Court: Court of Appeals of Georgia; July 12, 2012; Georgia; State Appellate Court
Appellants A. L. Brooks Company and Aaron Brooks appeal the trial court's summary judgment in favor of Multibank 2009-1 RES-ADC Venture, LLC, claiming errors in the denial of Brooks' motion to withdraw admissions and the conversion of Multibank's motion for judgment on the pleadings to a summary judgment without a 30-day response period. The case originated with FirstCity Bank's complaint against Brooks for a loan default, seeking $3,509,043.74 plus interest and fees, supported by a note and guaranty. Brooks, representing himself, filed a response disputing the debt amount and mentioned ongoing negotiations for collateral sale.
In June 2009, FirstCity Bank received a discovery extension until March 2010, while under FDIC receivership. The trial court later allowed Brooks' corporation 31 days to secure legal representation, warning of default judgment if no attorney answered. An attorney subsequently filed an answer for the corporation, questioning the court's jurisdiction and the loan's consideration. Multibank was then substituted as the plaintiff and granted a six-month discovery extension.
In July 2010, Multibank served Brooks with discovery, including requests for admissions, and filed a motion to strike the corporation's answer and for judgment on the pleadings against Brooks due to his lack of denial of the complaint's allegations. Although the court denied the motion to strike, it required Brooks to respond to the motion for judgment within 30 days, warning of a ruling based on the pleadings if he failed to comply. Brooks did not respond in time, later seeking an extension due to "excusable neglect." The court scheduled a hearing for the extension request before addressing the judgment motion, during which Brooks also failed to respond to multiple discovery requests.
Brooks was absent during a September 7, 2010 hearing, where his new counsel requested an extension to respond to Multibank's motion for judgment on the pleadings, citing "excusable neglect" due to lack of representation and unfamiliarity with filing procedures. The trial court denied this request, finding no excusable neglect, and proceeded to hear Multibank’s motion. The court converted this motion to one for summary judgment, indicating it needed additional information to ascertain liquidated damages, referencing unanswered Requests for Admissions by Brooks.
On September 8, 2010, Brooks filed motions to withdraw his admissions and extend the response time. The trial court scheduled a hearing for October 19, 2010, but on October 14, 2010, it granted summary judgment to Multibank against Brooks, effective retroactively to September 7, 2010. The court noted that Brooks had not filed his withdrawal motion until after the ruling and failed to provide evidence justifying his lack of response to the discovery requests. Multibank was awarded $3,509,043.74 plus $567,359.05 in attorney fees.
Brooks appealed, arguing the trial court erred in denying his motion to withdraw the admissions, asserting that addressing the merits would clarify the debt issues and that Multibank would not suffer prejudice. However, under OCGA 9-11-36, requests for admission automatically become admitted if not responded to within 30 days. The court maintained discretion to allow withdrawal of these admissions if it would further the case's merits and if no prejudice to the opposing party was shown. Brooks’ motion was deemed untimely, and the court clarified that the burden was on him to prove either the admissions were inherently incredible or could be refuted with credible evidence. His failure to present such evidence justified the court's denial of his motion to withdraw.
If a movant fails to meet the first prong of the test for withdrawing admissions, the trial court can deny the motion without addressing the second prong (Turner v. Mize). In this case, Brooks did not attempt to satisfy the first prong, so the trial court did not abuse its discretion in denying his request. Brooks also argued that the court erred in converting a motion for judgment on the pleadings to one for summary judgment without allowing him additional time to respond. According to OCGA 9-11-56, conversion occurs when matters outside the pleadings are considered, and the court must inform the opposing party of this, allowing at least 30 days to submit evidence. However, this notice can be waived, and any error is not reversible without a showing of harm (Sentry Ins. Co. v. Echols).
During the hearing, it was acknowledged that the court could not determine the damages solely from the complaint, leading the court to consider Brooks’ default admissions. Brooks argued that a general denial of indebtedness sufficed to create a triable issue and raised concerns regarding venue and discovery, but he did not demonstrate that he would have provided additional evidence if given more time. Under the Civil Practice Act, venue defenses must be raised at the earliest opportunity, and Brooks did not do so prior to the hearing. His subsequent affidavit lacked documentation to substantiate his claims regarding the loan amounts and failed to contradict his guaranty.
Since Brooks did not show that additional evidence would have changed the outcome, the trial court's decision to convert the motion did not warrant a reversal, leading to the affirmation of the judgment. The Civil Practice Act allows for extensions due to excusable neglect, but that was not applicable here.
