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Merlinus Monroe, J.D. | Blog
Responding to Georgia Requests to Admit
5/4/12
In Georgia, the earlier Civil Code previously required that responses to Requests to Admit, a Discovery tool in Civil practice, had to be sworn and under oath. In fact, the Courts had expressly decided that submitting unsworn responses had the same legal effect as making no answer at all (in essence, the Request is deemed to be admitted). However, this is no longer the law.


A response to a Request to Admit does not need to be under oath. The following is an excerpt from the 1979 Court of Appeals case of Cable Masters, Inc. v. Shaw, 151 Ga.App. 153, 259 S.E.2d 157:


The problem presented by this appeal is identical to the one considered by this court recently in the case of Hilton Hotels Corp. v. Withrow Travel etc., Inc., 150 Ga.App. 435, 258 S.E.2d 59. The trial court granted summary judgment to the appellee because the appellant's responses to certain requests for admissions were unsworn. Held :

The trial court's order, rendered some months before our decision in the Hilton Hotels case, supra, relied onBurge v. High, 147 Ga.App. 267, 248 S.E.2d 546 (1978). However, Hilton Hotels reversed Burge and held, in accordance with Code Ann. § 81A-136 (Ga.L.1966, pp. 609, 648, as amended through Ga.L.1972, pp. 510, 528), that responses to requests for admission need not be under oath. The responses in this case were thus properly made. [151 Ga.App. 154] Since they present material issues of fact for resolution at the trial level, the grant of summary judgment was in error.

Judgment reversed.

McMURRAY, P. J., and UNDERWOOD, J., concur.



The other issue which often arises for persons conducting civil litigation on their own is the legality of having an attorney respond to the Requests to Admit, instead of the party themselves giving the answers. Again, reference may be made to a case deciding this very issue, via the 1979 (a busy year for the Court as concerns Discovery issues) Court of Appeals case of Avco Financial Services Leasing Co. v. Mullins, 152 Ga.App. 120, 262 S.E.2d 266, the Court upheld this practice.


[152 Ga.App. 121] Sam Johnson, Jonesboro, for appellant.

Robert L. Collins, Jr., Calhoun, for appellee.

[152 Ga.App. 120] BIRDSONG, Judge.

This case is before us based upon the grant of an interlocutory appeal. Appellant Avco Financial Services Leasing Co. has urged two grounds as the basis of its motion. The first argues that it was error for the trial court to consider certain admissions filed in response to a request for admissions because the admissions were [152 Ga.App. 121] signed by counsel for the appellee Mullins rather than by Mullins himself. This argument is not meritorious inasmuch as admissions may be signed by either the party or his counsel. Hilton Hotels Corp. v. Withrow Travel Service, 150 Ga.App. 435, 258 S.E.2d 59.

The second ground urged by Avco is that it was error for the trial court to deny Avco's motion for summary judgment. In his fifth defensive answer, Mullins asserted the defense of fraud in that Avco was aware of a change in law that would render the leased equipment obsolete, failed to inform Mullins of that change, and in effect "unloaded" obsolete equipment on Mullins. This asserted defense of fraud has not been pierced in any way by Avco by its own amended pleadings or affidavits. It was not error for the trial court to deny Avco's motion for summary judgment where issues of fact remain for determination. Saunders v. Vikers, 116 Ga.App. 733, 734, 158 S.E.2d 324; Scales v. Peevey, 103 Ga.App. 42, 46, 118 S.E.2d 193.

In view of the foregoing, it is concluded that the grant by this court of the interlocutory appeal was improvident. The appeal is dismissed and the case returned to the trial court for disposition.

Appeal dismissed.

QUILLIAN, P. J., and SMITH, J., concur.
Nonparty Discovery in Georgia
5/3/12
This is not a topic that I had directly confronted before, but it is something that has been peripherally present in many cases in the past. However, it is very advantageous to pursue in a case at the time so I post more about it here for anyone who confronts this issue themselves.

