THIRD DIVISION

DOYLE, P. J.,

REESE, J., and SENIOR APPELLATE JUDGE PHIPPS

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

August 23, 2022

In the Court of Appeals of Georgia

A22A0632. CRUMPTON et al. v. SAMPLES.

PHIPPS, Senior Appellate Judge.

This is a dispute about the return of earnest money deposited pursuant to a

business purchase agreement. Deidre Samplessued Commercial Experts, Inc. and its

president and CEO Thomas Crumpton (collectively “Crumpton”), to recover her

earnest money deposit. The trial court granted summary judgment to Samples based

upon admissions made byCrumpton when he failed to respond to discovery requests.

Crumpton appealsthe trial court’s orders denying his motion to withdraw admissions,

granting Samples’s motion for summary judgment, and awarding damages and

attorney feesto Samples. We affirmbecause (a) Crumpton has notshown that the trial

court abused its discretion when it denied his admissions and (b) his challenge to the
court’s summary judgment ruling rests solely on his challenge to the denial of his

request to withdraw admissions.

Viewed in the light most favorable to Crumpton, Maloof v. MARTA, 330 Ga.

App. 763, 764 (769 SE2d 174) (2015), the record shows that Commercial Experts, as

the listing broker, and Thomas Crumpton, as its agent, represented a tree and land

clearing business that Samples sought to buy. On July 27, 2019, Samples and the

business owner — who is not a party to the suit — signed a Letter of Intent (“LOI”)

thatrequired Samplesto deposit $10,000 of earnest money into Commercial Experts’s

escrow account. The LOI provided that the earnest money was “fully refundable” to

Samples “for any reason” if the parties did not execute a definitive purchase

agreement within 20 days from the date of the letter. An association of Samples,

Joshua Copeland,

1 wired the funds to Crumpton; however, when Samples sought

financing as directed by the LOI, she was denied a loan, and the parties did not

execute a definitive purchase agreement within the specified time frame. 

On October 9, 2019, Copeland e-mailed Crumpton on Samples’s behalf and

requested the return of the earnest money. In an e-mail responding to Copeland’s

1

 Copeland is referred to both as Samples’s husband and her boyfriend in the

record. 

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request, Crumpton (a) claimed that he was not obligated to refund the earnest money

because the transaction fell through due to Samples’sfailure to secure financing after

she misrepresented the experience and involvement of Copeland. and (b) thereby

implicitly refused to return the funds.

2 After receiving Crumpton’s e-mail response,

Samples filed suit, and raised various legal and equitable claims.

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In his answer,

Crumpton admitted that Commercial Experts had received and retained Samples’s

earnest money.

On September 29, 2020, SamplesservedCrumpton with a number of discovery

requests, including requestsfor admissions. On October 29, 2020, Samples agreed to

a 15-day extension to allow Crumpton to respond to discovery. During the extension

period, the trial court permitted Crumpton’s counsel to withdraw and provided

Crumpton 30 days to retain new counsel. Crumpton neither responded nor objected

to the discovery requests within the extended deadline. 

2 Crumpton also claimed in the e-mail that Samples breached a Buyer

Confidentiality Agreement, a separate agreement that required Samples to

communicate solely with Crumpton about the sale. 

3 The complaint asserts claims for conversion, breach of fiduciary duty, unjust

enrichment, constructive trust, money had and received, negligence,OCGA§ 13-6-11

attorney fees and expenses, and punitive damages. 

3
In February 2021, Samples moved for summary judgment, arguing that

Crumpton’sfailure to respond to her discovery requests, particularly her requests for

admissions, entitled her to judgment as a matter of law. Immediately thereafter,

Crumpton retained counsel to oppose the motion. Crumpton’s response, filed on

March 16, 2021, asserted that, while he did not recall receiving Samples’s requests

for admissions, he intended to move to withdraw his admissions. Crumpton

contemporaneously requested to be heard on Samples’s summary judgment motion,

and the trial court set the matter for a hearing on May 5, 2021.

Two days before the hearing, Crumpton moved to withdraw the admissions. In

support of his motion, Thomas Crumpton submitted an affidavit in which he admitted

the following: (a) Samples had deposited $10,000 into Commercial Experts’s escrow

account pursuant to the LOI; (b) Samples had requested return of her earnest money

after she had been denied a loan; (c) Crumpton had been served with Samples’s

complaint and discovery requests; and (d) Crumpton had unintentionally failed to

respond to the written requests. Crumpton also attested that he “spent significant

funds and time related to facilitating the transaction,” which had failed due to

Samples’s actions. 

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Following oral argument and additional briefing by the parties, the trial court

entered orders denying Crumpton’s motion to withdraw his admissions, granting

summary judgment to Samples, and finding Commercial Experts and Thomas

Crumpton jointly and severally liable in the amount of $10,000 in damages,

$3,215.34 in prejudgment interest, and $9,031.55 in attorney fees.

4Crumpton appeals

these orders.

1. Crumpton first contends that the trial court erred in denying his motion to

withdraw admissions pursuant to OCGA § 9-11-36 (b). We disagree.

