Coe and Payne Co. v. Foster & Kleiser, Inc.
| Citation | 366 S.E.2d 292,258 Ga. 161 |
| Decision Date | 07 April 1988 |
| Docket Number | No. 45371,45371 |
| Parties | COE AND PAYNE CO. v. FOSTER & KLEISER, INC. |
| Court | Georgia Supreme Court |
Steven J. Martin, D. Michael Sweetman, Grizzard, Simons & Martin, Atlanta, for Coe & Payne Co.
Stanley E. Foster, Arrington & Horne, P.C., Atlanta, for Foster & Kleiser, Inc.
Coe & Payne Company, a subcontractor, furnished labor and materials for improvements to real property owned by Foster & Kleiser, Inc. The general contractor subsequently was adjudicated a bankrupt. Within three months after completion of the work, Coe & Payne Company filed a lien against real property of Foster & Kleiser, Inc.
Within twelve months after the debt became due, Coe & Payne filed an action to foreclose its lien. By error, the foreclosure action was filed against Foster & Kleiser, Corp., not Foster & Kleiser, Inc. Upon discovering its error, and after the twelve month's statutory period expired, Coe & Payne moved to amend its complaint under the provisions of OCGA § 9-11-15 by substituting as defendant Foster & Kleiser, Inc., for Foster & Kleiser, Corp. The trial court allowed the amendment. Foster & Kleiser, Inc., then moved for judgment on the pleadings on the ground that no action to foreclose the lien had been initiated against it (i.e., Foster & Kleiser, Inc.) within the twelve-month period provided by OCGA § 44-14-361.1. The motion was denied, an appeal was taken to the Court of Appeals, and that court reversed. Foster & Kleiser, Inc. v. Coe & Payne Co., 185 Ga.App. 284, 363 S.E.2d 818 (1987). We granted certiorari to consider whether OCGA § 9-11-15(c), permitting amendments to "relate back" to the original filing, applies to actions to foreclose liens.
1. OCGA § 9-11-15(c) provides in part: "An amendment changing the party against whom a claim is asserted relates back to the date of the original pleading if the foregoing provisions are satisfied, and if within the period provided by law for commencing the action against him the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him."
2. It is plain that all the conditions of the code section were satisfied. The lien was filed against the proper party, Foster & Kleiser, Inc.; the same attorney represented both corporations; both corporations were owned by the same parent company; both corporations were listed with the Secretary of State with the same home office address in New Jersey; both corporations had the same agent for service; the same person served as vice-president for both corporations;...
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Health Horizons v. STATE FARM MUT. AUTO.
...& Kleiser, Inc. v. Coe & Payne Co., 185 Ga.App. 284, 286, 363 S.E.2d 818 (1987), rev'd on other grounds, Coe & Payne Co. v. Foster & Kleiser, Inc., 258 Ga. 161, 366 S.E.2d 292 (1988). Therefore, the trial court erred in dismissing the complaint in this Case No. A99A0991 Health Horizons file......
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L & W Supply Corp. v. Whaley Const. Co., Inc., A90A0767
...§ 44-14-361.1(a)(3). Foster & Kleiser v. Coe & Payne Co., 185 Ga.App. 284, 286, 363 S.E.2d 818 (1987), rev'd on other grounds, 258 Ga. 161, 366 S.E.2d 292 (1988); Allied Asphalt Co. v. Cumbie, 134 Ga.App. 960, 961(1), 216 S.E.2d 659 (1975). In both instances, the date from which the measure......
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Georgia North Contracting, Inc. v. Haney & Haney Const. & Management Corp.
... ... Compare Coe & ... Payne Co. v. Foster & Kleiser Co., 258 Ga. 161, 366 S.E.2d 292 (1988) (suit to foreclose lien may be ... ...
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Cook Sales, Inc. v. Concrete Enters., LLC.
...Inc. v. Coe & Payne Co. , 185 Ga. App. 284, 286, 363 S.E.2d 818 (1987) (reversed on other grounds by Coe & Payne Co. v. Foster & Kleiser, Inc. , 258 Ga. 161, 161, 366 S.E.2d 292 (1988) ) ("Commencement means more than mere filing of the action. There must also be service upon the proper def......
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No More "heads Defendants Win, Tails Plaintiffs Lose": How the Georgia Supreme Court's Relation Back Decision in Cannon Rebalances Pleading Power
...E.g., Foster & Kleiser, Inc. v. Coe & Payne Co., 185 Ga. App. 284, 285-86, 363 S.E.2d 818, 820 (1987), overruled on other grounds, 258 Ga. 161, 366 S.E.2d 292 (1988) (applying relation back precedent to an action to enforce a lien and noting that "[relation back analysis] appears in a varie......