Riberglass, Inc. v. ECO Chemical Specialties, Inc.
| Decision Date | 24 January 1990 |
| Docket Number | Nos. A89A2348,A89A2349,s. A89A2348 |
| Citation | 194 Ga.App. 417,390 S.E.2d 616 |
| Parties | RIBERGLASS, INC. v. ECO CHEMICAL SPECIALTIES, INC. ECO CHEMICAL SPECIALTIES, INC. v. RIBERGLASS, INC. |
| Court | Georgia Court of Appeals |
Oxendine & Associates, John W. Oxendine, Norcross, for appellant.
Boyce, Thompson & O'Brien, J. Patrick O'Brien, William M. Coolidge, III, Norcross, for appellee.
ECO Chemical Specialties, Inc. (ECO) brought suit on an account against Riberglass, Inc., a distributor, seeking recovery of $104,549.09 plus interest allegedly owed as payment for the purchase by Riberglass of large quantities of an acetone substitute cleaning solution known as Res-Off. ECO filed, inter alia, requests for admission, which Riberglass failed to answer within the statutory time period. After Riberglass filed late answers to the requests for admission, denying two requests previously admitted by operation of law, ECO filed a motion for summary judgment based solely upon the admissions deemed admitted by Riberglass. Riberglass then filed a motion to withdraw admissions. A hearing on both motions (and others) was held, and the trial court entered an order denying Riberglass' motion to withdraw the admissions and granting ECO's motion for summary judgment. Riberglass appeals from these orders, and ECO cross appeals from the trial court's use of 7 percent as the rate of interest on attorney fees awarded.
The admissions appellant sought to deny stated that "[appellee] is entitled to recover from [appellant] the amount prayed for in the [c]omplaint" and that "[t]he denials and defenses raised in [appellant's] [a]nswer have been interposed for the purpose of harassment, delay and to avoid payment of [appellee's] just claim."
1. Appellant contends the trial court abused its discretion by denying its motion to withdraw the admissions. The propriety of the trial court's failure to grant the motion to withdraw admissions must be determined by consideration of whether "the presentation of the merits of the action [would have been] subserved thereby" and whether appellee "fail[ed] to satisfy the court that withdrawal or amendment [would] prejudice [it] in maintaining [its] action or defense on the merits." OCGA § 9-11-36(b).
(a) The meaning of the phrase "the presentation of the merits of the action will be subserved thereby" was clarified by the Supreme Court in Whitemarsh Contractors v. Wells, 249 Ga. 194, 288 S.E.2d 198 (1982), when it expressly adopted Justice Hill's special concurring opinion in Cielock v. Munn, 244 Ga. 810, 813, 262 S.E.2d 114 (1979): "If the burden of proof as to the subject matter of the request will be on the defaulting movant, then movant should be required to show that the proffered denial of the request can be proved by admissible evidence having a modicum of credibility, and that the denial is not offered solely for the purpose of delay."
In the action sub judice, since both parties admit the purchase and the price, the issues in the case are raised by appellant's defenses, as to which it would have the burden of proof at trial. Thus, to satisfy that criterion for allowing withdrawal of the admissions, in addition to showing that it was not seeking to deny the request for admission solely for the purpose of delay appellant was required to show that its defenses were provable "by admissible evidence having a modicum of credibility." The record reveals that appellant's primary defense was its allegation of a failure of consideration, which, if proved, is sufficient to defeat an action on a contract. See generally OCGA § 13-5-9; Jones v. Dixie O'Brien Div., 174 Ga.App. 67, 68, 329 S.E.2d 256 (1985).
Specifically, appellant's defense was that the product did not perform in the manner appellee represented it would; that contrary to appellee's representations, it irritated the user's hands; that appellant was induced to purchase greater quantities of Res-Off than it desired by appellee's agent's fraudulent misrepresentations that a purchase in those amounts was a prerequisite to establishment of an exclusive distributorship; and that appellee failed to provide the support services it promised. In support of the motion to withdraw the admissions, appellant relied on its answers to appellee's interrogatories, sworn to by Mark R. Long, appellant's secretary/treasurer, and the affidavits of Long and Frank Riberlin, appellant's president. The affidavits stated specifically that withdrawal of the admissions was not being requested solely for delay, and further showed that appellant could prove by the testimony of Long and Riberlin that they personally received complaints from customers that the Res-Off irritated their hands and caused skin rashes and that, contrary to appellee's representations, the product was inferior to acetone as a cleaning solution. In addition, the affidavits showed that Don Shipman, appellee's agent, represented to the affiants that appellant would have to purchase three truckloads of the product in order to obtain an exclusive dealership; that appellant would not have purchased that quantity had it not been for Shipman's representation; that as a result of customer dissatisfaction with Res-Off, appellant was unable to...
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...the trial court has the discretion to extend the time in a proper case to file such evidence. Riberglass, Inc. v. ECO Chem. Specialties, 194 Ga.App. 417, 419(1), 390 S.E.2d 616 (1990); Wall v. C & S Bank of Houston County, 145 Ga.App. 76, 78-79, 243 S.E.2d 271 (1978), overruled on other gro......
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...evidence in the record to the contrary, we must presume the trial court acted correctly. [Cit.]" Riberglass, Inc. v. ECO Chemical Specialties, 194 Ga.App. 417, 419(1)(a), 390 S.E.2d 616 (1990). 2. Although we do not agree with Market Place that the trial court applied an erroneous measure o......
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