                              SECOND DIVISION
                                MILLER, P. J.,
                             BROWN and GOSS, 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


                                                                  February 13, 2019




In the Court of Appeals of Georgia
A18A1879. JCG FARMS OF ALABAMA, LLC v. MORGAN.                               GS-068

      GOSS, Judge.

      On February 7, 2016, an explosion occurred at a chicken feed manufacturing

plant in Rockmart (“Rockmart Mill”) that is owned and controlled by JCG Farms of

Alabama, LLC (“JCG Farms”). The explosion seriously injured Tyler Morgan, who

was working at the Rockmart Mill as a control room operator at the time. Morgan

sued JCG Farms, inter alia, for negligence. After Morgan filed a motion for partial

summary judgment, JCG Farms moved to withdraw any of its responses to Morgan’s

request for admission stating that Morgan was not its employee. JCG Farms appeals

from the trial court’s order denying the motion to withdraw admissions in judicio and

granting summary judgment in favor of Morgan as to JCG Farms’ affirmative defense

under the Workers’ Compensation Act. For the following reasons, we affirm.
      On January 12, 2017, Morgan filed this premises liability action against JCG

Farms as the owner of the Rockmart Mill property. Morgan’s complaint alleged that

JCG Farms was the owner of the Rockmart Mill property and that Morgan and other

injured workers were on the premises as invitees. JCG Farms filed an answer

acknowledging ownership and control of the feed mill, but asserting that the

Workers’ Compensation Act provides the exclusive remedy for Morgan. The

exclusive remedy provision of OCGA § 34-9-11 applies only if JCG Farms was

Morgan’s employer. See OCGA § 34-9-11 (a). Accord Champion v. Pilgrim’s Pride

Corp. of Delaware, Inc., 286 Ga. App. 334, 338 (c) (649 SE2d 329) (2007) (“It is

well settled that an injured employee’s sole and exclusive remedy is under the

Workers’ Compensation Act where the injury arises out of and in the scope of

employment”). Morgan argues that the Workers’ Compensation Act exclusive remedy

does not apply to him because he is an employee of JCG Foods, not JCG Farms.

      The record shows that the Rockmart Mill is a chicken feed manufacturing plan

owned and controlled by JCG Farms. JCG Foods of Alabama, Inc. is another

company in a complex corporate structure of their parent company, Koch Foods, Inc.

Koch Foods produces and processes chicken for commercial distribution, and the

various corporate entities under its control operate different aspects of chicken

                                        2
production. Although JCG Farms and JCG Foods are part of the same corporate

structure, there is no dispute that they operate independently and have separate

budgets, assets, and employer identification numbers.

      Throughout the litigation, JCG Farms has admitted that Morgan was an

employee of JCG Foods, as opposed to JCG Farms. JCG Farms admitted as much in

its answer, in its responses to Plaintiff’s Request for Interrogatories , and in its

responses to Morgan’s Request for Admissions.1 JCG Farms admitted in briefing

before the trial court that its responses to the Requests for Admission were based

upon “information provided by the Human Resources and Risk Management

departments regarding, among other things, the corporate structure of Koch Foods,

Inc., the operations of the Rockmart feed mill, and the employment relationship

between the corporate entities involved in the operation of the Rockmart mill and the

workers at the mill.” Further, paystubs for checks issued to Morgan in

January/February 2016 identify JCG Foods as his employer, and JCG Foods sent

Morgan a W-2 form and reported Morgan as an employee to the IRS.


      1
        JCG Farms amended its responses to interrogatories and requests for
admission on this allegation after the hearing on its motion to withdraw admissions
and Morgan’s motion for partial summary judgment had been heard and the trial court
had issued its oral ruling on the merits of the motion.

                                         3
      On December 4, 2017, Morgan filed a motion in which he sought partial

summary judgment as to JCG Farms’ workers compensation exclusive remedy

defense. Morgan argued that JCG Farms admitted in judicio that it was not Morgan’s

employer. JCG Farms then filed a motion to withdraw admissions. The trial court

denied JCG Farms’ motion to withdraw the admissions, and granted Morgan’s motion

for partial summary judgment.

      1. JCG Farms argues that the trial court erred by denying its motion to

withdraw its admission in judicio that Morgan was its employee.

      Once an admission has been made for purposes of OCGA § 9-11-36, the matter

is “conclusively established unless the court, on motion, permits withdrawal or

amendment of the admission.” OCGA § 9-11-36 (b). A trial court

      may permit withdrawal or amendment when [1] the presentation of the
      merits of the action will be subserved thereby and [2] the party who
      obtained the admission fails to satisfy the court that the withdrawal or
      amendment will prejudice him in maintaining his action or defense on
      the merits.


