Rowland v. Tsay
| Decision Date | 28 June 1994 |
| Docket Number | No. A94A0510,A94A0510 |
| Citation | 213 Ga.App. 679,445 S.E.2d 822 |
| Parties | ROWLAND v. TSAY. |
| Court | Georgia Court of Appeals |
Samuel G. Merritt, Atlanta, for appellant.
Sullivan, Hall, Booth & Smith, Roger S. Sumrall, David G. Goodchild, Atlanta, for appellee.
Janet Rowland brought suit against Yeou Ren Tsay, seeking damages for personal injuries allegedly sustained in a fall in the rental trailer she occupied. Rowland appeals the trial court's order granting Tsay's motion to withdraw certain admissions and a second order granting summary judgment in favor of Tsay. We affirm.
1. Under OCGA § 9-11-36(b), the 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." This determination is within the discretion of the trial court, and will be reversed only on a showing of abuse of that discretion. See Hamrick v. Greenway, 257 Ga. 287, 288(1), 357 S.E.2d 580 (1987).
While no showing of "providential cause" or "excusable neglect" is required, Whitemarsh Contractors v. Wells, 249 Ga. 194, 288 S.E.2d 198 (1982), the circumstances of the admissions shed some light both on the merits of the action and the issue of potential prejudice to Rowland. Counsel for Tsay testified by affidavit that he was served by hand with a packet of documents in response to Tsay's request for production. Included in that packet were requests for admission, which were identified on the third page of an enclosed cover letter dealing primarily with the discovery responses. Counsel was unaware that the requests were included in the packet of produced documents, and counsel received no contact from opposing counsel regarding discovery until after the motion to withdraw admissions was filed. 1
The requests for admission largely duplicate verbatim the allegations of Rowland's complaint and include requests to admit allegations of liability and damages which Tsay had already denied in his answer. On his motion to withdraw, Tsay presented responses to the requests for admission, as well as evidence by affidavit and deposition to show that his responses were meritorious and not interposed purely for purposes of delay.
With respect to the first part of the test, the trial court did not err in holding that withdrawal of the admissions will subserve the merits of the case. Although not required to do so because he did not have the burden of proof on the matters admitted, Johnson v. City Wide Cab, 205 Ga.App. 502, 503(1), 422 S.E.2d 912 (1992), Tsay produced evidence negating the admissions, including affidavits and depositions. Bailey v. Chase, etc., Leasing Co., 211 Ga.App. 60, 61(1), 438 S.E.2d 172 (1993).
Nor did the trial court err in determining that Rowland will not be prejudiced in maintaining her action on the merits. (Emphasis in original.) Id. at 62, 438 S.E.2d 172.
Rowland, citing no authority, contends that this court should require separate written findings by the trial court with respect to each individual admission. Neither OCGA § 9-11-36(b) nor the applicable decisions require this, and we decline to establish such a rule. The trial court outlined in its order the evidence considered in making its ruling and made the findings required by the Code section. Rowland, again citing no authority, also contends that Tsay's responses to the request for admissions are a nullity because they were filed with the trial court before the order allowing withdrawal of admissions. This argument ignores the requirement that the trial court determine whether the merits of the action will be subserved under OCGA § 9-11-36(b). Moreover, the trial court's order does not direct the filing of a response; it allows withdrawal of Tsay's earlier admissions. We find no abuse of discretion in the trial court's granting of Tsay's motion to withdraw admissions.
2. The trial court, in a comprehensive and detailed order, granted summary judgment to Tsay on the basis of Rowland's equal knowledge of the condition of the trailer and failure to exercise ordinary care for her own safety. The facts, construed most strongly against the movant, show that Patrick Ingemi, Rowland's boyfriend, rented a trailer from Tsay. Ingemi performed various repairs on the trailer for Tsay in lieu of rent, and signed a receipt for $150 for labor in repairing the trailer floor shortly before the incident. However, Rowland contended this repair never took place; Ingemi repaired other items instead and was told to go through Tsay before repairing anything else. Rowland testified she knew there was a hole or soft place in the trailer floor, and Ingemi had specifically warned her not to step on it. She also testified that she was aware of the...
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