Ford v. Olympia Skate Center, Inc., A94A0324

• Decision Date: 22 June 1994
• Docket Number: No. A94A0324,A94A0324
• Citation: 213 Ga.App. 600,445 S.E.2d 362
• Parties: FORD v. OLYMPIA SKATE CENTER, INC.
• Court: Georgia Court of Appeals

Page 362

445 S.E.2d 362

213 Ga.App. 600

FORD v. OLYMPIA SKATE CENTER, INC.

No. A94A0324.

Court of Appeals of Georgia.

June 22, 1994.

Lucas & Associates, Ellis M. Nelson, for appellant.

Daniel E. Potter, O. Hale Almand, Jr., for appellee.

JOHNSON, Judge.

Charles Ford filed suit against Olympia Skate Center, Inc. for injuries he allegedly sustained on February 18, 1991, while rollerskating in a rink bearing the name "Olympia Skate Center." Ford filed this action on February 17, 1993, just before the statute of limitation expired. The personal secretary of the president of Olympia Skate Center, Inc. was served on February 18, 1993. On March 16, 1993, Olympia Skate Center, Inc. answered and moved to dismiss alleging that service was insufficient and that Olympia Skate Center, Inc. neither owns nor operates the skating facility where the injuries allegedly occurred. On April 16, 1993, while the motion to dismiss was pending, service of the complaint was made personally upon N. Henry Davis, the president of Olympia Skate Center, Inc. Olympia Skate Center, Inc. amended its motion to dismiss on June 9, 1993, and included an affidavit showing that the skating rink in question is in fact owned by Olympia Services, Inc. In the affidavit, Davis states that the two corporations are separate entities, though he admits that he serves as president of and owns stock in both corporations. On June 28, 1993, Ford filed a motion for leave of court to add Davis individually as a defendant claiming he is an indispensable party. On August 16, 1993, still prior to any ruling by the trial court, Ford moved for leave to amend to correct a corporate misnomer or in the alternative to add a proper party; specifically, Ford sought to add Olympia Services, Inc. as a party or to change Olympia Skate, Inc. to Olympia Services, Inc. The trial court entered an order granting Olympia Skate Center, Inc.'s motion to dismiss, holding that the complaint failed to state a claim upon which relief could be granted. The trial court found that service was proper and denied Olympia Skate Center Inc.'s motion to dismiss on that basis. The court also denied Ford's motion to add Davis as a party. Although the trial court made no express ruling on Ford's motion to add Olympia Services, Inc. as a party, it effectively denied the motion in granting Olympia Skate Center, Inc.'s motion to dismiss. Ford appeals.

1. Ford contends that the trial court should have allowed him to add Olympia Services, Inc. as a party pursuant to OCGA § 9-11-15. We agree. OCGA § 9-11-15(c) permits the addition of a new defendant and a relation back as to that new defendant if the amendment arises out of the same facts as the original complaint, the new defendant has sufficient notice of the action, and the new defendant knew or should have known that, but for a mistake concerning his identity as a proper party, the action would have been brought against him. Robinson v. Piggly Wiggly of Calhoun, 193 Ga.App. 675, 676, 388 S.E.2d 754 (1989); Trillium Nursing Home v. Thebaut, 189 Ga.App. 411, 375 S.E.2d 888 (1988). These requirements have been met in this case. First, the original complaint was served on the personal secretary of the man who served as president of both Olympia Skate Center, Inc. and Olympia Services, Inc. It was later served upon Davis himself. The trial court specifically found that Ford exercised due diligence and good faith in attempting service, such that any delay in service upon Davis was excusable. Therefore, arguably from the date of the original service upon Davis' secretary and certainly from the date of service directly upon Davis, Olympia Services, Inc. had actual notice of the action. Secondly, the amendment arises from the same facts as the original complaint. Thirdly, Olympia Services, Inc., through Davis, knew or should have known that, but for a mistake concerning its identity, the action would have been brought against it. Robinson, supra, 193 Ga.App. at 676, 388 S.E.2d 754; see Ciprotti v. United Inns, 209 Ga.App. 457, 458-459(4), 433 S.E.2d 585 (1993).

The instant case is quite different from those cases involving attempts to add new parties in which there was no service upon the corporation to be added. See, e.g., Dollar Concrete Constr. Co. v. Watson, 207 Ga.App. 452, 454, 428 S.E.2d 379 (1993). In this case, as in Robinson, supra, Olympia Skate Center, Inc. and Olympia Services, Inc. are closely intertwined. The corporations have the same president, stockholder(s), bookkeeper, and accountant. In Rich's, Inc. v. Snyder, 134 Ga.App. 889, 216 S.E.2d 648 (1975), we allowed the plaintiff to substitute Rich's, Inc. for Richway, Inc. since the registered agent for service for both corporations was the same and the liability carrier for Rich's, Inc. was already on notice regarding the incident. Robinson, supra, 193 Ga.App. at 677, 388 S.E.2d 754. It is important to note that those cases which disallowed the substitution or addition of a party where the party first named is in fact a legal entity, have been expressly...