Rich's, Inc. v. Snyder
Decision Date | 09 May 1975 |
Docket Number | No. 50386,No. 2,50386,2 |
Citation | 216 S.E.2d 648,134 Ga.App. 889 |
Parties | RICH'S, INC. v. Chrystol E. SNYDER |
Court | Georgia Court of Appeals |
Syllabus by the Court
An amendment to a complaint changing the party defendant relates back to the date of the original pleadings and prevents the statute of limitation bar provided the following requirements are satisfied: (1) the suit was commenced within the lawful period; (2) the claim arose out of the conduct, transaction, or occurrence contained in the original complaint; (3) the new defendant received such notice of the original filing of the action 'within the period provided by law for commencing the action against him', (4) that notice is such that he will not be prejudiced in maintaining his defense on the merits; and (5) the new defendant knew or should have known that, but for a mistake concerning the identify of the proper party, the action would have been brought against him. Code Ann. § 81A-115(c).
H. Sanders Carter, Jr., Atlanta, for appellant.
David L. Ross, Atlanta, for appellee.
On the last day before plaintiff's claim would have been barred by the two-year statute of limitation for personal injuries, plaintiff filed her suit naming Richway, Inc. as defendant. She alleged that on March 14, 1972, while shopping in defendant's store, she had sustained serious injuries and consequent medical expenditures when she had 'slipped and skidded on a piece of popcorn,' which foreign substance was allegedly due to defendant's negligence. The action was filed March 13, 1974, with service being made two days later, March 15th.
Richway, Inc. filed its answer along with a summary judgment motion based upon the ground that Richway, Inc. did not own, operate and control the store in which the accident occurred. Thereupon, on May 13, 1974, plaintiff amended her complaint by striking Richway, Inc. and substituting 'Rich's, Inc. d/b/a Richway, Inc.' as defendant. The amendment recited that it was made under Code Ann. § 81A-115(c) and that all of its requirements had been met, 'in that this amended pleading arises out of the same transaction as set forth in the original complaint and the defendant had actual knowledge of said suit and is not prejudiced in any way in maintaining its defense on the merits.' It also stated 'defendant knew that but for a mistake concerning the identify of the proper party such action would have been brought against it.'
Rich's, Inc. filed a pleading denominated as 'Motion to Dismiss, or in the Alternative, Motion for Summary Judgment.' Therein Rich's, Inc. asserted plaintiff's complaint was barred as to it by the running of the statute of limitation inasmuch as the Amendment substituting it for Richway, Inc. was filed after the passage of two years. The attached affidavit disclosed that Rich's, Inc. was a Delaware Corporation authorized to do business in Georgia and Richway, Inc. was a Georgia Corporation. Both corporations had the same registered agent for service of process.
Discovery proceedings were instituted at the direction of the trial judge. The facts thereby developed that Rich's, Inc. owned all of the issued stock of Richway, Inc. with substantially the same executives, that Richway, Inc. did not own or operate any Richway Stores, 1 and therefore did not carry any liability insurance. Further facts shown were that the liability insurer for Rich's had been notified of the claim at the time of its occurrence and had contacted the plaintiff during which a nominal settlement had been offered.
The trial court granted summary judgment for Richway, Inc. and simultaneously denied the motion of Rich's, Inc. A certificate of immediate review authorizing this appeal was also allowed. Held:
1. The 1972 General Assembly amended our original Civil Practice Act to include those modifications which had been made by the 1966 changes in the Federal Rules of Civil Procedure. See 1972 Ga.L. 689. Among these legislative enactments was an addition to subsection (c) of section 15 dealing with the relation back of a pleading amendment changing parties.
As thus amended Code Ann. § 81A-115(c) reads as follows: (We have italicized the portion added by the 1972 amendment).
The facts of the instant case indicate the 1972 legislative change was tailored to fit a situation such as appears here and conforms to the five requirements stated in our headnote. When plaintiff amended her...
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