Cielock v. Munn , 244 Ga. 810 ( 1979 )

Marshall, Justice.

This case is here on certiorari. It involves a suit by the respondent against the applicant to recover money allegedly due under a preincorporation agreement. The applicant answered, denying that he was a party to any preincorporation agreement. Subsequently, the applicant’s counsel withdrew from the case. Several months later, the respondent filed requests for admissions that there was a preincorporation agreement between the applicant and the respondent under which the applicant agreed to pay the sums allegedly due and that these sums had not been paid. The requests for admissions were not answered by the applicant, and approximately eight months later, the respondent filed a motion for summary judgment. The applicant responded by filing a motion to withdraw the admissions, based on the fact that he had not been represented by counsel. He also filed a denial of the requested admissions.

Citing Osceola Inns v. State Hwy. Dept., 133 Ga. App. 736 (213 SE2d 27) (1975), both the trial court and the Court of Appeals held that the applicant should not be permitted to withdraw his admissions, because he had not shown "providential cause” for failing to answer the requests for admissions, Code Ann. § 81A-136(a) (Ga. L. 1966, pp. 648,649); nor had he shown "excusable neglect.” Code Ann. § 81A-106(b). We reverse.

As enacted in 1966, Code Ann. § 81A-136(a) provided that a failure to answer a request for admissions in a timely fashion would not be deemed an admission when the party called upon for the admission could demonstrate that the failure to answer was due to providential cause. See Moore v. Hanson, 224 Ga. 482 (2) (162 SE2d 429) (1968). However, Code Ann. § 81A-136 was reenacted in 1972 by Ga. L. 1972, pp. 510, 528. Code Ann. § 81A-136(b) now provides, in pertinent part, that "Any matter admitted under this section is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission. Subject to the provisions of Section 81A-116 governing amendment of a pretrial order, the court 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.” The changes in CPA § 36 brought about in 1972 were recognized in Nat. Bank of Ga. v. Merritt, 130 Ga. App. 85 (202 SE2d 193) (1973). The purpose was to conform the discovery provisions of the CPA to the 1970 Amendments to the Federal Rules of Civil Procedure. See Code Ann. § 81A-136, Editorial Note.

Argued November 14,1979 Decided December 5, 1979. Calhoun & Associates, Bruce A. Howe, Kran Riddle, for appellant. Jack Friday, for appellee.

The judgment in this case is reversed and the case is remanded for reconsideration of the applicant’s motion to withdraw the admissions on the basis of whether "the presentation of the merits of the action will be subserved thereby” and whether the respondent can "satisfy the court that withdrawal or amendment will prejudice him in maintaining his action on the merits.” Osceola Inns v. State Hwy Dept., 133 Ga. App. 736, supra, is disapproved.

Judgment reversed and remanded.

Nichols, C. J., Undercofler, P. J., Jordan and Bowles, JJ., and Judge Charles L. Weltner, concur. Hill, J., concurs specially.