Aircraft Radio Systems, Inc. v. Von Schlegell
| Decision Date | 07 September 1983 |
| Docket Number | No. 66568,66568 |
| Citation | 308 S.E.2d 211,168 Ga.App. 109 |
| Parties | AIRCRAFT RADIO SYSTEMS, INC. v. VON SCHLEGELL. |
| Court | Georgia Court of Appeals |
James F. Stovall III, Atlanta, for appellant.
Frank A. Lightmas, Jr., John K. Dunlap, Raymond S. Martin, Atlanta, Barry Staples, Laurie C. Davis, Marietta, for appellee.
Thirteen months after the original complaint was filed in this case, the plaintiff/appellant moved for and was granted permission to add the appellee as a party defendant. The appellee subsequently moved to be dismissed from the case on the ground that this delay was prejudicial, and the trial court granted the motion. The case is now before us pursuant to our grant of the appellant's application for interlocutory appeal.
The appellant, a corporation, filed suit on March 20, 1981, to recover damages from William A. Champion (one of the appellant's directors and former officers) and CVS Industries, contending that Champion had unlawfully diverted corporate funds to himself and CVS. CVS was described in the complaint as "an unincorporated association of William A. Champion and (first name unknown) Von Schlagel." Trust Company Bank was also named as a defendant, not because of any alleged misconduct, but for the purpose of freezing an account which CVS allegedly maintained there.
On April 15, 1981, a "suggestion of death" was filed with regard to Champion pursuant to § 25 of the CPA (OCGA § 9-11-25 (Code Ann. § 81A-125)), and on April 22, 1981, the appellant moved to substitute the administrator of Champion's estate as a party defendant. On April 27, 1981, the appellant further moved for, and was granted, permission to add Champion's widow as a party defendant, based on her own alleged participation in the alleged misappropriation of funds.
On June 26, 1981, the appellant took the deposition of Alfred von Schlegell, who was William Champion's former business partner in CVS Industries. Mr. von Schlegell was not represented by counsel at this time, and on January 3, 1982, he was killed in a private airplane accident. On April 13 of that year, the appellant moved to add the appellee, Susan von Schlegell, as a defendant, in her capacity as executrix of Mr. von Schlegell's estate. This motion was granted on August 20, 1982, without notice to the appellee.
After receiving service of process, Ms. von Schlegell filed a timely answer and simultaneously moved to be dismissed from the suit, contending that "[t]he delay on the part of [appellant] in filing its motion to add movant as a party defendant is unreasonable and has caused movant to be unduly prejudiced in that movant's counsel has had no opportunity to discuss [appellant's] contentions with said Alfred von Schlegell and will be unable to adequately prepare movant's defense to this action." The motion further alleged that "[p]laintiff has no reasonable excuse for the aforesaid delay in filing its motion to add movant as a party defendant." The trial court granted the motion, finding that "the lengthy delay in between the original filing of this action and the addition of von Schlegell as a party defendant, given the events which have occurred during that time and the current posture of the case, will work a substantial hardship on the defendant's ability to obtain the discovery necessary to maintain his (sic) defense, and that the defendant will be unduly prejudiced thereby." Held:
1. The appellant initially contends that the appellee was without standing to contest the amendment adding her as a party because she was not a party to the suit at the time permission was sought and obtained to file the amendment. This argument is at best specious. "Where, as was done here, there is no prior notice the proposed defendant may by defensive pleading filed in compliance with the statutory process attack the propriety of being brought into court." Humble Oil & etc. Co. v. Fulcher, 128 Ga.App. 606, 608-609, 197 S.E.2d 416 (1973).
2. In order...
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