Bailey v. Chase Third Century Leasing Co., Inc.
| Decision Date | 19 November 1993 |
| Docket Number | No. A93A2061,A93A2061 |
| Parties | BAILEY v. CHASE THIRD CENTURY LEASING COMPANY, INC. |
| Court | Georgia Court of Appeals |
Giddens, Davidson & Mitchell, Earl A. Davidson, Atlanta, for appellant.
Bisbee, Rickertsen & Herzog, Diane V. Roggen, William A. Dupre IV, Brad A. Baldwin, Atlanta, for appellee.
Gregory T. Bailey appeals the grant of summary judgment to Chase Third Century Leasing Co. Inc., in Chase's suit against Bailey "individually and d/b/a Viva International, Inc." for debt on two office equipment leases, including computers and furniture. Summary judgment was granted to Chase against Bailey after the trial court denied Bailey's motion to withdraw admissions which resulted from his untimely answer denying those requests for admission. See OCGA § 9-11-36(a)(2).
Bailey contends the trial court erroneously denied his motion to withdraw admissions on grounds that Bailey is an attorney and should have known the consequences of failure to answer requests for admission. However, although the trial court found those facts significant, the trial court also found "[Bailey] has not demonstrated that the merits of the action would be subserved by allowing the withdrawal of the responses."
The admissions which Bailey sought to withdraw are that Viva International, Inc. is a Georgia corporation; that the two leases provide Bailey's business address as Viva International's address; that the equipment was delivered to Bailey's address; that Bailey corresponded with Chase regarding payments due under the leases and submitted partial payments; that Viva is Bailey's trade name, agent or alter ego; that Bailey does business under the name "Viva"; that Bailey and Viva owe Chase certain sums for payments, late fees, attorney fees and interest; that Bailey ratified Viva's acts in entering the second lease; that Bailey has possession of the equipment leased; and that Chase owns the equipment which Bailey converted to his own use.
Bailey's name does not appear in either lease document. The two leases were executed by "A.W. Satterfield" for Viva International, Inc., at an Atlanta office address; the record as cited to us does not resolve the identity of this individual or his connection to Bailey or to Viva. In his answer to the lawsuit, Bailey denied that he executed either lease, denied doing business as Viva International, denied that he leased the equipment from Chase, and denied that any equipment in his possession belongs to Chase. In his affidavit in support of his motion to withdraw admissions, Bailey says he did not, individually or for Viva, enter any lease with Chase; that not all of the items listed were delivered by or obtained from Chase; that he does not do business as Viva nor is it his trade name, agent or alter ego; that he has some of the items leased by Viva in his possession and tried to arrange with Chase to pay "for the items that I have retained pursuant to the leases"; that most of the items were purchased by Bailey or his firm prior to execution of the leases by Viva; and that he was current with payments for all items he tried to assume under the leases. Held:
1. OCGA § 9-11-36(b) provides that the court may permit withdrawal (1) when the presentation of the merits of the action will be subserved thereby and (2) the party who obtained the admission fails to satisfy the court that withdrawal will prejudice him in maintaining his action or defense on the merits. See Cielock v. Munn, 244 Ga. 810, 262 S.E.2d 114. Preservation of the merits of the case is subserved by withdrawal of the admissions. In the face of Bailey's sworn affidavit and other evidence, these admissions create more questions than answers. Admissions created by the failure of a timely denial do not automatically entitle a party to summary judgment because they do not necessarily resolve disputes created by sworn testimony. They do not stand on higher footing than other evidence and do not negate all other evidence in the...
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...to address it in its order or make any findings as to the credibility of such evidence. See Bailey v. Chase Third Century Leasing Co. , 211 Ga. App. 60, 61-62 (1), 438 S.E.2d 172 (1993) (trial court abused its discretion by denying a motion to withdraw admissions in the face of a sworn affi......
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