It is important to note that the only Discovery provision of the Georgia Code that allows Discovery steps taken against nonparties is Section 9-11-34 (inspection of documents and land). Subsection (c) provides explicitly at subsection (1) that "[t]his Code section shall also be applicable with respect to discovery against persons, firms, or corporations who are not parties, in which event a copy of the request shall be served upon all parties of record; or, upon notice, the party desiring such discovery may proceed by taking the deposition of the person, firm, or corporation on oral examination or upon written questions under Code Section 9-11-30 or 9-11-31. The nonparty or any party may file an objection as provided in subsection (b) of this Code section. If the party desiring such discovery moves for an order under subsection (a) of Code Section 9-11-37 to compel discovery, he or she shall make a showing of good cause to support his or her motion. The party making a request under this Code section shall, upon request from any other party to the action, make all reasonable efforts to cause all information produced in response to the nonparty request to be made available to all parties. A reasonable document copying charge may be required."

Subsection (2) explicitly makes the section applicable to "practitioners of the healing arts". Having looked further into this, this is a common sense idea to get medical records, which is pretty necessary in many cases (especially automobile accidents and medical malpractice cases, among others). Subsection (3) is a protection against liability for the facilities or "practitioners of the healing arts" that disclose these records.

Note, though, that the two other very common Discovery tools used - Requests to Admit and Interrogatories - are only applicable against other parties in an action. They don't appear to have an explicit statutory applicability to nonparties (although there is presumably a way to obtain this Discovery, as well, by express direction of the Court to the nonparty).
Good Friday thoughts
4/6/12
Though many of my friends, family, acquaintances, and mentors are self-professed agnostics or atheists, I am Christian, and today marks one of the Holy Days in modern Christian theology. It is today that marks our day of remembrance for the burial of Jesus Christ. As the Apostle's Creed states, He "suffered under Pontius Pilate, was crucified, dead, and buried; He descended into hell". I am not surprised by the idea that Mithra, for example, and different divine figures before him and since, performed the same miracle. However, I also remember that death on the cross was intended to be humiliation, but He rejected that humiliation and arose again, to ascend into Heaven. I am thankful for the Christian religion because, though I do not require it to be a moral and good person (and have, on many occasions, sadly been an immoral and petty person - being human, I have my faults), it has given me a strong belief in a Divine Presence, and I can comprehend some tiny portion of that Divine Presence because of the Christian religion. I would not have learned the past horrible history of atrocities perpetrated wrongly in the name of Christ, and I would not know of the beautiful and wonderful things done in the name of Christ, but for the events we remember on this day.

I am working today because I have no say in the matter, but my thoughts are with Christ on this wonderful Good Friday, and I hope for the best for you, as well.
Seeking Summary Judgment or Judgment on the Pleadings in Divorces
3/29/12
In Georgia, it used to be possible to get divorced and SURPRISE! - that was it. Alimony and child support could go out the window, because a divorce decree had been granted and that was the end of that. Needless to say, this caused some considerable fury on the parts of the people who were left with no recourse, so Uniform Superior Court Rule 24.7 was enacted in part to remedy this problem. It provides that "[a]lthough the court may, in appropriate cases, grant judgment on the pleadings or summary judgment that the moving party is entitled to a divorce as a matter of law, no divorce decree shall be granted unless all contestable issues in the case have been finally resolved" (emphasis supplied).

What this means, in practical terms, is that the separate issues of a divorce matter may be put into categories of contested or uncontested - issues of child custody, child support, alimony duty both in general (recurring) and lump sum, property issues, and different grounds for or defenses to divorce, etc. Every contested issue must be resolved prior to the entry of a decree of divorce.

The case that established this in Georgia was Brochin v. Brochin, 277 Ga. 66, 586 S.E.2d 316 (Ga. 2003).

