Plaintiffs Mike Elrod, Connie Elrod (collectively, Elrod), and Lake Dows Estates Property Owners Association appeal the trial court’s order granting summary judgment to defendant Crown Communities, Inc. Elrod and the Association also appeal from the trial court’s orders allowing Crown to withdraw admissions, striking an affidavit submitted by Elrod and the Association in support of their cross-motion for summary judgment, and awarding Crown attorney fees. For the reasons set forth below, we find no error and affirm.
The record shows that Elrod and the Association sued Crown and Sunflower Meadows Development, LLC, for negligence, trespass, and nuisance. In their complaint, Elrod and the Association contended that Crown’s and Sunflower’s development and land clearing activities had caused high levels of sediment to flow onto Elrod’s and the Association’s property. Elrod and the Association later
Crown and Elrod and the Association filed cross-motions for summary judgment. Elrod and the Association filed the affidavit of D. Wayne Smith in support of their motion for summary judgment, and Crown moved to strike the affidavit. Crown also moved to withdxawits admissions and for attorney fees pursuant to OCGA § 9-15-14 (b). Following a hearing, the trial court granted Crown’s motion to withdraw its admissions, and the trial court struck, as to Crown only, the affidavit of D. Wayne Smith. The trial court also granted Crown’s motion for summary judgment and awarded Crown $42,622.50 as attorney fees.
1. Elrod and the Association contend that the trial court erred in allowing Crown to withdraw its admissions. We disagree. We review a trial court’s ruling on a motion to withdraw admissions for abuse of discretion. See Turner v. Mize,
Pursuant to OCGA § 9-11-36 (a) (2), subject to such shorter or longer time as the court may allow, a matter on which an admission is requested is admitted unless the party to whom the request was directed answers or objects within 30 days of service of the request. See Sayers v. Artistic Kitchen Design, LLC,
may permit withdrawal or amendment 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.
Crown moved to withdraw its admissions, and the trial court, after considering both prongs of the foregoing test, granted Crown’s motion.
The movant has the initial burden of demonstrating that presentation of the merits of the action will be served by allowing the withdrawal of its admissions. See ABA 241 Peachtree, LLC v. Brooken & McGlothen, LLC,
If the movant satisfies the court on the first prong, the burden is on the respondent to show that the withdrawal or amendment will prejudice the respondent in maintaining its action or defense on the merits. See OCGA § 9-11-36 (b); Intersouth Properties,
The purpose of requests for admissions is “to expedite trial and clarify the issues in a case, not gain tactical advantage over an opponent.” Id. Given that Crown came forward with credible evidence refuting its admissions and that Elrod and the Association failed to show prejudice, the trial court did not abuse its discretion in granting Crown’s motion to withdraw its admissions. See ABA 241 Peachtree, LLC,
2. Elrod and the Association also contend that the trial court erred in granting Crown’s motion to strike the affidavit of D. Wayne Smith. We disagree. We review a trial court’s decision on a motion to strike for abuse of discretion. Hayward v. The Kroger Co.,
Elrod and the Association filed the affidavit of engineer D. Wayne Smith in support of their motion for summary judgment. The affidavit provides, in part, that Phase II of a single-family residential subdivision known as “Sunflower Meadows” is adjacent to property owned by the Association. According to D. Wayne Smith, “all drainage flow that crosses [Elrod’s and the Association’s property] emanates from the Sunflower property.” He goes on to describe how runoff and sediment from certain lots do not comport with the Henry County-approved stormwater management report for Phase II of Sunflower Meadows. Finding that the affidavit established no facts as to Crown, the trial court granted Crown’s motion to strike; provided, the trial court ruled, the affidavit was struck only as to Crown and could be used as evidence with respect to defendant Sunflower.
Elrod and the Association contend that D. Wayne Smith’s affidavit met the requirements for affidavits submitted in support of summary judgment. See OCGA § 9-11-56 (e) (providing, in pertinent part, that “affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein”). However, in considering affidavits submitted in support or opposition to summary judgment, “[irrelevant matter should be excluded.” (Citation omitted.) Goddard v. City of Albany,
even if the Affidavit of D. Wayne Smith is foundationally sufficient and does establish liability as to the owner, grader, or other party disturbing land at the Sunflower Meadows development, nothing in the Affidavit... implicates Crown, nor does it identify or establish personal knowledge as to what entities or individuals [were] involved in the allegedly injurious work.
We can discern nothing in the affidavit of D. Wayne Smith that is relevant to Elrod’s and the Association’s claims against Crown. See, e.g., Bernstein v. Flagstar Bank,
3. Elrod and the Association further claim that the trial court erred in granting Crown’s motion for summary judgment.
It is well established that on appeal of a grant of summary judgment, the appellate court must determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the party was entitled to judgment as a matter of law. This requires a de novo review of the evidence.
(Citation and punctuation omitted.) Rubin v. Cello Corp.,
4. Last, we consider Elrod’s and the Association’s claim that the trial court erred in granting Crown’s motion for attorney fees pursuant to OCGA § 9-15-14 (b). Elrod and the Association previously filed an application for discretionary appeal solely as to the trial court’s order awarding attorney fees. See OCGA § 5-6-35 (a) (10). This Court denied the application, and Elrod and the Association are not entitled to a “second bite” in attempting to overturn the order. As we have said, “when this Court examines a request for a discretionary appeal, it acts in an error-correcting mode such that a denial of the application is on the merits, and the order denying the application is res judicata with respect to the substance of the requested review.” PHF II Buckhead, LLC v. Dinku,
Judgment affirmed.
Notes
The trial court’s order acknowledged Crown’s alternate argument that Crown was not required to respond to a request for admissions served, as it was here, after the expiration of the six-month discovery period, hut the trial court never ruled that Crown was not required to respond to the request, and it then applied the traditional test for considering a motion to withdraw admissions.