Miller v. U.S. Shelter Corp. of Delaware

• Decision Date: 03 June 1986
• Docket Number: No. 72159,72159
• Citation: 179 Ga.App. 469,347 S.E.2d 251
• Parties: MILLER v. U.S. SHELTER CORPORATION OF DELAWARE.
• Court: Georgia Court of Appeals

Page 251

347 S.E.2d 251

179 Ga.App. 469

MILLER v. U.S. SHELTER CORPORATION OF DELAWARE.

No. 72159.

Court of Appeals of Georgia.

June 3, 1986.

Rehearing Denied June 24, 1986.

Certiorari Denied Sept. 2, 1986.

Amanda F. Williams, Brunswick, for appellant.

Terry Readdick, Brunswick, B. Kaye Katz, Albany, for appellee.

CARLEY, Judge.

Appellant-plaintiff filed a complaint in which she sought to recover damages for personal injury. The style of the action named "U.S. Shelter Corp. of Delaware" as the defendant. (Emphasis supplied.) The body of the complaint contained the following: "COMES NOW the plaintiff, ... and files this her Complaint against the defendant, U.S. SHELTER CORP., and shows to the Court the following: .... The defendant, U.S. Shelter Corp., is a Delaware corporation doing business in the State of Georgia. Service may be had on its Registered Agent at C.T. Corporation Systems, 2 Peachtree St[r]eet, Atlanta, Georgia 30383. The defendant is and at all time[s] hereinafter mentioned was, the owner of an apartment complex located at 5700 Altama Avenue, in the City of Brunswick, County of Glynn, State of Georgia...."

On February 4, 1985, the complaint and summons were served by the deputy sheriff of Fulton County. According to the certificate of the deputy sheriff, he "served the defendant U.S. Shelter Corp. of Delaware[,] a corporation, by serving CT Corp[.] System by leaving a copy of the within and process with c/o [a named individual] at the office and place of doing business of said corporation, in Fulton County, Ga." (Emphasis supplied.) On the date of service, CT Corporation System mailed a letter addressed to appellant's attorney. In this letter, C T Corporation System stated: "We are returning to you herewith, [the] Summons and Complaint served in our office this date as registered agent for U.S. Shelter Corp. of Delaware. According to its records C T Corporation System is not the registered agent in Georgia for any corporation with that name. We have confirmed this information with the Secretary of State of Georgia...." (Emphasis supplied.)

No timely answer to appellant's complaint was ever filed and, in April of 1985, appellant moved for default judgment "against the defendant, U.S. Shelter Corporation...." Pursuant to OCGA § 9-11-55(a), the trial court sitting without a jury considered evidence introduced by appellant regarding her damages. On April 26, 1985, the trial court entered a default judgment in a specified amount in favor of appellant "and against defendant...."

Pursuant to OCGA § 9-11-69, appellant subsequently sought to depose the manager of the Brunswick apartment complex to which reference had been made in the complaint. The apartment manager was accompanied to the deposition by an attorney who stated for the record that he represented "U.S. Shelter Corporation." During the course of the deposition, counsel representing U.S. Shelter Corporation instructed the manager of the apartment complex "not to answer ... on the grounds that ... [the suit] purports to be ... against an entity called U.S. Shelter Corporation of Delaware and that is not the name of the corporation that [the manager] works for." (Emphasis supplied.)

Appellant then filed a motion seeking an order from the trial court compelling the apartment complex manager to respond to such questions as might be propounded to her on deposition. A response to appellant's motion to compel was filed by U.S. Shelter Corporation. That response was to the following effect: "Both the lawsuit by [appellant] and the judgment rendered upon that lawsuit are against an entity known as U.S. Shelter Corp. of Delaware. There has been no lawsuit filed on behalf of [appellant] against U.S. Shelter Corporation, nor has there been service on U.S. Shelter Corporation of any suit similarly styled. The judgment for which [appellant's] counsel is attempting to take discovery is against an entity known as U.S. Shelter Corp. of Delaware, not U.S. Shelter Corporation. Because no existing lawsuit nor valid judgment exists against U.S. Shelter Corporation and U.S. Shelter Corporation is not a party to this action, [appellant's] counsel has no grounds for taking the deposition of [the apartment complex manager] who is an employee of U.S. Shelter Corporation." (Emphasis supplied.)

