Foskey v. Vidalia City School

• Decision Date: 07 November 2002
• Docket Number: No. A02A1850.,A02A1850.
• Citation: 258 Ga. App. 298,574 S.E.2d 367
• Parties: FOSKEY v. VIDALIA CITY SCHOOL.
• Court: Georgia Court of Appeals

574 S.E.2d 367

258 Ga. App. 298

FOSKEY v. VIDALIA CITY SCHOOL.

No. A02A1850.

Court of Appeals of Georgia.

November 7, 2002.

M. Francis Stubbs, Reidsville, for appellant.

John T. Croley, Jr., Fitzgerald, for appellee.

ELDRIDGE, Judge.

On April 15, 1998, Oris Joseph Reed, a school bus driver for the Vidalia School District, in operating his bus in Vidalia, Toombs County, caused Joyce Foskey to skid into a curb. On August 13, 1999, Foskey sued Reed in Montgomery County Superior Court, the county of his residence, and a non legal entity, the Vidalia City School.

The defendants answered, raising official immunity, the lack of legal entity of the employer, and service as defenses. Foskey had sought to serve the Vidalia City School by making constructive service upon Reed as its agent; the Vidalia City School District, the correct legal entity, raised service defenses and issues as to the wrong party having been sued. Foskey amended her complaint as a misnomer to name the Vidalia City School Board as the employer-defendant, and the employer again answered, raising service as a defense and denying that it was a corporate entity, and it pled again that the Vidalia City School District was the correct legal entity. On January 19, 2000, Foskey had Mayor Ronnie Dixon of the City of Vidalia served for the Vidalia City School Board. On October 4, 2000, Foskey amended the complaint yet again to correct an alleged misnomer to finally name the Vidalia City School District as defendant. On November 27, 2000, the Montgomery County Superior Court entered an order dismissing Reed, based on official immunity, and transferred the case against the Vidalia City School District to Toombs County Superior Court. On February 27, 2002, the Superior Court of Toombs County entered an order dismissing the complaint against the Vidalia City School District, because the defendant had never been substituted as a new party by court order and served within the statute of limitation. Finding no merit to the appeal from this order, we affirm.

Foskey contends that the trial court erred in dismissing her complaint against the Vidalia City School District for failure to obtain an order substituting parties but instead amended her complaint to correct the misnomer that the Vidalia City School was the defendant.

a. Under OCGA § 9-10-132, misnomers are to be corrected by motion and court order:

All misnomers, whether in the Christian name or surname, made in writs, pleadings, or other ... judicial proceedings, shall, on motion, be amended and corrected instanter without working unnecessary delay to the party making the same.

Ga. Laws 1850, Cobb's 1851 Digest, p. 493; reenacted Code 1863, § 3413; Code 1868, § 3433; Code 1873, § 3483; Code 1882, § 3483; Civil Code 1895, § 5102; Civil Code 1910, § 5686; Code 1933, § 81-1206. To the extent that the Civil Practice Act, OCGA § 9-11-15, conflicts with OCGA § 9-10-132, the older statute must yield to the more recent statute as the latest expression of legislative intent; thus, now when a misnomer occurs, such misnomer may be corrected by amendment rather than court order when the correct defendant was served but its name is incorrectly pled. See U.S. Xpress v. W. Timothy Askew & Co., 194 Ga.App. 730, 731, 391 S.E.2d 707 (1990). However, what constitutes a misnomer is defined under OCGA § 9-10-132, which is a broader statute. Id. at 731, 391 S.E.2d 707.

A motion to correct a scrivener's error can be made at any time prior to judgment and even after judgment and shall be granted by the trial court. Weaver v. Bowers, 218 Ga.App. 724, 725, 463 S.E.2d 50 (1995); Smith v. Hartrampf, 105 Ga.App. 40, 43, 123 S.E.2d 417 (1961).

"Christian name" under the Act includes the name given to a corporation. Robinson v. Reward Ceramic Color Mfg., 120 Ga.App. 380, 381(2), 170 S.E.2d 724 (1969). When a person has been sued in their trade name, this misnomer may be corrected to sue in their real or true name; however, the amendment cannot state a new cause of action or introduce a new party to the suit. Hudgins Contracting Co. v. Redmond, 178 Ga. 317, 318(2), 173 S.E. 135 (1934). Thus, an amendment that seeks to correct the name of the right party sued shall be permitted, but if a new party on the record is brought into the suit, then such substitution should be refused. Bell v. Ayers, 82 Ga.App. 92, 96-97, 60 S.E.2d 523 (1950). Where the wrong corporation has been sued and served, the amendment to correct a misnomer cannot substitute unconnected parties. McGowans v. Speed Oil Co., 94 Ga.App. 35(1), 93 S.E.2d 597 (1956), overruled on other grounds, Franklyn Gesner Fine Paintings v. Ketcham, 252 Ga. 537, 540, 314 S.E.2d 903 (1984) (sued and served the sole owner and officer of closely held corporation and substituted subsequently the corporation for him); see also Pacific Nat. Fire Ins. Co. v. Cummins Diesel of Ga., 213 Ga. 4, 7-8(3), 96 S.E.2d 881 (1957). Where the correct corporate defendant has been served but called by the wrong name, it is not error to allow the name to be corrected to set out the true corporate name. Knight's Pharmacy Co. v. McCall, 181 Ga. 617, 618(1), 183 S.E. 497 (1936).