OCGA § 9-11-36 provides that a party may serve upon another party a written

request for the admission of the truth of any matter that is not privileged and is

relevant to the pending action. See OCGA § 9-11-36 (a) (1); see also OCGA §

9-11-26 (b) (1). “The matter is admitted unless, within 30 days after service of the

request or within such shorter or longer time as the court may allow, the party to

whomthe request is directed serves upon the party requesting the admission a written

answer or objection,” requests postponement of its obligation to respond to the

requests, or seeks a protective order. OCGA § 9-11-36 (a) (2); accord G. H. Bass &

Co. v. Fulton County Bd. of Tax Assessors, 268 Ga. 327, 330 (2) (486 SE2d 810)

4

 The trial court declined to award Samples punitive damages.

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(1997). And, pursuant to OCGA § 9-11-36 (b), any matter admitted “is conclusively

established unless the court, on motion, permits withdrawal or amendment of the

admission.”

This is true even if the requested admissions require opinions or

conclusions of law, so long as the legal conclusions relate to the facts of

the case. The language in OCGA § 9-11-36 (a) is clear, unambiguous,

and unequivocal and means just what it says. One must comply strictly

and literally with the terms of the statute upon the peril of having his

response construed to be an admission. Thus, matters deemed admitted

under this statute become solemn admissions in judicio and are

conclusive as a matter of law on the matters stated and cannot be

contradicted by other evidence unless the admissions are withdrawn or

amended on formal motion.

Fulton County v. SOCO Contracting Co., 343 Ga. App. 889, 896 (2) (808 SE2d 891)

(2017) (citation and punctuation omitted).

It is undisputed that Crumpton failed to timely respond to Samples’s requests

for admissions. “[U]nquestionably, the penalty for failing to answer or object to a

request for admissions is admission of the subject matter of the request.” Ikomoni v.

Exec. Asset Mgmt., 309 Ga. App. 81, 83 (1) (709 SE2d 282) (2011) (citation and

punctuation omitted). Consequently, the matters deemed admitted in this case were

conclusively established. Nonetheless, pursuant to the two-prong test established by

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OCGA § 9-11-36 (b), a trial court may allow the withdrawal of admissions “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.” Accord Turner v.

Mize, 280 Ga. App. 256, 257 (1) (633 SE2d 641) (2006). “If the movant satisfies the

court on the first prong, the burden is on the respondent to satisfy the second prong.

Both prongs must be established, pursuant to the standard provided in OCGA §

9-11-36 (b).” Fulton County, 343 Ga. App. at 897 (2) (a) (citation and punctuation

omitted). Thus, if the movant fails to satisfy the first prong of the test, a trial court is

authorized to deny the motion to withdraw admissions, Turner, 280 Ga. App. at 257

(1), and need not consider the second prong, Fox Run Properties v. Murray, 288 Ga.

App. 568, 570 (1) (654 SE2d 676) (2007).

“Under OCGA § 9-11-36 (b), the trial court is vested with broad discretion to

permit withdrawal of an admission made by reason of the failure to make a timely

response to the request.” Burton v. ECI Mgmt. Corp., 346 Ga. App. 668, 671 (2) (816

SE2d 778) (2018). We therefore review a trial court’sruling on a motion to withdraw

admissions for abuse of that discretion. Id. Crumpton asserts that the trial court

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abused its broad discretion by finding that he did not satisfy the first prong of OCGA

§ 9-11-36 (b). We disagree.

As relevant here, to prevail, Crumpton needed to establish that “that the

admitted requests either were refutable by admissible evidence having a modicum of

credibility or were incredible on their face.” Njoku v. Adeyemi, 355 Ga. App. 1, 3 (1)

(a) (842 SE2d 317) (2020) (citation and punctuation omitted). Standing alone, the

desire to have a trial is insufficient to make the required showing to satisfy the first

prong of the test set forth in OCGA § 9-11-36 (b). Turner, 280 Ga. App. at 257 (1).

(a) We turn first to Crumpton’s claim that he presented evidence with a

“modicum of credibility” that the admissions sought to be withdrawn could be

refuted. Samples served 36 requests for admissions on Thomas Crumpton and 34

requestsfor admissions onCommercial Experts. On appeal,Crumpton arguesthat his

affidavit “present[s] admissible evidence to show that a trial on the merits is

warranted.” He offers the following in support thereof: (i) the experience of Thomas

Crumpton as a licensed broker and agent and the length of time he has owned and

operatedCommercial Experts;(ii) the amount of “time, effort, and money” Crumpton

expended on the transaction at issue here; (iii) the fact that, according to Crumpton,

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Samples breached the Buyer Confidentiality Agreement;5

and (iv) the fact that

Copeland, not Samples, wired the escrow funds to Commercial Experts. 

