Marwede v. Eqr/Lincoln Ltd. Partnership

• Decision Date: 05 March 2007
• Docket Number: No. A06A2379.,A06A2379.
• Citation: 284 Ga. App. 404,643 S.E.2d 766
• Parties: MARWEDE v. EQR/LINCOLN LIMITED PARTNERSHIP.
• Court: Georgia Court of Appeals

284 Ga. App. 404

643 S.E.2d 766

MARWEDE v. EQR/LINCOLN LIMITED PARTNERSHIP.

No. A06A2379.

Court of Appeals of Georgia.

March 5, 2007.

Reconsideration Denied March 22, 2007.

William R. McCracken, Augusta, for appellant.

Thomas E. Magill and Jason Scott Nochimson, Atlanta, for appellee.

ADAMS, Judge.

In this personal injury action, which resulted in a defense verdict in favor of EQR/Lincoln Limited Partnership, plaintiff Katherine R. Marwede contends the trial court erred by opening default against EQR, by failing to rule as a matter of law that EQR's employee was operating within the scope of her employment at the time of the incident, and in charging the jury.

Construed in favor of the verdict, the relevant facts show that Mandy Mancini was employed by EQR, the managing agent for an apartment complex owned by L/G Gentry's Walk, LLC ("L/G"). Mancini's office was located on the premises, and she also lived in one of the apartments in the complex and received a rent reduction as a part of her job. But she was not required to live on site.

On Sunday afternoon, July 7, 2002, Mancini left work at the leasing office five or ten minutes before 6:00 p.m., the end of her work day, and drove the short distance to her apartment-home in her own car. She was off work and not planning to return. The leasing office was located in the "Clubhouse" of the complex, and her apartment was located two apartment buildings away, each of which had its own road or drive. She drove around the end of the building in which the Clubhouse was located, then past the first road on her left and the first apartment building, and then she began to turn into the road to her apartment building when she saw Marwede and slammed on her brakes. Marwede fell to the ground and was injured. The parties disputed whether Mancini's car actually struck Marwede.

Following a trial on Marwede's claims, the jury returned a special verdict finding that Mancini was not acting within the course and scope of her employment at the time of the incident.

1. Marwede first contends the trial court erred by opening a default judgment that had been entered against EQR. Marwede argues that EQR was required to file an answer in response to being added as a defendant to the action.

Marwede initially filed suit against two parties: L/G, the development owner, and Lincoln Property Company, who she believed to be the managing agent of the development. L/G and Lincoln jointly answered and therein asserted that Lincoln, a Texas corporation, was not the managing agent and that EQR, a Delaware limited partnership, was. Thereafter, the parties cooperated in obtaining a consent order dropping Lincoln from the suit and adding EQR in its place. Marwede, unable to obtain a waiver of service from EQR, then served EQR with a new summons, the original complaint, and an amendment to the complaint, in which the paragraph identifying the "Defendant Manager" was changed to indicate EQR.

EQR did not answer, and Marwede sought and obtained a default judgment on that ground. EQR later moved to open default, which the trial court granted on the ground that in accordance with Random Access v. Atlanta Datacom, 232 Ga.App. 269, 501 S.E.2d 610 (1998), EQR was not required to answer.

Generally, when a plaintiff sues the wrong party, he or she must seek an order of court pursuant to OCGA § 9-11-21 to drop the incorrect party and add the proper party:

Where ... a party seeks to add a new party by amendment ... [OCGA § 9-11-15(a)] must be read in pari materia with [OCGA § 9-11-21], which allows the dropping and adding of parties only "by order of the court on motion of any party."

(Emphasis omitted.) Clover Realty Co. v. Todd, 237 Ga. 821, 822, 229 S.E.2d 649 (1976). See also Foskey v. Vidalia City School, 258 Ga.App. 298, 300, 574 S.E.2d 367 (2002) (when plaintiff sues and serves the wrong corporate entity or person, an actual change in parties is required under the appropriate procedure).¹ And, except in the case of waiver, any new defendant added must be served with process: "`If a motion to add a party is granted, ... service of process must be made in the usual way ....' (Cits.)" Stone Mountain Aviation v. Rollins Leasing Corp., 174 Ga.App. 35, 36(2), 329 S.E.2d 247 (1985).

But an answer is not required in response to an amended pleading unless ordered by the court. OCGA § 9-11-15(a). This rule applies when a party is added by amendment to an existing suit. Random Access, 232 Ga.App. at 270, 501 S.E.2d 610. See also Chan v. W-East Trading Corp., 199 Ga.App. 76, 79(5), 403 S.E.2d 840 (1991) ("the Civil Practice Act authorizes the addition of parties, by order of the court, and ... an `amended complaint' effecting such an addition does not require a responsive pleading, unless the trial court orders a reply thereto") (emphasis in original).

