GEORGEAN BURTON v. ECI MANAGEMENT CORPORATION D/B/A THE COLUMNS OF WHITE OAKS APARTMENTS

• Court: Court of Appeals of Georgia
• Decided: June 27, 2018
• Docket: A18A0657
• Status: Published

Opinion

FIFTH DIVISION MCFADDEN, P. J., RAY and RICKMAN, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules

June 27, 2018

In the Court of Appeals of Georgia A18A0657. BURTON v. ECI MANAGEMENT CORPORATION.

MCFADDEN, Presiding Judge.

This appeal is from an order granting a defense motion for summary judgment

and denying plaintiff’s motion to withdraw admissions. Because there are no genuine

issues of material fact as to an essential element of plaintiff’s claim and the trial court

did not abuse its discretion in denying the motion to withdraw admissions, we affirm.

“On appeal from the grant of summary judgment, the appellate court conducts

a de novo review of the evidence to determine whether there is a genuine issue of

material fact and whether the undisputed facts, viewed in the light most favorable to

the nonmoving party, warrant judgment as a matter of law.” Bank of America, N. A.

v. Cuneo, 332 Ga. App. 73, 74 (770 SE2d 48) (2015) (citation and punctuation

omitted). So viewed, the evidence shows that on September 29, 2015, Georgean Burton, a resident of The Columns of White Oaks Apartments in Newnan, requested

that the stove in her apartment be repaired. That same day, a maintenance employee

at the complex made repairs to the stove in Burton’s apartment. After the repairs were

complete, Burton turned on the stove to bake something. A few minutes later, Burton

opened the stove door and a cloud of thick smoke billowed out of the stove. Burton

reported the smoke to apartment management. The maintenance employee returned

to the apartment and found that a piece of rubber or plastic had fallen off his wire

cutters into the broiler area of the stove and had caused the smoke.

On June 23, 2016, Burton filed a complaint against ECI Management

Corporation d/b/a The Columns of White Oaks Apartments, claiming that the

maintenance employee had left a pair of pliers in the broiler area of the stove and that

she had suffered damages as a result of inhaling the smoke from the stove. ECI

answered the complaint and, on August 17, 2016, served Burton with discovery

requests. The discovery materials included requests that Burton admit that she had no

evidence that ECI had actual or constructive knowledge of the alleged pliers in the

stove, that she had no evidence that ECI had superior knowledge of the alleged

hazardous condition, and that she had seen the pliers in the broiler area of the stove

prior to the smoking stove incident. Burton did not respond to the discovery requests.

2 On October 5, 2016, ECI notified Burton in writing that her discovery responses were

overdue; requested that she provide responses by October 15; and indicated that it

would file a motion seeking all available remedies if the responses were not received

by that date. Burton did not submit her responses to the discovery requests until

October 21, 2016.

On January 17, 2017, ECI filed a motion for summary judgment on the basis

that Burton was deemed to have admitted, due to her failure to timely respond to the

requests for admissions, that ECI had no actual or constructive knowledge of the

alleged hazardous condition, that ECI had no superior knowledge of the alleged

hazard, and that she herself had seen the alleged pliers in the broiler area of the stove

prior to the smoke incident. On February 24, 2017, Burton filed a motion to withdraw

or amend her deemed admissions. After a hearing, the trial court entered an order on

June 9, 2017, denying Burton’s motion to withdraw her admissions and granting

ECI’s motion for summary judgment. Burton appeals.

1. Jurisdiction.

As an initial matter, we note that contrary to ECI’s arguments in its appellate

brief, this court has jurisdiction over this appeal. Because the last day to file a notice

of appeal from the trial court’s June 9, 2017 summary judgment order fell on Sunday

3 July 9, 2017, Burton had until the next Monday, July 10, 2017, to file her appeal. See

OCGA §§ 1-3-1 (d) (3) & 9-11-6 (a). Burton did not file a notice of appeal by that

date, but did file an application for discretionary appeal on July 10, 2017. She also

filed a notice of appeal on July 13, 2017.

