                              FOURTH DIVISION
                                DOYLE, P. J.,
                           MILLER and DILLARD, 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/


                                                                 November 13, 2014




In the Court of Appeals of Georgia
 A14A1231. HEATH v. COLOR IMPRINTS USA, INC. et al.

      MILLER, Judge.

      Richard P. Heath sued Color Imprints USA, Inc., and Michael and John Saylor

(collectively “the Defendants”) seeking to recover over $25,000 in past due payments

for accounting and bookkeeping services that Heath allegedly rendered to Color

Imprints d/b/a 1 Stop Creative Promotional Solutions (“Color Imprints”). The parties

filed cross-motions for summary judgment, and the trial court granted the Defendants’

motion as to Heath’s claim. Heath appeals, contending that the trial court erred in

granting summary judgment to the Defendants. For the reasons that follow, we affirm

the grant of summary judgment to Michael and John Saylor and reverse the grant of

summary judgment to Color Imprints.
      “On appeal from the grant of summary judgment this 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.” (Citations and punctuation

omitted.) Campbell v. The Landings Assn., Inc., 289 Ga. 617, 618 (713 SE2d 860)

(2011).

      So viewed, the limited record before us shows that the Saylors are shareholders

and officers of Color Imprints. In January 2008, Heath began performing services for

Color Imprints. Heath claimed that he issued invoices to Color Imprints for

professional services from February 2008 through December 2009 and Color Imprints

paid him $4,200 during this period. The Saylors never entered into a written

agreement obligating them to be responsible for any debt of Color Imprints to Heath.

      In July 2012, Heath filed a suit on account, initially claiming that the

Defendants owed him $41,833.77 for professional services rendered. Heath

subsequently amended his complaint, reducing the amount of his suit on account to

$25,412.87. The Defendants answered and raised defenses, including fraud, no privity

of contract, the Statute of Frauds, and payment of $5,400 in full satisfaction of

Heath’s claims. The Defendants also counter-claimed for abusive litigation, punitive

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damages and attorney fees.1 Without explicitly addressing Heath’s motion for

summary judgment, the trial court granted summary judgment to the Defendants as

to Heath’s claim for a suit on account.

      1. Heath contends that the trial court erred in granting summary judgment to

the Defendants based solely on his failure to file a responsive pleading to the

Defendants’ motion.2 We discern no error.

      A review of the trial court’s order makes clear that the trial court did not

automatically grant summary judgment to the Defendants based on Heath’s failure to

file a response to the Defendants’ motion for summary judgment. Rather, the trial

court reviewed the pleadings and record and determined that there was no genuine

issue of material fact. The trial court correctly noted that Heath, by failing to respond

to the Defendants’ motion for summary judgment, waived his right to present




      1
       The Defendants’ counter-claims were not addressed in either parties’ motion
for summary judgment and these claims are not at issue on appeal.
      2
         As an initial matter, we note that Heath’s brief sets out numerous arguments
relating to the trial court’s grant of summary judgment despite a single enumerated
error, in violation of our Rules of Court. Court of Appeals rule 25 (a), (c). In spite of
Heath’s violation, we will exercise our discretion to consider what we believe are his
main arguments, to the extent that we are able to discern them. See Stagl v. Assurance
Co. of America, 245 Ga. App. 8, 9 (1) (539 SE2d 173) (2000).

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evidence in opposition. Landsberg v. Powell, 278 Ga. App. 13, 15 (627 SE2d 922)

(2006).

      2. Heath contends that the trial court erred in granting summary judgment to

the Defendants because they admitted their liability as a matter of law by failing to

timely respond to his request for admissions.

      Under OCGA § 9-11-36 (a) (2), requests for admissions are deemed admitted

if a party fails to respond within 30 days. See G. H. Bass & Co. v. Fulton County Bd.

of Tax Assessors, 268 Ga. 327, 330-331 (2) (486 SE2d 810) (1997). However, the

trial court has discretion to permit a party to withdraw admissions if the court is

satisfied “(1) that withdrawal of the admissions will subserve or advance the

presentation of the merits of the action and (2) that there is no satisfactory showing

that withdrawal will prejudice the party who obtained the admissions.” (Citation

omitted.) Porter v. Urban Residential Dev. Corp., 294 Ga. App. 828, 829 (1) (670

SE2d 464) (2008).

      “The party seeking to withdraw the admissions has the burden of establishing

the first prong by showing that 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 purposes of delay.” (Citation and punctuation

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omitted.) Porter, supra, 294 Ga. App. at 829 (1); see also Intersouth Properties, Inc.

v. Contractor Exchange, Inc., 199 Ga. App. 726, 728 (1) (405 SE2d 764) (1991). If

the party seeking to withdraw the admissions satisfies the first prong, the burden is

on the respondent to satisfy the second prong, i. e., to show that he would be

prejudiced by the withdrawal. Intersouth Properties, Inc., supra, 199 Ga. App. at 728

(1).

