Monolith Companies, LLC v. Hunter Douglas Hospitality, Inc.

SECOND DIVISION
ANDREWS, P. J.,
MILLER and BRANCH, 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.
http://www.gaappeals.us/rules
September 24, 2015
In the Court of Appeals of Georgia
A15A1096. MONOLITH COMPANIES, LLC v. HUNTER
DOUGLAS HOSPITALITY, INC.
ANDREWS, Presiding Judge.
In this action on a commercial account, the plaintiff, Hunter Douglas
Hospitality, Inc. (“Hunter Douglas”), filed a motion for summary judgment after the
defendant, Monolith Companies, LLC (“Monolith”), failed to respond to requests for
admission. The trial court granted Hunter Douglas’ motion, and Monolith now
appeals, arguing that the requests for admission were not timely under Uniform
Superior Court Rule 5.1 and that the order granting summary judgment in Hunter
Douglas’ favor contravened that rule. For the reasons set forth below, we affirm.
“On appeal from the grant of summary judgment, we conduct a de novo review
of the record and construe all evidence in the light most favorable to the nonmovant.”
Jackson v. Nemdegelt, Inc., 302 Ga. App. 767, 768 (691 SE2d 653) (2010). So
viewed, the record shows that Hunter Douglas filed its complaint against Monolith
on May 6, 2013 alleging that Monolith was indebted to it in the sum of $23,860.13
in principal, plus interest, on a commercial account. Following service of the
summons and complaint, Monolith filed its answer on or about July 13, 2013. More
than six months later, on January 21, 2014, Hunter Douglas served requests for
admission, interrogatories, and requests for production on Monolith.
On March 28, 2014, Hunter Douglas filed its motion for summary judgment
arguing that it was entitled to a judgment as a matter of law because Monolith failed
to respond to Hunter Douglas’ requests for admission, one of which requested that
Monolith admit that it was “indebted to [Hunter Douglas] for the sum set forth in
[Hunter Douglas’] Complaint.” In its response to Hunter Douglas’ motion, Monolith
asserted that Hunter Douglas served the requests for admission after the discovery
period ended, it was not required to answer them, and the trial court could not require
it to do so consistent with Uniform Superior Court Rule 5.1. Monolith also stated that
in an abundance of caution it was filing a motion to withdraw admissions. The record
on appeal, however, does not include any such motion, and Monolith does not assert
on appeal that it filed a motion to withdraw. The trial court subsequently entered an
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order granting Hunter Douglas’ motion and entering a judgment against Monolith for
$23,860.13 in principal, accrued interest of $6,706.99, and court costs and post
judgment interest.
Monolith argues on appeal that the trial court’s order granting Hunter Douglas’
motion was tantamount to requiring or compelling it to answer the requests for
admission in violation of Uniform Superior Court Rule 5.1. We disagree.
Uniform Superior Court Rule 5.1 states in relevant part:
In order for a party to utilize the court’s compulsory process to compel
discovery, any desired discovery procedures must first be commenced
promptly, pursued diligently and completed without unnecessary delay
and within 6 months after the filing of the answer. . . . At any time, the
court, in its discretion, may open, extend, reopen or shorten the time to
utilize the court’s compulsory process to compel discovery.
It is undisputed that Hunter Douglas served its requests for admission and other
discovery requests shortly after the expiration of the six-month period following the
filing of the answer. As such, Hunter Douglas was foreclosed from utilizing the trial
court’s compulsory process to compel Monolith to respond to the discovery requests.
Contrary to Monolith’s argument, Hunter Douglas’ motion for summary judgment did
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not seek to compel answers to the requests for admission, nor did the order on appeal
purport to require any answers to the requests.
Requests for admission are governed by OCGA § 9-11-36, which provides:
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.
OCGA § 9-11-36 (a) (1). Under OCGA § 9-11-36 (a) (3), a party who has requested
admissions may file a motion to determine the sufficiency of the answers or
objections. That subsection further provides that “[u]nless 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.”
Id. To the extent that a motion under OCGA § 9-11-36 (a) (3) constitutes utilizing a
court’s compulsory process within the meaning of Uniform Superior Court Rule 5.1,
Hunter Douglas never invoked OCGA § 9-11-36 (a) (3) here, and, indeed, it could not
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do so given that Monolith never served responses or objections to the requests for
admission.