With regard to Burton’s application for discretionary appeal, no such

application was necessary as the trial court’s grant of summary judgment to ECI was

directly appealable. See OCGA § 5-6-34 (a) (1), (d); Southeast Ceramics v. Klem, 246

Ga. 294, 294-295 (1) (271 SE2d 199) (1980). Because the order was subject to direct

appeal and Burton had initiated her appeal by filing an otherwise timely discretionary

application, this court granted the application pursuant to OCGA § 5-6-35 (j). The

order granting the application was issued on August 1, 2017, and directed Burton to

file a notice of appeal within 10 days of the order. As noted above, Burton had

already filed a notice of appeal on July 13, 2017. She also filed an untimely amended

notice of appeal on August 24, 2017. But that amended notice was unnecessary as the

prematurely filed July 13 notice of appeal ripened into a timely notice of appeal upon

this court’s granting of the discretionary application. See Wright v. Wright, 300 Ga.

114, 115 (1) (793 SE2d 96) (2016) (1); Todd v. Todd, 287 Ga. 250, 253 (1) (703 SE2d

597) (2010); Mixon v. Mixon, 278 Ga. 446 (1) (603 SE2d 287) (2004); Wannamaker

4 v. Carr, 257 Ga. 634, 635 (1) (362 SE2d 53) (1987). Accordingly, the appeal is

properly before this court.

2. Motion to withdraw admissions.

Burton contends that the trial court erred in denying her motion to withdraw

admissions. We disagree.

Because Burton did not respond or object to ECI’s requests for admissions

within 30 days after service of the requests, the subject matter of each request was

deemed admitted under OCGA § 9-11-36 (a) (2). See Ikomoni v. Executive Asset

Managment, 309 Ga. App. 81, 83 (1) (709 SE2d 282) (2011). “[M]atters deemed

admitted under this statute become solemn admissions in judicio and are conclusive

as a matter of law on the matters stated and cannot be contradicted by other evidence

unless the admissions are withdrawn or amended on formal motion.” Fulton County

v. SOCO Contracting Co., 343 Ga. App. 889, 896 (2) (808 SE2d 891) (2017) (citation

and punctuation omitted).

Under OCGA § 9-11-36 (b), the trial court is vested with broad discretion to permit withdrawal of an admission made by reason of the failure to make a timely response to the request. On appellate review, the trial court’s ruling on this issue may be reversed only upon a showing of abuse of discretion. A trial court may permit withdrawal of admissions if both: (1) the presentation of the merits of the action will be subserved by the withdrawal; and (2) the party who obtained the

5 admission fails to satisfy the court that withdrawal will prejudice him in maintaining his action or defense on the merits. In order to show that the presentation of the merits of this case would be subserved by the withdrawal, [the movant must] establish 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.

Parham v. Weldon, 333 Ga. App. 744, 746 (1) (776 SE2d 826) (2015) (citations and

punctuation omitted). “If the movant satisfies the court on the first prong, the burden

is on the respondent to satisfy the second prong. Both prongs must be established,

pursuant to the standard provided in OCGA § 9-11-36 (b).” Fulton County, supra at

897 (2) (a) (citation and punctuation omitted).

In this case, the trial court denied Burton’s motion to withdraw admissions by

finding both that she had failed to satisfy the first prong and that ECI had shown

under the second prong that it would be prejudiced by withdrawal. While we find that

the trial court erroneously concluded that Burton had not satisfied the first prong, we

find no error in the trial court’s finding that ECI showed prejudice under the second

prong.

(a) Credible evidence refuting admissions.

6 With regard to the first prong, Burton asserts that an incident investigation

report made by ECI, which stated that the maintenance worker found a piece of

rubber or plastic from his tool in the broiler after the incident, is credible evidence

refuting her admissions that she had no evidence that ECI had superior knowledge of

the alleged hazard and that she had seen the alleged pliers in the boiler area of the

stove prior to the incident. But the report was made after the incident and merely

states a finding as to the cause of the smoke; it does not indicate any prior knowledge

of ECI that the tool piece had fallen into the broiler, nor does it address Burton’s own

knowledge of the hazard prior to using the stove. Thus, the trial court did not abuse

its discretion in finding that the incident report did not refute Burton’s admissions.

However, Burton also points to her own affidavit, in which she swore that after

the maintenance worker told her the repairs were finished, she turned on the oven to

preheat it and “did not inspect the broiler area of the oven, since [she] had no

immediate intentions of using it.” Although Burton cited this affidavit testimony in

support of her motion to withdraw admissions, the trial court failed to address it in

its order or make any findings as to the credibility of such evidence. See Bailey v.

