                              SECOND DIVISION
                               ANDREWS, P. J.,
                           MILLER and BRANCH, 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


                                                                 September 24, 2015




In the Court of Appeals of Georgia
 A15A1096. MONOLITH COMPANIES, LLC v. HUNTER
     DOUGLAS HOSPITALITY, INC.

      ANDREWS, Presiding Judge.

      In this action on a commercial account, the plaintiff, Hunter Douglas

Hospitality, Inc. (“Hunter Douglas”), filed a motion for summary judgment after the

defendant, Monolith Companies, LLC (“Monolith”), failed to respond to requests for

admission. The trial court granted Hunter Douglas’ motion, and Monolith now

appeals, arguing that the requests for admission were not timely under Uniform

Superior Court Rule 5.1 and that the order granting summary judgment in Hunter

Douglas’ favor contravened that rule. For the reasons set forth below, we affirm.

      “On appeal from the grant of summary judgment, we conduct a de novo review

of the record and construe all evidence in the light most favorable to the nonmovant.”
Jackson v. Nemdegelt, Inc., 302 Ga. App. 767, 768 (691 SE2d 653) (2010). So

viewed, the record shows that Hunter Douglas filed its complaint against Monolith

on May 6, 2013 alleging that Monolith was indebted to it in the sum of $23,860.13

in principal, plus interest, on a commercial account. Following service of the

summons and complaint, Monolith filed its answer on or about July 13, 2013. More

than six months later, on January 21, 2014, Hunter Douglas served requests for

admission, interrogatories, and requests for production on Monolith.

      On March 28, 2014, Hunter Douglas filed its motion for summary judgment

arguing that it was entitled to a judgment as a matter of law because Monolith failed

to respond to Hunter Douglas’ requests for admission, one of which requested that

Monolith admit that it was “indebted to [Hunter Douglas] for the sum set forth in

[Hunter Douglas’] Complaint.” In its response to Hunter Douglas’ motion, Monolith

asserted that Hunter Douglas served the requests for admission after the discovery

period ended, it was not required to answer them, and the trial court could not require

it to do so consistent with Uniform Superior Court Rule 5.1. Monolith also stated that

in an abundance of caution it was filing a motion to withdraw admissions. The record

on appeal, however, does not include any such motion, and Monolith does not assert

on appeal that it filed a motion to withdraw. The trial court subsequently entered an

                                          2
order granting Hunter Douglas’ motion and entering a judgment against Monolith for

$23,860.13 in principal, accrued interest of $6,706.99, and court costs and post

judgment interest.

      Monolith argues on appeal that the trial court’s order granting Hunter Douglas’

motion was tantamount to requiring or compelling it to answer the requests for

admission in violation of Uniform Superior Court Rule 5.1. We disagree.

      Uniform Superior Court Rule 5.1 states in relevant part:

      In order for a party to utilize the court’s compulsory process to compel
      discovery, any desired discovery procedures must first be commenced
      promptly, pursued diligently and completed without unnecessary delay
      and within 6 months after the filing of the answer. . . . At any time, the
      court, in its discretion, may open, extend, reopen or shorten the time to
      utilize the court’s compulsory process to compel discovery.


It is undisputed that Hunter Douglas served its requests for admission and other

discovery requests shortly after the expiration of the six-month period following the

filing of the answer. As such, Hunter Douglas was foreclosed from utilizing the trial

court’s compulsory process to compel Monolith to respond to the discovery requests.

Contrary to Monolith’s argument, Hunter Douglas’ motion for summary judgment did




                                          3
not seek to compel answers to the requests for admission, nor did the order on appeal

purport to require any answers to the requests.

      Requests for admission are governed by OCGA § 9-11-36, which provides:

      A party may serve upon any other party a written request for the
      admission, for purposes of the pending action only, of the truth of any
      matters within the scope of subsection (b) of Code Section 9-11-26
      which are set forth in the request and that relate to statements or
      opinions of fact or of the application of law to fact, including the
      genuineness of any documents described in the request.


OCGA § 9-11-36 (a) (1). Under OCGA § 9-11-36 (a) (3), a party who has requested

admissions may file a motion to determine the sufficiency of the answers or

objections. That subsection further provides that “[u]nless the court determines that

an objection is justified, it shall order that an answer be served. If the court

determines that an answer does not comply with the requirements of this subsection,

it may order either that the matter is admitted or that an amended answer be served.”

