*1 — July 16, 1997 Decided July 30, 1997. denied Reconsiderations Baker, General, Thurbert E. C. Attorney Joy, William Senior General, O’Connor, Attorney Assistant Kevin M. Assistant Attorney General, Melton, Sell Draughon, & John A. for appellant. Mathis, Walbert, Mathis, Jr., &
Walbert David E Charles A. Webster, A. appellees. David BASS &
S96G1677. G. H. COMPANY v. FULTON COUNTY BOARD OF TAX ASSESSORS. (486 SE2d
Hunstein, Justice. This Court granted certiorari to consider the of permissible scope admission under OCGA 9-11-36 whether § at issue in H. G. Bass & Co. v. Bd. 222 Ga. of (1) (473 253) (1996) SE2d was App. proper thereunder. (Code 81A-136) 9-11-36 Ann. was amended in 1972 alia, inter provide, party may [a] serve upon any other a written request ... of of any the truth matters within the (b)] [OCGA which are set forth in and that relate to statements or opinions fact or of application of law to fact. (1), 1972, 510, Id. Ga. pp. 528, L. 9.1§ purpose of the 1972 amendment to OCGA 9-11-36 towas
conform the discovery provisions of the
Act to
Georgia Civil Practice
the 1970 amendments
to the Federal Rules of Civil Procedure.
(262
Munn,
v.
810,
Cielock
SE2d
Federal
(1)
Rule 36
is identical
its provision
requests “relate to statements or
opinions
fact or
the application
Thus,
law to fact.”
decisions of the Federal courts
construing
Federal Rule 36 should
applying
persuasive
admission under
36 of the
Prac-
Civil
Archer,
tice Act. Ambler
(1973);
(Footnotes omitted.) ed.), Par. 4A Practice Moore’s Federal view, Federal through 36.04[4] 36-32 33. Consistent with this have that recognized requests courts Federal Rule 36 applying are not objectionable admission or of as as they opinions long
even if conclusions require Requests of the case. conclusions relate facts legal of law to facts in the pure to admit conclusions unrelated objectionable. case are 1985) (Cl. States, 174, 3 Rules 3d 175 Ct.
Ransom v. United Fed Serv (a)). 36 in 36 identical to Federal Rule RUSCC (discussing language Telecom, also v. US 1995 See Audiotext Communications Network (D. 15395, Kan. U. S. Dist. LEXIS Civil Action No. 94-2395-GTV 5, neither abstract of law opinions October that seek (requests to the facts of the case are opinions nor law unrelated 36); of Rule Reliance Ins. Co. Marathon accomplish goals (S.D. Co., 524, 2,n. U. S. LEXIS 916 LeTourneau 152 FRD 1994 Dist. (request involving Va. matter pure W. facts is improper).2 unrelated to of case 2 USA, Healy Co./Lodigiani States, U. S. LEXIS Accord S. A. Ltd. United 1997 Claims (Cl. 7, seeking interpretation (scope requests of a Ct. admissions of No. 94-755C (N.D. Co., Saulsberry permissible); FSupp. Miss. v. Atlantic contract Richfield 1987) (in harassment, permissible Rights requests matters sexual addressed Civil Act for seeking waived, employee, by compensation, “has or is such as that the harassed workers’ maintain, injuries intentionally”; estopped position [her] that to were caused herein legal charge employer” [her] with constructive there was “no reasonable or basis on which knowledge supervisor; supervisor’s party’s behavior was of tortious conduct agency”). scope employment also States v. “not course and See United within the his (11th 1992) (failure Lane, consti Cir.