It explains the motivation for enacting Uniform Superior Court Rule 24.7, and the proper interpretation of the rule. An interesting note is the point it makes specifically concerning the issue of attorney's fees. "The rule was not intended to abolish the longstanding ability of Georgia's courts to preserve the issue of attorney fees, as long as that issue is raised prior to the entry of final judgment." This is one very good motivation to always demand attorney's fees in every Complaint and Answer in contested divorce matters.

The Brochin decision is listed on my website.
Georgia Child Support Obligations and Commission Income
3/26/12
An issue which arises frequently in divorce or child custody and support situations is child support from a party whose income is largely in the form of commissions, as with real estate sales. This issue has been ruled upon as recently as last year by the Supreme Court of Georgia is the case of Stowell v. Huguenard, 288 Ga. 628, 706 S.E.2d 419 (Ga. 2011), which affirmed the idea that a deviation from the presumptive amount of child support must be supported by findings of fact, and which chose to emphasize this procedural rule when it is not complied with. The decision follows, and it is important to note the different attitudes regarding the question taken by the majority decision.

The major point that the majority opinion makes which affirms the reasoning they use as prevailing is the nature of the commissions' use in ultimately determining child support, I believe. The commissions are meant to be included only for purposes of determining the gross income of a party. That number is then used to determine the proper monthly child support obligation of the party. Logically, sporadic income could then be used to justify a deviation in the child support obligation, if suitable findings of fact were made. The reasoning of the dissent is absolutely right when they argue for substance over procedure, but the fatal flaw in the judgment below appears to be the lack of facts that would justify any deviation, it appears.

Please see my website, at , for a blog entry on this topic.
Update on Georgia Hate Crime Law (in brief)
3/23/12
The National Defense Authorization Act ("NDAA", which I am opposed to on principle because it radically violates many of the foundational ideas that Americans take for granted, and upon which our criminal justice system and notions of personal liberty are based) updated the existing federal hate crime legislation in 2009 to include, among other things, the following provisions (both defining a separate crime as a "hate crime" and seeking aggravated punishment for acts that meet the definition):

"(1) OFFENSES INVOLVING ACTUAL OR PERCEIVED RACE, COLOR, RELIGION, OR NATIONAL ORIGIN- Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person--
`(A) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and
`(B) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if--
`(i) death results from the offense; or
`(ii) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.
`(2) OFFENSES INVOLVING ACTUAL OR PERCEIVED RELIGION, NATIONAL ORIGIN, GENDER, SEXUAL ORIENTATION, GENDER IDENTITY, OR DISABILITY-
`(A) IN GENERAL- Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B) or paragraph (3), willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of any person--
`(i) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and
`(ii) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if--
`(I) death results from the offense; or
`(II) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill."

Georgia previously attempted to make a separate "hate crime" law, but it was found to be unconstitutional as written, in Botts v. State, 604 S.E.2d 512, 278 Ga. 538 (Ga. 2004)(OCGA § 17-10-17 is too vague to justify the imposition of enhanced criminal punishment for its violation).

OCGA § 17-10-17 :
(a) Subject to the notice requirement provided in Code Section 17-10-18 and in enhancement of the penalty imposed, if the trier of fact determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property of the victim as the object of the offense because of bias or prejudice, the judge imposing sentence shall:

(1) If the offense for which the defendant was convicted is a misdemeanor, increase the sentence and the fine normally imposed by the court through court policy or voluntary sentencing guidelines by 50 percent up to the maximum authorized by law;

(2) If the offense for which the defendant was convicted is a misdemeanor of a high and aggravated nature, increase the sentence and fine normally imposed by the court through court policy or voluntary sentencing guidelines by 50 percent up to the maximum authorized by law; or

(3) If the offense for which the defendant was convicted is a felony, increase the sentence normally imposed by the court through court policy or voluntary sentencing guidelines by up to five years, not to exceed the maximum authorized by law.

(b) The judge shall state when the judge imposes the sentence the amount of the increase of the sentence based on the application of subsection (a) of this Code section.