       Here, Heath served the Defendants with a request for admissions in December

2012, seeking admissions that Heath performed accounting and consulting work for

Color Imprints from 2005 to 2009 at the Defendants’ request, and the Defendants

accepted his invoices for that work, approved the work, made periodic payments

throughout August 2009, and failed to respond to Heath’s attempts to contact them

after December 2009. Since the Defendants did not file a timely response to Heath’s

requests, they were deemed admitted by operation of law. OCGA § 9-11-36 (a) (2).

       (a) The Saylors.

       Heath argues that the Saylors failed to refute his request for admissions by

admissible credible evidence. We disagree.

       After Heath filed his motion for summary judgment, the Defendants filed a

motion to withdraw their admissions on the basis that settlement negotiations had

                                          5
been ongoing and the parties had agreed to extend the discovery period until

negotiations were complete. Michael and John Saylor also served Heath with their

responses to his request for admissions in April 2013. Color Imprints, however, filed

no separate response. Nonetheless, the trial court found that all of the Defendants had,

in their responses, refuted the admissions that Heath sought to have admitted and

continued the matter to allow Heath to file a brief on the issue of prejudice.

      The Saylors responded to and denied Heath’s requested admissions.

Specifically, the Saylors denied that they individually or jointly employed Heath to

perform accounting, tax, and consulting services for Color Imprints from July 2007

through December 2009. Heath filed no brief on the issue of prejudice and has made

no showing that he would be prejudiced by the withdrawal of the admissions.

Intersouth Properties, Inc., supra, 199 Ga. App. at 728 (1) (respondent has burden of

showing prejudice); Brankovic v. Snyder, 259 Ga. App. 579, 582-583 (578 SE2d 203)

(2003) (no error in allowing defendants to withdraw admissions where they presented

responses to the request for admissions and where defendants had already denied

liability in answer). Accordingly, the trial court did not abuse its discretion in

allowing the Saylors to withdraw their admissions. See Brankovic, supra, 259 Ga.

App. at 582-583.

                                           6
      (b) Color Imprints.

      Heath also argues that Color Imprints failed to file a timely response to Heath’s

request for admissions, thereby admitting its liability by operation of law. We agree.

      As set forth above, Color Imprints, as the party seeking to withdraw its

admissions, had the burden of showing that the admissions could be refuted or were

incredible and the denial was not offered solely to delay. Porter, supra, 294 Ga. App.

at 829 (1). Color Imprints never responded to Heath’s request and therefore did not

meet this burden. See Intersouth Properties, supra, 199 Ga. App. at 728 (1) (party

who did not specifically address items in request for admissions not entitled to

withdraw admissions). In light of Color Imprints’s failure to respond to Heath’s

requests, the trial court abused its discretion in allowing Color Imprints to withdraw

its admissions.

      3. Finally, Heath argues that the trial court erred in granting summary judgment

to the Defendants on his suit on account.

      “A suit on open account is available as a simplified procedure to the provider

of goods and services where the price of such goods or services has been agreed upon

and where it appears that the plaintiff has fully performed its part of the agreement

and nothing remains to be done except for the other party to make payment.”

                                            7
(Citations and punctuation omitted.) Five Star Steel Const., Inc. v. Klockner Namasco

Corp., 240 Ga. App. 736, 738-739 (1) (c) (524 SE2d 736) (1999). “A verified answer

to a claim for open account that sets out the defenses of payment, set-off, and accord

and satisfaction creates a factual issue.” Id. at 738 (1) (b).

      (a) The Saylors.

      A review of Heath’s complaint and the attached invoices shows that he seeks

payment for services allegedly rendered to Color Imprints. The Saylors are

shareholders and officers of Color Imprints.

      Under Georgia’s Statute of Frauds, promises to answer for the debt of another

must be in writing. OCGA § 13-5-30. Heath admitted that neither Saylor executed a

written agreement accepting responsibility for Color Imprint’s debt to Heath.

Accordingly, the Saylors were entitled to judgment as a matter of law and the trial

court did not err in granting their motion for summary judgment.

      (b) Color Imprints.

      As to Color Imprints, however, there exists an issue of fact that precludes the

grant of summary judgment. Specifically, it is clear from the record that Heath

provided some services to Color Imprints. Nevertheless, there is a question of fact as



                                            8
to how much of the account, if any, remains to be paid because the admissions do not

include a final amount due and owing.

      Notably, Heath claims that he is owed $25,412.87. His own invoicing shows

that Color Imprints made payments of $4,200. Color Imprints, in its answer, claimed

that the Defendants paid Heath $5,400 in full satisfaction of his claims. Color

Imprints’ answer setting out the defense of payment creates a factual issue as to the

amount owed. Five Star Steel, supra, 240 Ga. App. at 738 (1) (b). Accordingly, the

trial court erred in granting summary judgment to Color Imprints.

      In sum, the trial court erred in allowing Color Imprints to withdraw its

admissions without responding to the same, and we reverse the grant of summary

judgment to Color Imprints because there is a genuine issue of material fact

remaining. We affirm the trial court’s grant of summary judgment to the Saylors.

      Judgment affirmed in part and reversed in part. Doyle, P. J., and Dillard, J.,

concur.




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