MCFADDEN, P. J., RAY and RICKMAN, JJ.
McFadden, Presiding Judge.
appeal is from an order granting a defense motion for summary
judgment and denying plaintiff's motion to withdraw
admissions. Because there are no genuine issues of material
fact as to an essential element of plaintiff's claim and
the trial court did not abuse its discretion in denying the
motion to withdraw admissions, we affirm.
appeal from the grant of summary judgment, the appellate
court conducts a de novo review of the evidence to determine
whether there is a genuine issue of material fact and whether
the undisputed facts, viewed in the light most favorable to
the nonmoving party, warrant judgment as a matter of
law." Bank of America, N. A. v. Cuneo, 332
Ga.App. 73, 74 (770 S.E.2d 48) (2015) (citation and
punctuation omitted). So viewed, the evidence shows that on
September 29, 2015, Georgean Burton, a resident of The
Columns of White Oaks Apartments in Newnan, requested that
the stove in her apartment be repaired. That same day, a
maintenance employee at the complex made repairs to the stove
in Burton's apartment. After the repairs were complete,
Burton turned on the stove to bake something. A few minutes
later, Burton opened the stove door and a cloud of thick
smoke billowed out of the stove. Burton reported the smoke to
apartment management. The maintenance employee returned to
the apartment and found that a piece of rubber or plastic had
fallen off his wire cutters into the broiler area of the
stove and had caused the smoke.
23, 2016, Burton filed a complaint against ECI Management
Corporation d/b/a The Columns of White Oaks Apartments,
claiming that the maintenance employee had left a pair of
pliers in the broiler area of the stove and that she had
suffered damages as a result of inhaling the smoke from the
stove. ECI answered the complaint and, on August 17, 2016,
served Burton with discovery requests. The discovery
materials included requests that Burton admit that she had no
evidence that ECI had actual or constructive knowledge of the
alleged pliers in the stove, that she had no evidence that
ECI had superior knowledge of the alleged hazardous
condition, and that she had seen the pliers in the broiler
area of the stove prior to the smoking stove incident. Burton
did not respond to the discovery requests. On October 5,
2016, ECI notified Burton in writing that her discovery
responses were overdue; requested that she provide responses
by October 15; and indicated that it would file a motion
seeking all available remedies if the responses were not
received by that date. Burton did not submit her responses to
the discovery requests until October 21, 2016.
January 17, 2017, ECI filed a motion for summary judgment on
the basis that Burton was deemed to have admitted, due to her
failure to timely respond to the requests for admissions,
that ECI had no actual or constructive knowledge of the
alleged hazardous condition, that ECI had no superior
knowledge of the alleged hazard, and that she herself had
seen the alleged pliers in the broiler area of the stove
prior to the smoke incident. On February 24, 2017, Burton
filed a motion to withdraw or amend her deemed admissions.
After a hearing, the trial court entered an order on June 9,
2017, denying Burton's motion to withdraw her admissions
and granting ECI's motion for summary judgment. Burton
initial matter, we note that contrary to ECI's arguments
in its appellate brief, this court has jurisdiction over this
appeal. Because the last day to file a notice of appeal from
the trial court's June 9, 2017 summary judgment order
fell on Sunday July 9, 2017, Burton had until the next
Monday, July 10, 2017, to file her appeal. See OCGA
§§ 1-3-1 (d) (3) & 9-11-6 (a). Burton did not
file a notice of appeal by that date, but did file an
application for discretionary appeal on July 10, 2017. She
also filed a notice of appeal on July 13, 2017.
regard to Burton's application for discretionary appeal,
no such application was necessary as the trial court's
grant of summary judgment to ECI was directly appealable. See
OCGA § 5-6-34 (a) (1), (d); Southeast Ceramics v.
Klem, 246 Ga. 294, 294-295 (1) (271 S.E.2d 199) (1980).
Because the order was subject to direct appeal and Burton had
initiated her appeal by filing an otherwise timely
discretionary application, this court granted the application
pursuant to OCGA § 5-6-35 (j). The order granting the
application was issued on August 1, 2017, and directed Burton
to file a notice of appeal within 10 days of the order. As
noted above, Burton had already filed a notice of appeal on
July 13, 2017. She also filed an untimely amended notice of
appeal on August 24, 2017. But that amended notice was
unnecessary as the prematurely filed July 13 notice of appeal
ripened into a timely notice of appeal upon this court's
granting of the discretionary application. See Wright v.
Wright, 300 Ga. 114, 115 (1) (793 S.E.2d 96) (2016) (1);
Todd v. Todd, 287 Ga. 250, 253 (1) (703 S.E.2d 597)
(2010); Mixon v. Mixon, 278 Ga. 446 (1) (603 S.E.2d
287) (2004); Wannamaker v. Carr, 257 Ga.
634, 635 (1) (362 S.E.2d 53) (1987). Accordingly, the appeal
is properly before this court.
Motion to withdraw admissions.
contends that the trial court erred in denying her motion to
withdraw admissions. We disagree.
Burton did not respond or object to ECI's requests for
admissions within 30 days after service of the requests, the
subject matter of each request was deemed admitted under OCGA
§ 9-11-36 (a) (2). See Ikomoni v. Executive
Asset Managment, 309 Ga.App. 81, 83 (1) (709
S.E.2d 282) (2011). "[M]atters 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 S.E.2d 891) (2017) (citation and
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. On appellate review, the trial court's ruling on
this issue may be reversed only upon a showing of abuse of
discretion. A trial court may permit withdrawal of admissions
if both: (1) the presentation of the merits of the action
will be subserved by the withdrawal; and (2) the party who
obtained the admission fails to satisfy the court that
withdrawal will prejudice him in maintaining his action or
defense on the merits. In order to show that the presentation
of the merits of this case would be subserved by the
withdrawal, [the movant must] establish that the admitted
requests either could have been refuted on trial of the
issues by admissible evidence having a modicum of credibility
or that the admitted requests were incredible on their face;
and that the denials being tendered to the court with the
motion to withdraw had not been offered solely for purposes
Parham v. Weldon, 333 Ga.App. 744, 746 (1) (776
S.E.2d 826) (2015) (citations and punctuation omitted).
"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