BEBE'S CUISINE, INC. v. MAHROKH HAGHPARAST

                           FIFTH DIVISION
                           MERCIER, C. J.,
                   MCFADDEN, P. J., and RICKMAN, P. J.

                    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



                                                                   February 27, 2025




In the Court of Appeals of Georgia
 A24A1341. BEBE’S CUISINE, INC. et al. v. HAGHPARAST et al.




MCFADDEN, Presiding Judge.

      Bebe’s Cuisine, Inc. and Amir Persia appeal from the grant of summary

judgment to Mohammad Haghparast on his claim for a purchase money resulting trust

as to certain real property. In granting summary judgment, the trial court relied on

material facts purportedly admitted by the failure of Bebe’s to respond to a request for

admissions. But because the record does not show that Bebe’s was properly served

with the request, the trial court’s reliance on the purported admissions was error.

Moreover, we cannot determine from the record whether Haghparast would still be

entitled to summary judgment based on evidence other than the purported admissions
because there is a Prophecy question as to the reasonableness of Persia’s explanation

for his conflicting testimony on material issues that must be resolved by the trial court

in the first instance. So we vacate the trial court’s order and remand the case with

direction that it resolve the Prophecy issue before ruling on the summary judgment

motion.

      1. Facts and procedural posture

      In October 2021, Haghparast and others filed a verified multi-count complaint

against Bebe’s and Persia. The only claim now before us is Haghparast’s cause of

action for a purchase money resulting trust as to a piece of commercial property

conveyed to Bebe’s. The complaint alleged that Haghparast was living in Iran at the

time of the purchase; that his brother Persia had incorporated Bebe’s to help

Haghparast establish a business in the United States; that Haghparast provided all the

money for the purchase of the property by using intermediaries to make deposits of

his money into Bebe’s Cuisine’s checking account; that he deposited over $1 million

into the account for the purpose of buying the property; that Bebe’s then wired

$1,035,210 of his money to a real estate closing attorney in order to purchase the

property; and that title in the property was then conveyed to Bebe’s.


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      In July 2023, Haghparast moved for partial summary judgment as to his claim

for a purchase money resulting trust, citing, among other things, the failure of Bebe’s

to respond to his request for admissions. In a single pleading, Bebe’s and Persia moved

to withdraw admissions and responded to Haghparast’s motion for summary

judgment. They also filed their own motion for summary judgment as to all claims set

forth in the complaint.

      The trial court denied the defense motion to withdraw admissions. After a

hearing on the competing motions for summary judgment, the trial court granted

Haghparast’s motion for partial summary judgment against Bebe’s, citing its

purported admissions as conclusively establishing that Haghparast had provided all

the purchase money for the property. In the same order, the court also denied

Haghparast’s motion for summary judgment against Persia and denied the

defendants’ motion for summary judgment. This appeal followed.

      2. Request for admissions

      Bebe’s asserts that it was not properly served with Haghparast’s request for

admissions, so the trial court erred in granting summary judgment based on its

purported admissions. We agree.


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      “Requests for admission are governed by OCGA § 9-11-36, which provides in

pertinent part: ‘A party may serve upon any other party a written request for the

admission . . . of the truth of any matters . . . which are set forth in the request[.]’

OCGA § 9-11-36 (a) (1).” Badichi v. Albion Trading, 341 Ga. App. 375, 377-378 (1)

(801 SE2d 75) (2017). The statute further provides: “The request may, without leave

of court, be served upon the plaintiff after commencement of the action and upon any

other party with or after service of the summons and complaint upon that party.”

OCGA § 9-11-36 (a) (1). Moreover, “each matter requested ‘is admitted unless,

within 30 days after service of the request . . . , the party to whom the request is

directed serves upon the party requesting the admission a written answer or objection

addressed to the matter.’ OCGA § 9-11-36 (a) (2).” Badichi, supra at 378 (punctuation

omitted; emphasis supplied).

            Unquestionably, the penalty for failing to answer or object to a
      request for admissions is admission of the subject matter of the request.
      But obviously a party cannot be subjected to this penalty unless the
      request has been filed and properly served. Therefore, for the trial court
      to have been authorized to award summary judgment to [Haghparast]
      based on [Bebe’s Cuisine’s] failure to respond to the request for
      admissions, it must have appeared without contradiction from the record
      then before the court that the request was filed and served on [Bebe’s].

Baiye v. Gober, 254 Ga. App. 288, 289 (1) (562 SE2d 249) (2002) (citations omitted).

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      The record, however, does not show that Bebe’s was properly served with the

request for admissions upon which the trial court relied in its summary judgment

order. In claiming otherwise, Haghparast first cites a certificate of service and an

affidavit of service for his attempted October 2021 service of the complaint and

request for admissions. The certificate states that Bebe’s was served simultaneously

with the complaint and other documents, including a request for admissions; and the

affidavit indicates that the documents were also emailed to an attorney who

represented Bebe’s in a different case, but who is not counsel in the instant case.