Id. To the extent that a motion under OCGA § 9-11-36 (a) (3) constitutes utilizing a

court’s compulsory process within the meaning of Uniform Superior Court Rule 5.1,

Hunter Douglas never invoked OCGA § 9-11-36 (a) (3) here, and, indeed, it could not




                                         4
do so given that Monolith never served responses or objections to the requests for

admission.

      Pertinent here is OCGA § 9-11-36 (a) (2), which addresses the obligations of

a party served with requests for admission and provides in relevant part that “[t]he

matter is admitted unless, within 30 days after service of the request or within such

shorter or longer time as the court may allow, the party to whom the request is

directed serves upon the party requesting the admission a written answer or objection

addressed to the matter, signed by the party or by his attorney.”1 The admission that

arises from a failure to respond to a request for admission in the required time frame

arises by operation of law, without the necessity of court action. Brougham Casket

& Vault Co. v. DeLoach, 323 Ga. App. 701, 703 (747 SE2d 707) (2013) (“Unless a

response to requests for admission is timely and properly served upon the party

requesting the admission, the requests are deemed admitted as a matter of law.”).

      In its order granting Hunter Douglas’ motion for summary judgment, the trial

court simply gave effect to the admission that resulted from Monolith’s failure to

object or respond to the requests for admission. Acknowledging Monolith’s

      1
       A defendant, however, normally is not required to file a response to requests
for admission before the expiration of 45 days after service of the summons and
complaint. See OCGA § 9-11-36 (a) (2).

                                          5
admission was not tantamount to compelling compliance with discovery contrary to

Uniform Superior Court Rule 5.1, and the trial court was bound to recognize the

admission under the express terms of OCGA § 9-11-36. 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 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.” Id.2 Monolith never

filed a motion to withdraw, and, as such, the trial court was without authority to



      2
          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 purposes of delay.


(Citation and punctuation omitted.) Turner v. Mize, 280 Ga. App. 256, 257 (1) (633
SE2d 641) (2006).

                                               6
disregard Monolith’s admissions. See Vis v. Harris, 329 Ga. App. 129, 135 (1) (b)

(764 SE2d 156) (2014) (“[T]he failure to make a motion to have admissions

withdrawn or amended forecloses remedial action under OCGA § 9-11-36 (b), and

therefore the requests for admissions which were not answered or objected to are

deemed admitted.”) (citation and punctuation omitted).

      When Monolith received Hunter Douglas’ requests for admission, it could have

availed itself of various options to assert its position that they were untimely. It might

have served objections referencing the expiration of the discovery period or moved

for a protective order, for example. Later, Monolith could have moved to withdraw

its admissions, but it did not do so. As Monolith “did not avail itself of any of the

variety of responses available under OCGA § 9-11-36 and chose not to seek the

liberal remedies afforded to parties under the statute to avoid the consequences of a

failure to respond, . . . the subject matter of [Hunter Douglas’] requests for admission

stood admitted.” G. H. Bass & Co. v. Fulton County Bd. of Tax Assessors, 268 Ga.

327, 331 (2) (486 SE2d 810) (1997). Monolith thus admitted that it was indebted to

Hunter Douglas in the amount alleged in the complaint, removing any genuine issue

of material fact from the case. As such, the trial court properly granted Hunter

Douglas’ motion for summary judgment. See Brougham Casket & Vault Co. supra,

                                            7
323 Ga. App. at 705 (trial court properly determined plaintiff in action on open

commercial account was entitled to judgment as a matter of law where defendant’s

answers to requests for admission were properly stricken and defendant failed to file

a proper motion to amend or modify admissions that arose by operation of law);

Stephens v. Alan V. Mock Constr. Co., 302 Ga. App. 280, 287-288 (2) (690 SE2d

225) (2010) (in homeowners’ action against remediation company, trial court

properly granted summary judgment for defendant on homeowners’ claims based on

homeowners’ failure to respond to requests for admission); Jackson v. Nemdegelt,

supra, 302 Ga. App. at 769-771 (trial court properly granted summary judgment for

plaintiff in action to recover debt owed on retail installment contract based on

admissions arising from plaintiff’s failure to respond to requests for admission).

      Judgment affirmed. Miller and Branch, JJ., concur.




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