Brougham Casket & Vault Co. v. DeLoach
323 Ga. App. 701
| Ga. Ct. App. | 2013Background
- DeLoach sued Brougham Casket & Vault Co., LLC on an open commercial account for $50,834.72 based on unpaid loans.
- DeLoach served requests for admission covering the substantive allegations of his complaint.
- Brougham’s registered agent (a nonlawyer) signed and served Brougham’s responses to those requests for admission.
- After Brougham retained counsel, it filed a “Motion to Modify Response to Request for Admission” seeking to have counsel serve amended responses; it did not file a formal OCGA § 9-11-36(b) motion to withdraw/amend admissions.
- The trial court struck the defective responses (because a nonlawyer signed them), deemed the requests for admission admitted by operation of law, denied Brougham’s Motion to Modify, and entered judgment as a matter of law for DeLoach on the open account claim.
- Brougham appealed; the appellate court affirmed, holding the responses were defective, Brougham failed to file the correct motion to withdraw/amend, and the admissions warranted judgment as a matter of law.
Issues
| Issue | DeLoach (Plaintiff) Argument | Brougham (Defendant) Argument | Held |
|---|---|---|---|
| Were responses signed/served by a nonlawyer legally effective? | They were defective and properly stricken. | Argued defect but sought to cure later. | Stricken — corporate/LLC must be represented by an attorney in court of record. |
| Did the defective responses cause the requests to be deemed admitted? | Yes — under OCGA § 9-11-36(a)(2),(b) untimely/improper responses are deemed admitted. | Contended amended responses by counsel could cure the defect. | Yes — requests were deemed admitted because no proper, timely response was served. |
| Could Brougham cure admissions by filing Motion to Modify (letting counsel serve amended responses) rather than OCGA § 9-11-36(b) motion? | N/A (plaintiff opposed cure). | Motion to Modify was sufficient; alternatively relied on OCGA § 9-11-15(a) authority to amend. | No — a Motion to Modify was not a proper § 9-11-36(b) motion; responses to requests for admission are not pleadings governed by § 9-11-15(a). |
| Should the court have allowed withdrawal/amendment of admissions under § 9-11-36(b)? | Denial proper because defendant failed to file the required motion and show the two-prong test (merits subserved; no prejudice). | Argued withdrawal should be allowed to present the merits and that cure was permitted. | Denial affirmed — Brougham failed to meet burden to show merits would be subserved or satisfy § 9-11-36(b) standards. |
Key Cases Cited
- Eckles v. Atlanta Technology Group, 267 Ga. 801 (corporations may appear in courts of record only through licensed attorneys)
- Winzer v. EHCA Dunwoody, 277 Ga. App. 710 (LLCs, like corporations, must be represented by attorneys in courts of record)
- Howell v. Styles, 221 Ga. App. 781 (requests for admission served by nonlawyer for a corporation are defective)
- Fox Run Properties v. Murray, 288 Ga. App. 568 (requests deemed admitted if not timely/properly answered; admissions conclusive unless withdrawn on formal motion)
- Turner v. Mize, 280 Ga. App. 256 (explaining the two-prong § 9-11-36(b) test for withdrawing admissions)
- Peachtree Plastics v. Verhine, 242 Ga. App. 21 (distinguishing amendment of pleadings under § 9-11-15 from admissions; not controlling here)
- Schafer v. Wachovia Bank of Ga., 248 Ga. App. 466 (distinguishing amendment of pleadings from withdrawal/amendment of admissions under § 9-11-36)
- Powerhouse Custom Homes v. 84 Lumber Co., 307 Ga. App. 605 (admissions that remove genuine issues justify judgment as a matter of law)