      In an order that has not been challenged on appeal, the trial court ruled that

Haghparast’s attempted October 2021 service of process on Bebe’s was defective.

After Bebe’s did not answer the complaint, Haghparast moved for default judgment,

citing the certificate and affidavit of service referenced above. But the trial court

rejected Haghparast’s arguments and denied the motion because Haghparast had “not

exercised reasonable diligence in locating [Bebe’s Cuisine’s] registered agent as

required by OCGA § 14-2-504 (b)[.]” It follows that that deficient attempt at service

cannot sustain Haghparast’s contention that the request for admissions was properly

served on Bebe’s.


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      Thereafter, in August 2022, Haghparast perfected service of the complaint and

other documents on Bebe’s. Haghparast cites that August 2022 affidavit of service,

which lists the documents that were personally delivered to counsel of record in this

case, as evidence that he properly served Bebe’s with the request for admissions. But

the documents listed on that affidavit do not include a request for admissions.

      Haghparast’s reference to stipulations extending the time for Bebe’s to respond

to discovery is likewise unavailing. The stipulations do not indicate the type of

discovery, and plainly do not identify any request for admissions.

      In short, Haghparast has cited “no evidence [establishing] that [Bebe’s] had

ever been properly served with the [request for admissions.]” Eason v. Bowie, 196 Ga.

App. 199, 200 (395 SE2d 600) (1990) (reversing entry of default judgment as sanction

for defendant’s failure to respond to interrogatories where return of service indicated

service of complaint but did not show service of interrogatories).

      We note that in July 2023 Haghparast did file his request for admissions along

with his motion for partial summary judgment, and that Bebe’s filed a response to the

request, which it subsequently amended in September 2023. Pretermitting any issues

concerning discovery filings beyond “the ordinary six-month discovery period[,]”


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Barnes v. Channel, 303 Ga. 88, 93 (2) (810 SE2d 549) (2018), the trial court did not

base its finding of admissions and its grant of partial summary judgment on these

filings. Rather, the court determined that Bebe’s had admitted material facts by failing

to respond to the request for admissions purportedly served with the complaint in

August 2022. Indeed, in its summary judgment order, the court noted that the

amended responses filed by Bebe’s in September 2023 did not change its prior

admissions as a matter of law.

       But as discussed above, the trial court was not “authorized to award summary

judgment to [Haghparast] based on [the alleged] failure to respond to the [prior]

request for admissions, [since] it [does not] appear[] . . . from the record . . . that the

request was [properly] served on [Bebe’s].” Baiye, supra. Cf. Glatfelter v. Delta Air

Lines, 253 Ga. App. 251, 251-252 (1) (558 SE2d 793) (2002) (plaintiffs could not rely

on lack of response to request for admissions where trial court found, contrary to

plaintiffs’ claim, that the request for admissions was not served on defendant with the

complaint). So the trial court’s finding of no genuine issues of material fact and grant

of summary judgment based on the purported admissions was error.

       3. Summary judgment on purchase money resulting trust claim


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      Despite our holding above that the trial court erred in relying on the purported

admissions in its final order, we nevertheless could “affirm the trial court’s grant of

summary judgment if it is right for any reason, whether stated or unstated, so long as

the legal basis was fairly presented in the court below.” Cook Pecan Co. v. McDaniel,

337 Ga. App. 186, 192 (3) (b) (786 SE2d 852) (2016). So if, as Haghparast contends,

there is other undisputed evidence in the record which demonstrates that there is no

genuine issue of material fact and that he is entitled to judgment as a matter of law,

then the grant of summary judgment could be affirmed on that basis. See Sherman v.

Thomas-Lane American Legion Post 597, 330 Ga. App. 618, 619 (768 SE2d 797) (2015)

(“To prevail at summary judgment under OCGA § 9-11-56, the moving party must

demonstrate that there is no genuine issue of material fact and that the undisputed

facts, viewed in the light most favorable to the nonmoving party, warrant judgment as

a matter of law.”) (citation and punctuation omitted).

      Haghparast has pointed to other evidence in the record which supports his

claim for a purchase money resulting trust by showing that he paid all of the

consideration for the purchase of the property conveyed to Bebe’s. See OCGA § 53-

12-131 (a) (“A purchase money resulting trust is a trust implied for the benefit of the


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person paying consideration for the transfer to another person of legal title to real or

personal property.”). That evidence includes not only Haghparast’s own affidavit and

various exhibits, but also a sworn statement signed by Persia, entitled “Jurat

Certificate (Verification on oath or Affirmation).” In that statement, Persia testified

that Haghparast had transferred $1,055,000 to the Bebe’s bank account in order to pay

for a property investment, that Persia then purchased the commercial property in

which Haghparast planned to establish a business, and that the money transferred into

the Bebe’s “account was [Haghparast’s] money.” Persia testified, “I only

inter[ve]ned as he directed me[.]”

