Haas and Dodd, Inc., an insurance agency, brought this suit on account against Concert Promotions, Inc. Defendant timely answered with a general denial of every allegation in the complaint and asserted certain affirmative defenses as well as a counterclaim. Defendant, however, failed to respond to plaintiffs request for admissions, interrogatories or its motion for summary judgment. Defendant, though, did challenge plaintiffs submission of two supplemental affidavits four days before the scheduled summary judgment hearing. The trial court implicitly overruled defendant’s objection and, after a hearing granted plaintiffs motion for summary judgment, while reserving ruling on defendant’s counterclaim. Defendant now appeals, asserting three enumerations of error. Held:
1. Defendant’s first enumeration of error is that the plaintiff failed to prove that it was entitled to a judgment as a matter of law and there was no genuine issue as to any material fact.
Defendant has presented four arguments under this enumeration of error. The first challenges the sufficiency of service of process. See OCGA § 9-11-12 (b) (5) (formerly Code Ann. § 81A-112 (b) (5) (Ga. L. 1966, pp. 609, 622; 1967, pp. 226, 231; 1968, pp. 1104, 1106; 1972, pp. 689, 692, 693)). Plaintiff averred in paragraph one of the complaint that defendant could be served through its registered agent, identified by name and address. Defendant denied this paragraph in its answer, but did not pursue the issue until this appeal. See in this regard OCGA § 9-11-12 (d) (formerly Code Ann. § 81A-112 (d) (Ga. L. 1966, pp. 609, 622; 1967, pp. 226, 231; 1968, pp. 1104, 1106; 1972, pp. 689, 692, 693));
Brumit v. Mull,
Defendant next contends that the trial court erred in considering plaintiffs request for admissions. Defendant did not respond to the request, but rather treated it “as a nullity because of its being convoluted and unintelligible” and defendant now argues that the court should have treated it the same. This argument is wholly without merit. The Civil Practice Act contains no provision whereby a party may treat a discovery request by the opposing party as a nullity. Under OCGA § 9-11-36 (a) (2) (formerly Code Ann. § 81A-136 (a) (Ga. L. 1966, pp. 609, 648; 1967, pp. 226, 234, 235; 1972, pp. 510, 528)), a party must either respond to or object to a request for admission within 30 days or it is deemed admitted. Moreover, the section further provides that “[i]f objection is made, the reasons therefore shall be stated.” Defendant, having neglected to respond or object to plaintiffs request for admissions, and further having failed to request relief from its neglect, is deemed to have admitted each request, and the trial court had no alternative under these circumstances but to treat the matter contained therein as “conclusively established.” OCGA § 9-11-36 (b) (Code Ann. § 81A-136). See also OCGA § 9-11-36 (a) (3) (Code Ann. § 81A-136).
Defendant also contends its affirmative defense of failure of consideration remains at issue. Defendant ignored plaintiffs discovery request seeking the factual basis of this defense asserted in the answer and then failed to make any rebuttal to plaintiffs showing that defendant was provided certain insurance coverage in exchange for premium payments (the failure of which to pay constitutes the basis of this action). With plaintiffs prima facie showing that the contract of insurance was valid, defendant bore the burden of producing evidence rebutting this showing. OCGA § 9-11-56 (e) (formerly Code Ann. § 81A-156 (e) (Ga. L. 1966, pp. 609, 660; 1967, pp. 226, 238; 1975, pp. 757, 759)). Because defendant failed to satisfy its burden (or even attempt to satisfy its burden), it rightly suffered summary judgment. OCGA § 9-11-56 (e) (Code Ann. § 81A-156 (e)), supra;
Holland v. Tri-City Hospital Auth.,
Defendant’s last argument is that the trial court erred in granting summary judgment while reserving, its ruling on the counterclaim in which defendant alleged a breach of contract by plaintiff. Defendant cites in support of its argument
Shaw v. Cousins
*885
Mortgage &c. Investments,
The trial court in the case sub judice did not err in granting plaintiffs motion for summary judgment while reserving ruling on defendant’s counterclaim. Inasmuch as defendant did nothing other than allege generally in its answer that plaintiff breached the contract, there is obviously no showing that plaintiffs recovery could be reasonably expected to be substantially or completely nullified by defendant’s counterclaim if merited. While it may be supposed that a finding that plaintiff breached the contract would significantly reduce, if not obliterate, any recovery by plaintiff for defendant’s breach, such supposition cannot be a substitute for an actual showing. Moreover, the burden is upon defendant now, as appellant, to show that the trial court erred in this regard (see generally
Hancock v. Oates,
2. In its second enumeration of error, defendant contends that the trial court erred in considering plaintiffs two supplemental affidavits and, in its third enumeration of error, defendant contends that the trial court erred in granting plaintiffs motion to supplement the record with the two affidavits. What defendant is contending in both of these enumerations is that the trial court erred in implicitly overruling its objection to the allowance of the affidavits and request for time to respond to them.
The case of
Jones v. Howard,
Under the particular facts and circumstances of the case sub judice, we find no abuse of discretion by the trial court in allowing the two affidavits even though they were served upon defendant only four days before the hearing. The first affidavit contains nothing that was not already admitted by defendant by its failure to respond to plaintiffs request for admissions and the second affidavit merely documents the time spent on the case by plaintiffs attorney in support of the prayer for attorney fees in addition to damages. In light of the nature of these affidavits, we will not disturb the decision of the trial court absent a showing of harm by defendant, which defendant has not provided. See generally
Brown v. City of Atlanta,
3. We affirm the trial court in the case sub judice, as was the holding in
Mock v. Canterbury Realty Co.,
Judgment affirmed with direction.