections failed to respond to the requests for admissions; therefore, the claims were deemed admitted since the admissions covered all the essential claims presented in the surety's verified complaint. State Dep't of Corr. v. Developers Sur. & Indem. Co., 324 Ga. App. 371, 750 S.E.2d 697 (2013).

- Motion to withdraw admissions, filed after hearing on motion for summary judgment but prior to entry of summary judgment, was timely. Hanson v. Farmer, 163 Ga. App. 561, 295 S.E.2d 343 (1982).

- When the appellant timely served unsworn pro se responses to requests for admission on appellee, and in support of the appellee's motion for summary judgment the appellee personally filed a copy of the responses with the court, the appellant's failure to file the responses with the court would not support summary judgment in the plaintiff's favor as such a result would not be consistent with principles of substantial justice. Mundt v. Olson, 155 Ga. App. 145, 270 S.E.2d 344 (1980).

When a request for admission merely asks the party to respond with an opinion and does not require the admission of a fact by the party, the party's response is not sufficient to support a summary judgment motion by the party submitting the request for admission. American Cyanamid Co. v. Allrid, 176 Ga. App. 831, 338 S.E.2d 14 (1985).

- Service of responses to requests to admit was timely as calculated pursuant to O.C.G.A. § 1-3-1(d)(3); therefore, the requests were not deemed admitted. The fact that the certificate of service was not filed with the clerk under Ga. Unif. Super. Ct. R. 5.2 until later did not impact the fact that service of the responses was timely. Cruickshank v. Fremont Inv. & Loan, 307 Ga. App. 489, 705 S.E.2d 298 (2010).

RESEARCH REFERENCES

Am. Jur. 2d.

- 23 Am. Jur. 2d, Depositions and Discovery, § 181 et seq.

- 27 C.J.S., Discovery, § 163 et seq. 35A C.J.S., Federal Civil Procedure, §§ 684, 743, 744 et seq., 751. 36A C.J.S., Federal Courts, § 878.

- What constitutes a "denial" within Federal Rule of Civil Procedure 36 and similar state statutes and rules pertaining to admissions before trial, 36 A.L.R.2d 1192.

Time for filing responses to requests for admissions; allowance of additional time, 93 A.L.R.2d 757.

Party's duty, under Federal Rule of Civil Procedure 36(a) and similar state statutes and rules, to respond to requests for admission of facts not within his personal knowledge, 20 A.L.R.3d 756.

Discovery, in products liability case, of defendant's knowledge as to injury to or complaints by others than plaintiff, related to product, 20 A.L.R.3d 1430.

Permissible scope, respecting nature of inquiry, of demand for admissions under modern state civil rules of procedure, 42 A.L.R.4th 489.

Propriety, under Rule 56 of the Federal Rules of Civil Procedure, of granting summary judgment when deponent contradicts in affidavit earlier admission of fact in deposition, 131 A.L.R. Fed. 403.