Following a hearing and examination of Crumpton’s affidavit and exhibits, the

trial court found that the affidavit lacked a “modicum of credibility” and that

Crumpton had not offered “otherwise admissible evidence” to support his position

that the admissions should be withdrawn. According to the court, it was “undisputed

that the sale did not go through as stated in the LOI” and that Crumpton was holding

the earnest money in escrow. And though he argued otherwise, the court found that

Crumpton failed to produce evidence establishing that he could “rightfully withhold

the escrow funds.” In that regard, the court concluded that the “extraneous issues”

raised byCrumpton in his affidavit “regarding the Confidentiality Agreement and the

contract between other individuals who are not parties to this case[ ] have no bearing

on the issue of the return of the escrow funds.” We agree.

Pretermitting whether Samples’s conduct violated the Buyer Confidentiality

Agreement and whether she or Copeland wired the funds to Crumpton, it was

Crumpton’s responsibility — as the party seeking the withdrawal of admissions —

to produce credible evidence rebutting his admission that the earnest money wasfully

5

 See note 2, above.

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refundable to Samples pursuant to the terms of the LOI. See generally Intersouth

Properties v. Contractor Exchange, 199 Ga. App. 726, 727 (2) (405 SE2d 764)

(1991) (“The first prong of the [statutory] test is not perfunctorily satisfied.”).

Accordingly, the trial court did not abuse its broad discretion by concluding that

Crumpton failed to meet his burden of presenting evidence with a “modicum of

credibility” that the admissions sought to be withdrawn could be refuted.

(b) Crumpton also contends that the trial court erred by finding that Samples’s

requests for admissions were not incredible on their face. We do not find an abuse of

discretion in this regard.

Of the 70 requests for admissions, Crumpton sought withdrawal of the

majority, arguing that they were incredible on their face because they contained “pure

conclusions of law without any reference to the facts in the case.”6 Generally,

however, “requests for admission under OCGA § 9-11-36 (a) are not objectionable

even if they require opinions or conclusions of law, as long as the legal conclusions

relate to the facts of the case.” McClarty v. Trigild Inc., 333 Ga. App. 112, 115 (2)

(775 SE2d 597) (2015) (citation omitted). And, requests that seek admission of legal

6 Crumpton’s motion to withdraw sought withdrawal of Requests for

Admission numbers 3-13 and 15-36 as to Thomas Crumpton and numbers 4-6, 8-11,

and 13-34 as to Commercial Experts. 

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conclusions — such as the requests here (as discussed below) — are “not

objectionable because they seek admission of the ultimate issue in the case but are

only objectionable if they seek admission of purely abstract principles unrelated to

the facts of the case.” Fulton County, 343 Ga. App. at 899 (2) (b) (i).

A review of the requests for admissions that Crumpton sought withdrawal of

because they are “incredible on their face” include, in part, the following as to

Thomas Crumpton:

11. [Crumpton] had no lawful or contractual right to keep [Samples’s]

Deposit.

12. [Crumpton] has without legal right or permission, taken, kept, and

misappropriated [Samples’s] Deposit. 

. . .

29. [Crumpton] has been unjustly enriched by retaining [Samples’s]

deposit.

30. [Crumpton] owes to [Samples] the sum of no less than $10,000 for

money had and received, which in equity and good conscience

[Crumpton] should not be permitted to retain.

31. [Crumpton’s] actions were a direct and proximate cause of

[Samples’s] damages. 

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Likewise, the requests for admissions served on Commercial Experts that

Crumpton also sought to withdraw because they were “incredible on their face”

include, in part, as follows:

16. [Commercial Experts] owed [Samples] a duty to perform [its] role

as an escrow agent with that degree of care and skill customary and

ordinarily required of an escrow agent.

. . .

19. [Commercial Experts] breached its duty of good faith to [Samples].

. . .

24. [Commercial Experts] is liable to [Samples] for breach of common

law fiduciary duties. 

We conclude that Samples’s requests for admissions are sufficiently factually

tailored to the ultimate issues in this case — whether she was entitled to the return of

the earnest money pursuant to the terms of the LOI and whether Crumpton wasliable

for withholding it from her. Thus, the trial court did not abuse its broad discretion

when it found that Samples’s requests for admissions were not incredible on their

face. See Fulton County, 343 Ga. App. at 899 (2) (b) (i) (affirming a trial court’s

finding that a request for admissions that sought “determination of whether [a party]

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acted with bad faith” — the ultimate issue in the case — was not a purely abstract

legal principle unrelated to the facts of the case).

Because Crumpton did not meet his burden as to the first prong of the test

established under OCGA § 9-11-36 (b), it is unnecessary to addressthe second prong.

Turner, 280 Ga. App. at 259 (1). Accordingly, the trial court did not abuse its broad

discretion in denying Crumpton’s motion to withdraw admissions.

2. Crumpton also contends that the trial court erred in granting summary

judgment and awarding final judgment to Samples. On appeal, Crumpton’s sole

argument in this regard is that the trial court erred in denying his motion to withdraw

admissions, and consequently, he argues, the trial court erred in granting summary

judgment. Because we concluded in Division 1 that the trial court properly denied

Crumpton’s motion to withdraw admissions, this argument fails.

Judgment affirmed. Doyle, P. J., and Reese, J., concur.

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