      But during his deposition, Persia gave testimony that, if not disregarded, may

create genuine issues of material fact as to the source of the money used for the

purchase. Persia testified at his deposition that he and Haghparast ran a money

exchange business together in Iran; that the money transferred into the Bebe’s

checking account came from that business; that Persia had directed Haghparast to

transfer over $1 million into the Bebe’s bank account; and that more than half of the

transferred money, as much as $800,000, belonged to Persia.




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      When asked about his prior sworn statement, Persia explained that the sworn

statement was false, that it was made to help Haghparast in an Australian immigration

matter, and that it recited what Haghparast’s attorney had directed him to say. In his

verified answer, Persia also denied that he had written the sworn statement.

      “Under the rule set forth in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27

(343 SE2d 680) (1986), parties’ self-contradictory, vague or equivocal testimony is

construed against them on summary judgment, absent a reasonable explanation.”

Pollard v. Great Dane, LLC, 371 Ga. App. 872, 874 (2) (903 SE2d 338) (2024) (citation

and punctuation omitted). See also Shiver v. Norfolk-Southern Ry., 269 Ga. 168, 169

(496 SE2d 903) (1998) (testimony is a statement made by a witness under oath or

affirmation).

      Testimony is contradictory if one part of the testimony asserts or
      expresses the opposite of another part of the testimony. The issue of
      whether a party-witness’s testimony is inconsistent is to be determined,
      not by individual words or phrases alone, but by the whole impression or
      effect of what has been said. Whether the testimony of a party is
      contradictory is a question for the trial judge to decide. Whenever the
      only evidence in support of a claim is the favorable portion of a party’s
      self-contradictory testimony, the other party is entitled to summary
      judgment. However, even where testimony is contradictory, if a
      reasonable explanation is offered for the contradiction, the testimony will
      not be construed against the party-witness. The burden rests upon the
      party giving the contradictory testimony to offer a reasonable

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      explanation, and whether this has been done is an issue of law for the trial
      judge.

Smith v. Six Flags Over Georgia II, 370 Ga. App. 778, 782-783 (2) (899 SE2d 315)

(2024) (citations and punctuation omitted). “We review [such] conclusions of law de

novo.” Pollard, supra at 875 (2) (a) (determination of whether a party-witness has

offered a reasonable explanation for self-contradictory testimony is an issue of law for

the trial judge that we review de novo).

      But in this case, we cannot conduct such a review because there is nothing in

the trial court’s ruling or elsewhere in the record to indicate that the court made the

requisite determinations of whether Persia’s deposition testimony was inconsistent

with his sworn statement, and if so, whether his explanation for any contradictory

testimony was reasonable. See Hudgens v. Broomberg, 262 Ga. 271 (416 SE2d 287)

(1992) (Prophecy rule concerning contradictory testimony applies to prior testimony

given in another case and not merely to testimony given in the current case).

Accordingly, the trial court’s summary judgment order must be vacated and the case

remanded with direction that the trial judge make these determinations before ruling

on the summary judgment motion. See Sikes v. Great Lakes Reinsurance (UK) PLC,

321 Ga. App. 136, 139 (741 SE2d 263) (2013) (vacating and remanding for the trial

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court to determine whether the self-contradictory testimony rule applied, where its

order was unclear as to whether it made any such determinations), overruled in part

on other grounds in Pollard, supra at 876 (2) (a) n. 5.

       4. Laches

       Bebe’s argues that the claim for a purchase money resulting trust is barred by

the doctrine of laches. See Davis v. Davis, 310 Ga. App. 512, 516 (713 SE2d 694)

(2011) (question of laches addressed to the sound discretion of the trial court, which

considers, among other things, the length of the delay, the sufficiency of the excuse,

and whether the defendant has shown prejudice). But Bebe’s has failed to show how

this issue was raised and that it was ruled on below. See Court of Appeals Rule 25 (a)

(5) (the appellant’s brief must identify how each enumerated error was preserved for

review by appropriate citations to the record). The trial court’s summary judgment

order contains no ruling on the issue of laches, so this argument presents nothing for

review. See Madison Retail Suwanee v. Orion Enterprises Sales & Svc., 309 Ga. App.

712, 717 (4) (711 SE2d 71) (2011) (this is a court for the correction of errors and it does

not consider matters which were not ruled on by the trial court); Trust Co. Bank v.




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Shaw, 182 Ga. App. 165, 167 (2) (355 SE2d 99) (1987) (issue of laches not considered

on appeal where no ruling by trial court).

       Judgment vacated and case remanded with direction. Mercier, C. J., and Rickman,

P. J., concur.




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