Marwede's reliance on Jesup Carpet Factory Outlet v. Ken Carpets of LaGrange, 142 Ga.App. 301, 235 S.E.2d 684 (1977), is misplaced. That case represents a different situation—in which an answer by a new defendant is required—that occurs when the plaintiff has initially sued and served only one defendant who turns out to be the wrong party. In that instance, when the correct defendant is substituted for the incorrectly named defendant and served (or waives service), the substituted defendant is required to file an answer even though not ordered to do so by the court. See id. at 302(1), 235 S.E.2d 684 (substituted defendant could not rely on the original defendant's answer because they were two separate legal entities). This is so because in cases where a single named party defendant is wrongly sued then dropped, there is no answer at all and no continuity to the pending lawsuit. See generally Pendley v. Hunter, 138 Ga.App. 864, 865(1), 227 S.E.2d 857 (1976). "Such is not the case where there are multiple defendants. When one is dropped as a party defendant, the suit continues against the remaining defendant(s). Additional defendants may then be added pursuant to [OCGA §§ 9-11-19; 9-11-20; 9-11-21]." Id.²

In this case, Marwede sued two parties but substituted only one.³ Accordingly, EQR was not required to file an answer absent an order by the court to do so and was therefore not in default. Random Access, 232 Ga.App. at 270, 501 S.E.2d 610; Chan, 199 Ga.App. at 79, 403 S.E.2d 840. Thus, as the trial court correctly found, "a proper case has been made for the default to be opened...." OCGA § 9-11-55(b), and the trial court did not abuse its discretion in so doing. See Wright v. Mann, 271 Ga.App. 832, 611 S.E.2d 118 (2005).

2. Marwede next contends the trial court failed to direct a verdict and rule as a matter of law that Mancini was operating within the scope of her employment at the time of the incident because it occurred during her egress from her job while on premises managed by EQR. "A directed verdict is authorized only when there is no conflict in the evidence on any material issue and the evidence introduced, with all reasonable deductions, demands a particular verdict." (Footnote omitted.) H.J. Russell & Co. v. Jones, 250 Ga.App. 28, 28-29, 550 S.E.2d 450 (2001).

"When a servant causes an injury to another, the test to determine if the master is liable is whether or not the servant was at the time of the injury acting within the scope of his employment and on the business of the master. [Cits.]" Allen Kane's Major Dodge v. Barnes, 243 Ga. 776, 777, 257 S.E.2d 186 (1979). And the question is for determination by the jury "except in plain and indisputable cases." West Point Pepperell v. Knowles, 132 Ga.App. 253, 256(1)(a), 208 S.E.2d 17 (1974).

With certain exceptions, "`an employee is deemed to act only for his own purposes while commuting to [or from] work.' [Cit.]" Betsill v. Scale Systems, 269 Ga.App. 393, 395, 604 S.E.2d 265 (2004). One exception—at issue here—is that "`the period of employment generally includes a reasonable time for ingress to and egress from the place of work, while on the employer's premises.'" United States Cas. Co. v. Russell, 98 Ga.App. 181, 182, 105 S.E.2d 378 (1958). In this regard, it has been said that this exception is "predicated on the rationale that until the employee has actually departed the premises, he has not `started traveling a route of his choosing wholly disconnected with his employment.' [Cit.]" (Punctuation omitted.) Southern Bell Tel. & etc. Co. v. Conyers Toyota, 190 Ga.App. 792, 793, 380 S.E.2d 296 (1989) (also describing overlap between the laws of negligence and workers' compensation on this point).⁴ But this last statement should not be misread to alter the true meaning of the ingress and egress rule quoted above.

Marwede contends this last statement means that an employee who is on property owned, managed, or operated by her employer is acting within the scope of employment as a matter of law. We disagree. The statement, first found in Conyers Toyota, was formulated from language found in Fed. Ins. Co. v. Coram, 95 Ga.App. 622, 624, 98 S.E.2d 214 (1957). See Conyers Toyota, 190 Ga. App. at 793, 380 S.E.2d 296. In Coram, an employee was departing work and was walking across employer property to a parking lot located on the employer's premises. Coram, 95 Ga.App. at 623, 98 S.E.2d 214. This Court distinguished ingress and egress cases by noting that the employee in Coram "had not yet departed from the employer's premises and started traveling a route of her choosing wholly disconnected with her employment." Id. at 624, 98 S.E.2d 214. By reading the entire case, however, it is easy to see that this Court did not intend to create a bright-line rule as Marwede contends.

For instance, in deciding that the employee was still within the scope of her duties, this Court distinguished "rest period" and "lunch hour" cases because, even though the employee might be on the employer's premises, such time was taken for the employee's personal benefit. Coram, 95 Ga.App. at 624, 98 S.E.2d...