Crumpton v. Samples

365 Ga.App. 143

877 S.E.2d 683

CRUMPTON et al.

v.SAMPLES.

A22A0632

Court of Appeals of Georgia.

August 23, 2022

Rountree Leitman & Klein, David Scott Klein, Augusta, for Appellant.

Oliver Hughes, Ashley Linn Hughes, Atlanta, for Appellee.

Phipps, Senior Appellate Judge.

This is a dispute about the return of earnest money deposited pursuant to a business purchase agreement. Deidre Samples sued Commercial Experts, Inc., and its president and CEO Thomas Crumpton (collectively "Crumpton"), to recover her earnest money deposit. The trial court granted summary judgment to Samples based upon admissions made by Crumpton when he failed to respond to discovery requests. Crumpton appeals the trial court's orders denying his motion to withdraw admissions, granting Samples's motion for summary judgment, and awarding damages and attorney fees to Samples. We affirm because (a) Crumpton has not shown that the trial court abused its discretion when it denied his admissions and (b) his challenge to the court's summary judgment ruling rests solely on his challenge to the denial of his request to withdraw admissions.

Viewed in the light most favorable to Crumpton, Maloof v. MARTA , 330 Ga. App. 763, 764, 769 S.E.2d 174 (2015), the record shows that Commercial Experts, as the listing broker, and Thomas Crumpton, as its agent, represented a tree and land clearing business that Samples sought to buy. On July 27, 2019, Samples and the business owner — who is not a party to the suit — signed a Letter of Intent ("LOI") that required Samples to deposit $10,000 of earnest money into Commercial Experts's escrow account. The LOI provided that the earnest money was "fully refundable" to Samples "for any reason" if the parties did not execute a definitive purchase agreement within 20 days from the date of the letter. An associate of Samples, Joshua Copeland,¹ wired the funds to Crumpton; however, when Samples sought financing as directed by the LOI, she was denied a loan, and the parties did not execute a definitive purchase agreement within the specified time frame.

On October 9, 2019, Copeland e-mailed Crumpton on Samples's behalf and requested the return of the earnest money. In an e-mail responding to Copeland's request, Crumpton (a) claimed that he was not obligated to refund the earnest money because the transaction fell through due to Samples's failure to secure financing after she misrepresented the experience and involvement of Copeland. and (b) thereby implicitly refused to return the funds.² After receiving Crumpton's e-mail response, Samples filed suit, and raised various legal and equitable claims.³ In his answer, Crumpton admitted that Commercial Experts had received and retained Samples's earnest money.

On September 29, 2020, Samples served Crumpton with a number of discovery requests, including requests for admissions. On October 29, 2020, Samples agreed to a 15-day extension to allow Crumpton to respond to discovery. During the extension period, the trial court permitted Crumpton's counsel to withdraw and provided Crumpton 30 days to retain new counsel. Crumpton neither responded nor objected to the discovery requests within the extended deadline.

In February 2021, Samples moved for summary judgment, arguing that Crumpton's failure to respond to her discovery requests, particularly her requests for admissions, entitled her to judgment as a matter of law. Immediately thereafter, Crumpton retained counsel to oppose the motion. Crumpton's response, filed on March 16, 2021, asserted that, while he did not recall receiving Samples's requests for admissions, he intended to move to withdraw his admissions. Crumpton contemporaneously requested to be heard on Samples's summary judgment motion, and the trial court set the matter for a hearing on May 5, 2021.

Two days before the hearing, Crumpton moved to withdraw the admissions. In support of his motion, Thomas Crumpton submitted an affidavit in which he admitted the following: (a) Samples had deposited $10,000 into Commercial Experts's escrow account pursuant to the LOI; (b) Samples had requested return of her earnest money after she had been denied a loan; (c) Crumpton had been served with Samples's complaint and discovery requests; and (d) Crumpton had unintentionally failed to respond to the written requests. Crumpton also attested that he "spent significant funds and time related to facilitating the transaction," which had failed due to Samples's actions.

