Elrod v. Sunflower Meadows Development, LLC

745 S.E.2d 846, 322 Ga. App. 666, 2013 Fulton County D. Rep. 2330, 2013 WL 3336703, 2013 Ga. App. LEXIS 581
CourtCourt of Appeals of Georgia
DecidedJuly 3, 2013
DocketA13A0529
StatusPublished
Cited by45 cases

This text of 745 S.E.2d 846 (Elrod v. Sunflower Meadows Development, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elrod v. Sunflower Meadows Development, LLC, 745 S.E.2d 846, 322 Ga. App. 666, 2013 Fulton County D. Rep. 2330, 2013 WL 3336703, 2013 Ga. App. LEXIS 581 (Ga. Ct. App. 2013).

Opinion

ANDREWS, Presiding Judge.

Plaintiffs Mike Elrod, Connie Elrod (collectively, Elrod), and Lake Dows Estates Property Owners Association appeal the trial court’s order granting summary judgment to defendant Crown Communities, Inc. Elrod and the Association also appeal from the trial court’s orders allowing Crown to withdraw admissions, striking an affidavit submitted by Elrod and the Association in support of their cross-motion for summary judgment, and awarding Crown attorney fees. For the reasons set forth below, we find no error and affirm.

The record shows that Elrod and the Association sued Crown and Sunflower Meadows Development, LLC, for negligence, trespass, and nuisance. In their complaint, Elrod and the Association contended that Crown’s and Sunflower’s development and land clearing activities had caused high levels of sediment to flow onto Elrod’s and the Association’s property. Elrod and the Association later served Crown with requests for admissions. They asked Crown to admit or deny numerous matters, including that Crown owned real property adjoining Elrod’s and the Association’s real property; that Crown constructed multiple ponds on its property; that erosion resulting from the construction of Crown’s ponds caused sediment to flow into the lake and pond on Elrod’s and the Association’s property, causing damage; and that, after being notified of the sediment buildup in Elrod’s pond and lake, Crown failed to take adequate measures to prevent sediment from flowing from Crown’s property onto Elrod’s [667]*667and the Association’s property. Although served on March 6, 2009, Crown did not respond to the request for admissions until September 2009.

Crown and Elrod and the Association filed cross-motions for summary judgment. Elrod and the Association filed the affidavit of D. Wayne Smith in support of their motion for summary judgment, and Crown moved to strike the affidavit. Crown also moved to withdxawits admissions and for attorney fees pursuant to OCGA § 9-15-14 (b). Following a hearing, the trial court granted Crown’s motion to withdraw its admissions, and the trial court struck, as to Crown only, the affidavit of D. Wayne Smith. The trial court also granted Crown’s motion for summary judgment and awarded Crown $42,622.50 as attorney fees.

1. Elrod and the Association contend that the trial court erred in allowing Crown to withdraw its admissions. We disagree. We review a trial court’s ruling on a motion to withdraw admissions for abuse of discretion. See Turner v. Mize, 280 Ga. App. 256, 257 (1) (633 SE2d 641) (2006) (finding that “OCGA § 9-11-36 (b) vests broad discretion in the trial court to permit withdrawal or amendment of the admission”); Brown v. Morton, 274 Ga. App. 208, 210 (617 SE2d 198) (2005).

Pursuant to OCGA § 9-11-36 (a) (2), subject to such shorter or longer time as the court may allow, a matter on which an admission is requested is admitted unless the party to whom the request was directed answers or objects within 30 days of service of the request. See Sayers v. Artistic Kitchen Design, LLC, 280 Ga. App. 223, 226 (2) (633 SE2d 619) (2006). It is undisputed that Crown did not respond to Elrod’s and the Association’s request for admissions within 30 days of service. OCGA § 9-11-36 (b) provides, however, that 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.

Crown moved to withdraw its admissions, and the trial court, after considering both prongs of the foregoing test, granted Crown’s motion.1

[668]*668The movant has the initial burden of demonstrating that presentation of the merits of the action will be served by allowing the withdrawal of its admissions. See ABA 241 Peachtree, LLC v. Brooken & McGlothen, LLC, 302 Ga. App. 208, 211 (2) (690 SE2d 514) (2010). In carrying that burden, Crown was required to show “that the admitted requests either were refutable by admissible evidence having a modicum of credibility or were incredible on their face, and that [its] denial was not offered solely for the purposes of delay.” (Citation and punctuation omitted.) Id. See Intersouth Properties v. Contractor Exchange, 199 Ga. App. 726, 728 (1) (405 SE2d 764) (1991). Although Elrod and the Association contend that Crown did not present any admissible evidence to refute its admissions, Crown showed through the affidavit of its CEO that, among other things, Crown had not performed any grading or land disturbance activities adjacent to or near any of the properties owned by Elrod or the Association, and that Crown did not own or develop any of the properties referenced in Elrod’s and the Association’s request for admissions. The trial court acknowledged this evidence, which it found further supported by the deposition of Mike Elrod, who conceded that Crown was not a property developer. The evidence was sufficient to show that Crown had refuted its admissions and that its motion to withdraw was not solely interposed for delay. See OCGA § 9-11-36 (b); ABA 241 Peachtree, LLC, 302 Ga. App. at 212 (2).

If the movant satisfies the court on the first prong, the burden is on the respondent to show that the withdrawal or amendment will prejudice the respondent in maintaining its action or defense on the merits. See OCGA § 9-11-36 (b); Intersouth Properties, 199 Ga. App. at 728 (1). In that respect, “[m]erely being forced to go to trial is not such a prejudice as will prevent the withdrawal of admissions.” Brankovic v. Snyder, 259 Ga. App. 579, 583 (578 SE2d 203) (2003). Here, Elrod and the Association were put on notice in September 2009 that Crown sought to withdraw its admissions and had presented evidence that those admissions were false, over two years before the hearing on the motion to withdraw. The record supports the trial court’s finding that Elrod and the Association did not show, either in their briefing below or at the motion hearing, that they would be prejudiced in maintaining their action on the merits by the withdrawal of Crown’s admissions.

The purpose of requests for admissions is “to expedite trial and clarify the issues in a case, not gain tactical advantage over an opponent.” Id. Given that Crown came forward with credible evidence refuting its admissions and that Elrod and the Association failed to show prejudice, the trial court did not abuse its discretion in granting [669]*669Crown’s motion to withdraw its admissions. See ABA 241 Peachtree, LLC, 302 Ga. App. at 212 (2).

2. Elrod and the Association also contend that the trial court erred in granting Crown’s motion to strike the affidavit of D. Wayne Smith. We disagree.

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745 S.E.2d 846, 322 Ga. App. 666, 2013 Fulton County D. Rep. 2330, 2013 WL 3336703, 2013 Ga. App. LEXIS 581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elrod-v-sunflower-meadows-development-llc-gactapp-2013.