Pertinent here is OCGA § 9-11-36 (a) (2), which addresses the obligations of
a party served with requests for admission and provides in relevant part that “[t]he
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.”1 The admission that
arises from a failure to respond to a request for admission in the required time frame
arises by operation of law, without the necessity of court action. Brougham Casket
& Vault Co. v. DeLoach, 323 Ga. App. 701, 703 (747 SE2d 707) (2013) (“Unless a
response to requests for admission is timely and properly served upon the party
requesting the admission, the requests are deemed admitted as a matter of law.”).
In its order granting Hunter Douglas’ motion for summary judgment, the trial
court simply gave effect to the admission that resulted from Monolith’s failure to
object or respond to the requests for admission. Acknowledging Monolith’s
1
A defendant, however, normally is not required to file a response to requests
for admission before the expiration of 45 days after service of the summons and
complaint. See OCGA § 9-11-36 (a) (2).
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admission was not tantamount to compelling compliance with discovery contrary to
Uniform Superior Court Rule 5.1, and the trial court was bound to recognize the
admission under the express terms of OCGA § 9-11-36. Once an admission has been
made for purposes of OCGA § 9-11-36, the matter is “conclusively established unless
the court, on motion, permits withdrawal or amendment of the admission.” OCGA §
9-11-36 (b). A trial 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.” Id.2 Monolith never
filed a motion to withdraw, and, as such, the trial court was without authority to
2
The first requirement of this test
is not perfunctorily satisfied . . . and the desire to have a trial, standing
alone, is not sufficient to satisfy the test. If the burden of proof on the
subject matter of the request for admission is on the requestor, the
movant is required to show the admitted request either can be refuted by
admissible evidence having a modicum of credibility or is incredible on
its face, and the denial is not offered solely for purposes of delay.
(Citation and punctuation omitted.) Turner v. Mize, 280 Ga. App. 256, 257 (1) (633
SE2d 641) (2006).
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disregard Monolith’s admissions. See Vis v. Harris, 329 Ga. App. 129, 135 (1) (b)
(764 SE2d 156) (2014) (“[T]he failure to make a motion to have admissions
withdrawn or amended forecloses remedial action under OCGA § 9-11-36 (b), and
therefore the requests for admissions which were not answered or objected to are
deemed admitted.”) (citation and punctuation omitted).
When Monolith received Hunter Douglas’ requests for admission, it could have
availed itself of various options to assert its position that they were untimely. It might
have served objections referencing the expiration of the discovery period or moved
for a protective order, for example. Later, Monolith could have moved to withdraw
its admissions, but it did not do so. As Monolith “did not avail itself of any of the
variety of responses available under OCGA § 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 [Hunter Douglas’] requests for admission
stood admitted.” G. H. Bass & Co. v. Fulton County Bd. of Tax Assessors, 268 Ga.
327, 331 (2) (486 SE2d 810) (1997). Monolith thus admitted that it was indebted to
Hunter Douglas in the amount alleged in the complaint, removing any genuine issue
of material fact from the case. As such, the trial court properly granted Hunter
Douglas’ motion for summary judgment. See Brougham Casket & Vault Co. supra,
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323 Ga. App. at 705 (trial court properly determined plaintiff in action on open
commercial account was entitled to judgment as a matter of law where defendant’s
answers to requests for admission were properly stricken and defendant failed to file
a proper motion to amend or modify admissions that arose by operation of law);
Stephens v. Alan V. Mock Constr. Co., 302 Ga. App. 280, 287-288 (2) (690 SE2d
225) (2010) (in homeowners’ action against remediation company, trial court
properly granted summary judgment for defendant on homeowners’ claims based on
homeowners’ failure to respond to requests for admission); Jackson v. Nemdegelt,
supra, 302 Ga. App. at 769-771 (trial court properly granted summary judgment for
plaintiff in action to recover debt owed on retail installment contract based on
admissions arising from plaintiff’s failure to respond to requests for admission).
Judgment affirmed. Miller and Branch, JJ., concur.
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