Opinion
A90A1310.
DECIDED SEPTEMBER 4, 1990.
Summary judgment motion. Fulton State Court. Before Judge Baxter.
Tonya S. Lowe, pro se. Karl J. Howe, Jr., for appellee.
Defendant Karat challenges the grant of plaintiff Marriott's motion for summary judgment.
Marriott sued to recover sums of money paid to Karat by mistake. Karat answered the complaint but did not timely answer or controvert Marriott's request for admissions and first interrogatories. Among the admissions were that Karat received certain checks, that they were paid in error, that the total amount paid in error by Marriott to Karat was $5,886.18, and that Marriott had demanded that sum from Karat.
Marriott moved for summary judgment on the ground that there were no genuine issues of material fact. Over a month later Karat filed answers to the request for admissions and to the first interrogatories, but it filed no motion to withdraw or amend the admissions. After a hearing on the motion for summary judgment, the court found no genuine issues of material fact and entered judgment for Marriott.
A request for admissions necessitates a written answer or objection signed by the party or his attorney. Hilton Hotels Corp. v. Withrow Travel Svc., 150 Ga. App. 435 ( 258 S.E.2d 59) (1979). Otherwise the request's subject matter is admitted. Thompson v. Berman, 147 Ga. App. 740 (1) ( 250 S.E.2d 190) (1978). The absence of timely answers conclusively establishes, as judicial admissions, the facts referred to in the request. Stone v. Lenox Enterprises, 176 Ga. App. 696, 697 (1) ( 337 S.E.2d 451) (1985); Albitus v. Farmers Merchants Bank, 159 Ga. App. 406, 407 (1) ( 283 S.E.2d 632) (1981). The burden is on the one failing to answer to take the initiative and file a motion under OCGA § 9-11-36 (b) to withdraw or amend the admissions. National Bank v. Merritt, 130 Ga. App. 85, 87 (1) ( 202 S.E.2d 193) (1973).
Karat's answers could not be considered because they were filed after the expiration of the statutory time, without permission for late filing, and without a motion to withdraw the admissions occasioned by default. Albitus, supra.
Karat complains that summary judgment was granted because it was not present at the hearing. Its presence is irrelevant, as an entitlement of summary judgment is founded on the record itself, which here included pivotal admissions. Crider v. Pepsi Cola Bottlers, 142 Ga. App. 304 ( 235 S.E.2d 683) (1977).
Judgment affirmed. Deen, P. J., and Pope, J., concur.