Id. (citing OCGA § 9-11-36 (b). This statutory provision vests the trial court with

broad discretion to permit withdrawal of the admission, and the trial court’s ruling on




                                          4
this issue will only be reversed upon a showing of abuse of discretion. Turner v. Mize,

280 Ga. App. 256, 257 (1) (633 SE2d 641) (2006).

      “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[.]” (Citation

and punctuation omitted.) Fulton County v. SOCO Contracting Co., Inc., 343 Ga.

App. 889, 897 (2) (a) (808 SE2d 891) (2017). The first requirement of this test

      is not perfunctorily satisfied. . . and the desire to have a trial, standing
      alone, is not sufficient to satisfy the test. If the burden of proof on the
      subject matter of the request for admission is on the requestor, the
      movant is required to show the admitted request either can be refuted by
      admissible evidence having a modicum of credibility or is incredible on
      its face, and the denial is not offered solely for the purposes of delay.


(Citation and punctuation omitted.) Turner, 280 Ga. App. at 257 (1).

      In support of its motion to withdraw admissions, JCG Farms relied upon the

affidavit of Lance Buckert, the CFO of Koch Foods, as well as form documents from

Morgan’s personnel file that had JCG Farms or Koch Foods listed at the top of the

page. These documents included, inter alia, a smoking policy for the Rockmart Mill,

a document outlining safety guidelines, and a drug and alcohol policy. Buckert’s

affidavit directly contradicts the admissions in JCG Farms’ original answer to the


                                           5
complaint, its responses to requests for interrogatories, and its responses to the

request for admissions. Buckert’s affidavit states that although he issued Morgan’s

payroll checks through JCG Foods, JCG Farms is really Morgan’s employer because

it bears the payroll obligations on its balance sheet. Although Buckert’s affidavit

attempts to explain how he charges JCG Farms with the labor costs via accounting

maneuvers, his affidavit offers no documents to support the statements. His affidavit

provides no explanation as to how Koch Foods’ employees provided “incorrect”

information in JCG Farms’ answer, its response to request for admissions and

interrogatories, or why the admissions went uncorrected for almost a year. Buckert

further deposed that the fact that JCG Farms’ corporate name is on a piece of paper

in a personnel file does not make one an employee of the entity.

      JCG Farms argues in its brief that its supporting affidavit and form documents

had a sufficient modicum of credibility. However, the trial court, after examining the

affidavit and documents in detail, found the issue not to be one of degree of

credibility, but rather, of the utter absence of it. The trial court held that JCG Farms

      failed to meet its burden on the first prong by supplying nothing more
      than a handful of assorted pages from personnel records (which are
      contradicted by other records) and a 2.5-page conclusory, self-serving



                                           6
      affidavit with no documentary evidence attached. Mr. Buckert’s
      accounting strategy does not undo specific admissions of fact.


These statements were inconsistent with other evidence and admissions made earlier

in the litigation, including IRS documents and pay stubs identifying JCG Foods as

Morgan’s employer, as well as statements that JCG Farms did not have employees or

a payroll. “Based on these inconsistencies, the trial court was authorized to find that

[Buckert’s affidavit] lacked credibility and that the admissions were not false.”

(Citation and punctuation omitted.) SOCO Contracting, 343 Ga. App. at 898 (2) (a)

(trial court did not abuse its discretion to deny motion to withdraw admissions when

affidavit directly contradicted responses to various interrogatories). See also Rebel

Auction Co., Inc. v. Citizens Bank, 343 Ga. App. 81, 85 (1) (805 SE2d 913) (2017)

(trial court did not abuse its discretion in denying defendant’s motion to withdraw

admissions when the only evidence upon which the defendant relied was a self-

serving affidavit of its chief operating officer which directly contradicted its

admissions in earlier pleadings and discovery); Fox Run Properties, LLC v. Murray,

288 Ga. App. 568, 571 (1) (654 SE2d 676) (2007) (trial court was authorized to

conclude that affidavit in support of motion to withdraw admissions lacked credibility

because it was contradicted and was inconsistent with the affiant’s prior responses to

                                          7
interrogatories and other statements); Crowther v. Estate of Crowther, 258 Ga. App.

498, 500-501 (1) (574 SE2d 607) (2002) (putative widow submitted an affidavit that

she had never been married, but the trial court did not abuse its discretion in

concluding that her assertions did not have a modicum of credibility in light of

contradictory evidence).

       Under these circumstances, we cannot conclude that the trial court abused its

discretion in concluding that JCG Farms did not present credible evidence to refute

the admissions. See Fox Run Properties, supra. Compare Johnson v. City Wide Cab,

205 Ga. App. 502, 502-503 (1) (422 SE2d 912) (1992) (grant of withdrawal proper

when admissions were contradicted by sworn, credible evidence tending to undermine

critical element of plaintiff’s claim). As a result, the trial court did not err in granting

Morgan’s motion for partial summary judgment as to JCG’s affirmative defense under

the Workers’ Compensation Act.

       2. As a result of our holding in Division 1, we need not address JCG Farms’

remaining enumeration of error.

       Judgment affirmed. Miller, P. J., and Brown, J., concur.




                                             8
