Harding v. Godwin, A99A0698.

Decision Date03 June 1999
Docket NumberNo. A99A0698.,A99A0698.
Citation518 S.E.2d 910,238 Ga. App. 432
PartiesHARDING v. GODWIN et al.
CourtGeorgia Court of Appeals

OPINION TEXT STARTS HERE

Coleman, Talley, Newbern, Kurrie, Preston & Holland, Wade H. Coleman, Edward F. Preston, Valdosta, Clifton G. Spencer, Quitman, for appellant.

Ellerbee Law Firm, O. Wayne Ellerbee, Laurie L. Paterson, Saliba & Moore, George M. Saliba II, Valdosta, for appellees.

ANDREWS, Judge.

We granted this application for an interlocutory appeal of the trial court's order denying Dr. Susan Harding's motion to dismiss Melanie Godwin's complaint for medical malpractice. For the following reasons, we reverse.

This case arose after Melanie Godwin's husband Nicholas died of a heart attack approximately half an hour after leaving the emergency room at Brooks County Hospital. Ed Braswell, a paramedic, examined Nicholas Godwin and, according to Melanie Godwin's deposition testimony, told Nicholas that he could wait until tomorrow and see Dr. Harding.

Before they left the hospital, Ms. Godwin, who knew Dr. Harding, saw and called to her, asking Harding to take a look at Nicholas because she was still worried about him. Harding talked to Godwin in the hallway, asking him questions and palpating his chest. Dr. Harding told Godwin to take some antacid and see her or his regular doctor in the morning.

After Nicholas Godwin died of a heart attack shortly after leaving the emergency room, Melanie Godwin filed a complaint against the hospital on September 16, 1997, for wrongful death, pain and suffering, and medical and funeral expenses, alleging that Ed Braswell failed to properly assess her husband's condition and obtain treatment for him. On June 19, 1998, the day before the statute of limitation expired, Godwin filed an amended complaint against Dr. Harding. Godwin did not obtain leave of court before filing the amended complaint.

Harding filed a motion to dismiss on July 15, 1998, claiming Godwin had never obtained leave of court to add her as a party. On August 12, 1998, Godwin filed a motion to add Susan Harding as a party. The court granted Godwin's motion to amend on September 22, 1998. The court also found that although the two-year statute of limitation on Godwin's claims expired on June 20, 1998, her claim against Harding related back and was not time-barred.

When an amended complaint adds a defendant, the party seeking to amend under OCGA § 9-11-15 must seek leave of court as required by OCGA § 9-11-21. Clover Realty Co. v. Todd, 237 Ga. 821, 229 S.E.2d 649 (1976); Dollar Concrete Constr. Co. v. Watson, 207 Ga.App. 452, 428 S.E.2d 379 (1993). Therefore, because the amended complaint in this case was filed without leave of court, it was not effective to add Harding as a defendant. Clover, supra; Dollar Concrete, supra. Thus, unless Godwin could show that the amended complaint related back to the date of the original pleading, the claim against Harding was time-barred.

OCGA § 9-11-15(c) provides:

Whenever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back to the date of the original pleadings 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.

Thus, OCGA § 9-11-15(c) may authorize the addition of a new party defendant and a relation-back as to that defendant but only if all three of the following elements are satisfied: (1) the amendment adding the new defendant must arise out of the same facts as the original complaint; (2) the new defendant must have sufficient notice of the action; and (3) the new defendant knew or should have known that, but for a mistake concerning his identity as a proper party, that action would have been brought against him. Cobb v. Stephens, 186 Ga.App. 648, 649-650, ...

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11 cases
  • Sullivan v. Target Corp.
    • United States
    • U.S. District Court — Northern District of Georgia
    • April 1, 2020
    ...The proposed new defendant has the initial burden of showing that O.C.G.A. § 9-11-15(c) is inapplicable. Harding v. Godwin, 238 Ga. App. 432, 434, 518 S.E.2d 910 (1999). If the proposed new defendant meets that burden, the burden then shifts back to the plaintiff to show that it is applicab......
  • Oconee Cnty. v. Cannon
    • United States
    • Georgia Supreme Court
    • February 1, 2021
    ...Matara , 294 Ga. App. 776, 778 (2), 670 S.E.2d 480 (2008) ; Deleo , 244 Ga. App. at 684-685, 536 S.E.2d 569 ; Harding v. Godwin , 238 Ga. App. 432, 434-435, 518 S.E.2d 910 (1999). To the extent that these or other cases of the Court of Appeals have applied analysis inconsistent with what we......
  • Fontaine v. Home Depot, Inc.
    • United States
    • Georgia Court of Appeals
    • June 18, 2001
    ...Depot U.S.A. knew or should have known it would have been named a defendant but for a mistake by Fontaine. See Harding v. Godwin, 238 Ga.App. 432, 434, 518 S.E.2d 910 (1999). We agree that Fontaine's motion to amend meets the requirements of OCGA § 9-11-15(c). The record is factually simila......
  • Cannon v. Oconee Cnty.
    • United States
    • Georgia Court of Appeals
    • October 30, 2019
    ...denying plaintiff's motion to add two registered nurses to its action against their employer and a doctor); Harding v. Godwin , 238 Ga. App. 432, 434-435, 518 S.E.2d 910 (1999) (reversing trial court's denial of motion to dismiss because amendment adding doctor as a defendant to suit filed ......
  • Request a trial to view additional results
2 books & journal articles
  • No More "heads Defendants Win, Tails Plaintiffs Lose": How the Georgia Supreme Court's Relation Back Decision in Cannon Rebalances Pleading Power
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 73-5, July 2022
    • Invalid date
    ...(recounting the proposed defendant's knowledge in one paragraph and, two paragraphs later, considering the plaintiff's knowledge).63. 238 Ga. App. 432, 518 S.E.2d 910 (1999), disapproved of by Oconee Cnty. v. Cannon, 310 Ga. 728, 854 S.E.2d 531 (2021).64. Harding, 238 Ga. App. at 432-33, 51......
  • Legal Ethics - L. Ray Patterson and William P. Smith Iii
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 52-1, September 2000
    • Invalid date
    ...at 240 (citing O.C.G.A. Sec. 15-19-4(a) (1999 & Supp. 2000)). 58. Op. State Disciplinary Bd. of the State of Ga. 87-5 (1988). 59. 238 Ga. App. at 432, 519 S.E.2d at 241. 60. Id. 61. 240 Ga. App. 703, 524 S.E.2d 730 (1999). 62. Id. at 703, 524 S.E.2d at 731-32. 63. Id., 524 S.E.2d at 732. 64......

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