Chase Third Century Leasing Co., 211 Ga. App. 60, 61-62 (1) (438 SE2d 172) (1993)

(trial court abused its discretion by denying a motion to withdraw admissions in the

7 face of a sworn affidavit that cast doubt on the veracity of the admissions). If credible,

such evidence casts doubt on the admission concerning Burton’s knowledge of the

hazard. “We cannot say that [Burton’s affidavit] is per se incredible. Thus, the trial

court erred in concluding that there was a complete absence of admissible evidence

having a modicum of reliability. . . [and] the trial court abused its discretion in

denying [Burton’s] motion on this ground.” Parham, supra at 746-747 (1) (citations

omitted).

(b) Prejudice.

As for the second prong – whether ECI would be prejudiced by allowing

withdrawal of Burton’s admissions – the trial court found that Burton had waited until

after the discovery period was closed to file her motion to withdraw. The court further

found that ECI had shown that in reliance on Burton’s admissions, it had not pursued

certain discovery procedures, such as taking depositions, retaining experts, and

conducting an independent medical examination. The court thus concluded that

because Burton “did not move to withdraw her admissions until after the discovery

period had closed and [ECI’s] ability to alter or amend its defense strategy through

employing additional discovery techniques was foreclosed[,]” ECI would be

8 prejudiced by withdrawal like the defendant in Marlowe v. Lott, 212 Ga. App. 679

(442 SE2d 487) (1994).

In that case, a trial court’s denial of a motion to withdraw admissions was

upheld on the basis that even if the court had applied the wrong standard on the first

prong, the court had properly found on the second prong that “the defendant [had]

relied on the admissions to his detriment by not completing discovery and being

precluded from doing so” since the discovery period had closed. Id. at 681 (2). Based

on the trial court’s similar findings in the instant case, we cannot say that the court

abused its discretion in determining that ECI had satisfied its burden of showing that

the defense would be prejudiced by allowing withdrawal. “We will not disturb the

trial court’s ruling on a motion to withdraw admissions absent a showing of abuse of

discretion.” Howard v. Alegria, 321 Ga. App. 178, 187 (3) (739 SE2d 95) (2013)

(citation and punctuation omitted). Accordingly, the trial court’s denial of the motion

to withdraw is affirmed. See Marlowe, supra (a proper finding on either the first or

second prong of the withdrawal test will support the ruling by a trial court not to

allow withdrawal of admissions).

3. Summary judgment.

9 Burton contends that the trial court erred in granting summary judgment to

ECI. But in light of Burton’s admissions establishing that ECI did not have superior

knowledge of the alleged hazard, we disagree.

Summary judgment is proper ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ OCGA § 9-11-56 (c). Thus, to prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law. A defendant may do this by either presenting evidence negating an essential element of the plaintiff’s claims or establishing from the record an absence of evidence to support such claims. Thus, the rule with regard to summary judgment is that a defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case. Where a defendant moving for summary judgment discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Cowart v. Widener, 287 Ga. 622, 623 (1) (697 SE2d 779) (2010) (citations and

punctuation omitted).

Here, ECI discharged its burden by pointing to Burton’s admissions – that ECI

had no actual or constructive knowledge of the alleged hazardous condition, that ECI

had no superior knowledge of the alleged hazard, and that she herself had seen the

10 alleged tool in the broiler area of the stove prior to the incident – as negating the

essential element of her claims that ECI had superior knowledge of the alleged

hazardous condition created by the tool or part of the tool in the broiler area of the

stove prior to the incident. See Forest Cove Apartments v. Wilson, 333 Ga. App. 731,

734 (776 SE2d 664) (2015) (true ground of liability is defendant’s superior

knowledge of the hazardous condition). Thus, Burton was required to point to

specific evidence giving rise to a triable issue on this essential element of superior

knowledge. But she has failed to do so. She did point to the investigation report

created after the incident, contending that it is evidence of ECI’s superior knowledge

of the hazard. But the report indicated that a piece of a tool which had fallen into the

broiler was discovered after the incident, it provides no evidence of superior

knowledge of ECI prior to the incident. Because there is no genuine issue of material

fact as to the essential element of superior knowledge of the hazard, the trial court

correctly granted summary judgment to ECI. See Herrin v. Peeches Neighborhood

Grill & Bar, 235 Ga. App. 528, 531 (1) (509 SE2d 103) (1998) (plaintiff must present

evidence that the defendant had superior knowledge of the hazard, or else suffer

summary judgment).

Judgment affirmed. Ray and Rickman, JJ., concur.