Elrod v. Sunflower Meadows Development, LLC
322 Ga. App. 666
| Ga. Ct. App. | 2013Background
- Elrod and Lake Dows Estates Property Owners Association sued Crown Communities, Inc. and Sunflower Meadows Development, LLC for negligence, trespass, and nuisance over sediment from development activities affecting their property.
- They served requests for admissions on Crown in March 2009; Crown did not respond until September 2009.
- The parties cross-moved for summary judgment; Elrod/Association offered the Smith affidavit; Crown moved to strike it.
- Crown moved to withdraw admissions and for attorney fees; the trial court granted withdrawal and struck the Smith affidavit as to Crown, and granted Crown summary judgment with attorney fees.
- The trial court found Crown’s admissions could be withdrawn under OCGA § 9-11-36(b) after Crown presented credible evidence refuting them, and that the prejudice prong was not met by Elrod/Association.
- On appeal, Elrod/Association challenge withdrawal, the Smith affidavit, the summary judgment, and the attorney fees award, but the appellate court affirmed all rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the withdrawal of admissions an abuse of discretion? | Elrod/Association contend abuse of discretion. | Crown argued admission withdrawal was proper under OCGA § 9-11-36(b). | No abuse; withdrawal affirmed. |
| Was the Smith affidavit properly struck as to Crown? | Affidavit supports liability against Crown. | Affidavit is irrelevant to Crown and lacks personal knowledge of Crown actions. | No error; affidavit struck as to Crown. |
| Did Crown prove no genuine issue of material fact after withdrawal of admissions warranting summary judgment? | Evidence remaining shows Crown liable to be decided against. | Crown presented evidence refuting admissions; no triable issues. | Yes; Crown entitled to summary judgment. |
| Was the attorney fees award proper and properly final? | Appeal of fees should proceed; not barred. | Discretionary appeal denied; res judicata binds review of merits. | Fees upheld; denial of discretionary appeal estops further review. |
Key Cases Cited
- Turner v. Mize, 280 Ga. App. 256 (2006) (abuse of discretion standard for withdrawal of admissions)
- Brown v. Morton, 274 Ga. App. 208 (2005) (discretion to permit withdrawal or amendment under OCGA 9-11-36(b))
- Sayers v. Artistic Kitchen Design, LLC, 280 Ga. App. 223 (2006) (timing of admission responses; admission rule)
- Intersouth Properties v. Contractor Exchange, 199 Ga. App. 726 (1991) (when withdrawal is credible and not for delay)
- ABA 241 Peachtree, LLC v. Brooken & McGlothen, LLC, 302 Ga. App. 208 (2010) (burden on movant to show admissions refutable by credible evidence)
- Brankovic v. Snyder, 259 Ga. App. 579 (2003) (prejudice from withdrawal requirement not merely trial exposure)
- Bernstein v. Flagstar Bank, 240 Ga. App. 535 (1999) (affidavits must be relevant and admissible; irrelevant matters excluded)
- PHF II Buckhead, LLC v. Dinku, 315 Ga. App. 76 (2012) (discretionary appeal denial has res judicata effect on merits)
- Northwest Social & Civic Club v. Franklin, 276 Ga. 859 (2003) (denial of discretionary appeal as adjudication on merits)