Leary v. Perdue Farms, Inc.

• Decision Date: 22 March 2021
• Docket Number: A21A0289
• Citation: 856 S.E.2d 772
• Parties: LEARY v. PERDUE FARMS, INC.
• Court: Georgia Court of Appeals

856 S.E.2d 772

LEARY
v.
PERDUE FARMS, INC.

A21A0289

Court of Appeals of Georgia.

March 22, 2021

856 S.E.2d 773

Paul Reginald Ayerbe, Macon, for Appellant.

James H. Fisher II, Tiffany Renee Winks, Caroline Anne Jozefczyk, Atlanta, for Appellee.

Mercier, Judge.

In this personal injury action, Troy Leary appeals from the trial court's grant of summary judgment to Perdue Farms, Inc. ("Perdue Farms"), and the denial of his motion to amend his complaint to substitute Perdue Foods, LLC ("Perdue Foods") as a party defendant. For the following reasons, we affirm the trial court's grant of summary judgment to Perdue Farms, but reverse the denial of Leary's motion to amend, and we remand this case for further proceedings.

Leary alleged that on November 2, 2017, Zachary Lewis was driving a vehicle owned by Perdue Farms when he rear-ended the vehicle Leary was driving, injuring Leary and damaging his vehicle. After apparently filing a claim with Perdue Farms, Leary's counsel received a letter, dated May 28, 2019, from a "casualty general adjuster" with Broadspire Services, Inc., acknowledging his claim and requesting certain information from Leary. The letter stated that Broadspire was the claims administrator handling claims for Perdue Farms and its subsidiaries.

On October 11, 2019, Leary filed a complaint for damages against Perdue Farms, Lewis, John Doe, and John Doe, Inc. He alleged that at the time of the collision, Lewis was employed by Perdue Farms, and that therefore any negligence on the part of Lewis was imputable to Perdue Farms under the doctrine of respondeat superior. Lewis answered the complaint, and generally denied the allegations. Perdue Farms also answered the complaint, denied the allegations, and asserted as a defense that it was not a proper party to the action.

On December 11, 2019, Perdue Farms filed a motion to dismiss Leary's complaint on the ground that Leary failed to state a claim for which relief could be granted. Perdue Farms attached to its motion the affidavit of its senior risk manager, who averred that Lewis "is not an employee of Perdue Farms, Inc." and "was not an employee of Perdue Farms, Inc. on November 2, 2017." In January, 2020, the trial court notified the parties that because Perdue Farms submitted evidence in support of its motion to dismiss, the motion was "tantamount to a motion for summary judgment. OCGA § 9-11-12 (b)," that Leary would have until May 22, 2020 to respond to the motion, and that "discovery shall proceed as contemplated under the law."

In February 2020, Lewis was deposed and stated that he was employed by Perdue Foods at the time of collision. About a month later, on March 31, 2020, Leary filed a motion to amend his complaint to substitute "Perdue Foods, LLC as a party defendant, in place of its corporate affiliate, and original Defendant, Perdue Farms, Inc." Leary asserted that based upon information obtained through discovery and subsequent pleadings, he determined that Perdue Foods, rather than Perdue Farms, was Lewis’ employer and the owner of the vehicle Lewis was driving at the time of the collision. In his May 2020 response to Perdue Farms’ motion to dismiss, Leary argued that the motion should be denied as moot upon substitution of Perdue Foods in the place of Perdue Farms.

Without holding a hearing, on May 29, 2020, the trial court granted Perdue Farms summary judgment, finding that since Leary "declared the motion ‘moot’ because he no longer claims that Perdue Farms was Lewis’ employer, ... [he] ... has admitted ... he can present no evidence sufficient to raise a genuine issue of fact to supporting his claim against Perdue Farms." The court also denied

856 S.E.2d 774

Leary's motion to amend his complaint to substitute Perdue Foods as a defendant. The court concluded that because Leary failed to show that Perdue Foods received notice of the lawsuit within the statute of limitations,¹ the proposed amendment cannot relate back to the original date of filing. Leary now appeals from these rulings.

1. Leary first asserts that the trial court erred in granting Perdue Farms summary judgment because he introduced evidence showing that Perdue Farms was Lewis’ employer, and thus a proper party defendant. However, because Leary conceded below that Lewis was employed by Perdue Foods at the time of the collision, and he cannot now argue that an issue of fact exists concerning whether Lewis was employed by Perdue Farms. See generally Georgia-Pacific v. Fields , 293 Ga. 499, 501 (1), 748 S.E.2d 407 (2013) (admissions or allegations appearing in pleadings are treated as admissions in judicio and conclusive of the facts contains therein); Kensington Partners v. Beal Bank Nev. , 311 Ga. App. 196, 196 (1), 715 S.E.2d 491 (2011) ("It is well established that a party may make admissions in judicio in their pleadings, motions and briefs.[Cit.]").

2. Leary asserts that the trial court erred in denying his motion for leave to substitute Perdue Foods as the defendant because he satisfied the requirements for relation back under OCGA § 9-11-15 (c)....