A prior article addressing the use and implications of written requests for admission (“RFA”) in Georgia divorce proceedings discussed the conclusive admission of requested matters unless a court, on motion, permits withdrawal or amendment of the admission. This article explores the standards governing motions to withdraw admissions resulting from a failure to timely answer RFAs in divorce proceedings and other actions.

By statute, a court must apply a two-prong test when considering motions to withdraw or amend admissions. The court may permit withdrawal or amendment of admitted RFAs when i) “the presentation of the merits of the action will be subserved thereby” and ii) “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.”(1)

Appellate decisions have interpreted the first prong’s purpose as seeking to avoid entry of judgments based on “false” admissions effected merely because a party failed to answer RFAs in a timely manner.(2) To establish that withdrawal or amendment will subserve the presentation of the merits, a movant who bears the ultimate burden of proof at trial as to the subject matter of a given RFA must demonstrate that the proffered denial of a request can be proved by admissible evidence having a modicum of credibility, and that the denial is not offered solely for the purpose of delay. Where the burden of proof instead falls on the party who served the RFA, the moving party must show that the denial is not offered solely for the purpose of delay, and either that the proffered denial of a request can be proved by admissible evidence having a modicum of credibility or that the admitted request is incredible on its face.(3) In neither situation, however, must the moving party show “providential cause” or “excusable neglect” for failing to answer RFAs.(4)

In determining whether a movant has satisfied the first prong of the withdrawal test, a trial court essentially must analyze whether the admissible evidence presented by the movant suffices to create a genuine issue of fact negating the admission.(5) The movant may present that evidence through a verified motion to withdraw/amend admissions, through one or more accompanying affidavits, and/or through prior deposition testimony.(6)

A court should deem insufficient affidavits or other proffered evidence which seem per se incredible.(7) Affidavits and evidence lacking any credibility include self-serving affidavits which directly contradict the movant’s prior pleadings, interrogatory answers, deposition testimony, and/or responses to other requests for admission – and in particular, affidavits which fail to offer any admissible documents to support the affiant’s contradictory statements.(8) Likewise, a movant’s perfunctory denials of allegations made by the opposing party or mere proffer of explanations for his failure to respond to RFAs do not present credible evidence to justify withdrawal of admissions.(9)

Affidavits which elaborate on the movant’s denial of an admitted matter by pointing to record evidence should suffice to show that withdrawal/amendment of admissions will subserve the merits.(10) Where the subject RFAs largely duplicate the allegations of a complaint and include requests to admit allegations of liability which a defendant-movant had denied in his answer, the movant’s affidavit denying the subject requests and explaining why his denials are meritorious may alone suffice.(11) Overall, sworn assertions of fact, which negate the matters that had been admitted by operation of law, typically will satisfy the first prong of the test to withdraw admissions.(12)

RFAs deemed incredible on their face should include those which contradict the requesting party’s pleaded allegations. For example, a trial court properly found incredible on its face a plaintiff’s request to admit that an individual defendant was jointly liable for breach of a commercial lease, where the complaint showed a lease only between plaintiff and a defendant-entity and did not identify any personal guaranty of the lease by the individual defendant.(13)

Seemingly, a movant’s adequate showing that withdrawal of admissions will subserve the presentation of the merits should equally establish that denial is not offered solely for the purpose of delay.(14) A sworn explanation for the movant’s failure to respond to the RFAs at issue also may demonstrate that the motion to withdraw admissions is not offered for the purpose of delay (such as a movant’s explanation that work on the case, including responding to RFAs, had stalled due to her attorney’s personal problems).(15)

If the moving party fails to establish that withdrawal or amendment will subserve the presentation of the merits, the trial court should deny the motion without further analysis. Only if the movant has made the required showing should the court proceed to determine whether the party serving the RFA has demonstrated that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.(16)

“Merely being deprived of judgment or being forced to go to trial is not such prejudice as will prevent withdrawal of admissions.”(17) Rather, the party who served the RFAs may need to show a justified reliance upon the admissions to the extent he is now unable to prove the allegations which he sought to have admitted.(18) For example the nonmoving party could adequately demonstrate prejudice by showing that the movant waited until after the discovery period had closed to file the motion to withdraw admissions and that the nonmoving party detrimentally relied on the admissions by not pursuing certain discovery procedures (such as taking depositions and retaining experts).(19)


(1) O.C.G.A. § 9-11-36(b). (2) Bailey v. Chase Third Century Leasing Co., Inc., 211 Ga.App. 60, 62(1), 438 S.E.2d 172 (1993). (3) Whitemarsh Contractors v. Wells, 249 Ga. 194, 196, 288 S.E.2d 198 (1982); and Cielock v. Munn, 244 Ga. 810, 814, 262 S.E.2d 114 (1979) (Hill, J., concurring specially). (4) Whitemarsh Contractors, supra, 249 Ga. at 195; Cielock, supra, 244 Ga. at 811. (5) Bailey, supra ,211 Ga.App. at 62(1); Parham v. Weldon, 333 Ga.App. 744, 746(1), 776 S.E.2d 826 (2015). (6) Parham, supra, 333 Ga.App. at 746(1); and Rowland v. Tsay, 213 Ga.App. 679, 680(1), 445 S.E.2d 822 (1994). (7) Cf. Bailey, supra, 211 Ga.App. at 62(1). (8) See, e.g., JCG Farms of Alabama, LLC v. Morgan, 348 Ga.App. 629, 632, 824 S.E.2d 87 (2019); Rebel Auction Co., Inc. v. The Citizens Bank, 343 Ga.App. 81, 805 S.E.2d 913, 917(1) (2017); and Fulton County v. Soco Contracting Co., Inc., 343 Ga.App. 889, 898, 808 S.E.2d 891 (2017). (9) Turner v. Mize, 280 Ga.App. 256, 258(1), 633 S.E.2d 641 (2006). (10) Id. (11) See Brankovic v. Snyder, 259 Ga.App. 579, 582-583, 578 S.E.2d 203 (2003). (12) See, e.g., Njoku v. Adeyemi, 355 Ga.App. 1, 842 S.E.2d 317, 320 (2020); Parham, supra, 333 Ga.App. at 745-746; Bailey, supra, 211 Ga.App. at 61; and Johnson v. City Wide Cab, Inc., 205 Ga.App. 502, 505, 422 S.E.2d 912 (1992). (13) ABA 241 Peachtree, LLC v. Brooken & McGlothen, LLC et al., 690 S.E.2d 514, 516 (Ga. Ct. App. 2010). (14) Id., 690 S.E.2d at 518(2). (15) Njoku, supra, 842 S.E.2d at 320. (16) Turner, supra, 280 Ga.App. at 259(1); accord Soco Contracting, supra, 808 Ga.App. at 899. (17) ABA 241 Peachtree, supra, 690 S.E.2d at 518(2); and Bailey, supra, 211 Ga.App. at 62(1). (18) See generally, A&D Barrel & Drum Co., Inc. v. Fuqua, 132 Ga.App. 827, 833, 209 S.E.2d 272 (1974). (19) See Burton v. ECI Management Corp., 816 S.E.2d 778, 783(2)(b) (Ga. Ct. App. 2018); and Marlowe v. Lott, 212 Ga. App. 679, 681(2), 442 S.E.2d 487 (1994).

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