Various documentary evidence which was filed in connection with appellant's motion to compel showed the following: "U.S. Shelter Corporation" is in fact the name of a corporation created under the laws of the State of Delaware. It is registered with the Secretary of State as a foreign corporation authorized to transact business in this State. The registered agent for "U.S. Shelter Corporation" on file with the Secretary of State is in fact C T Corporation System located at 2 Peachtree Street, N.W., Atlanta, Georgia, 30383. After the trial court conducted a hearing and considered the evidence, it entered an order which denied appellant's motion to compel. The trial court, however, certified its order for immediate review. Appellant applied to this court for an interlocutory appeal from the trial court's order. The instant appeal results from our grant of appellant's application.

1. The contention that the Delaware corporation named "U.S. Shelter Corporation" is not the party-defendant in appellant's action and not the proper debtor as to the default judgment entered therein is premised only upon the fact that both the style of appellant's complaint and the return of service, as evidenced by the deputy sheriff's certificate, refer to "U.S. Shelter Corp. of Delaware." In support of the contention that these factors preclude any enforcement of the default judgment against it, U.S. Shelter Corporation relies only upon cases which pre-date our Civil Practice Act. However, those cases are not applicable authority. It is "the liberal policies of the Civil Practice Act" which are controlling in the instant case. Block v. Voyager Life Ins. Co., 251 Ga. 162, 163, 303 S.E.2d 742 (1983). The trial court's order has the substantive effect, though not the literal form, of a determination to "set aside" the default judgment as an enforceable judgment against U.S. Shelter Corporation. Under our Civil Practice Act, the setting aside of a judgment "must be predicated upon some nonamendable defect which does appear upon the face of the record or pleadings...." OCGA § 9-11-60(d). Accordingly, resolution of the instant case is ultimately dependent upon whether U.S. Shelter Corporation can successfully invoke the provisions of OCGA § 9-11-60(d).

2. " 'Where the real defendant has been properly served, a plaintiff has the right to amend in order to correct a misnomer in the description of the defendant contained in the complaint. [Cits.] Correction of a misnomer involves no substitution of parties and does not add a new and distinct party. [Cit.]' [Cits.]" (Emphasis supplied.) Cunningham, Tallman etc., v. Case-Hoyte Color Printers, 174 Ga.App. 488, 330 S.E.2d 598 (1985). In the instant case, there is no question that "U.S. Shelter Corporation" is the real party-defendant in appellant's action. Compare Critz Buick, Inc. v. Aliotta, 145 Ga.App. 805, 806 (2), 245 S.E.2d 56 (1978). Although the words "of Delaware" follow the name of the defendant in the style of the action, " '[t]he courts have not attached too much importance to the mere formal parts of a petition....' [Cit.]" Mincey v. Stamper, 253 Ga. 301, 302, 319 S.E.2d 857 (1984). " 'It is an elementary rule of pleading that substance, not mere nomenclature, controls.' [Cit.]" Franklyn Gesner Fine Paintings v. Ketcham, 252 Ga. 537, 539, 314 S.E.2d 903 (1984). The previously quoted substantive parts of appellant's complaint clearly identify the defendant as "U.S. Shelter Corp., ... a Delaware corporation" and as an entity having a designated registered agent and with an interest in a specified apartment complex. The Delaware corporation that is in fact known as "U.S. Shelter Corporation" now opposes the deposing of one acknowledged as its employee-manager of that apartment complex but that corporation does not contest that it matches the description in the substantive portions of appellant's complaint in every particular. Thus, the style of the action evinces no more than a mere misnomer. Such a mere misnomer is not a nonamendable defect. See generally Carroll v. Equico Lessors, 141 Ga.App. 279(1), 233 S.E.2d 255 (1977). Compare Harrell v. Bank of the South, 174 Ga.App. 384, 330 S.E.2d 147 (1985). "[A] mere 'misnomer of a corporation ... in a judicial proceeding is not material or vital in its consequences, if the identity of the corporation intended is clear....' [Cits.]" (Emphasis in original.) Hawkins v. Turner, 166 Ga.App. 50, 51-52, 303 S.E.2d 164 (1983).

3. The decisive question is whether ...