Mumford v. Davis

• Decision Date: 23 October 1992
• Docket Number: No. A92A1146,A92A1146
• Citation: 424 S.E.2d 306,206 Ga.App. 148
• Parties: MUMFORD v. DAVIS et al.
• Court: Georgia Court of Appeals

Page 306

424 S.E.2d 306

206 Ga.App. 148

MUMFORD v. DAVIS et al.

No. A92A1146.

Court of Appeals of Georgia.

Oct. 23, 1992.

Reconsideration Denied Nov. 3, 1992.

Certiorari Denied Feb. 5, 1993.

Richard L. Roble, Savannah, for appellant.

Oliver, Maner & Gray, Patrick T. O'Connor, Wiseman, Blackburn & Futrell, James B. Blackburn, Miriam D. Lancaster, Savannah, for appellees.

BEASLEY, Judge.

The issue is the effect in a renewal action of admissions made by default under OCGA § 9-11-36(b) in the original action.

Mumford originally filed suit, pursuant to state law and 42 U.S.C. § 1983, for the alleged wrongful death of her son. He was shot and killed by Davis, a Savannah police officer. Defendants were the mayor and aldermen of the City of Savannah in their official capacities ("City"), the mayor, the city manager, the chief of police, and Davis, individually and in his official capacity. Davis filed and served requests for admissions under OCGA § 9-11-36, which were not objected to or answered and thus became admissions by operation of law. The suit was voluntarily dismissed after the time for response to the requests passed.

Within six months, Mumford renewed the action, as permitted by OCGA § 9-2-61. The mayor, city manager and police chief were dismissed from it by order of the court, which is not appealed.

Officer Davis, both individually and in his official capacity, and the mayor and aldermen in their official capacities representing the city moved for summary judgment. They were granted summary judgment in their official capacities based on the finding that the 42 U.S.C. § 1983 claim was time-barred. This ruling is not pursued on appeal.

Davis was also granted summary judgment on the claims remaining against him individually. The court applied Petkas v. Grizzard, 252 Ga. 104, 312 S.E.2d 107 (1984), and concluded that it could take judicial notice of the entire record in the prior action, including the prior admissions which conclusively established that no material issues of fact existed as to Davis' liability. On that basis, the court concluded that Davis was not liable as a matter of law.

Mumford contends that summary judgment on the state claims against Davis could not be based on the admissions in the prior proceeding.

The question involves the construction of OCGA § 9-11-36(b), which provides in pertinent part: "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."

The plain language of the statute confines the use of admissions made pursuant to this discovery tool to the action in which they are made and forbids their use in a subsequent or other action. "[A]n action renewed pursuant to OCGA § 9-2-61(a) is an action de novo." Adams v. Gluckman, 183 Ga.App. 666(1), 359 S.E.2d 710 (1987); see also Bell v. Figueredo, 190 Ga.App. 163, 164(1), 378 S.E.2d 475 (1989), reversed on other grounds, 259 Ga. 321, 381 S.E.2d 29 (1989). It is not the same action as to one it succeeds, in the sense that it is not a continuation of the concluded action, although it must "be substantially the same both as to the cause of action and as to the essential parties." (Emphasis added.) Sheldon & Co. v. Emory Univ., 184 Ga. 440(1), 191 S.E. 497 (1937).

The statutory prohibition was recognized in ETI Corp. v. Hammett, 152 Ga.App. 1, 2, 262 S.E.2d 211 (1979), in which it was held that an appellant which had waived any challenge to appellee's dismissal without prejudice of an earlier action could not use appellee's failure to respond to requests for admissions in that case against him in the succeeding one. Williams v. Coca-Cola Co., 158...