Following oral argument and additional briefing by the parties, the trial court entered orders denying Crumpton's motion to withdraw his admissions, granting summary judgment to Samples, and finding Commercial Experts and Thomas Crumpton jointly and severally liable in the amount of $10,000 in damages, $3,215.34 in prejudgment interest, and $9,031.55 in attorney fees.⁴ Crumpton appeals these orders.

1. Crumpton first contends that the trial court erred in denying his motion to withdraw admissions pursuant to OCGA § 9-11-36 (b). We disagree.

OCGA § 9-11-36 provides that a party may serve upon another party a written request for the admission of the truth of any matter that is not privileged and is relevant to the pending action. See OCGA § 9-11-36 (a) (1) ; see also OCGA § 9-11-26 (b) (1). "The 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," requests postponement of its obligation to respond to the requests, or seeks a protective order. OCGA § 9-11-36 (a) (2) ; accord G. H. Bass & Co. v. Fulton County Bd. of Tax Assessors , 268 Ga. 327, 330 (2), 486 S.E.2d 810 (1997). And, pursuant to OCGA § 9-11-36 (b), any matter admitted "is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission."

This is true even if the requested admissions require opinions or conclusions of law, so long as the legal conclusions relate to the facts of the case. The language in OCGA § 9-11-36 (a) is clear, unambiguous, and unequivocal and means just what it says. One must comply strictly and literally with the terms of the statute upon the peril of having his response construed to be an admission. Thus, matters 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 S.E.2d 891 (2017) (citation and punctuation omitted).

It is undisputed that Crumpton failed to timely respond to Samples's requests for admissions. "[U]nquestionably, the penalty for failing to answer or object to a request for admissions is admission of the subject matter of the request." Ikomoni v. Exec. Asset Mgmt. , 309 Ga. App. 81, 83 (1), 709 S.E.2d 282 (2011) (citation and punctuation omitted). Consequently, the matters deemed admitted in this case were conclusively established. Nonetheless, pursuant to the two-prong test established by OCGA § 9-11-36 (b), a trial court may allow the withdrawal of admissions "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." Accord Turner v. Mize , 280 Ga. App. 256, 257 (1), 633 S.E.2d 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, pursuant to the standard provided in OCGA § 9-11-36 (b)." Fulton County , 343 Ga. App. at 897 (2) (a), 808 S.E.2d 891 (citation and punctuation omitted). Thus, if the movant fails to satisfy the first prong of the test, a trial court is authorized to deny the motion to withdraw admissions, Turner , 280 Ga. App. at 257 (1), 633 S.E.2d 641, and need not consider the second prong, Fox Run Properties v. Murray , 288 Ga. App. 568, 570 (1), 654 S.E.2d 676 (2007).

"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." Burton v. ECI Mgmt. Corp. , 346 Ga. App. 668, 671 (2), 816 S.E.2d 778 (2018) (citation and punctuation omitted). We therefore review a trial court's ruling on a motion to withdraw admissions for abuse of that discretion. Id. Crumpton asserts that the trial court abused its broad discretion by finding that he did not satisfy the first prong of OCGA § 9-11-36 (b). We disagree.

As relevant here, to prevail, Crumpton needed to establish "that the admitted requests either were refutable by admissible evidence having a modicum of credibility or were incredible on their face." Njoku v. Adeyemi , 355 Ga. App. 1, 3 (1) (a), 842 S.E.2d 317 (2020) (citation and punctuation omitted). Standing alone, the desire to have a trial is insufficient to make the required showing to satisfy the first prong of the test set forth in OCGA § 9-11-36 (b). Turner , 280 Ga. App. at 257 (1), 633 S.E.2d 641.

(a) We turn first to Crumpton's claim that he presented evidence with a "modicum of credibility" that the admissions sought to be withdrawn could be refuted. Samples served 36 requests for admissions on Thomas Crumpton and 34 requests for admissions on Commercial Experts. On appeal, Crumpton argues that his affidavit "present[s] admissible evidence to show that a trial on the merits is warranted." He offers the following in support thereof: (i) the experience of Thomas Crumpton as a licensed broker and agent and the length of time he has owned and operated Commercial Experts; (ii) the amount of "time, effort, and money" Crumpton expended on the transaction at issue here; (iii) the fact that, according to Crumpton, Samples...