2204 Barbara F2d trafficking illegal drug property to facilitate tuted admission that defendant had been used of I.R.S., purposes proceedings); 797 F2d civil Stubbs v. Commr. forfeiture (11th 1986) (failure admission that had received Cir. constituted pay years returns and tax was his failure to file taxable income in certain laws). disregard of revenue due intentional (a) language clearly of OCGA 9-11-36 as amended Legislature’s scope requests indicates the intent to broaden the thereby liberalize the use of this valuable tool. The persuasively advantages eliminating Federal cases illustrate the pre-amendment requests involving ques- confusion over mixed by allowing requests tions of fact and law truth of those statements that to seek admission of the
apply specific law the facts in by holding objectionable only opinions the case and those on abstract propositions of law. findWe that the Federal courts’ accomplishes goal Rule 36 best of OCGA 9-11-36. We therefore conclude that for admission under OCGA 9-11-36 objectionable they require opinions if even or conclusions of long as the conclusions relate to the facts of the case. Ransom supra; supra 36.04[4], States, Moore, v. United 4A at Par. We overrule (2) (b) (209 Fuqua, A & D Barrel &c. Co. v. 272) (1974) (rendered after 1972 amendment to OCGA 9-11-36 but applied pre-amendment which standard to appeal) applies to the extent that it admission under current OCGA 9-11-36 recognize We liberalization of the opens possibility espe- admission cially given tool, for abuse of this *3 (a) (2) provides subject that OCGA 9-11-36 matter of an admission is deemed admitted unless a written answer objection days or addressed to the matter is made within 30 after ser- request.3 specifies vice of the However, the statute the manner in objection importance respond- which ing can be made and stresses the requests by providing answering party that even where the requested gen- lacks information or considers the matter to involve a party request, fact, uine issue of the must nevertheless answer the (E.D. 1989) (Rule Compare Connolly, FSupp. 592, Kosta v. 709 Pa. 36 not intended obviously dispute questions citing pre-amendment establish facts or to answer law) Practice, supra 4A (criticizing but see Moore’s Federal 36.04E8] at Par. Kosta with straightforward approach problem comment that a “more require would be to the party request admission”); served with the to move the court to relieve him of the see also Valley Popcorn Co., Golden Microwave Foods v. Weaver 15 Fed Rules Serv 3d 1414- (N.D. 1990), Ind. authority which is the sole citation of for the abbreviated discussion (3rd ed.), in 7 Moore’s Federal requests seeking legal 36.10E8] Practice conclusions are appropriate (holding: seeking not under Federal Rule 36 admission “bald conclusion” patent that certain claims were invalid not allowable under Rule but see Hersch v. I.R.S., (CCH) 1992-222; 256; Commr. T. C. Memo 1992 Tax Ct. Memo LEXIS 63 T.C.M. (1992) (criticizing Valley Golden Microwave with comment that “the purposes that best specially effectuates the of our Rule is that no issue or fact is immune admission”). request from a lengthen Also, The trial period. court has the discretion to or shorten this unless the time, required objections court shortens the a defendant is not to serve answers or before the expiration days upon complaint after service of the summons and him. OCGA 9-11-36 (a) (2). the set forth ways manner consistent with a (2). party the to the requesting statute sets forth relief available the trial expressly the allows objections response,
if there until conference of the disposition request pretrial to defer final court Id. at designated time to trial. prior another or any mat- provides Furthermore, although established,” (b), id. at “conclusively is under the statute ter admitted also authorizes the court withdrawal permit statute expressly the and vests broad discretion the or amendment the admission the statute regard. Specifically, provides court in this trial or amendment when the court withdrawal may permit merits the action will subserved of the presentation fails to who obtained thereby that withdrawal or amendment will satisfy court or him in his action defense on maintaining prejudice merits. Accordingly, parties the Federal courts have allowed to avoid the
Id. of a failure to for admission in consequences unintentional or the result of lack of instances where the failure was J D. Pharmaceutical Distribs. See, notice. e.g., actual constructive (11th Drugs Corp., v. Save-On &c. Cir. 893 F2d lack of actual (summary judgment vacated where defendant showed Berge- admission); plaintiffs or constructive notice of (10th States, United mann v. 820 F2d Cir. admission, not unanswered even where it bound (party admission, move to withdraw the where formally does shows to court that its failure answer was unintentional are not prejudiced). parties
2. We need not reach the issue whether Bass’
admis-
sion comes within the
of OCGA 9-11-36 because
Board,
record
Bass’
upon
filing
reveals that
admission,
objections,
did not
assert
deferment
or seek a
order.
obligation
requests,
protective
did
the trial
to allow
The Board
not move
court
the withdrawal or
*4
amendment of its admissions either before or after Bass raised the
effect of
failure
to
and did
respond
requests4
the Board’s
to
its
any justification for its
to respond
not offer
failure
which would have
assertion,
Contrary
response to
to the Board’s
the record reveals that
in its
motion,
specifically
Bass
the Board’s
Board’s
raised
issue of
failure
Bass’
admission;
by
constituted an admission
asserted
failure
9-11-36;
“upon
operation
this basis
the Board’s motion
§
of OCGA
and contended that
alone”
granted.
be denied and
should
its motion
authorized the trial court to exercise its discretion under OCGA 9- (b) the Board from
relieve
consequence
admissions.