Where the real defendant was properly served or acknowledged service, an amendment to correct a misnomer to set forth the correct identity of this defendant is not a change of parties requiring a court order, but a correction of a misnomer, even if the statute of limitation has run. Northgate Village Apts. v. Smith, 207 Ga.App. 479, 481(2), 428 S.E.2d 381 (1993); London Iron &c. Co. v. Logan, 133 Ga.App. 692, 695-696(2), 212 S.E.2d 21 (1975). Where the defendant can show no harm, the correction of a misnomer, even of another legal entity's correct name, is not an abuse of discretion. Kelley v. RS&H of North Carolina, 197 Ga. App. 236, 238(2), 398 S.E.2d 213 (1990). The correction of a misnomer applies only when there is no change of parties and does not add a new and distinct party, which had not been previously served in the case. Khawaja v. Lane Co., 239 Ga.App. 93, 94(1), 520 S.E.2d 1 (1999); Abbott v. Gill, 197 Ga.App. 245, 246, 398 S.E.2d 225 (1990). However, where there is an actual corporation by the same name as the alleged misnomer that was properly served in error instead of the correct defendant, who was not served, there is no simple correction of the name as a misnomer under OCGA § 9-10-132 but an actual change in parties, requiring the appropriate procedure, because the plaintiff has sued and served the wrong corporate entity or person and not served the right defendant under the wrong name. OCGA §§ 9-10-132; 9-11-15(c); 9-11-17; 9-11-21; Dollar Concrete Constr. Co. v. Watson, 207 Ga.App. 452, 453-454, 428 S.E.2d 379 (1993); accord U.S. Xpress v. W. Timothy Askew & Co., supra at 730, 391 S.E.2d 707; Pacific Nat. Fire Ins. Co. v. Cummins Diesel of Ga., supra at 4, hn. 3, 96 S.E.2d 881; Nelson v. Sing Oil Co., 122 Ga.App. 19, 21, 176 S.E.2d 227 (1970); Lamas Co. v. Baldwin, 120 Ga.App. 149, 150(1), 169 S.E.2d 638 (1969). However, where there has been actual service on the correct defendant but the defendant has been denominated by the wrong name in the pleadings, even if there exists another by such name, correction by amendment of this misnomer may be done, which does not constitute a substitution of parties. Franklyn Gesner Fine Paintings v. Ketcham, supra at 539-540, 314 S.E.2d 903; Block v. Voyager Life Ins. Co., 251 Ga. 162-163(1), 303 S.E.2d 742 (1983).

b. However, the above misnomer cases do not control herein, because the misnomer corrected by Foskey's first amendment changed Vidalia City School, not a legal entity, to Vidalia City School Board, real individual defendants, who acknowledged service but who still were the wrong defendants. Now with real defendants, but the wrong defendants, Foskey filed a second amendment to correct the same misnomer, and substituted without a court order Vidalia City School District, a new and different defendant, for the Vidalia City School Board defendants. When Foskey sued the Vidalia City School Board, the members acknowledged service for each member and raised an official immunity defense. Then, Foskey had in court as the defendants the individual school board members but still did not have the employer of Reed, the Vidalia City School District, which was a corporate body subject to suit. After the second amendment, Foskey did not obtain an order from the trial court to substitute as a party the Vidalia City School District for the individual members of the Vidalia City School Board, the governing body of the Vidalia City School District. See OCGA §§ 9-11-17; 9-11-21.

[A municipal] board of education, unlike the school district which it manages, is not a body corporate and does not have the capacity to sue or be sued.

(Citations omitted.) Cook v. Colquitt County Bd. of Ed., 261 Ga. 841, 412 S.E.2d 828 (1992); see also Hicks v. Walker County School Dist., 172 Ga.App. 428, 429(2), 323 S.E.2d 231 (1984). "Only if the legislature in creating the Board expressly gave it the power to sue ... is there an exception." (Citation omitted.) Tidwell v. Coweta County Bd. of Ed., 240 Ga.App. 55, 56(2), 521 S.E.2d 889 (1999). The board of education is not a political subdivision but is instead the governing body of the political subdivision. Hicks v. Walker County School Dist., supra at 429(2), 323 S.E.2d 231.

In 1906, the Vidalia City Board of Education was created as a separate legal entity from the City of Vidalia with power to sue on the security bond posted by its secretary and treasurer and to acquire, hold, and sell real property in its own name. See Ga. L.1906, pp. 1104, 1105-1106, §§ 3, 6. However, in 1986, the enabling act was amended and transferred all these powers from the Vidalia City Board of Education to the Vidalia City School District. See Ga. L. 1906, p. 1104; Ga. L. 1986, p. 4862; Ga. L. 1987, p. 4227. In 1986, the School District...