Whitemarsh Contractors, Inc. v. Wells
| Decision Date | 02 March 1982 |
| Docket Number | No. 38207,38207 |
| Parties | WHITEMARSH CONTRACTORS, INC. v. WELLS et al. |
| Court | Georgia Supreme Court |
Laurie K. Abbott, Anthony H. Abbott, Savannah, for Whitemarsh Contractors, Inc.
John T. Woodall, Savannah, for L. E. Wells, Jr., et al.
At issue are the tests which should have been applied by the trial court in considering whether or not to grant the defendant Wells' motion to withdraw admissions resulting by law from his failure to respond to Whitemarsh's requests for admissions.
The unanswered requests served by Whitemarsh upon Wells called upon Wells to admit his receipt of certain checks, and to admit the preparation and accuracy of an accounting allegedly furnished to Whitemarsh by Wells' in-house accountant.
Whitemarsh had sued Wells for an overpayment on an account for building materials. Whitemarsh, as plaintiff, therefore had the burden of proving the fact and amount of overpayment, a burden it would have assumed by proving the amount actually owed versus the amount actually paid, the checks and the accounting to which the requests for admissions pertained being the cornerstones upon which this proof would have been laid.
The trial court denied the motion to withdraw the admissions, holding that Wells as movant only perfunctorily had satisfied the first prong 1 of the two prong test set forth in Cielock v. Munn, 244 Ga. 810, 262 S.E.2d 114 (1979), because Wells had failed to show that the admitted requests either could have been refuted on trial of the issues by admissible evidence having a modicum of credibility or that the admitted requests were incredible on their face; and that the denials being tendered to the court with the motion to withdraw had not been offered solely for purposes of delay.
The Court of Appeals reversed, holding, in essence, that the test utilized by the trial court came from the special concurring opinion of Justice (now Presiding Justice) Hill in Cielock v. Munn, supra, rather than from the majority opinion in that case, and, accordingly, that the test should not have been employed by the trial court while considering the motion to withdraw. Wells v. Whitemarsh Contractors, Inc., 160 Ga.App. 176, 286 S.E.2d 752 (1981).
We reverse the judgment of the Court of Appeals and reinstate the judgment of the trial court for the reasons given by the trial court.
The tests recognized in the majority and special concurring opinions in Cielock v. Munn, supra, are not in conflict. The majority opinion...
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