Because the Board did not avail
itself
of the
variety
available under OCGA 9-11-36 and
responses
chose not
seek the
remedies afforded to parties
liberal
under
the statute to avoid the
of a failure to
hold
consequences
subject
we
matter
of Bass’
admission stood admitted. See generally Albitus
(1) (283
Bank,
v. Farmers & Merchants
Because the admissions amended, were withdrawn or Court of erred Appeals holding Board’s failure to respond a matter consequence.” of “no G. H. Bass & Co. v. Bd. (1). at 119 supra, concur, Judgment J., reversed. All the Justices except Thompson, Benham, J., who concurs in the judgment only as to Division C. who dissents. Justice, Chief dissenting.
Benham, Because the a majority opinion freeport awards based exemption deficiency candidate, on technical to an otherwise unqualified *5 on relying prevailing a party result an unfair administers I dissent. law, must the permissible to consider certiorari granted
This Court 9-11-36, the and whether admission under for requests record in thereunder. The in this appeal at issue request this freeport for a applied & Company H. Bass reveals that G. Fulton County The filing the period. after days tax exemption per- for exemption the freeport denied Bass of Tax Assessors Board appeal Superior he filed an 1994, whereupon goods sonal admission, requests Bass filed discovery, Court. In the course a personal prop- is entitled to “[Bass] that the first of which stated for the 1994 tax $23,241,497.00 exemption erty/inventory/freeport par- Thereafter the requests. respond did not year.” The Board Bass Although specif- summary judgment. cross-motions for ties filed to Bass’s failure to of the Board’s raised the issue ically motion, the to the Board’s response in its for admission request amendment the the court to allow withdrawal did not move Board Board and ruled in favor of the trial court admission. The the regarding Bass’s contention addressing Bass without against Board’s admission. Appeals, the Court of was affirmed ruling
The trial court’s rul- did not affect the failure to held that the Board’s which that improper, the Bass was because ing factual, opiniona- essentially matters must deal with admissions Bass & Co. v. Bd. of law. G. H. tive or conclusions Bass’s reach the issue whether does not majority opinion 1. The of OCGA the permissible admission comes within Board, filing the upon the the record reveals 9-11-36 because objections, assert admission, did not Bass’s requests two has thus fashioned majority the request. or move to strike (1) challenged by are not if for admission requests new rules: may directed, impermissible requests even they to whom party (2) under OCGA 9-11- admission; result or conclu- they require opinions even if objectionable are not case, long in the so as to the ultimate issue even as sions By ruling, in the case. so fact conclusions relate legal applies in this state and the law majority opinion changes I caution legal recourse. having without a Draconian rule. of such against imposition not objection- for admission are By concluding long as or conclusions if they require opinions able even case, foster protracted the facts of the we conclusions relate to in an questions the use of unauthorized encourage litigation, Here, appellant’s request the unwary. attempt trap stated, property/inventory/freeport is entitled to a personal “[Bass] tax fact in $23,241,497.00 year.” only for the 1994 exemption majority Under the exemption. was the amount of the objectionable. no even be Under longer such will opinion, law, thereby pro- adherence to black letter guise encouraging instead discovery, encourage complexity we viding simplicity will chaos and drafting requests, produce pro- stealth which All of those results are contrary orig- tracted battles. the rule in of uncontested facilitating inal intent of *6 facts. OCGA § Board of Tax Assessors relied on an application prevail- The Smith, law. See
ing Georgia Tandy Computer Leasing majority No law is cited Georgia Utah, majority for the rule relies instead on adopted today. Nevada, Carolina, Michigan North is left with appellee an harsh result. unexpected
This Court should not interfere with a matter that should have Clearly, and was corrected the trial court. the better been answer, strike, object would have been for or move to but appellee trial court ruled for unnecessary a motion to strike was since the after each summary judgment. moved appellee Court, this if it is to make the action for desires unfairly relying rule so as not to on the prospective punish remand the to the trial court so the prevailing raised here. provided opportunity Board is an to address issue I majority appellee opportunity, Because the of that must deprives dissent. July 16, 1997.
Decided Brenskelle, Perry, Perry, Brenskelle & David P. Brock E. appellant. III, Roy Mays
W. for appellee.